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G.R. No. 87236 February 8, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VICTOR TANEO y CAÑADA, alias OPAO, a certain BEBOT ESCOREAL and a certain ROY
CODILLA, accused.

The Solicitor General for plaintiff-appellee.

Vicente A. Torres & Mildred C. Duero, Quisumbing, Torres Quisumbing, Torres & Evangelista counsel de officio for
accused-appelant Roy Codilla.

DAVIDE, JR., J.:

The above-named accused were charged with the crime of Robbery with Homicide by Assistant City Fiscal Salvador
O. Solima of Cebu City in an Information  filed on 29 December 1986 with the Regional Trial Court (RTC) of Cebu,
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the accusatory portion of which reads:

That on or about the 22nd day of December, 1986, at about

5:30 p.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, conniving and confederating together and mutually helping with one another, armed
with bottle (sic) of beer grande and RC Cola, with deliberate intent and by means of force upon
things, to wit: by entering the inhabited house of one Herminia Sia y Sy and once inside, with intent
of gain and without the knowledge and consent of said Herminia Sia y Sy, the owner thereof, did
then and there take, steal and carry away the following:

one (1) sharp cassette valued at P 3,500.00

one (1) Denonet Karaoke valued at 7,000.00
one (1) Sony cassette recorder 1,000.00
Fifty (50) pcs. cassette tape 2,000.00
one (1) Casio calculator 100.00

—————

TOTAL P 13,600.00

valued in all (sic) at P13,600.00, belonging to said Herminia Sia y Sy, to the damage and prejudice
of the latter in the amount of P13,300.00, Philippine Currency; and with intent to kill, did then and
there attack, assault and use personal violence upon Linda (sic) Aglipa Robert, maid of Herminia Sia
y Sy, owner of the said house, who was the only person inside the house at that time, by hacking
said Linda (sic) Aglipa Robert with said bottle of beer grande and RC Cola at her head and face,
thereby inflicting upon her the following physical injuries:

CARDIO RESPIRATORY ARREST

MASSIVE PNEUMONIA BL
CEREBRAL CONTUSION
OPEN DEPRESSED COMMUNIATED FX FRONTAL
AREA (R) MULTIPLE LACERATIONS ON THE FACE

as a consequence of which said Linda (sic) Aglipa Robert died instantaneously.

CONTRARY TO LAW.

Only accused Victor Taneo y Cañada and Roy Codilla were apprehended. Accused Bebot Escoreal has remained
at large and an alias warrant for his arrest issued on 9 February 1987 had been returned unserved for the reason
that he is not known at the given address. 2

On 9 February 1987, Roy Codilla, assisted by counsel, entered a plea of not guilty while Victor Taneo voluntarily
pleaded guilty.  In view thereof, the trial court  issued an Order finding the latter guilty as charged and sentencing
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him to suffer the penalty of reclusion perpetua. The dispositive portion of the order reads:
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WHEREFORE, finding accused Victor Taneo y Cañada guilty beyond reasonable doubt of the crime
of Robbery with Homicide as charged and appreciating in his favor the mitigating circumstance of
plea of guilty, he is hereby sentenced to suffer RECLUSION PERPETUA.

It appearing that the articles stolen were recovered, no pronouncement as to indemnity. 5

Trial on the merits against Roy Codilla then ensued. The witnesses who testified for the prosecution were Dr.
Herminia Sia, accused Victor Taneo, Pat. Enrico Ministerio and Dr. Jaime Perez, and those who testified for the
defense were accused Roy Codilla, Police Cpl. Jovito Roa, Lolit Cabriana and Felicidad Pareño. The evidence for
the parties is summarized by the trial court as follows:

Dr. Herminia Sia, an Optometrist, is a resident of Saint Michael Village at Banilad, Cebu City. Her
clinic is located at Junguera Street, Cebu City. Two years ago, sometime in 1984 when she lost two
big cassette recorders in her residence, she decided to hire the services of a guard. A Sgt. Codinas
and an army man named Bros, recommended accused Roy Codilla to her.

Employed on a daily basis, accused Codilla spent most of his time in securing the Banilad residence.
There are (sic) times though that he would guard the Junguera clinic for a few hours. On one
occasion at the clinic, Codilla introduced to Dr. Sia Bebot Escoreal as his friend.

When Codilla started bringing his friends to the house of Dr. Sia, the latter felt peeved because
Codilla's friends were of questionable and suspicious-looking characters (sic). She was told by
Codilla that his companions were jeepney dispatchers in the downtown area. Not being at ease with
such situation, she fired Codilla.

Almost two years later, at 5:30 o'clock in the afternoon of December 22, 1986, Dr. Sia's neighbors
Nicky Padriga and Ricardo Ferrer went to her clinic and informed her that some persons who
burglarized her house were apprehended by them and that they brought the injured maid, Landa, to
a hospital.

At the Mabolo Police Station, she saw Victor Taneo, a young

boy — Arnel Go and Jose Robert — her houseboy and brother of her maid, Landa Robert. She
inquired from Jose why he was at the police station and the latter replied that after Taneo and Go
were arrested, he was brought along by the police for questioning. Jose further disclosed that he
was invited by Roy Codilla for a round of beer drinks at a small store behind Dr. Sia's residence and
that when he returned to the house, his sister was already injured. The young boy, Arnel, explained
that Roy invited him to go to Dr. Sia's house. Victor Taneo claimed that it was Roy Codilla who told
him to go along with him (Codilla) to the house of Dr. Sia to get some valuables, like cassette
recorders. She saw blood-stains inside her house splattered in the kitchen, on a beer bottle and on
the telephone set.

At the groundfloor of Perpetual Succour Hospital, the severely injured and bloody maid managed to
reveal to her (Dr. Sia) in the presence of Corazon Gonzales and Patrolman Lopez, that Roy Codilla
was the who (sic) struck her.

Co-accused Victor Taneo, alias Opao (Kalbo) testified that he is a jeepney dispatcher (barker).
Bebot Escoreal, another accused herein who has remained at large, is his long-time friend who is
also a barker at Juan Luna Street, Cebu City.

On December 22, 1986 at 11:00 o'clock in the morning, he saw Bebot Escoreal talking to a person.
He approached Escoreal and the latter introduced him to the person who turned out to be Roy
Codilla. After knowing each other, the conversation continued with Codilla saying that he (Codilla)
planned to rob the house of his former employer, Dr. Sia, as his revenge. Codilla then told him
(Taneo) to procure money to be used in entertaining Dr. Sia's houseboy, Jose Robert. They were
briefed by Codilla that in the house of Dr. Sia are a maid and houseboy. Codilla stated that after the
robbery has been pulled (sic), Codilla will bring them to Manila. With his P20.00, they, Codilla, Arnel
Go, Escoreal and himself, boarded a jeepney towards the place of Dr. Sia.

While houseboy Jose Robert and househelper Landa Robert were cleaning the yard, Codilla entered
the Sia premises for the purpose of inviting Jose Robert outside. Codilla told his companions to stay
behind at the corner street and to wait for his signal. Later, he saw Codilla placing his arm around
the shoulder of Jose proceeding towards the store where the houseboy was offered some drinks.
After the agreed signal of Codilla, placing his right hand on the right side of his head, they went
inside the house of Dr. Sia. Leaving behind Jose at the store, Codilla joined them. Escoreal stayed
outside as lookout. Once inside, Codilla boxed the maid hitting her in the midsection of the stomach.
The maid fell on the floor and Codilla ordered them to finish her off as she can identify them. He and
Codilla got coke bottles under the dining table and struck the maid on her forehead, head and
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mouth. They took from a room Sony (sic) Cassette Recorder, Sharp (sic) Cassette Recorder and
some tapes, while Arnel Go in another room, gathered some calculators.

Outside the house with the loot, Codilla directed him and Arnel Go to pass out one way while Codilla
and Escoreal will proceed to the main road. Along the way, he and Arnel were arrested and were
brought back to the house of Dr. Sia. There they saw the neighbors carrying the body of the maid
who was still alive and moaning. Later, the houseboy arrived.

In jail (BBRC) Codilla offered him P2,000.00 to save him (Codilla) because he has a wife and
children.

At the outset he refused, but the wife of Codilla forced him to receive the money with her plea that I
(sic) save her husband for the sake of their family. Every visit of the wife of Codilla to jail, he was
given money by Mrs. Codilla which totalled all in all P400.00. In Court, he pointed at the wife of
Codilla. His mother paid Roy Codilla P400.00 because she bulked (sic) at the idea of saving Codilla.
And even if he were given the promised sum of P2,000.00, he still would take the witness stand
considering that he landed in jail because of Codilla.

Arresting officer Rico Ministerio declared that in response to a phone call, he and some police
companions went to the house of Dr. Sia and took custody of Taneo and Arnel Go who were
captured en (sic) flagrante delicto by the civilians of St. Michael Village. The following day, they
arrested Roy Codilla at the Duty Free Shop at Lahug, Cebu City.

Dr. Jaime Perez testified that on December 22, 1986 he treated Landa Robert for multiple
lacerations in head (sic) and face caused by a blunt object. Five hours later, the patient died due to
compression (sic) of vital brain centers. He issued the corresponding death certificate (Exh. "A").

For the defense:

Police Cpl. Jovito Roa, a guard at BBRC testified that on November 23, 1987, he caught two
persons digging a tunnel at BBRC and one of them was Victor Taneo. Upon inquiry, Taneo told him
that actually Roy Codilla has nothing to do with the robbery-homicide in Dr. Sia's residence. He
cannot recall, though, who the other inmate was. Neither can he recall until now the name of the
BBRC investigator at that time. Taneo told him that the reason why he (Taneo) implicated Codilla
was because the complainant (referring to Dr. Sia) promised him P300.00 but only P200.00 was
given to him.

Accused Codilla, testified that in 1982 he was enlisted in the Philippine Army. He was discharged in
1984 fro (sic) having gone AWOL. In April 1984, he was hired by Dr. Sia as security guard of her
residence at St. Michael Village, Banilad, Cebu City. On May, 1985, Dr. Sia terminated his services.

He denied the charge that he and Taneo committed robbery-homicide in Sia (sic) residence at 5:30
p.m. of December 22, 1986 because on that day he was in the house of Jose Robert, his friend, who
just arrived from Manila and went home at 10:30 o'clock in the morning of said day, passing first in
his aunt's house at Camp Lapulapu..

He came to know co-accused Taneo only after he was arrested by the police on December 25,
1986.

During his employment as guard, he sleeps (sic) in the bedroom of Dr. Sia since there are two beds
— one for her and the other for him. Dr. Sia used to call him whenever she counts (sic) her money
and deposit (sic) them in the safe inside her room. There were two instances when she let him count
a sizeable sum of money. He has never taken any valuable thing from the Sia residence.

Dr. Sia instigated Taneo to implicate him because at one time that Dr. Sia hired somebody to lob a
grenade in the house of the wife of her boyfriend, he stopped her. (A picture of the alleged boyfriend
Eliezer Magdales was produced by him in Court Exh. "1"). That is the only reason why Dr. Sia
wanted him to be jailed.

On cross examination, he testified that while employed by Dr. Sia, he has (sic) good relations with
her. Dr. Sia even at times gave him T-shirts aside from his pay. Living in the Sia house are the
doctor herself, her four children, houseboy Jose Robert and maid Landa Robert. He was ordered by
Dr. Sia to throw a hand grenade at the house of her (Sia's) boyfriend which (sic) he relented. As a
result, she scolded him and then he left for Manila. In November, 1986, he returned to Cebu and
went to the house of Dr. Sia but houseboy Jose told him that the doctor was not there. On December
22, 1986, at 10:00 a.m. he returned to Dr. Sia's house to say hello because it was Christmas time
and besides, the houseboy invited him to a drinking spree. He found out that the persons in the Sia
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residence were only the houseboy Jose, maid Landa and Pableo, the water-gatherer. When he,
Jose and Pableo went to the liquor store, only the maid was left in the house. After partaking one
bottle of beer grande at 11:00 a.m. he proceeded to the house of his brother at Hipodromo where he
stayed until 4:00 p.m. From there he went home to Camputhaw, Lahug.

He meet (sic) co-accused Taneo only at the prison cell at Mabolo Police Station. There Taneo told
him that he (Taneo) does not know him. He only knew Bebot Escoreal. He was picked up by some
policemen near his home. Before his arrest, he did not know the arresting officers, thus, he has no
quarrel of misunderstanding with them.

Mrs. Lolit Cabriana, a volunteer worker in the jail ministry testified that she met Taneo in jail and he
told her that he killed the maid of Dr. Sia in St. Michael's Village at Talisay, Cebu using an empty
beer bottle. His companion at that time was only Bebot Escoreal. She knows Roy Codilla and she
asked him why he was in jail and the latter answered that he was not in the house of Dr. Sia when
the crime was committed. Codilla told her that he was then in his house at Lahug and in his brother's
house at Lahug and in his brother's house in Mandaue City.

Later, on cross-examination, she declared that for the four years of her missionary work in BBRC jail
she did not have an occasion to talk to Codilla because he is not under her bible class.

Felicidad Pareño of Camputhaw, Lahug, Cebu City testified that she is a neighbor of accused
Codilla. Her house is two houses away. Her closeness to the mother of Codilla is such that they treat
each other like sisters.

In the afternoon of December 22, 1986, she was in the Codilla residence for their prayer meeting
and she saw for the first time accused Codilla at past 4:00 o' clock that afternoon viewing TV in the
second floor of their house. She went home at about that time also and never saw Codilla anymore. 6

Giving full faith and credit to the prosecution's version of the incident, particularly to the testimonies of Dr. Sia, which
it describes to be straightforward, without hesitation and concise."  and that of Victor Taneo who "[V]ividly in
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detail, . . . disclosed how he met Codilla" and how the latter "laid his plan to 'hit' the house of his former employer for
revenge,"  and considering the statement given by Landa to Dr. Sia at the hospital — that she, Landa, was struck by
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Roy Codilla — as part of the res gestae,  the trial court, in its Decision dated and promulgated on 14 December
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1988,  found the accused Roy Codilla guilty beyond reasonable doubt of the crime charged. The dispositive portion
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of the decision reads:

WHEREFORE, finding accused Roy Codilla guilty beyond reasonable doubt of the crime of robbery
with homicide, he is hereby sentenced to suffer the penalty of reclusion perpetua, to indemnify jointly
and severally with accused Victor Taneo the heirs of the deceased Landa Robert the sum of
P30,000.00 and to pay the costs.

The Sentence on accused Taneo contained in the Order dated February 9, 1987 insofar as
indemnification is concerned is hereby modified.

SO ORDERED. 11

The trial court rejected Codilla's defense of alibi because his residence in barangay Camputhaw, the place where he
claims to have been at the time of
the robbery, "is only less than an hour by jeepney to the Sia residence in
Banilad . . . It was therefore not physically impossible for Codilla to be at the scene of the crime when the crime was
committed."   Moreover, Codilla was positively identified by Taneo who had no motive to perjure his testimony.
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Accused Roy Codilla, hereafter referred to as the Appellant, seasonably filed his Notice of Appeal,  manifesting
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therein that he is appealing the decision to the Court of Appeals. In view of the penalty imposed, the appeal should
have been elevated to this Court. On the other hand, for obvious reasons, accused Taneo did not interpose an
appeal.

The records of the case were erroneously transmitted to the Court of Appeals which, however, forwarded them to
this Court on 10 March 1989.  This Court accepted the appeal on 20 September 1989.
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In his brief, the appellant, through his counsel de officio  who were appointed as such by this Court due to the death
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of his counsel de parte,  submits the following assignment of errors:

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I. The Trial Court erred in considering the alleged statement of the victim, Landa Roberts (sic), as
part of the res gestae.
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II. The Trial Court erred in giving weight to the testimony of appellant's co-accused, Victor Taneo.

III. The Trial Court erred in declaring that accused-appellant's identity was established. 18

In support of the first assigned error, appellant claims that the alleged statement of Landa Robert could have been
made at least four (4) hours after the occurrence of the incident — a considerable lapse of time. Hence, per People
v. Roca,  it cannot be said that the declarant did not have the opportunity to concoct or contrive her statement.
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Neither can such statement qualify as a dying declaration because it does not concern the cause and surrounding
circumstances of the declarant's death and that at the time it was made, the declarant was not under the
consciousness of an impending death. As a matter of fact, it is doubtful if Landa did indeed make the statement
considering that as testified to by the doctor who had treated her, she had impaired consciousness; besides Mrs.
Sia's companions, one Corazon Gonzales and a policeman named Lopez, were not presented to corroborate Sia's
testimony.

Anent the second assigned error, appellant contends that in view of the first error and the inadmissibility of the
statement of Landa Robert, the prosecution was left with nothing save for the testimony of Victor Taneo which,
however, is weak and does not constitute sufficient basis for the appellant's conviction. In the first place, Taneo
admitted to Pat. Ministerio that he (Taneo) and Bebot Escoreal were the ones who manhandled the maid. Second,
Taneo's credibility as a witness is questionable; he had twice been apprehended for robbery under P.D. No. 532,
and had twice been prosecuted therefor in Criminal Case No. CBU-5871 and Criminal Case No. CBU-5881 before
Branches XVI and XIV of the Regional Trial Court of Cebu. Both cases, however, were dismissed on the ground of
failure to prosecute. Appellant then pontificates: "From a hardened soul like Victor Taneo's, it is very difficult to elicit
the
truth."  In addition thereto, appellant alleges that Taneo's testimony would indicate that the same was for sale as the
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latter claimed that he was asked by Roy Codilla to testify in his favor for the amount of P2,000.00, but that Codilla's
wife could only raise P400.00.

The third assigned error is premised on the assumption that the appellant's conviction is based solely on the bare
allegation of Mrs. Sia that the victim, Landa Robert, had identified Codilla as her mauler, and on the testimony of
Victor Taneo which, as claimed in the first and second assigned errors is inadmissible and weak. Appellant then
faults the prosecution for not presenting Jose Robert who could have attested to the appellant's presence and
participation in the crime or shed light on Taneo's claim that (a) the appellant went to the Sia house ahead of the
rest to distract Jose Robert's attention by inviting him to a drinking spree and (b) the appellant left Jose at the sari-
sari store and went back to Sia's house.

The appeal is devoid of merit.

At the outset, it is to be observed that at the bottom of the assigned errors is the issue of the credibility of witnesses
Herminia Sia and Victor Taneo. Deeply embedded in our jurisprudence and amply supported by an impressive array
of cases is the rule that when the issue of credibility of a witness is concerned, the appellate court will generally not
disturb the findings of the trial court, considering that the latter is in a better position to decide the question, having
heard the witness himself and observed his deportment and manner of testifying during the trial, unless certain facts
of substance and value had been plainly overlooked which, if considered, might affect the results of the case. 21

We have painstakingly examined the records of this case and the transcripts of stenographic notes of the
testimonies of the witnesses and find no cogent reason to disregard the rule and give way to the exception. The full
faith and credit given by the trial court to the testimonies of the Herminia Sia and Victor Taneo are supported by the
evidence. In fact, the tenor of the assigned errors and the arguments summoned to support them betray the
appellant's realization of the infirmity of his stand. Were it not for the gravity of the offense charged and the penalty
imposed, this conclusion could have written an early finis to the appeal. But then, We are called to squarely meet
the issues raised by the assigned errors.

1. The court a quo correctly considered the statement given by the victim, Landa Robert, to Herminia Sia as part of
the res gestae. Landa's declaration that it was the appellant who struck her was given while she was still at the
ground floor of the Perpetual Succour Hospital awaiting to be admitted for treatment. She was rushed to said
hospital immediately after the incident in question and was operated on for four (4) hours starting at 8:00 o'clock that
evening until 12:00 midnight. She died five (5) days later.

The following three (3) requisites must concur before evidence of the res gestae may be admitted: (1) the principal
act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had time to
contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending
circumstances. 22

In People vs. Ner,  this Court, speaking through Chief Justice Concepcion, held:
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. . . All that is required for the admissibility of a given statement as part of the res gestae, is that it be
made under the influence of a startling event witnessed by the person who made the
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declaration  before he had time to think and make up a story,  or to concoct or contrive a
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falsehood,  or to fabricate an account,  and without any undue influence in obtaining
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it,  aside from referring to the event in question or its immediate attending circumstances.
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The cases are not uniform as to the interval of time that should separate the occurence of the startling event from
the making of the declaration. What is important is that the declarations were voluntarily and spontaneously made
"so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were
made under such circumstances as necessarily to exclude the idea of design or deliberation . . ." 30

In the instant case, We find the interval of time between the robbery and the infliction of the injuries upon Landa
Robert, and her making of the statement, which the appellant claims to before (4) hours or more, to be sufficient and
adequate to bring such statement to be so nearly contemporaneous as to be in the presence of the transaction or
occurrence which it illustrated or explained. Landa was brought to the hospital where she made the statement
immediately after the commission of the crime. Given her condition at that time — she was hovering between life
and death — she could have hardly been expected to conjure up a story or concoct and contrive a falsehood by
falsely imputing upon the appellant responsibility for her injuries. There is as well no doubt that the principal act in
question was a startling occurrence upon which Landa's statement about her assailant relates to. In short, all the
requisites for the admission of such statement as part of the res gestae are present.

Appellants claim that Landa could not have uttered the incriminatory words because she had "impaired
consciousness," as testified to by the doctor, is pure speculation. She gave her statement while she was still
awaiting treatment in the hospital. There is no evidence on record to show that at the time she did so, she was in no
condition to speak, utter a word or answer questions. Moreover, appellant's counsel failed, on cross-examination, to
extract from the doctor any admission that "impaired consciousness" would include inability to speak or answer a
question, or that such a condition existed for some time before he had seen or examined the patient. Neither was
expert testimony introduced to prove that the injuries sustained by Landa rendered her unconscious upon their
infliction or sometime thereafter — specifically, when she had reached the hospital.

As to the appellant's insinuation that Mrs. Sia may have fabricated her testimony regarding Landa's statement,
suffice it to restate what We had said earlier: The full faith and credit accorded by the trial court to her testimony is
supported by the evidence and its observation of her demeanor. Declared the lower court:

The Court painstakingly scrutinized the testimonies of the witnesses of both sides including close
examination of the demeanor of those who took the stand.

The testimony of Dr. Sia was straightforward, without hesitation and concise. 31

While it may be true that Dr. Sia's companions, Corazon Gonzales and a policeman (a certain Lopez), could have
been presented to corroborate her testimony, such non-presentation did not affect the probative value of such
testimony for, as even the appellant candidly admits, the testimony of the companions could only be corroborative.
As such, therefore, their testimonies were properly dispensed with and their non-presentation did not imply
suppression of evidence and did not prove to be fatal to the prosecution's
case.   Besides, if the appellant was honestly convinced of the falsity of Sia's testimony and the fact that none of her
32

companions would corroborate her story, he should have availed of the compulsory process to have them produced
as his own witnesses, or even as hostile witnesses. 33

2. Appellant insists that Victor Taneo's credibility is questionable because the latter had earlier been charged in two
criminal cases for robbery; the former admits, however, that these cases were dismissed for failure to prosecute.
Section 20, Rule 130 of the Rules of Court provides that except as provided for in the succeeding sections, all
persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious
or political belief, interest in the outcome of the case or conviction of a crime unless otherwise provided by law, shall
not be a ground for disqualification. Clearly, the mere pendency of a criminal case against a person does not
disqualify him from becoming a witness. As a matter of fact, conviction of a crime does not disqualify such person
from being presented as a witness unless otherwise provided by law.  At his arraignment, Victor Taneo voluntarily
35

pleaded guilty to an information which charges conspiracy. He was not discharged as a state witness — a sure
guarantee of acquittal  — and he did not impute criminal responsibility solely on the appellant. Thus, if he were to
36

testify falsely against the latter, he must have been moved by a strong, improper and ulterior motive. That motive
must have been established; appellant failed to do so. In the absence of evidence to show any reason or motive
why witnesses for the prosecution should have testified falsely, the logical conclusion is that no improper motive
existed, and that their testimony is worthy of full faith and credit.
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3. Since the appellant had been identified, his defense of alibi must fail. It is a fundamental judicial dictum that the
defense of alibi cannot prevail over the positive identification of the accused. 38

The prosecution's failure to present Jose Robert — a fact capitalized upon by the appellant in his third assignment
of error — was not fatal. At best, Robert's testimony would have been merely corroborative.
7

Prescinding from all the foregoing, We find the appealed decision of the trial court to be in accordance with the facts
and applicable laws and jurisprudence. Except for the indemnity which is hereby increased from P30,000.00 to
P50,000.00 to conform with the present policy of this Court, the said decision must be affirmed.

WHEREFORE, the appealed decision of 14 December 1988 of Branch 10 of the Regional Trial Court of Cebu in
Criminal Case No. CBU-10135 is hereby AFFIRMED, subject to the above modification on the indemnity. As
modified, the indemnity is hereby increased to P50,000.00.

Costs against the appellant.

SO ORDERED.

Bidin, Romero and Melo, JJ., concur.

Gutierrez, J., is on leave.

[G.R. Nos. 85248-49. July 6, 1994.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SGT. JERRY BALANON, Accused-

Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT STAND IN THE FACE OF POSITIVE IDENTIFICATION
OF ACCUSED; CASE AT BAR. — Appellant’s alibi cannot stand in the fact of his clear and positive
identification by Acasio who, appellant even admitted, had no ill will to implicate him (Balanon) in the
crime. Moreover, there is not compelling reason to depart from the assessment of the credibility of
the witnesses made by the trial judge who, unlike the reviewing court, had the occasion and
opportunity to observe their demeanor and detect any badge of fabrication. But even granting
arguendo appellant’s claim to be true, this does not contradict the testimonies of other prosecution
witnesses that he shot the victims to death.

2. ID.; ID.; WITNESSES; DISQUALIFICATIONS; DRUNKENNESS AND CONVICTION OF A CRIME, NOT

GROUNDS THEREFOR; EXCEPTION; CASE AT BAR. — Appellant faults the trial court for giving
credence to the testimony of Acasio who was not only probably drunk, but was a convicted hijacker
and falsifier of public documents as well; hence, apt to fabricate his testimony. But, probability is not
evidence, and even if Acasio took alcohol, it does not follow that he was drunk. Moreover, a drunk
person is competent to testify on what he sees or experiences, however limited or hazy his
perception may be. In the same way, a hijacker or a falsifier is not necessarily a liar. Under the Rules
of Court, conviction of a crime, unless otherwise provided by law, shall not be a ground for
disqualification of witnesses.

3. ID.; ID.; CREDIBILITY OF WITNESSES; NOT AFFECTED BY TRIVIAL INCONSISTENCIES; CASE AT

BAR. — Appellant also discredits prosecution witness Elsa de la Cruz by highlighting her alleged
inconsistent statements, i.e., she allegedly averred that she got a close view of the accused when
she was still boarding the bus, but on cue from the prosecution, she said she was already on board
the bus. . . ., Ms. de la Cruz could be referring to two instances when accused came along to Ms.
Sinsuan, i.e., when the latter was already inside the bus and when she was still boarding the bus,
and the follow-up question of the prosecutor referred to the instance when the witnesses were still
boarding. But even if we consider as inconsistent this portion of Ms. de la Cruz’ testimony, this is too
trivial to affect their straightforward account of the shooting of the victims by Appellant.

4. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY; PRESENT WHERE VICTIMS WERE

UNEXPECTEDLY SHOT; CASE AT BAR. — The qualifying circumstance of treachery is not disputed
since the victims were suddenly shot, unexpectedly, and were not in a position to defend themselves.
While the victims were using their bare fists to settle their differences, the accused used a deadly
firearm to silence them.

DECISION
8

BELLOSILLO, J.:

On 3 November 1980, at about three o’clock in the afternoon, Roberto Laino and Gregorio Santillan,
both trustee inmates 1 of San Ramon Penal Farm, were exchanging fist blows along the national
highway in Labuan, Zamboanga City. Accused Sgt. Jerry Balanon, an enlisted man of the Philippine
Army assigned at the Southern Command Headquarters (SOUTHCOM), Camp Navarro, Calarian,
Zamboanga City, 2 was standing nearby. As the fight progressed, Sgt. Balanon left for a nearby
store.
chanrobles lawlibrary : rednad

Ms. Maria Luningning Sinsuan and Ms. Elsa de la Cruz, both teachers in the Labuan Barangay High
School were seated on a bench in the house of Alim Usman some three feet away from the road
waiting for a bus to take them to Zamboanga City. They were twenty to twenty-five meters away
from the protagonists. One of them shouted for help so Ms. Sinsuan went near to pacify them saying,
"Tama na yan." One of them retorted, "Alam mo Ma’am . . .," but was cut short when Balanon went
to Ms. Sinsuan, walked her five meters away and then told her not to interfere. Then he went back to
the two quarreling inmates, pulled a gun suddenly from his waist, and shot them one after another
twice. A fifth shot was supposedly fired but the trial court did not consider the same as it has not
been sufficiently established in the record. Fearing that Balanon was running amok, Ms. Sinsuan ran
back to where she was previously sitting. Ms. de la Cruz, who was then six months pregnant,
remained seated on the bench as the startling occurrence unfolded before them. The shaken tutors
then proceeded on their way to the City.

Later at six o’clock in the evening, Sgt. Balanon was picked up by some ten members of the 36th
Infantry Batallion in connection with the killing of Laino and Santillan. Subsequently, Balanon was
charged with murder on two counts, both qualified by evident premeditation and treachery.

Sgt. Balanon set up the defense of alibi and mistaken identity. He claimed he was "delivering
information to an intelligence community." cralaw virtua1aw library

On 31 October 1985, Judge Carlito A. Bibna of the Regional Trial Court of Zamboanga City, Br. 13,
convicted Sgt. Balanon of the crime charged qualified by treachery and sentenced him to two terms
of reclusion perpetua, to indemnify the heirs of the victims at P30,000.00 for each case, and to pay
the costs. As a detention prisoner, he was credited in full for the period of his detention. 3

The crux of the decision leaned on the credibility of witnesses —

As compared to the testimonies of the prosecution witnesses, particularly Luningning Sinsuan, Elsa
de la Cruz and Rogene Acasio who testified in straightforward, spontaneous and frank manner and
has answered consistently even on cross-examination, the vacillating and evasive answers of the
accused Sgt. Jerry Balanon during the course of his testimony does not inspire belief and reliability. 4

The aggravating circumstance of evident premeditation was not appreciated against Sgt. Balanon as"
[t]here is no evidence on record to show when the plan to kill the deceased-victims was hatched by
the accused . . ." 5

In the present recourse, Accused-appellant basically raises factual issues. He stresses his presence at
the SOUTHCOM headquarters in the morning of 3 November 1980, contrary to the testimony of
prosecution witness Rogene Acasio, also an inmate, that he was drinking liquor with Balanon and the
victims. Appellant’s alibi cannot stand in the fact of his clear and positive identification by Acasio
who, appellant even admitted, had no ill will to implicate him (Balanon) in the crime. Moreover, there
is not compelling reason to depart from the assessment of the credibility of the witnesses made by
the trial judge who, unlike the reviewing court, had the occasion and opportunity to observe their
demeanor and detect any badge of fabrication. But even granting arguendo appellant’s claim to be
true, this does not contradict the testimonies of other prosecution witnesses that he shot the victims
to death. chanrobles.com : virtual law library

Appellant faults the trial court for giving credence to the testimony of Acasio who was not only
probably drunk, but was a convicted hijacker and falsifier of public documents as well; hence, apt to
fabricate his testimony. But, probability is not evidence, and even if Acasio took alcohol, it does not
follow that he was drunk. Moreover, a drunk person is competent to testify on what he sees or
experiences, however limited or hazy his perception may be. In the same way, a hijacker or a
falsifier is not necessarily a liar. Under the Rules of Court, conviction of a crime, unless otherwise
provided by law, shall not be a ground for disqualification of witnesses. 6
9

Appellant’s assertion that the victims being prisoners could not have left the Penal Colony without the
permission of the warden, is completely irrelevant for they were admittedly shot and killed outside
the prison walls.

While appellant denies having ordered a certain handicraft product from Acasio, 7 by reason of which
Acasio claims to have known him, appellant nonetheless admits that most of the living-out prisoners
knew him there because he used to pass by that place. 8 The distinction sought to be made by
appellant is too trivial to affect the testimony of Acasio. After all, he (Balanon) does not deny that
Acasio knows him.

Appellant contends that he is not the assailant described by prosecution witness Sinsuan since he
does not have any wound or stitches 9 as confirmed by the prosecutor who "was not able to see any
scar" behind his ears. 10 It may be worth noting that —

. . . Sometimes in the course of time a scar may apparently disappear — that is to say, not be
noticeable to the casual observer — but it is always there, to be found by him who looks carefully. By
compressing the surface where the scar is suspected, so as to expel the blood supply and then
releasing it suddenly, the blood rushing back will generally show an old scar very plainly, where
before it could not be noticed. Thus also, where a person has been branded as well as where a scar
has become invisible, by slapping the part several times or by rubbing it, the scar or brand may be
made visible . . . Scars decrease in size after time in an adult, but increase in size in a child . . . 11

As observed by the Solicitor General: chanrob1es virtual 1aw library

. . . it was only in June 1985 that appellant showed his long-haired head for a cursory look, to the
prosecuting fiscal, or almost five (5) years after the commission on the crime. The Sworn Statement
of Mrs. Luningning Sinsuan was taken on November 18, 1980. Appellant was already under
investigation at the time. Why did he not claim at once that he had no scar, and instead alleged it for
the first time after almost five (5) years? Why did he not let a doctor examine his head and certify as
to the presence or absence of a scar? The answer is obvious, his scar would have been very obvious
at that time, even to an untrained eye. 12

In her Sworn Statement, Luningning simply described the assailant as "tall about 5’7" above,
medium or little slim, fair complexion, slit eyes, plain long hair (minus haircut along the wound with
stitches," 13 and nothing was categorically said about the location of the wound. Since Luningning
was describing appellant’s hair when she took exception to a then visible haircut bordering a wound,
said wound could have been on appellant’s pate or head which, when the prosecutor took a look
behind appellant’s ears, could have been hidden by his long hair. chanrobles.com:cralaw:red

But even granting arguendo that Luningning made incorrect statements about the wound, this pales
in comparison with her and De la Cruz’ positive identification of appellant on the stand.

Appellant also discredits prosecution witness Elsa de la Cruz by highlighting her alleged inconsistent
statements, i.e., she allegedly averred that she got a close view of the accused when she was still
boarding the bus, but on cue from the prosecution, she said she was already on board the bus, to
wit,

Q: . . . What was the basis for your identification of the accused Jerry Balanon?

A: I identified him because when we already boarded the bus with Mrs. Sinsuan he went near Mrs.
Sinsuan and Mrs. Sinsuan was stepping one step (on) the bus and he was very near Mrs. Sinsuan.

Asst. City Fiscal Yu: chanrob1es virtual 1aw library

Q: How far was he when you saw him when you were about to board the bus?

A: Very near.

Court: chanrob1es virtual 1aw library

Q: How many meters?

A: If Mrs. Sinsuan was stepping then I am at the back of Mrs. Sinsuan. 14

Ms. de la Cruz could be referring to two instances when accused came along to Ms. Sinsuan, i.e.,
10

when the latter was already inside the bus and when she was still boarding the bus, and the follow-
up question of the prosecutor referred to the instance when the witnesses were still boarding. But
even if we consider as inconsistent this portion of Ms. de la Cruz’ testimony, this is too trivial to affect
their straightforward account of the shooting of the victims by appellant. cralawnad

While it may be unnatural for a person who has just committed a grave felony to walk back and forth
and approach bystanders amiably instead of fleeing, criminal acts are aberrations and criminals are
not expected to act naturally, especially in this case where the crime was committed in front of
several witnesses.

Appellant tries to revitalize the testimony of defense witness Rolando Daño who claimed not to have
seen any teacher nor heard shots at the scene of the crime, which account the trial court disregarded
because he admitted that he did not know all the teachers of Labuan Barangay High School and that
he went to the scene only after the shooting was over. But appellant takes exception to the
damaging part of Daño’s testimony, especially the statement that he saw the accused Sgt. Jerry
Balanon coming out from the Orellano store in Labuan at three o’clock in the afternoon and stood
there akimbo, 15 explaining that Daño could not have been precise in stating the time because —

Sgt. Daño was not wearing a watch on that particular day. Hence, when he testified under oath that
he did not hear the shots . . . the only plausible explanation was that he was not in the vicinity of the
crime scene at the time the killings were committed. He only became aware of the crime after
everyone else in the locality knew of the same . . . Undoubtedly then, his estimate of the time that
he saw Balanon come out of the Orellano store was wrong. Yet the falsity of the testimony itself was
never established. He did in fact see Balanon at the scene after the crime was committed. This,
however, should not be used as a basis to totally discredit Balanon’s testimony. Balanon himself was
not wearing a watch on that day. Consequently, his estimate of the time he reached Labuan could
likewise be wrong. 16

Since the testimony of defense witness Daño did not do any good to appellant’s cause, the latter now
belabors to justify every unfavorable statement made by said witness. But even if we totally
disregard the statements of Daño, appellant himself, as pointed out by the Solicitor General,
admitted at one point that he left the SOUTHCOM at about one o’clock in the afternoon, 17 contrary
to his statement that he never left the SOUTHCOM until four-thirty in the afternoon. 18 Interestingly,
since appellant admitted that he and his witness Daño could not be expected to be precise in their
estimates of the time, it naturally follows that appellant could not also state with precision that at
about three o’clock that afternoon he was not at the scene of the crime. cralawnad

The qualifying circumstance of treachery is not disputed since the victims were suddenly shot,
unexpectedly, and were not in a position to defend themselves.

While the victims were using their bare fists to settle their differences, the accused used a deadly
firearm to silence them. Appellant’s guilt having been established beyond reasonable doubt, the
affirmance of his conviction is imperative.

WHEREFORE, the decision of the court a quo finding accused-appellant SGT. JERRY BALANON GUILTY
of Murder on two (2) counts qualified by treachery, and sentencing him to reclusion perpetua in each
case, and to pay the costs, is AFFIRMED with the modification that the indemnity for the death of
each victim is increased to P50,000.00, or a total of P100,000.00 for the two (2) victims, in
consonance with existing jurisprudence. Costs against Accused-Appellant. chanrobles law library

SO ORDERED.
11

G.R. No. 129667               July 31, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERIC BAID Y OMINTA, accused-appellant.

DECISION

MENDOZA, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 95, Quezon City, finding accused-appellant
1 

Eric Baid y Ominta guilty of the crime of rape against Nieva Garcia y Saban, a mental patient, and sentencing him to
suffer the penalty of reclusion perpetua and to pay the victim the amount of ₱50,000.00 as moral damages.
12

The information against accused-appellant, based on the complaint filed by the offended woman and her mother,
alleged -

That on or about the 22nd day of December 1996, in Quezon City, Philippines, the said accused by means of force
and intimidation, to wit: by then and there [willfully], unlawfully and feloniously undressing one NIEVA GARCIA y
SABAN, a mental patient suffering [from] schizophrenia and put himself on top of her, and thereafter have carnal
knowledge with the undersigned complainant against her will and without her consent.

CONTRARY TO LAW. 2

When arraigned, accused-appellant entered a plea of not guilty, whereupon trial of the case on the merits
proceeded.

The prosecution presented three witnesses, namely, the complainant, Dr. Herminigilda Salangad, the complainant's
attending psychiatrist, and Dr. Emmanuel Reyes, the medico-legal officer who examined the complainant.

Complainant is a 27-year old single woman, who was diagnosed as having suffered from schizophrenia since 1988.
In December 1996, she was confined at the Holy Spirit Clinic in Cubao, Quezon City because of a relapse of her
mental condition. On the other hand, accused-appellant was a nurse-aide of said clinic.
3 

On December 22, 1996, at around 3 a.m., accused-appellant sneaked into the patients' room. He woke the
complainant up and offered her a cigarette, at the same time touching her foot. Complainant took the cigarette. As
she smoked it, accused-appellant caressed her. Apparently, she was aroused, because she afterward removed her
pants. It turned out she was not wearing any underwear. Accused-appellant also removed his pants and the two had
sexual intercourse. Afterwards, they transferred under the bed and continued their sexual intercourse. Complainant
said she felt accused-appellant had an orgasm. A female patient who had been awakened tried to separate the two,
and, as she failed to do so, she went out to call the two nurses on duty. The nurses responded but, when they
arrived, accused-appellant had left, while complainant had already put on her pants.4

Complainant was brought later during the day before Dr. Emmanuel Reyes for medico-legal examination. She told
him what happened. Dr. Reyes reduced her narration of the incident into writing and then gave her a physical
5 

examination. His report stated: 6

FINDINGS:

GENERAL AND EXTRAGENITAL:

Fairly developed, and coherent female subject. Breasts are hemispherical with pale brown areola and nipples from
which secretions could be pressed. Abdomen is flabby and soft.

GENITAL:

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pale brown labia
minora presenting in between. On separating the same disclosed an abraided posterior fourchette and an elastic,
fleshy-type hymen with deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice offers moderate
resistance to the introduction of the examining finger and the virgin-sized speculum. Vaginal canal is wide with
flattened rugosities. Cervix is normal in size, color and consistency.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.

REMARKS:

Vaginal and peri-urethral smears are negative for gram negative diplococci and for spermatozoa.

Dr. Reyes said the fresh abrasion, located at 6 o'clock posterior of the complainant's genitalia, could have been
recently caused by a hard blunt object, such as an erect penis during sexual intercourse, or by the insertion of a
finger. Dr. Reyes found that complainant was suffering from mental illness and that she had lapses in the course of
her interview.7

Accused-appellant testified in his behalf. He stated that he had been a nurse-aide of the Holy Spirit Clinic since
September 18, 1995. His job was to watch the patients, especially when they become violent. He also fetched them
from their homes. He admitted that he knew the complainant but claimed he did not know the reason for her
13

confinement. He denied the allegations against him. He testified that, on the date and time referred to by the
complainant, he was asleep in the nurse-aide quarters located about ten meters from the room where complainant
was staying. He admitted, however, that to go to the patients' room, he did not have to pass by the nurses' station.
He said he knew that, at the time in question, there were two nurses on duty and ten patients in the room. He
described the patients' room as having an area of about eight by five square meters with wooden beds arranged
one foot apart from each other.8

Accused-appellant was questioned by the trial court. He testified that on December 22, 1996, he was on duty from 4
p.m. to 12 midnight. He was a stay-in nurse-aide of the clinic. He stated that the clinic consisted of two floors and
five rooms. The room where complainant and the other patients were staying and his quarters were both on the
ground floor of the building. He admitted that the clinic was for the mentally ill and that, as a nurse-aide, he was
supposed to know the status of every patient and his job was to watch them and pacify them whenever they become
violent. He said he was very well acquainted with the behavior of the patients considering the length of time he had
been working in the clinic. He claimed, however, that he did not specifically know from what ailment complainant
was suffering, but only that she was undergoing treatment because of mental deficiency. 9

On cross-examination, accused-appellant admitted that he knew it was prohibited to give cigarettes to patients. He
further admitted that, as a nurse-aide, he could enter the patients' room anytime to check their condition and see to
it that the lights were turned off when they were not needed. He further stated that he was not investigated by the
police when he was invited to their headquarters. 10

On June 20, 1997, the trial court rendered its decision, the dispositive portion of which reads:
11 

WHEREFORE, judgment is hereby rendered finding the accused Eric Baid y Ominta GUILTY beyond reasonable
doubt of the crime of rape defined in and penalized by Art. 335 of the Revised Penal Code, as amended by Rep. Act
7659, and hereby sentences the said accused to suffer the penalty of reclusion perpetua. The accused is further
ordered to indemnify the victim Nieva Garcia y Saban the amount of P50,000.00, as moral damages.

IT IS SO ORDERED.

Accused-appellant contends that the trial court erred in convicting him of rape. 12

Complainant is suffering from schizophrenia, a psychotic disorder of unknown etiology, characterized by disturbance
in thinking involving a distortion of the usual logical relations between ideas, a separation between the intellect and
the emotions so that the patient's feelings and his or her manifestations seem inappropriate to his or her life
situation, and a reduced tolerance for the stress of interpersonal relations so that the patient retreats from social
intercourse into his or her own fantasy life and commonly into delusions and hallucinations, and may, when
untreated or unsuccessfully treated, go on to marked deterioration or regression in his or her behavior though often
unaccompanied by further intellectual loss. The following are the symptoms of schizophrenia:
13 

A. Characteristic symptoms: Two (or more) of the following, each present for a significant portion of time
during a 1-month period (or less if successfully treated):

(1) delusions

(2) hallucinations

(3) disorganized speech (e.g., frequent derailment or incoherence)

(4) grossly disorganized or catatonic behavior

(5) negative symptoms, i.e., affective flattening, alogia, or avolition

Note: Only one criterion A symptom is required if delusions are bizarre or hallucinations consist of a voice
keeping up a running commentary on the person's behavior or thoughts, or two or more voices conversing
with each other.

B. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance,
one or more major areas of functioning such as work, interpersonal relations, or self-care are markedly
below the level achieved prior to the onset (or when the onset is in childhood or adolescence, failure to
achieve expected level of interpersonal, academic, or occupational achievement).

C. Duration: Continuous signs of the disturbance persist for at least 6 months. This 6-month period must
include at least 1 month of symptoms (or less if successfully treated) that meet criterion A (i.e., active-phase
symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual
periods, the signs of the disturbance may be manifested by only negative symptoms or two or more
14

symptoms listed in criterion A present in an attentuated form (e.g., odd beliefs, unusual perceptual
experiences).

D. Schizoaffective and mood disorder exclusion: Schizoaffective disorder and mood disorder with features
have been ruled out because either (1) no major depressive, manic, or mixed episodes have occurred
concurrently with the active-phase symptoms; or (2) if mood symptoms, their total duration has been brief
relative to the duration of the active and residual periods.

E. Substance/general medical condition exclusion: The disturbance is not due to the direct physiological
effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition.

F. Relationship to a pervasive developmental disorder: If there is a history of autistic disorder or another

pervasive developmental disorder, the additional diagnosis of schizophrenia is made only if prominent
delusions or hallucinations are also present for at least a month (or less if successfully treated).
14

Schizophrenia is classified into five subtypes, namely, paranoid, disorganized (hebephrenic), catatonic,
undifferentiated, and residual.15

Dr. Herminigilda Salangad, the complainant's attending psychiatrist and consultant at the Medical Center in
Muntinlupa, the Perpetual Help Medical Center, the Philippine National Police, and the Holy Spirit Clinic, was
presented as an expert witness. According to her, complainant was, at the time of the incident, suffering from an
undifferentiated type of schizophrenia, described as having the characteristic symptoms of schizophrenia but does
not fit the profile for paranoid, disorganized, or catatonic schizophrenia. Dr. Salangad stated that complainant
seemed to shift from one type of schizophrenia to another. Complainant was catatonic when she first treated her, a
situation where the patient shows waxy flexibility (e.g., when a limb is repositioned, that limb remains in that position
for a prolonged period of time as if the patient is made of wax), mutism or agitation, and the patient mimics words
and actions during examination. Later, complainant became paranoid, i.e., suspicious, hostile and aggressive. She
also manifested a behavior where she mumbled and smiled to herself. 16

It is contended that as complainant is a schizophrenic, her testimony should not have been given credence by the
trial court. It is argued that: (1) there were serious inconsistencies between her sworn statement and her testimony
in court; (2) the prosecution failed to present witnesses to corroborate her testimony; (3) complainant failed to
identify accused-appellant; (4) the results of the medico-legal examination were negative for spermatozoa; (5) the
healed lacerations showed that complainant had sexual intercourse seven days before the alleged incident; and (6)
the probability was that her allegations of rape were merely a product of her fantasy. 17

We disagree.

Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could
perceive and was capable of making known her perceptions to others. Her testimony indicates that she could
18 

understand questions particularly relating to the incident and could give responsive answers to them. Thus she
testified:

PROSECUTION: (to the witness)

Q Miss Nieva Garcia, are you still confined at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City?

A Not anymore, sir.

Q On December 22, 1996, do you know whether you are at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon
City?

A Yes, sir.

Q Why were you there, Miss Witness?

A My mother asked me if I want to be confined at the Holy Spirit Clinic and I chose to be confined at the Holy Spirit
because during that time, I was then taking my medicine.

Q At around three o'clock in the morning of December 22, 1996, do you know where were you?

A Yes, I was lying on the bed inside the Holy Spirit Clinic.

Q And while lying on the bed, inside the Holy Spirit Clinic, do you know what happened then, Miss Witness?
15

A At that time, there was a person shorter than the person (witness pointing to the person dressed in yellow t-shirt
whose name when asked, answered the name Eric Baid) and that person is smaller than the person inside the
courtroom was disturbing "kinakalabit" another person inside the room.

Q And what happened after that first man entered the room at the Holy Spirit Clinic?

A The girl was trying to avoid the other person because at that time, the accused Eric Baid was entering the room.

Q And what happened after Eric Baid entered the room?

A When Eric Baid entered the room as if he knew me already and he asked me, "Nieva, gusto mo ng sigarilyo?", at
the same time, Eric Baid was touching my foot.

ATTY. VENTURANZA:

I would just want to manifest that the witness while testifying, she was smiling.

PROSECUTION: (to the witness)

Q And after he asked you whether you like a stick of cigarette and touched your foot, what happened next, Madam
Witness?

A I said yes.

Q And what happened next after you said yes, I liked cigarette?

A After that, he caressed me.

COURT: (to the witness)

Q How did he caress you?

A He went on top of me.

COURT: (to the prosecutor)

Go ahead.

PROSECUTION: (to the witness)

Q How about the other man who entered earlier, what happened him?

A The smaller person went in and out of our room twice, the first time that he went, he touched the other woman
beside me on the foot but the woman resisted and shouted. After that, the second time, the other man went inside
the room, he touched the other woman but the woman shouted and that smaller one went outside of the room.

Q When Eric Baid placed himself on top of you, where was that other man?

A He was no longer there.

….

PROSECUTION: (to the witness)

Q When Eric Baid was already on top of you, do you know if the small man entered again your room?

A No, sir.

Q And then, what happened when Eric Baid placed himself on top of you?

A I agreed.

Q Agreed to what?
16

A I agreed to the sex.

Q You mean to say that you and Eric Baid has sexual intercourse while on top of your bed?

A Yes, sir.

Q And what happened during the sexual intercourse while both of you were on top of the bed?

A Somebody was awakened and told me, "Hoy, asawa mo ba iyan? Kinukubabawan ka." and I answered no.

Q And was Eric Baid, was he able to consummate that sexual intercourse, Miss Witness?

A Yes, sir.

Q And more or less, how long did the sexual intercourse last, Miss Witness?

A Around three to five minutes.

COURT: (to the witness)

Q Why, was he able to insert his private organ into your private organ?

A Yes, your Honor.

Q What did he do when he was able to insert his private organ into your private organ?

A As if his orgasm suddenly appeared.

Q Do you understand when you say as if his orgasm suddenly appeared?

A They are like what they call, your Honor, as if "naiputok".

Q And what did he do when according to you "naiputok"?

A As if it was okay for him.

Q You were wearing an underwear?

A None, your Honor.

Q You were actually naked?

A I was wearing pants but I have no panty.

Q But who removed your pants?

A I was the one, your Honor.

Q What about Eric Baid, what was he wearing?

A He was also wearing pants.

Q Who removed the pants of Eric Baid?

A He was the one. 19

When complainant was questioned on cross and redirect examination, she explained how she was able to identify
accused-appellant, to wit:

ATTY. SALATANDRE:

Q You said a while ago that when the sex affair happened it was dark so all throughout you did not see the face of
the accused?
17

A During that time it was dark but the latter part when he opened the light, I saw his face, sir.

Q When the light was opened, he was about to leave the room?

A About to leave, sir.

Q He was already facing the door?

A Yes, Sir.

Q And you were at his back left inside the room?

A No, Sir.

Q Where were you then?

A I was just inside the room in my bed not at his back, sir.

Q You were already on your bed when he was about to leave the room?

A Yes, Sir.

Q At that time that sex affair transpired between you and the accused, you did not even know his name?

A Yes, Sir.

Q You were only told later on about this person?

A Yes, Sir.

ATTY. SALATANDRE: (to the Court)

That will be all, Your Honor.

COURT:

Any redirect?

PROSECUTION:

Yes, your Honor.

COURT:

Go ahead.

PROSECUTION:

Q You said that you were only able to identify the accused when he put on the lights, when he was about to leave
the room, how far were you from the accused?

A This distance, sir. (parties stipulated a distance of four meters, more or less)

Q You said that you saw his face at that time?

A Yes, sir.

Q And before this incident of December 22, 1996, were there any other occasion that he had any sexual intercourse
with you?

A None, sir.

Q And you often saw him as attendant in that clinic?

18

A Yes, sir.

Q And when you said that room was dark, is it totally dark or was it only a little dark?

A Little light, sir. It was a little bit dark and a little bit light. (medyo may ilaw)

Q So the time that you had sexual intercourse with the accused at that time, you can identify the face of this person?

A Yes, sir.

COURT: (to the witness)

Q You said that medyo may ilaw, where was the light emanating at about 3:00 in the morning?

A From the window outside, the room can be illuminated through the window, Your Honor.

Q So when the light came from outside, was the source from the moon, from the bulb of the Meralco post or from
another light coming from another building or house?

A It is the light actually coming from the ceiling of the building of the clinic which was outside the window, Your
Honor. 20

Though she may have exhibited emotions inconsistent with that of a rape victim ("inappropriate affect") during her
testimony, such as by smiling when answering questions, her behavior was such as could be expected from a
person suffering from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent.

Furthermore, aside from the testimony of Dr. Salangad on complainant's consciousness and memory, it is 21 

established that schizophrenic persons do not suffer from a clouding of consciousness and gross deficits of
memory. It has long been settled that a person should not be disqualified on the basis of mental handicap alone.
22  23

With regard to the alleged inconsistencies between complainant's sworn statement and her testimony as to the
24 

number of times she and accused-appellant had sexual intercourse and where they did the same, an examination of
the evidence for the prosecution, particularly complainant's sworn statement and her interview with the examining
medico-legal officer, shows that accused-appellant had sexual intercourse with her in different positions at various
places in the same room. When complainant testified, she stated that, aside from the fact that accused-appellant
had sexual intercourse with her on her bed, he made her transfer later under the bed. Be that as it may, complainant
has consistently established in all of her statements that he had sexual intercourse with her on her bed. Whether or
not he had sex with her near the window and while facing him is of no moment and does not negate the finding of
rape. Whatever may be the inconsistencies in her testimony, they are minor and inconsequential. They show that
complainant's testimony was unrehearsed, and rather than diminish the probative value of her testimony, they
reinforce it. 25

In the case at bar, the rape of complainant occurred in a room where other patients were sleeping. This
circumstance, it is argued, is antithetical to the possibility of the commission of rape. As this Court has repeatedly
said, lust is no respecter of time and place and the crime of rape can be consummated even when the malefactor
and the victim are not alone. 26

The plausibility of an allegation of rape does not depend on the number of witnesses presented during the trial, so
much so that, if the testimonies so far presented clearly and credibly established the commission of the crime,
corroborative evidence would only be a mere surplusage. In this case, the trial court gave credence to the
27 

testimonies of the prosecution witnesses on the basis of which it adjudged accused-appellant guilty. In the absence
of bias, partiality, and grave abuse of discretion on the part of the presiding judge, his findings as to their credibility
are entitled to utmost respect as he had the opportunity to observe their demeanor on the witness stand. 28

Nor does the absence of spermatozoa in the genitalia of complainant destroy the finding of rape since ejaculation is
never an element thereof. What consummates the felony is the contact of the penis of the perpetrator, however
29 

slight, to the vagina of his victim without her consent. Neither is it required that lacerations be found in the victim's
30 

hymen. We have held that a medical examination is not a requisite for a rape charge to prosper as long as the victim
categorically and consistently declares that she has been defiled. In this case, aside from complainant's positive
31 

testimony, the medical examination of the complainant showed an abrasion on her labia minora, indicating that she
had recent sexual intercourse. That the deep healed lacerations found on the complainant's genitalia may have
32 

been caused seven days prior to December 22, 1996 is immaterial and irrelevant considering that she is a non-
virgin.

Accused-appellant also claims that complainant could have been hallucinating in alleging that she had sexual
intercourse with him on December 22, 1996. In answer, suffice it to say that complainant was steadfast and
19

consistent in stating that she was raped by accused-appellant. She maintained her allegation of rape when she was
physically examined by the medico-legal officer, when she made her statement to the police and again when she
testified in court.
33

Accused-appellant assails the trial court's finding of lack of consent on the part of the complainant to the sexual act.
As the facts show, complainant herself admitted that she agreed to have sex with him after he gave her a stick of
cigarette. However, it should be stressed that complainant was in no position to give her consent. As Dr. Salangad
said in her testimony:

COURT:

Q If you claim that the private complainant is suffering from this kind of illness, schizophrenia, and manifests
behavior to the effect that she can not be active during lucid intervals now if she is suffering from this kind or mental
state, can she give an intelligent consent considering that the private complainant is already above 20 years of age?

A In her case, I would say no, Your Honor.

Q I will rephrase my question. Because when I asked to give an intelligent consent, you might be referring to acts
that are very important to her like, for example, "do you want to eat?" of course, she will give an intelligent consent.
"Do you want to sleep?" of course, she will give an intelligent consent?

A Yes, Your Honor.

Q But things that would destroy her honor or reputation like for example having sex with her, can she give an
intelligent consent?

A No, Your Honor.

Q In other words, she would not know the consequences of her consenting to such a proposal to have sex?

A Yes, Your Honor.

....

ATTY. SALATANDRE:

Q She can not give an intelligent consent to sex, your patient?

A Yes, sir.

Q Meaning she will just agree?

A She has said so when I asked her. She was just offered a cigarette.

Q Meaning if she opens her legs, she does not understand what she was doing?

A She probably knew what she was doing but when we say an intelligent consent, she has weighed the pros and
cons on an action and its future significance and also based on the upbringing, sir.

Q That she was on top of the bed, then the accused allegedly opened the zipper of his pants and pulled down the
pants up to his knees and placed himself on top of the patient and tried to insert his organ to her organ and the girl
said she agreed to it because she likes it, does it mean all those things that transpired she does not know or
understand what was happening?

A She knew what was happening but there is a difference in her judgment, in her discernment. A child can be asked
to lie down and knows that somebody was on top of him or her and that is the thing of being aware. But the
judgment of the consent itself, the significance, the effect, we all know that a normal person does not do these
unless he or she contemplates it.

Q I just do not know if I am correct, my interpretation about what you are saying is that physically they are doing
that, meaning the organ of the accused was inserted into the organ of the patient allegedly but the girl did not resist,
the girl did not comment whatsoever because she did not understand what is happening?

COURT:
20

No, she did not say that she did not understand what was happening, she can not discern.

A Let me give you a little information. In the psychological state of mentally ill patients, the basic instinct of a person
is very prominent. They respond, they eat and they can have sex, that is normal and they are just responding on the
level of their basic instinct. When you are a mature person or a normal person and you have attained maturity and
clearness of mind, you now, of course, try to put things into their proper perspective, socially and morally, that is
where upbringing and education come in. I would say that the patient's case, she is more responding in an
instinctual level without the use of intellect.
34

Accused-appellant questions in this appeal the qualifications of Dr. Salangad as an expert witness. However, he
cannot do this now as he did not raise any objection to Dr. Salangad's qualifications in the trial court. On the
contrary, he even cross-examined her on the matters on which she testified. In accordance with Rule 132, §36,
objections not timely raised are deemed waived.

The fact that Dr. Salangad was hired by the family of complainant to give expert testimony as a psychiatrist did not
by that fact alone make her a biased witness and her testimony unworthy of consideration. As has been said:

. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose
upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert
testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the
witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his
opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative
opportunities for study and observation of the matters about which he testifies, and any other matters which deserve
to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert
opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness
and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable
in the absence of an abuse of that discretion. 35

It has not been shown in this case that the trial court abused its discretion in appreciating the testimony of Dr.
Salangad so as to justify setting aside its findings.

Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides:

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

(1) By using force or intimidation;

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

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

The crime of rape shall be punished by reclusion perpetua.

....

To warrant a conviction for rape under paragraph (2) of Art. 335, a woman need not be proven as completely insane
or deprived of reason.  The phrase "deprived of reason" has been construed to include those suffering from mental
1âwphi1

abnormality or deficiency or some form of mental retardation, those who are feebleminded although coherent. 36

That the complainant was suffering from schizophrenia at the time of the rape is shown by the fact that she was in
the clinic precisely because of such illness and by her behavior at the trial, during which she would smile for no
reason at all while answering the questions. Though she may not have totally lost her memory, it was shown that
she was suffering from an impairment of judgment, which made her incapable of giving, an intelligent consent to the
sexual act. It has been held that where the rape victim is feeble-minded, the force required by the statute is the
sexual act itself.
37

Even assuming then that the complainant consented to have sexual intercourse with accused-appellant, the
copulation would fall under the third paragraph of Art. 335 of the Revised Penal Code in view of the fact that
complainant was mentally ill. Sexual intercourse with an insane, deranged, or mentally deficient, feebleminded, or
idiotic woman is rape, pure and simple. 38

At any rate, complainant said in her sworn statement that she was afraid of accused-appellant because of the
nature of his job as a nurse-aid. Thus she stated:
21

28. Tanong : Ikaw ba ay natatakot kay Eric?

Sagot : Kaunti lang, dahil sa trabaho niya. 39

As Dr. Salangad explained:

ATTY. SALATANDRE:

….

Q Meaning that when she was asked on page 2 "Tanong 27 Q - Ikaw ba ay tinakot o sinaktan ni Eric? S - Hindi
naman po." This is her own answer, nobody threatened her at that time?

A Yes, sir, but may I add. There was no direct threat but in her situation she was brought there for confinement and
treatment and for safekeeping. She is in a situation wherein the attendants and the nurses are all authorities around
her, who dictate what to do. I believe that there was some kind of threat or force in that level, although there was no
direct threat in the action.

COURT:

Q In the mind of Nieva Garcia, who were those that might be threatening to her?

A The accused somehow had made the threat. Because in their daily activity, the attendants and nurses dictate the
things to do, they follow, they are bosses in the clinic, they are in that kind of situation always, Your Honor.

Q That explains your presence during the investigation?

A To assist her in order that she is not afraid and in response to earlier question of counsel if the patient was directly
threatened or intimidated during the act, I am giving you a general situation in an institution, in this kind of institution.
Sometimes they are restrained if they go out of line, they are ones who restrain them, the attendants and the nurses
do these, Your Honor. 40

As already stated, accused-appellant invoked alibi in his defense. He claimed that, at the time of the incident, he
was in his quarters at the Holy Spirit Clinic sleeping. For the defense of alibi to be believed, the following requisites
must be met: (a) his presence at another place at the time of the perpetration of the offense must be proven; and (b)
it was physically impossible for him to be at the scene of the crime. 41

Accused-appellant's testimony itself demonstrates the untenability of his alibi. First, his declaration that he was in
another room of the clinic is uncorroborated. Second, the room in which he said he was sleeping at that time of the
incident was only a few meters away from the patients' room where complainant was confined. Third, he admitted
that, as a nurse-aide, he was allowed to enter the patients' room anytime for purposes of checking on the patients.
Above all, his alibi cannot be given credence because complainant has pointed to him as the culprit of the rape. In
cases in which the accused-appellant was identified by the victim herself who harbored no ill motive against him, the
defense of alibi was rejected. 42

The trial court correctly awarded moral damages in the amount of ₱50,000.00, in accordance with our recent rulings
that moral damages may be awarded in rape cases without any need of proof of moral suffering. However, in
addition, civil indemnity in the amount of ₱50,000.00 should have been awarded the complainant consistent with the
ruling that rape victims are entitled to such an award without need of proof except the fact of the commission of the
offense. On the other hand, the plea of the prosecution that the indemnity should be raised to ₱75,000.00 cannot
43 

be granted because such amount is awarded only in cases of qualified rape. In this case, there were no qualifying
circumstances raising the penalty to death. 44

WHEREFORE, the decision of the Regional Trial Court, Branch 95, Quezon City is AFFIRMED with the modification
that, in addition to the award of ₱50,000.00 for moral damages made by the trial court, complainant should be
indemnified in the amount of ₱50,000.00.

SO ORDERED.

People of the Philippines vs. Baid (2000) G.R. No. 129667. July 31,
2000
G.R. No. 129667. July 31, 2000

CASE DIGEST
22

Facts: That on or about the 22nd day of December 1996, in Quezon City, Philippines, the said accused by means of force and
intimidation, to wit: by then and there [willfully], unlawfully and feloniously undressing one NIEVA GARCIA y SABAN, a mental
patient suffering [from] schizophrenia and put himself on top of her, and thereafter have carnal knowledge with the undersigned
complainant against her will and without her consent.

When arraigned, accused-appellant entered a plea of not guilty, whereupon trial of the case on the merits proceeded.  The
prosecution presented three witnesses, namely, the complainant, Dr. Herminigilda Salangad, the complainant’s attending
psychiatrist, and Dr. Emmanuel Reyes, the medico-legal officer who examined the complainant. Complainant was brought later
during the day before Dr. Emmanuel Reyes for medico-legal examination. She told him what happened. Dr. Reyes reduced her
narration of the incident into writing and then gave her a physical examination. Accused-appellant testified in his behalf. He stated
that he had been a nurse-aide of the Holy Spirit Clinic since September 18, 1995.

He denied the allegations against him. He testified that, on the date and time referred to by the complainant, he was asleep in the
nurse-aide quarters located about ten meters from the room where complainant was staying.

On cross-examination, accused-appellant admitted that he knew it was prohibited to give cigarettes to patients. He further
admitted that, as a nurse-aide, he could enter the patients’ room anytime to check their condition and see to it that the lights were
turned off when they were not needed. He further stated that he was not investigated by the police when he was invited to their
headquarters. The trial court rendered its decision finding the accused Eric Baid y Ominta GUILTY beyond reasonable doubt of the
crime of rape.

Accused-appellant contends that the trial court erred in convicting him of rape. Dr. Herminigilda Salangad, the complainant’s
attending psychiatrist and consultant at the Medical Center in Muntinlupa, the Perpetual Help Medical Center, the Philippine
National Police, and the Holy Spirit Clinic, was presented as an expert witness. According to her, complainant was, at the time of
the incident, suffering from an undifferentiated type of schizophrenia, described as having the characteristic symptoms of
schizophrenia but does not fit the profile for paranoid, disorganized, or catatonic schizophrenia. Dr. Salangad stated that
complainant seemed to shift from one type of schizophrenia to another.

It is contended that as complainant is a schizophrenic, her testimony should not have been given credence by the trial court. It is
argued that: (1) there were serious inconsistencies between her sworn statement and her testimony in court; (2) the prosecution
failed to present witnesses to corroborate her testimony; (3) complainant failed to identify accused-appellant; (4) the results of the
medico-legal examination were negative for spermatozoa; (5) the healed lacerations showed that complainant had sexual
intercourse seven days before the alleged incident; and (6) the probability was that her allegations of rape were merely a product of
her fantasy.

Issue: Whether or not the complainant, who is suffering from schizophrenia, can be qualified as a witness?

Held: Yes. Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could perceive
and was capable of making known her perceptions to others

Her testimony indicates that she could understand questions particularly relating to the incident and could give responsive
answers to them. Though she may have exhibited emotions inconsistent with that of a rape victim (“inappropriate affect”) during
her testimony, such as by smiling when answering questions, her behavior was such as could be expected from a person suffering
from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent.

It has long been settled that a person should not be disqualified on the basis of mental handicap alone.

Whatever may be the inconsistencies in her testimony, they are minor and inconsequential. They show that complainant’s
testimony was unrehearsed, and rather than diminish the probative value of her testimony, they reinforce it. In the case at bar, the
rape of complainant occurred in a room where other patients were sleeping. This circumstance, it is argued, is antithetical to the
possibility of the commission of rape. As this Court has repeatedly said, lust is no respecter of time and place and the crime of rape
can be consummated even when the malefactor and the victim are not alone. The plausibility of an allegation of rape does not
depend on the number of witnesses presented during the trial, so much so that, if the testimonies so far presented clearly and
credibly established the commission of the crime, corroborative evidence would only be a mere  surplusage.27 In this case, the trial
court gave credence to the testimonies of the prosecution witnesses on the basis of which it adjudged accused-appellant guilty. In
the absence of bias, partiality, and grave abuse of discretion on the part of the presiding judge, his findings as to their credibility
are entitled to utmost respect as he had the opportunity to observe their demeanor on the witness stand.

[G.R. No. 116372. January 18, 2001.]

REPUBLIC OF THE PHILIPPINES represented by the DIRECTOR OF LANDS, Petitioner, v.

COURT OF APPEALS and ROMEO DIVINAFLOR, Respondents.

DECISION

GONZAGA-REYES, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks to
reverse and set aside the decision of the Court of Appeals dated February 8, 1994 in CA-G.R. CV No.
29578 entitled "The Director of Lands, Petitioner-Appellant v. Romeo Divinaflor, Claimant-Appellee" 1
23

which affirmed the decision 2 of the Regional Trial Court of Ligao, Albay, Branch 12, rendered in
favor of private respondent Romeo Divinaflor. chanrob1es virtua1 1aw 1ibrary

This case stems from Cadastral Case No. N-11-LV initiated, pursuant to law, by the Director of Lands,
as petitioner before the Regional Trial Court of Ligao, Albay (Branch 12). In due time, Romeo
Divinaflor filed his answer to the petition relative to Lot No. 10739 with an area of 10,775 square
meters situated in Oas, Albay, claiming ownership of said lot by virtue of possession for over thirty
years. The facts, as found by the trial court and affirmed by the Court of Appeals, are as follows: jgc:chanrobles.com.ph

"Lot 10739 of the cadastral survey of Oas, Albay is one of the parcels of land subject of these
cadastral proceedings. When this case was called for initial hearing, nobody offered any opposition.
Whereupon, an order of general default against the whole world was issued. Claimant was allowed to
present his evidence.

Lot 10739 is one of the uncontested lots. It is a parcel of riceland situated at Maramba, Oas, Albay
containing an area of 10,775 square meters bounded on the north by Lots 10738 & 10737; on the
East by Lot 10738; on the South by Lot 10716; and on the West by Lot 10716. Originally, the land
was owned by Marcial Listana who began possession and occupying the same in the concept of
owner, openly, continuously, adversely, notoriously and exclusively since 1939. He planted palay and
harvested about 60 cavans of palay every harvest season. He declared the land in his name under
Tax Dec. No. 1987 (Exh. 1). On May 21, 1973, claimant acquired ownership of the land by means of
deed of absolute sale (Exh. 2). He caused the same to be declared in his name under Tax Dec. No.
1442 (Exh. 3). There was another reassessment under Tax Dec. No. 35 (Exh. 3-a). He continued
planting on the land and all the products are used for the benefit of his family.

The land was surveyed in the name of the previous owner per certification of the CENRO (Exh. 4).
The cadastral survey costs had been paid in the amount of P72.08 under Official Receipt No.
50652483 (Exh. 5) and the certification thereof (Exh. 5-a). All the realty taxes has likewise been paid
up to the current year per Official Receipt No. 6422679 (Exh. 6) together with the certification of the
Municipal Treasurer of Oas, Albay (Exh. 6-A).

There are no liens or encumbrances and neither are there persons claiming adverse ownership and
possession of the land. The lot does not infringe the public road, river or stream. It is not part of a
military reservation, public park, watershed or the government’s forest zone. The lot has not been
utilized as a bond in civil or criminal cases or as a collateral for a loan in any banking institution.
There is no pending petition for its registration under Act 496 known as the Land Registration Act or
an application for the issuance of free patent with the Community Environment and Natural
Resources Office (CENRO). Claimant is not legally disqualified from owning disposable property of the
public domain." 3

Finding that the claimant, together with his predecessor-in-interest, has "satisfactorily possessed and
occupied this land in the concept of owner, openly, continuously, adversely, notoriously and
exclusively since 1939 very much earlier to June 12, 1945," the court ordered the registration and
confirmation of Lot 10739 in the name of the Spouses Romeo Divinaflor and Nenita Radan.

The Director of Lands appealed to the Court of Appeals alleging that the finding of the trial court that
claimant-appellee and his predecessor-in-interest have possessed Lot 10739 since 1939 is not
sufficiently supported by the evidence. The Director contended that the earliest tax declaration
presented by claimant took effect only in 1980 and the certificate of real estate tax payment is dated
1990. It was further contended that the testimony of Romeo Divinaflor was largely self-serving, he
being the applicant.

The Court of Appeals affirmed the judgment appealed from. It ruled: jgc:chanrobles.com.ph

"To our mind, it is not necessary, in cases of this nature, to present tax declarations and tax receipts
of the land in question. All that the law mandates is proof of "open, continuous, peaceful and adverse
possession" which appellee has convincingly established. Repeatedly, the fact of possession is
hammered into the record by appellee’s testimony on cross-examination by appellant. Thus: chanrob1es virtual 1aw library

ASST. PROV’L. PROS. CRISOSTOMO: chanrob1es virtual 1aw library

Q: You said that you bought this land from Marcial Listana, and you are referring us to this deed of
sale?

WITNESS: chanrob1es virtual 1aw library

24

A: Yes, sir.

Q: This land is located at Maramba?

A: Yes, sir. chanrob1es virtua1 1aw 1ibrary

Q: Since when did Marcial Listana begin possessing this land?

A: Since 1939.

Q: What was Marcial Listana doing on the land?

A: He was planting palay and sometimes corn.

Q: In what concept was he possessing the land?

A: In the concept of owner, openly, continuously, adversely, notoriously and exclusively.

Q: Do you know whether there are disputes involving the boundaries of the land?

A: No, sir.

Q: Are there also persons claiming adverse ownership and possession of the land?

A: No, sir.

Q: Does this land encroach any road, river or stream?

A: No, sir.

Q: Is this part of a military reservation, public park, watershed or the government’s forest zone?

A: No, sir.

Q: Have you paid all the taxes on the land?

A: Yes, sir.

Q: What about the cadastral costs?

A: I also paid the same.

Q: What do you do with the land now?

A: I planted palay during rainy season.

Q: How many cavans of palay do you harvest every agricultural season?

A: I get 40 cavans of palay every harvest season but sometimes more and sometimes less, during
summer month I plant corn and harvest about 8 cavans of unhusked corn.

Q: If and when this land will be titled, in whose name would you like the title to be?

A: In our names, my wife and myself.

PROSECUTOR CRISOSTOMO: chanrob1es virtual 1aw library

That is all." 4

"While it is true that tax declarations and tax receipts, may be considered as evidence of a claim of
ownership, and when taken in connection with possession, it may be valuable in support of one’s title
by prescription. Nevertheless, the mere payment of taxes does not confer nor prove it. (Viernes, Et
Al., v. Agpaoa, 41 Phil. 286. See also Director of Lands v. Court of Appeals, 133 SCRA 701).
25

The omission to declare the land in question for taxation purposes at the inception of the tax system
in 1901 of this country does not destroy the continuous and adverse possession under claim of
ownership of applicant’s predecessors in interest. Fontanilla v. Director of Lands, Et Al., CA-G.R. No.
8371-R, Aug. 4, 1952.

Finally, appellant asseverates that the testimony of appellee is insufficient to prove possession for
being self-serving, he being one of the applicants. We remind appellant on this score that self-serving
evidence comes into play only when such is made by the party out of court and excludes testimony
which a party gives as a witness at the trial. (See N.D.C. v. Workmen’s Compensation, Et Al., 19
SCRA 861; 31 C.J.S. 952)." 5

Motion for reconsideration of the above-mentioned decision having been denied, the Director of
Lands has brought the instant petition raising the sole issue of —

WHETHER OR NOT THE RESPONDENT HAS ACQUIRED REGISTRABLE TITLE OVER THE SUBJECT
PROPERTY.

Petitioner Director of Lands assails the decision of the Court of Appeals on the ground that the law,
as presently phrased, requires that possession of lands of the public domain must be from June 12,
1945 or earlier, for the same to be acquired through judicial confirmation of imperfect title. Petitioner
argues that Divinaflor failed to adduce sufficient evidence to prove possession of the land in question
since June 12, 1945 for the following reasons: (1) Divinaflor failed to present sufficient proof that his
predecessor-in-interest Marcial Listana has possessed the lot since 1939; and (2) Divinaflor is
incompetent to testify on his predecessor’s possession since 1939 considering he was born only in
1941, and in 1945, he was only 4 years old. chanrob1es virtua1 1aw 1ibrary

We find no reversible error in the assailed judgment. Denial of the instant petition is proper in light of
the well-entrenched doctrine upholding the factual findings of the trial court when affirmed by the
Court of Appeals. 6 It is likewise very basic that only errors of law and not of facts are reviewable by
this Court in petitions for review on certiorari under Rule 45, which is the very rule relied upon by
petitioner. 7

While the sole issue as so worded appears to raise an error of law, the arguments that follow in
support thereof pertain to factual issues. In effect, petitioner would have us analyze or weigh all over
again the evidence presented in the courts a quo in complete disregard of the well-settled rule that
"the jurisdiction of this Court in cases brought to it from the Court of Appeals is limited to the review
and revision of errors of law allegedly committed by the appellate court, as its findings of fact are
deemed conclusive. This Court is not bound to analyze and weigh all over again the evidence already
considered in the proceedings below." 8 Indeed, it is not the function of the Supreme Court to assess
and evaluate all over again the evidence, testimonial and evidentiary, adduced by the parties
particularly where the findings of both the trial court and the appellate court on the matter coincide.
9

This Court has held in Republic v. Doldol 10 that, originally, "Section 48(b) of C.A. No. 141 provided
for possession and occupation of lands of the public domain since July 26, 1894. This was superseded
by R.A. No. 1942 11 which provided for a simple thirty-year prescriptive period of occupation by an
applicant for judicial confirmation of imperfect title. The same, however, has already been amended
by Presidential Decree No. 1073, approved on January 25, 1977." As amended Section 48(b) now
reads:jgc:chanrobles.com.ph

"(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive and notorious possession and occupation of agricultural lands of the public
domain, under a bona fide claim of acquisition or ownership, since June 12, 1945, or earlier,
immediately preceding the filing of the application for confirmation of title, except when prevented by
wars or force majeure. Those shall be conclusively presumed to have performed all the conditions
essential to a Government grant and shall be entitled to a certificate of title under the provisions of
this chapter." cralaw virtua1aw library

Interpreting the above-quoted provision, the Court stated in Republic v. Court of Appeals 12 that the
Public Land Act requires that the applicant must prove the following: jgc:chanrobles.com.ph

"(a) that the land is alienable public land and (b) that his open, continuous, exclusive and notorious
possession and occupation of the same must either be since time immemorial or for the period
prescribed in the Public Land Act. When the conditions set by law are complied with, the possessor of
the land, by operation of law, acquires a right to a grant, a government grant, without the necessity
26

of a certificate of title being issued." cralaw virtua1aw library

There is no dispute that the subject lot is an alienable and disposable tract of public land. Since
claimant Romeo Divinaflor acquired ownership of Lot 10739 from Marcial Listana by deed of absolute
sale dated May 21, 1973, 13 the pivotal issue is whether his predecessor-in-interest Marcial Listana
has been in possession of the land since June 12, 1945 under a bona fide claim of ownership.

The determination of whether claimants were in open, continuous, exclusive and notorious
possession under a bona fide claim of ownership since 1945 as required by law, is a question of fact
14 which was resolved affirmatively by the trial court and the Court of Appeals. Such factual finding
will not be reversed on appeal except for the most compelling reasons. None has been adduced in
the case at bar.

Petitioner questions the credibility of claimant Divinaflor who testified on the possession of Marcial
Listana for the period required by law. The issue of credibility is unavailing considering that the judge
below is in a better position to pass judgment on the issue having personally heard the witnesses
testify and observed their deportment and manner of testifying. 15 Being in a better position to
observe the witnesses, the trial court’s appreciation of the witness’ testimony, truthfulness, honesty,
and candor, deserves the highest respect. 16

Further, it is axiomatic that a witness’ "interest in the outcome of a case shall not be a ground for
disqualification, and that such an interest, if shown, while perhaps, indicating the need for caution in
considering the witness’ testimony, does not of itself operate to reduce his credit; indeed, his
testimony must be judged on its own merits, and if (it) is otherwise clear and convincing and not
destroyed by other evidence on record, it may be relied upon." 17 In this case, both the trial court
and the Court of Appeals found Divinaflor’s testimony to be convincing, a finding with which, in the
premises, this Court will not and cannot take issue. chanrob1es virtua1 1aw 1ibrary

In the same vein, the issue of incompetency of Divinaflor to testify on the possession of his
predecessor-in-interest since 1939 is likewise unavailing and must be rejected. A timely objection
was never made by petitioner on the ground of incompetency of Divinaflor to testify on this matter at
any stage of the proceedings. It is an elementary rule in evidence that: jgc:chanrobles.com.ph

"when a witness is produced, it is a right and privilege accorded to the adverse party to object to his
examination on the ground of incompetency to testify. If a party knows before trial that a witness is
incompetent, objection must be made before trial that a witness is incompetent, objection must be
made before he has given any testimony; if the incompetency appears on the trial, it must be
interposed as soon as it becomes apparent." 18

Simply put, any objection to the admissibility of evidence should be made at the time such evidence
is offered or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the
objection will be considered waived and such evidence will form part of the records of the case as
competent and admissible evidence. 19 The failure of petitioner to interpose a timely objection to the
presentation of Divinaflor’s testimony results in the waiver of any objection to the admissibility
thereof and he is therefore barred from raising said issue on appeal.

Be that as it may, a person is competent to be a witness if (a) he is capable of perceiving at the time
of the occurrence of the fact and (b) he can make his perception known. 20 True, in 1939, Divinaflor
was not born yet, but in 1945, he was four years old, residing in Maramba, Oas, Albay, where the
subject lot is located. As his testimony goes, he and Marcial Listana were barrio mates, and that he
usually passes by the subject land. The fact that Divinaflor was only a child at the required inception
of possession does not render him incompetent to testify on the matter. It is well-established that
any child regardless of age, can be a competent witness if he can perceive, and perceiving can make
known his perception to others and that he is capable of relating truthfully facts for which he is
examined. 21 The requirements of a child’s competence as a witness are: (a) capacity of
observation; (b) capacity of recollection; and (c) capacity of communication. 22 There is no showing
that as a child, claimant did not possess the foregoing qualifications. It is not necessary that a
witness’ knowledge of the fact to which he testifies was obtained in adulthood. He may have first
acquired knowledge of the fact during childhood, that is at the age of four, which knowledge was
reinforced through the years, up until he testified in court in 1990. There is reason to reject
petitioner’s claim that Divinaflor is incompetent to testify regarding Listana’s possession since it
appears undisputed that Divinaflor grew up in Maramba, Oas, Albay, and had occasion to see Listana
possessing the land.

Finally, we agree with the Court of Appeals that the belated declaration of the property for tax
27

purposes does not necessarily lead to the conclusion that the predecessors were not in possession of
the land as required by law since 1945. Petitioner capitalizes on the fact that the earliest tax
declaration presented took effect only in 1980 while the certificate of tax payment is dated 1990.
While this Court has held in a long line of cases 23 that tax declarations or tax receipts are good
indicia of possession in the concept of owner, it does not necessarily follow that belated declaration of
the same for tax purposes negates the fact of possession, especially in the instant case where there
are no other persons claiming any interest in Lot 10739.

WHEREFORE, the petition is hereby DENIED for lack of merit. The Court resolves to AFFIRM the
challenged decision of the Court of Appeals dated February 8, 1994 which sustained the JUDGMENT
of the Regional Trial Court rendered on July 27, 1990 granting the registration of title to herein
private Respondent. chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

REPUBLIC OF THE PHILIPPINES represented by the DIRECTOR OF LANDS, petitioner, vs. COURT OF
APPEALS and ROMEO DIVINAFLOR, respondents. G.R. No. 116372. January 18, 2001

FACTS: Lot 10739 is one of the uncontested lots. It is a parcel of riceland situated at Maramba, Oas, Albay
containing an area of 10,775 square meters. Originally, the land was owned by Marcial Listana who began
possession and occupying the same in the concept of owner, openly, continuously, adversely, notoriously and
exclusively since 1939. He planted palay and harvested about 60 cavans of palay every harvest season. He
declared the land in his name under Tax Dec. No. 1987. Romeo Divinaflor acquired ownership of the land by
means of deed of absolute sale. He caused the same to be declared in his name under Tax Dec. No. 1442.
There was another reassessment under Tax Dec. No. 35. He continued planting on the land and all the
products are used for the benefit of his family. The land was surveyed in the name of the previous owner per
certification of the CENRO. There are no liens or encumbrances and neither are there persons claiming
adverse ownership and possession of the land. The lot does not infringe the public road, river or stream. It is
not part of a military reservation, public park, watershed or the governments forest zone. The lot has not been
utilized as a bond in civil or criminal cases or as collateral for a loan in any banking institution. There is no
pending petition for its registration under Act 496 known as the Land Registration Act or an application for the
issuance of free patent with the Community Environment and Natural Resources Office (CENRO). Romeo
Divinaflor is not legally disqualified from owning disposable property of the public domain. Finding that the
claimant, together with his predecessor-in-interest, has satisfactorily possessed and occupied this land in the
concept of owner, openly, continuously, adversely, notoriously and exclusively since 1939 very much earlier to
June 12, 1945, the court ordered the registration and confirmation of Lot 10739 in the name of the Spouses
Romeo Divinaflor and Nenita Radan. The Director of Lands appealed to the Court of Appeals alleging that the
finding of the trial court that Romeo Divinaflor and his predecessor-in-interest have possessed Lot 10739 since
1939 is not sufficiently supported by the evidence. The Director contended that the earliest tax declaration
presented by claimant took effect only in 1980 and the certificate of real estate tax payment is dated 1990. It
was further contended that the testimony of Romeo Divinaflor was largely self-serving, he being the applicant.
ISSUE: Whether or not Romeo Divinaflor is a competent witness given that he was only 4 years in 1945.
RULING: Be that as it may, a person is competent to be a witness if (a) he is capable of perceiving at the time
of the occurrence of the fact and (b) he can make his perception known. True, in 1939, Divinaflor was not born
yet, but in 1945, he was four years old, residing in Maramba, Oas, Albay, where the subject lot is located. As
his testimony goes, he and Marcial Listana were barrio mates, and that he usually passes by the subject land.
The fact that Divinaflor was only a child at the required inception of possession does not render him
incompetent to testify on the matter. It is wellestablished that any child regardless of age, can be a competent
witness if he can perceive, and perceiving can make known his perception to others and that he is capable of
relating truthfully facts for which he is examine. The requirements of a child’s competence as a witness are: (a)
capacity of observation; (b) capacity of recollection; and (c) capacity of communication. There is no showing
that as a child, claimant did not possess the foregoing qualifications. It is not necessary that a witness
knowledge of the fact to which he testifies was obtained in adulthood. He may have first acquired knowledge of
the fact during childhood, that is at the age of four, which knowledge was reinforced through the years, up until
he testified in court in 1990. There is reason to reject petitioners claim that Divinaflor is incompetent to testify
regarding Listanas possession since it appears undisputed that Divinaflor grew up in Maramba, Oas, Albay,
and had occasion to see Listana possessing the land.
28

G.R. No. 118828 & 119371           February 29, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HENRY LUGARTO Y PETILLA and ERNESTO CORDERO y MARISTELA @ "Booster," accused-appellants.

PER CURIAM:

On 31 January 1995, the Regional Trial Court of Manila, Branch 47, per Judge Lorenzo B. Veneracion, handed
down a judgment in Criminal Case No. 94-138071 and Criminal Case No. 94-138138, finding accused-appellants
Henry Lagarto y Petilla (hereaffer LAGARTO) and Ernesto Cordero y Maristela (hereafter CORDERO) guilty beyond
reasonable doubt of raping and slaying seven-year old Alquiza y Lagman (hereafter Angel) in the early hours of 2
August 1994. They were initially sentenced to suffer the penalty of reclusion perpetua in each with damages. In our
Decision of 12 October 1995 in G.R. Nos. 119987-88 (319 Phil. 364), a special civil action for certiorari filed by the
Office of the Solicitor (OSG) questioning the propriety of the sentence imposed, we ordered the court to impose the
correct penalty prescribed by law in light of its findings of and conclusions, i.e., the death penalty, subject to
automatic review by us at proper time.

Conformably with the decision in G.R. Nos. 119987-88, Judge Veneracion on 22 May 1996 an Order correcting the
sentence in Criminal Case No. 94-138071 and Criminal Case No. 94-138138 and imposing the penalty of death.
The Order was read in open court at the National Penitentiary.

Thereafter, the records of these cases were forwarded to us far automatic review, in accordance with Article 47 of
the Revised Penal Code, as amended, and Section 10, Rule 122 of the Rules of Court.

The pertinent facts follow:

At 5:10 p.m. on 2 August 1994, PO3 Edgardo E. Ko of the Western Police District Command, Directorate for
Investigation, Crimes Against Persons Division, Philippine National Police, Manila, received an information from
PO3 Mabilisan of Station 11 that a dead body in a sack was found at around 4:30 p.m. floating in the flooded street
of Del Pan near the corner of Lavizares St., Binondo, Manila. Residents discovered the corpse wrapped in a round
yellow tablecloth tied with a nylon cord inside a sack. The responding policemen — PO3 Ko, SPO1 Edgardo
Manuel, and PO3 Rosalie Fernandez — noticed the victim's feet and left hand protruding from the sack and round
yellow tablecloth. They untied the sack and nylon cord and saw the victim, a young girl, wearing nothing but her
duster, with gaping wounds on the left ear and chin, her genitals lacerated, her eyes missing, and her head bashed
in. They immediately brought the body to the police morgue at Tres Amigos Memorial Chapel. 1

A. certain Romezen Alquiza called the police station, inquiring about the body recovered from Del Pan, Tondo,
Manila, whose description matched his sister Angel who, had been missing since the night of 1 August 1994. He
was advised to proceed to the Tres Amigos Memorial Chapel. Together with his mother Zenaida and some family
members, Romezen went to said mortuary to look at the body. Indeed, it was Angel Alquiza. 2 He then requested the
National Bureau of Investigation (NBI) Medico-Legal Office to autopsy Angels body. 3 Said office also issued a
Certificate of Identification of Dead Body,4 which was signed by Romezen. The autopsy was conducted by NBI
Medico-Legal Officer Ludivino J. Lagat, who concluded that Angel Alquiza died due to multiple stab wounds and
traumatic injuries. The severity of her injuries were vividly described in Autopsy No. N-94-1553, 5 thus:

POSTMORTEM FINDINGS

Pallor, generalized.

Both eyes, missing.

Hematoma: 5.0 x 9.0 cms., and 5.0 x 17.0 cms., right and left inguinal area.

Abrasion: 4.0 x 5.0 cms., and 4.0 x 4.0 cms., periorbital area, right and left respectively; 12.0 x 4.0 cms., left
thigh; 19.0 x 20.0 cms., posterior chest wall.

Contused — hematoma: 10.0 x 9.0 cms., left side of the neck to the clavicular area.

Incised wounds: 14.0 cms, left pre-auricular area up to the temple; 21.0 cms, vagina, to the anus then to the
sacral area with evisceration of the intestines, 2:0 cm. Knee.

Fractures: Axial fractures of the skull, open, compound; mandibular bone; right femur, upper third; 1st to the
10th ribs, anteriorly right and left.
29

Dislocation, left hip joint.

Liver — multiple lacerations.

Stab wounds: all elliptical, clean-cut edges, with a sharp and a blunt extremities in different orientations.

1) 2.5 cms., forehead, right side; directed backwards, involving the soft, tissues; fracturing the
temporal bone; then to the right-cerebral hemisphere; with a depth of 7.0 cm.

2) 2.0 cms., temple, left side; directed medially; involving the soft tissues; fracturing the temporal
bone; then to the left cerebral hemisphere; with a depth of 5:0 cm

3) 3.0 cms.; mandibular area, left side; fracturing the mandibular bone

Hemothorax, 500 c.c.

Hemoperitoneum, 1,100 c.c.

Brain — Hemorrhagic with minor portion missing.

Visceral organs, pale.

Stomach, empty.

CAUSE OF DEATH:

— MULTIPLE STAB WOUNDS, TRAUMATIC INJURIES.

REMARKS: — Vaginal swab submitted to Chemistry Division for examination.

PO3 Ko's Advance Information,6 which was based on his investigation of Zenaida Alquiza, Rosalina Puno, Alicia de
la Vega, Ligaya Cordero, Mario Blorecia, and Eliseo Sendiego, disclosed that at around 9:30 on the night of 1
August 1994, Angel, a seven-year old Grade 2 student of the Rosario Almario Elementary School and a resident of
1200 Sunflower St., Tondo, Manila, went out to buy champorado from a store at nearby Kagitingan St. When she
did not return after some time, the members of her family searched for her in the neighborhood, but they did not find
her. At around 1:25 p.m. of 2 August 1994, they reported her missing to the police. Rosalina Puno, the owner of he
store at 1144 Kagitingan St., said that Angel did drop by her store at around 9:30 p.m. to buy, champorado and ate
it there before heading home via Bougainvillea 7 St. Said street is adjacent to Sunflower St. and leads to Tagumpay
St., a dimly lit area used by CORDERO and his wife Ligaya as a parking space for their pedicabs. 8

One of said pedicabs, "No. 14," was driven by a certain Abundio Lagunday on 1 August 1994 but was found the
following day abandoned and covered with cartons and plastics at the comet of Kagitingan and Salvacion Sts., near
the junk shop of the late Mang Gorio (Mauro Gregorio). Because of this, Ligaya Cordero was invited by the police on
3 August 1994 to answer some questions.9 Mario Blorecia, a scavenger and a friend of Lagunday, said the latter,
who appeared nervous (balisa), came to him at around 6:30 p.m. on 3 August 1994, left the pedicab to his care
(kasi nagkahulihan), and immediately departed after covering the pedicab with scraps of carton and plastic. They
both used to work at the junk shop of Mang Gorio, which was later converted into a warehouse. 10

Follow-up investigation disclosed that around 9:30 p.m. on 1 August 1994, a certain Jose Soriano of 1155
Kagitingan St. was buying a cigarette at Rosalina Puno's store when he saw Angel with Lagunday (akay ni
Lagunday) at the corner of Bougainvillea and Kagitingan Sts. He did not think she was in any trouble because he
knew Lagunday sometimes picked up Angel from school. 11

Based on these pieces of information, Lagunday was arrested on 4 August 1994 as the primary suspect in the case.
During custodial investigation, and after he was apprised of his constitutional rights, Lagunday admitted his
culpability and pointed to two other men as his cohorts, namely, @ "Boboy" and @ "Boyet." In the ensuing
investigation, Lagunday also positively identified LAGARTO as one of companions on that fateful night. 12

A major breakthrough in the case was provided by a 50-year old widow and laundry woman by the name of
Herminia Barlam, who was accompanied to the Homicide Section on 4 August 1994 by SPO2 Enrico Miranda, a
neighbor and occasional laundry client. She allegedly saw three men molest and kill a little girl inside the warehouse
of Mang Gorio during a downpour in the early hours of 2 August 1994. When asked if she could recognize these
men from a police line-up, she positively identified Lagunday and LAGARTO as two of the men who raped and killed
the girl.13 Her sworn statement, taken by PO3 Ko with the aid of SPO2 Miranda, who acted as interpreter between
the investigator and the hearing impaired, is hereunder substantially reproduced:
30

03. T.: Noong isang araw, petsa 2 ng Agosto 1994 . . . ano and nakita mo?

S.: Nakita kong bata saksak . . . takip ilong at wala panty.

04. T.: Sino ito bata iyo kita?

S.: Hindi kilala pero liit lang. . .

05. T.: Saan mo kita bata saksak at takip bibig at ilong?

S.: Doon marami lata at saka plastic.

06. T.: Kanino ito lugar o sino may ari?

S.: Gorio.

07. T.: Saan ito lugar?

S.: Kagitingan.

08. T.: Ano pa iyo kita o dinig?

S.: Kita ko bata takip ilong, at tali bibig, sigaw siya, saksak sa leeg.

09. T.: Kita mo ba kung sino ang gawa nito sa bata?

S.: Tatlo.

10. T.: Kilala mo sila?

S.: Oo.

11. T.: Asan sila nayon?

S.: Declarant was pointing to and positively identifying . . . ABUNDIO LAGUNDAY . . . and HENRY
LAGORTE . . . . .

12. T.: Ano gawa nitong si Abundio sa batang babae?

S.: (declarant was demonstrating her fingers in a pumping motion and covering her mouth).

13. T.: Ito isang turo mo, ano gawa sa batang babae?

S.: Saksak leeg batang babae (declarant was demonstrating with her right index finger pointing to her neck.)

14. T.: Kilala mo ba ito dalawang turo mo?

S.: hindi kilala, pero isa Lando * takas, wale ipen.

15. T.: Ano gawa Lando sa bata babae?

S.: Palo ulo bata kahoy kapal.

16. T.: Ano gawa mo bago ikaw kita sila?

S.: Ihi ako sa tabi bodega, kita ko sila butas.

17. T.: Asan na batang babae?

S.: Patay na suot puti damit ganda.

18. T.: Ikaw silip sa butas, ano iyo kita?

S.: Bata babae saksak at kantot tatlo lalaki, at iyak iyak sigaw pa.
31

19. T.: Sino kita mo kantot bata babae?

S.: Iyon sampal ko kanina (declarant was referring to ABUNDIO LAGUNDAY who was slapped by the
declarant during the line up)

20. T.: Ano oras mo kita ito?

S.: Alas 2 umaga, lakas ulan.

21. T.: Ano pa iyo kita?

S.: Bata patay at tali nila sako.

22. T.: Ano iyo gawa?

S.: Sigaw ako lakas at palo nila ako kahoy.

23. T.: Sino palo sa iyo kahoy?

S.: Siya (declarant was pointing to and positively identified HENRY LAGARTO)

24. T.: Ano yari ng ikaw sigaw lakas?

S.: Wala pansin akin, at ako iyak.

25. T.: Ano pa iyo kita sa loob bodega?

S.: Iyak iyak bata tapos tigil na, patay na.

26. T.: Ikaw ba ay may asawa?

S.: Patay na.

27. T.: Ano pangalan asawa mo?

S.: Tony.

28. T.: Ilan anak mo?

S.: Dalawa.

29. T.: Anong pangalan anak mo?

S.: Junior at Totoy.

30. T.: Totoo ba sabi mo?

S.: Totoo, hindi ako nanloloko.

31. T.: Susumpaan mo ba ito?

S.: Oo.14

As the inquest continued, more suspects were brought in for questioning, namely, the following persons implicated
by Lagunday: Rolando Manlangit y Mamerta @ "Lando," Richard Baltazar y Alino @ "Curimao," and Catalino Yaon
y Aberin @ "Joel." Accused-appellant CORDERO @ "Booster" was not initially implicated by Lagunday; hence, he
was not indicted under the first Information dated 8 August 1994. When they were in detention together, however,
Lagunday CORDERO as the mastermind 15 and pointed to Manlangit, Baltazar, and Yaon as their lookout.
CORDERO was further linked to the crime by a certain laundry woman named Ofelia Lagman, who, having washed
laundry for Corderos several times; allegedly remembered seeing on top of their washing machine a round yellow
tablecloth matching the one in which Angels body was wrapped. She also confirmed that the Corderos had a round
table with a glass top.16 If further appeared that CORDERO had previously raped his two daughters although no
case was filed against him.17
32

On the basis of these findings, criminal charges for rape with homicide were filed against the suspects by the City
Prosecutor's Office of Manila. The first information, dated 8 August 1994, was filed on 10 August 1994 and was
docketed Criminal Case No. 94-138071, entitled People of the Philippines v. Abundio Lagunday, a.k.a. "Jr.
Jeofrey," and Henry Lagarto y Petilla. It stated thus:

That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with one alias "LANDO", and other persons whose true names, identities and present
whereabouts are still unknown and helping one another, with treachery, taking advantage of their superior
strength and nocturnity, and Ignominy, and with the use of force and violence, that is, by taking ANGEL
ALQUIZA Y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse,
covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck,
did then and there wiifully, unlawfully and feloniously have carnal knowledged the person of said ANGEL
ALQUIZA Y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said
occasion the said ABUNDIO LAGUNDAY, a.k.a. "Jr. Jeofrey", HENRY LAGARTO Y PETILLA, and one
a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause of her death immediately
thereafter.

CONTRARY TO LAW.18

The other information, dated 11 August 1994 and filed on 12 August 1994, and docketed as Criminal Case No. 94-
138138, is entitled of the People of the Philippines v. Ernesto Cordero y Maristela @ "Booster," Rolando Manlangit
y Mamerta @ "Lando," Richard Baltazar y Alino @ "Curimao," and Catalino Yaon y Aberin @ "Joel." Its accusatory
portion reads:

That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused conspiring
and confederating with ABUNDIO LAGUNDAY Alias "JR. JEOFREY" and HENRY LAGARTO y PETILLA
who have already been charged in the Regional Trial Court of Manila of the same offense under Criminal
Case No. 94-138071, and helping one another, with treachery, taking advantage of their superior strength
and nocturnity and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y
LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her
mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and
there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y
LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the
said accused together with their confederates ABUNDIO LAGUNDAY Alias "JR. JEOFREY" and HENRY
LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately
thereafter.

CONTRARY TO LAW.19

Prior to arraignment, however, the court was informed by the prosecution that Lagunday had been shot and killed
while trying to grab the gun of one of his police escorts on 12 August 1994. 20 Upon motion of the private prosecutor,
Lagunday's name was dropped from the information. His co-accused in Criminal Case No. 138071, LAGARTO, and
other accused in Criminal Case No. 138138, all pleaded "not guilty" to the charges. Thereafter, upon motion of the
prosecution,21 the two cases were consolidated.22

The prosecution relied mainly on the statements and testimonies of PO3 Ko, Dr. Lagat, Herminia Barlam, Ofelia
Lagman, and Rolando Javar.

The testimony of PO3 Edgardo Ko merely replicated the contents of his Advance Information dated 3 August 1994
(Exh. "K"), Progress Report 1 dated 5 August 1994 (Exh. "L"), and Progress Report 2 dated 9 August 1994 (Exh.
"M") on which the criminal informations were based. He presented to the court some of the items recovered with the
body of Angel, which were marked as evidence for the prosecution, namely, a yellow tablecloth (Exh. "F"), a sack
(Exh. "I"), nylon cord, exh. "H"); a piece of embroidered cloth or crocheted curtain (Exh. "J"), and a girl's (Exh. "G"). 23

Even as the trial judge deplored the sloppy handling of evidence by the police and their lack of control over the
crime scene,24 it was revealed during PO3 Ko's cross-examination that CORDERO was investigated and attested on
8 August 1994 on the basis of Lagman's sworn statements before the NBI and the police, not on Lagunday's verbal
confession.25

Dr. Ludivino Lagat, NBI Medico-Legal Officer; autopsied the body of Angel on 2 August 1994, after receiving a
request for autopsy (Exh. "A") and examining certificate of identification (Exh. "B"), both signed by Angel's brother
Romezen.26 His findings disclosed that Angel died due to multiple stab wounds and traumatic injuries. Both of her
eyes were missing. Dr. Lagat found, among other injuries, two stab wounds on the head and one at the neck; a
head fracture which part of her brain was leaking out 27; severe head deformity due to force; an incised wound 21
centimeters long from the vagina to her anus up to the "sacral area with evisceration of the intestines" caused by a
"sharp bladed weapon."28
33

On cross-examination, the defense, banking on a "possibility" that some of injuries of Angel might have been
caused by other factors, suggested that Angel was ran over by a motor vehicle before she was stabbed. 29 When
confronted about the absence of spermatozoa, Dr. Lagat said it "could be due to soaking (of the body in floodwater).
It could be washed out." And the body was, indeed, washed at the Tres Amigos Memorial Chapel. Moreover, no
spermatozoa was found because "the area was expose(d) and there were some other things that were present in
the area like the intestine,"30 which spilled out of vagina.31

Ofelia Lagman, on whose statement CORDERO was initially arrested and investigated, testified that when she
heard the news about a child found dead in neighborhood, she inquired and learned that it was Angel, her
husband's niece. Angel had been missing since the night of 1 August 1994. She learned that the body had been
taken to the Tres Amigos Memorial Chapel so she immediately went there. The sight that greeted her shivers down
her spine because the round yellow tablecloth where Angels body was wrapped was familiar to her. She had seen
one just like it in the house of CORDERO, a neighbor whom she had known for four years so that she was able to
positively identify him in court,32 and for whom she had done three-days' laundry work in the last week of July 1994.
She saw it on top of their washing machine, folded the way round materials are folded. It was about a meter in
diameter, made of a material like linoleum.33 On 3 August 1994, she decided to share this information with NBI. Five
days later, on 8 August 1994, she made a similar statement to the police.

Another key witness, Rolando Javar, a mason and resident of 1190 Tagumpay St., said that between 9:30 and
10:00 in the evening of 1 August 1994, as he was going home in a pedicab, he saw CORDERO and LAGARTO
standing in front of the warehouse at Kagitingan St., as if waiting for somebody. When he alighted in front of his
house at Tagumpay St., he saw Lagunday driving "Ernie Sidecar No. 14," with Angels as passenger. 34 LAGARTO
was one of the pedicab drivers of CORDERO.35

On cross-examination, Javar said that he first told his story to Angel's mother Zenaida on 12 September 1994. She
is his neighbor, while Ernesto CORDERO is his neighbor and balae, the latter being the father of his son's wife. He
was at first reluctant to tell Zenaida about what he knew because of his relationship with the Corderos. 36

Prosecution witness Herminia37 Barlam categorically pointed to CORDERO and LAGARTO as among the three men
(the other one being deceased Lagunday) she saw in the warehouse at Kagitingan St. at around 2:00 a.m. on 2
August 1994. She witnessed how they stabbed the face and genitals of Angel, hit her with a piece of wood, raped
her as she bled, and eventually killed her. She saw how they tied her hands and feet, wrapped her lifeless form in a
yellow tablecloth, and put her inside a sack. Because of her hearing impairment, however, the defense sought to
disqualify her on the basis of incompetence and repeatedly requested that she be taken to the National Center for
Mental Health (NCMH) to determine if she was competent to testify.38 The court initially denied 39 said motion but
eventually granted40 it. Nevertheless, on 26 August 1994, prior to her psychiatric evaluation, the court heard the
testimony of Barlam. In essence, she said she was Kagitingin St. at around 2:00 a.m. on 2 August 1994. She saw
three men and a child whose name, she later learned, was "Jingjing." One of the men saw her and asked her to be
quiet. This man hit her. Another man, who wore glasses,41 stabbed the child and tied the sack where the child's body
was placed. She positively (and angrily) identified these two men as LAGARTO and CORDERO. The third man was
already dead.42

On 27 September 1994, the NCMH submitted to the court its Report 43 on the phychiatric evaluation of Herminia
(Marina) Barlam. . . . signed by Dr. Benjamin D. Vista and Dr. Isagani S. Gonzales. The following is a verbatim
reproduction of its contents:

GENERAL DATA:

MARINA DELOS SANTOS, 53 years old, female, single, Filipino, Roman Catholic, unschooled, from 1267
Kagitingan St. Tondo, Manila brought for the first time to the National Center for Mental Health on August
26, 1994 for examination.

BACKGROUND HISTORY:

From collateral interviews with relatives and friends, the patient has been deaf since birth and has not been
given any formal education. She has worked as a balut vendor and laundry woman to help support her
family consisting of two sons. She has been noted to function well in areas of self care and daily living. No
assaultiveness (sic), irritability nor destructiveness were reported. There was no history of previous
psychiatric consultation and treatment, nor history of alcohorism and prohibited drug use.

MENTAL STATUS EXAMINATIONS:

Initial examination revealed an adult female, sthenic (sic), fairly kempt in a dress. Behaved and cooperative,
but severe deafness was obvious and questions had to be repeated several times in a loud manner before
she answered. She was able to state her personal data accurately. She was oriented to time; place and
person. She related "kita bata babae" and indicated the height of the child with her hand. "Sinaksaksak" and
made a stabbing action with the forefinger at the throat of her companion, then she made slashing motions
34

on each of her arms and groin. She pointed at her right eye, "tangal mata." She indicated that there were
three men, one of them (she indicated eye glasses) stabbed the victim, and that another took the victim's
earrings.

She explained that this happened at 3:00 A.M. ("alas tres, umuulan") and then demonstrated that she was
urinating at a bodega. She further demonstrated that one of the men hit her with a piece of wood on her left
elbow and knee, and showed her scars. She was able to identify familiar objects, and was able to identify
the 2 peso coins, 10, 20, and 100 peso bills. She was able to do simple mathematic(al) operations. She
related that she is no longer staying at their house "baka ako patayin." Mood was euthymic (sic), affect
adequate.

She was next examined on August 29 and 31, 1994 when she was given a battery of psychological tests.
On interview, she gave the same account of what she saw consistently, and expressed her irritation "paulit-
ulit tanong." Attention span is short and patient tends to confabulate when she unable to hear the question
properly, hence gives inconsistent answer at times. She is friendly and tends toward familiarity with the
interviewer, at times slapping the desk with her hand especially when embarrassed. She tends to be anxious
when many people are around.

Patient was recommended to an ear specialist for assessment and fitting of a hearing aid, after which
psychological examinations were repeated and the patient re-interviewed.

PHYSICAL AND NEUROLOGICAL EXAMINATIONS:

(B)ilateral deafness, all other findings with normal limits.

PSYCHIATRIC EVALUATION RESULTS:

Evaluation shows that patient is classified as having moderate mental retardation associated with deafness,
which is characterized by a subaverage intelligence quotient (between 35-55), but may achieve self-
maintenance in unskilled or semi-skilled work under sheltered conditions, but needs supervision and
guidance when under social or economic stress.

At present, she may be deemed competent based on the following finding: no evidence of insanity of
psychosis, a consistency in relating her story, she appreciates the meaning of the oath she takes as a
witness before the court, and is capable of cooperating with counsel.

REMARKS AND RECOMMENDATIONS:

Because of her deafness and associated mental retardation, this patient is prone to anxiety, panic and
inconsistency when threatened by intimidation or a large crowd of people.

The accuracy of her testimony will depend much on the cooperation of the people who would examine her in
court. Gubjonsson and Gunn (1982), as quoted in the Principles and Practice of Forensic Psychiatry, state
that "even a severely mentally handicapped person may be capable of giving reliable testimony on items of
basic fact," but "may demonstrate a high degree of suggestibility when an individual was unsure of the
facts." For example, such patients may agree that the color of a green leaf is pink when unsure of its real
color, however, suggesting false perceptions that a pencil being held is getting increasingly hot may not be
successful.

An accurate testimony, therefore will depend much on an environment free distraction and intimidations.
(Emphasis ours)

On the basis of the NCMH report, Barlam was fitted with a hearing aid and testified anew on 3 October 1994. Her
examination was marked by countless objections, comments, and arguments of counsels. She began by saying that
on the night of 1 August 1994, after drinking coffee, she went near the warehouse at Kagitingan St. to relieve
herself. While there, she sensed some commotion inside so she peeped through a hole in the wall. She saw three
men and a child. Two of these men were in the courtroom and she identified them as LAGARTO and CORDERO.
The other one was already dead. 44

Barlam was then shown six pictures of seven different girls (Exhibits "BB," "BB-1" to "BB-6"). She positively
identified Angel Alquiza in one picture where angel was seated beside another girl, both of them clad in "flower girl"
attire.45 She added that one of the men hit her knee and left elbow. They ordered her to leave, but she did not, so
one of them hit her with a piece of wood. Another man gouged out the child's eyes, cut off her ear, removed her
earring, slashed her vagina, then raped her. She said this man wore eyeglasses, all the while pointing at
CORDERO.46 After the child was raped, a man hit her head while another stayed by the door. They tied her feet,
wrapped her in some yellow material, then put her in sack. She pointed to CORDERO as the man who wrapped the
child in the yellow material. She even saw tears in the child's eyes when she lit a small candle. 47
35

On cross-examination Barlam declared that she already knew Angel before the incident of 2 August 1994 because,
at one time when she was washing some laundry, she had seen Angel eating porridge (lugaw). She noticed how
pretty the girl was. On the other hand, she first saw CORDERO on that fateful day. 48 Barlam proceed to narrate that
she saw Angel on her knees, with CORDERO standing beside her while LAGARTO stood by the door. The man
who was already dead, Lagunday, saw her, told her to leave, and when she refused, went outside and hit her with a
piece of wood on the left knee and right elbow. CORDERO slashed the left side of Angel's face twice, then her
vagina, gouged out her eyes, and took off her earrings. Both LAGARTO and Lagunday hit Angel's head with a piece
of wood.49

On re-direct examination, Barlam maintained that CORDERO was the one who slashed Angel's vagina then raped
her. ("Hiwa dito hiwa dito, anunta, anunta, hiwa kiki, tanda na hiwa pa kiki.") 50 When she was asked to identify the
man who hit Angel with a thick piece of wood, she went straight to LAGARTO whom she slapped and boxed. 51 As
the defense tried to derail this witness by confronting her with her sworn statement where she described the man
who hit Angel with a piece of wood as a certain "Lando walang ipen," the prosecution clarified that while it is true
that one of the accused, Rolando Manlangit @ "Lando," in fact had no front teeth (bungal), the sworn statement was
prepared by PO3 Ko during the investigation conducted when she was not yet wearing a hearing aid — a statement
she never read because she was illiterate. In any case, the prosecution insisted that on the witness stand, Barlam
was more than consistent in specifying the participation of Lagunday, CORDERO, and LAGARTO. 52 The court also
observed that from a distance, LAGARTO looked as if his front teeth were missing. 53

After the prosecution had rested its case, the court, upon motion of PAO lawyer Atty. Jesse Tiburan, and without
opposition from the prosecution, discharged accused Manlangit, Yaon, and Baltazar in Criminal Case No. 94-
138138 for insufficiency of evidence. LAGARTO and CORDERO, however, objected to the discharge of Manlangit
on the ground that he was allegedly identified by Barlam. In view of such objection, the court reconsidered its order
with regard to Manlangit, who, by counsel, waived the right to present evidence and prayed that the case against
him be deemed submitted for resolution.54

The defense of CORDERO and LAGARTO consisted mainly of denial and alibi. LAGARTO even posed insanity as
an alternative defense, but this failed to convince the trial court. 55

CORDERO denied that he had anything to do with the rape-slay of Angel Alquiza. He maintained that around 7:30
p.m. on 1 August 1994, he was at home talking to a certain Gerardo Eriste, who was asking his help in borrowing
money from an Indian moneylender. After Eriste left around 9:30 p.m., he ate, rested, a video on television with his
children for about an hour before going to bed at about 11:00 p.m. He woke up at 7:00 a.m. the following day and
began counting the pedicab boundary money which he would remit to the Indian moneylender. On 3 August 1994,
around 11:00 a.m., police arrived at his house, saying he was being invited by Maj. Gacutan to the station. He
denied any of knowledge of the incident in question, but he was nevertheless instructed to stay in the office. In the
afternoon, he accompanied Maj. Gacutan to his house to see their dining table which had a glass top instead of a
tablecloth. Then, they went back to Station 2, where he stayed for about 12 hours, leaving around 1:00 or 2:00 in
the morning of 4 August 1994. He was allowed to leave because, apparently, he did not know anything about the
killing of Angel. On 7 August 1994, he was again invited to the police station. There, Maj. Gacutan said he would be
brought to the Homicide Section at UN Avenue because they were being pestered by some members of the press.
Maj. Gacutan even allegedly asked some money in exchange for his liberty. While in detention with Lagunday,
Manlangit, Yaon, and Curimao, he learned that Lagunday implicated him upon the instance of two corpulent women
who had visited the latter and banged his banged his head on the wall. He was detained for about 12 hours and left
the station around 1:00 or 2:00 p.m. on 8 August. On cross-examination, CORDERO said he was unaware of the
warehouse at Kagitingan St., which is about ten blocks from his house at Sunflower St. 56 He also said that he did not
know Lagunday prior to 8 August 1994, even if the latter was one of their pedicab drivers, because his wife was the
one who dealt with them.57

CORDERO's alibi was corroborated by his daughter Emily58 and Gerardo Eriste.59

Rebuttal witness Maj. Franklin A. Gacutan, however, claimed that on 4 August 1994, while CORDERO was being
questioned in relation to the case of Angel Alquiza, he told CORDERO he could leave because they have not yet
found any evidence against him. He also denied the allegation that CORDERO was arrested because of media
pressure and that the latter offered him a bribe. 60

On cross-examination, Maj. Gacutan said Lagunday did not implicate CORDERO or LAGARTO, 61 and it was Barlam
who pointed to CORDERO when the latter was already in detention. 62 And in the early hours of 4 August 1994, he
and his men, accompanied by Lagunday, inspected the warehouse where the alleged crime took place. It was
surrounded by houses and some street lights were on. They entered the dark warehouse but found no evidence.
Peeping inside, nothing could be seen because of the darkness.63

SPO2 Enrico Miranda was summoned to testify on the veracity of the sworn statement of Barlam. Since they were
neighbors and she laundered their clothes, they supposedly understood each other using crude sign language. In
the investigation conducted by PO3 Ko on 4 August 1994, he acted as interpreter between the latter and Barlam.
The defense sought to capitalize on said sworn statement, where Barlam did not mention either the name of
36

LAGARTO or CORDERO.64 Moreover, during the hearing of 17 August 1994, he allegedly saw Barlam outside the
courtroom talking to another woman who was showing to her a newspaper and pointing to a picture of CORDERO,
but he did not hear what they were talking about. 65 Another witness, Gloria Sigua, corroborated this point and added
that she had an argument with the woman who was apparently coaching Barlam to point to CORDERO. The woman
was a companion of Angel's mother Zenaida. 66

To show further that Lagunday did not implicate either CORDERO or LAGARTO, the defense presented Vivencio
Singalawa, who testified that on 5 August 1994, when he visited his friend Jr. Jeofrey (Lagunday's alias) shortly after
lunch at Precinct 2, the latter allegedly confessed that he was the sole author of crime under investigation.
Lagunday also mentioned the names "Lando," "Joel" and "Curimao" (the aliases of CORDERO's co-accused in
Criminal Case No. 94-138138), who served as lookout. Lando was a worker of Mang Gorio, while Joel and Curimao
were scavengers (nagtutulak ng kariton). Singalawa, a barangay tanod, knew the warehouse at Kagitingan St.
where the crime was committed because he grew up in that place; yet, he claimed he did not know CORDERO, who
lived in the same barangay.67

LAGARTO denied any involvement in the crime and claimed he was also at home at the time of its commission. At
the hearing of 4 August 1994, his attorney moved that he be taken to the NCMH for examination. The Court granted
said motion, but as of the time LAGARTO was called to testify on 5 December 1994, the result of such assessment
had not yet been submitted to the court.68

Under oath, LAGARTO said he was a garbage collector. On the night of 1 August 1994, he collected Rosita
Besonia's trash, then asked rice from her as his customary "fee." He went home with a plate of rice, ate dinner, then
slept on the floor by the door from 7:00 p.m. to 5:00 a.m. the following day. On 4 August 1994, while on his way to
his cousin at Don Bosco, policemen in two vehicles — a car and an owner-type jeep — suddenly forced him into the
jeep. A man in the car (Lagunday) was allegedly being compelled by the other policemen to point him. In the
evening, after spending some time at the Luneta detachment of the WPDC, he went home with the police because
they were looking for a certain "Buboy Bungal." Although his brother's nickname was Buboy, the latter was not
"bungal." In any event, they also brought Buboy to the Luneta detachment only to be released when it was
confirmed that Buboy's front teeth were indeed intact. He denied the charges against him, as well as the allegation
that he drove a pedicab for CORDERO.69

LAGARTO's neighbors; Rosita Besonia 70 and Janet Badilla,71 and his mother Noriana Lagarto72 confirmed his alibi.
When cross-examined, however, LAGARTO admitted he was alone at home at 7:00 p.m. on 1 August 1994. 73

In its Decision74 of 31 January 1995, the trial court, per Judge Lorenzo B. Veneracion, gave full credit to the version
of the prosecution and convicted CORDERO and LAGARTO for the crime of rape with homicide, but exonerated as
follows:

WHEREFORE, premises considered, judgment is hereby rendered, dismissing the Information as against
ROLANDO MANLANGlT for lack of evidence, and finding both accused HENRY LAGARTO Y PETILLA and
ERNESTO CORDERO Y MARISTELA "guilty" beyond reasonable doubt of the crime of RAPE WITH
HOMICIDE charged in the Information of these cases, and sentencing both accused (with) the penalty
of reclusion perpetua with all the accessories provided for by law.

Said accused are further ordered to indemnify, jointly and severally, the private complainant the sum of
P100,000 for the death of the victim, ANGEL ALQUIZA; the sum of P500,000 for moral damages; and the
amount of P52,000 for actual damages representing expenses incurred for the wake and funeral of the
victim. They are further ordered to pay the cost of these suits.

SO ORDERED.

Disagreeing with the penalty imposed, the City Prosecutor of Manila filed on 8 February 1995 a motion for
reconsideration75 of the Decision, and asked that it be modified by imposing the proper penalty of death instead
of reclusion perpetua. In its Order dated 10 February 1995,76 the trial court did not take cognizance of the motion on
the belief that "the accused Lagarto and Cordero have complied with the legal requirements for the perfection of an
appeal." This prompted the Office of the Solicitor General to elevate the matter to this Court by certiorari. The
petition, docketed as G.R. Nos. 119987-88, was unanimously granted by the Court en banc on 12 October 1995,
thus:

WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby
REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private respondents
in consonance with respondent's judge's finding that the private respondents in the instant case had
committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by
Section 11 of Republic Act No. 7659, subject to automatic review by this Court of the decision imposing the
death penalty.

SO ORDERED.77
37

Accordingly, on 22 May 1996, Judge Veneracion promulgated an Order in open court at the National Penitentiary,
imposing the proper penalty of death upon the accused. 78

In his Appellant's Brief filed on 9 September 1997, LAGARTO pointed out that the trial court seriously erred:

1. In rendering a judgment of conviction on accused Henry Lagarto apparently by conclusions or

assumptions without considering the fact that there is no conclusive evidence to show that Angel Alquiza
was really raped and killed by somebody;

2. In failing to consider that there was no credible and acceptable identification which is free from doubt that
anyone of the accused and more particularly Lagarto committed of participated in the commission of the
crime charged. The prosecution witnesses were coached and (this) was very apparent constraining even the
court to warn to (sic) private prosecutor regarding his coaching of the witnesses. Witness Barlam had
changed her testimony several times and her general appearance would not merit belief against the
constitutional presumption of innocence of the accused.

3. In failing to consider that by physical evidence, the bodega could not have been the situs of the crime
disproving thereby the claim that the victim was raped and killed inside is not also because no evidence or
traces was found inside it but also because the bodega which is not big — simply an uninhabited house, is
within the heart of the community and surrounded by houses and an unusual commotion or noise would
certainly invite attention.

4. In failing to consider that Henry Lagarto demonstrated his innocence before the court and was supported
by witnesses.

For his part, after several extensions, CORDERO filed on 29 September 1997, through counsel, his Appellant's
Brief. He claims therein that the trial court committed grave and reversible error in the following:

1. In rendering the order dated May 22, 1996 and in considering the same as the promulgation of the penalty
of death against accused-appellant Ernesto M. Cordero.

2. In failing to hold that the prosecution failed to prove the corpus delicti.

3. In failing to hold that the evidence of the prosecution and defense both points (sic) to the fact that
accused-appellant Ernesto M. Cordero is completely innocent of the offense charged.

4. In not finding as a fact that the testimony of prosecution's (sic) witness Major Franklin Gacutan is adverse
against the prosecution and points to the fact that the accused-appellant Ernesto M. Cordero is innocent of
the offense charged.

5. In failing to hold that prosecution's (sic) witness Herminia Barlam is not qualified to become a witness.

6. In taking into account of, and according evidentiary value to the finding and recommendation of (the)
psychiatrist from (the) National Center for Mental Health.

7. In not finding as a fact that it is highly impossible and improbable for witness Herminia Barlam to have
seen what had (sic) supposedly happened in the subject warehouse on August 2, 1994.

8. In not finding as a fact that the testimony of prosecution's (sic) witness Heminia Barlam is full of
discrepancies and self contradictions.

9. In not finding as a fact that the testimony of prosecution witness Herminia Barlam is highly improbable
and contrary to human experience.

10 In not finding as a fact that prosecution witness Herninia Barlam is a perjured, biased and rehearsed
witness.

11. In failing to hold that the adverse result against the prosecution of the ocular inspection is a proof that
the accused-appellant Ernesto M. Cordero is innocent of the offense charged.

12. In not finding as a fact that the testimonies of the other witnesses for the prosecution are unworthy of
belief.

13. In failing to hold that conspiracy is (sic) not proven beyond reasonable doubt by the prosecution and that
therefore criminal liability is individual, not collective, and thus exempts the herein accused-appellant from
the offense charged.
38

14. In not finding as a fact that the late Abundio Lagunday was the sole author of the offense charged,

15. In failing to hold that the defense of alibi assumes importance where the evidence for the prosecution is
weak and came (sic) from (a) source that cannot be characterized as fully unbiased and disinterested.

16. In falling to hold that accused-appellant Ernesto M. Cordero was illegally arrested and not accorded the
right to preliminary investigation.

17. In holding (that) the accused-appellant Ernesto M. Cordero is liable to private complainant for damages.

As the issues raised by LAGARTO are covered by CORDERO's assignment of errors, we will concurrently dispose
of them.

CORDERO claims that the trial court never amended or modified its Decision of 31 January 1995, as mandated by
us in People v. Veneracion (G.R. Nos. 119987-88). He argues that the trial court merely "ordered that its Order
pursuant to the Decision of this Honorable Court be promulgated by reading to both accused the same Order in the
language known and understood by both of them" and did not state that the penalty being imposed was death.

CORDERO's apprehension is unwarranted because the trial court issued two orders in open court at the National
Penitentiary on 22 May 1996. The first was made in compliance with our ruling in People v. Veneracion:

Pursuant to the Decision of the Honorable Supreme Court in G.R. No. 119987-88 directing the imposition of
the penalty of death upon the herein accused in consonance to (sic) the findings that they had committed
the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of
Republic Act No. 7659, the penalty imposed to (sic) the herein accused, HENRY LAGARTO Y PETILLA and
ERNESTO CORDERO Y MARISTELA shall, as it is hereby imposed, be the penalty of death.

Pursuant further to the aforesaid Decision, after this Order is duly promulgated, let the entire record of these
cases be returned to the Honorable Supreme Court for automatic review.

SO ORDERED.79

while the other dealt with its promulgation:

When these cases were called, both accused appeared assisted by counsel de oficio, Atty. Jovito Salvador,
PAO lawyer of Muntinlupa, Metro Manila, who, was appointed counsel de oficio.

In view of the failure of counsel on record Atty. Miguel Badando for accused Henry Lagarto and Atty.
Paterno Esmaquel for accused Ernesto Cordero to appear despite notice. (sic) Private Prosecutor Pete
Prinsipe interposed no objection to the promulgation of the Order in the absence of counsel on record.

Thereafter, the Court ordered that the Order of this Court pursuant to the Decision of the Honorable
Supreme Court be promulgated by reading to both accused the same Order in the language known and
understood by both of them.

Thereafter, the order for the transmittal of the entire records of these cases to the Honorable Supreme Court
for automatic review is hereby reiterated.

SO ORDERED.80

Both LAGARTO and CORDERO claim that the prosecution failed to prove the act of death of Angel Alquiza because
her death certificate was not proffered in evidence. Instead, the prosecution presented the Autopsy Report (Exh.
"C"), which allegedly cannot be considered as proof of the fact of death of Angel "because there was no proper and
sufficient identification of the victim that was mentioned in said autopsy Report." 81

This issue, however, is answered in CORDERO's Brief itself: "The said Autopsy Report states that the body of the
supposed victim, Angel Alquiza, was identified by a certain Romezen Alquiza, a brother of the victim." 82 The records
show that Romezen submitted to the NBI a request for autopsy and the NBI issued a Certificate of Identification of
Dead Body which he also signed.83 These were essential for the autopsy which was eventually made by Dr. Lagat.
In any case, there is no rule that specifies who may identify a victim. It is enough that such persons knows the one
being identified. Certainly, a brother of the victim can recognize his own sister even with her manifest physical
injuries. The prosecution cannot be faulted for not presenting other witnesses to verify Romezen's identification, the
choice of witnesses being a matter of legal strategy and prerogative. Neither was CORDERO denied any
opportunity to cross-examine him regarding such fact because the Autopsy Report is an official document the
authenticity of which is presumed. Its validly, therefore, cannot be collaterally attacked by putting Romezen on the
witness stand. 1âwphi1.nêt
39

As to the legal failure of the prosecution to prove the cause of Angel's death, LAGARTO and CORDERO maintain
that the fact of stabbing — which, according to the post-mortem findings of Dr. Lagat, was the cause of death of the
victim — was not adequately established. Dr. Lagat said that there might be other causes of death, such as Angel
being hit by a motor vehicle. But then, this is a mere probability. If we were to stretch this line of reasoning further,
other possibilities may be apparent: Angel could have still been alive when she was ran over by the motor vehicle,
as suggested by the defense; on the other hand, she could have already been dead at the time. Preliminary police
findings showed the that sack wherein Angel's body was placed was found along a truck route. In the flooded street,
it could have easily been hit by a truck, thus, producing the cranial injury which the defense suggests might be the
true cause of Angel's death. Or, it is also likely that she could have been severely hit on the head by a hard object.
This last scenario, being supported by the testimony of prosecution witness Barlam, seems more plausible. It is
worth mentioning that Angel suffered numerous injuries which could not all have been caused by a motor vehicle.
Neither could the defense explain why or how the body could be wrapped in a round yellow tablecloth, then put
inside a sack, if Angel was still alive at the time. CORDERO even stresses that his table has a glass top, instead of
a mantle. He fails to consider the implication of this fact: The round yellow tablecloth seen in his house by Ofelia
Lagman in July 1994 was the one used in wrapping Angel's body because said tablecloth was no longer there after
the incident in question. The prosecution, for its part, offered convincing and logical answers to these questions,
based on the testimonies of its witnesses.

It is further argued that the prosecution failed to prove the fact of rape because the Autopsy Report did not
categorically state that Angel was, in fact, raped. Dr. Lagat's examination revealed that Angel's genital injury was
caused by a sharp-bladed weapon. Ultimately, CORDERO concludes, "the testimony of witness Barlam regarding
the rape in question cannot prevail over the aforesaid finding and autopsy report of Dr. Lagat." This is non sequitur.
The finding that the incised wound on Angel's genitals was caused by a sharp-bladed instrument does not
necessarily mean that she was not raped. Barlam, whose competence and credibility as a witness was upheld by
Judge Veneracion based on the NCMH report and on his own observation of her deportment during the three days
she testified in court, swore that she saw Angel being raped in the early hours of 2 August 1994.

CORDERO also claims he was never properly identified as one of the perpetrators of the crime charged. Jose
Soriano said he saw Angel with Lagunday on the night of 1 August 1994 and they "appeared normal." Barlam's
sworn statement of 4 August 1994 mentioned Lagunday, LAGARTO, and a certain Lando, but not CORDERO, a
fact confirmed by PO3 Ko and SPO2 Miranda. Maj. Gacutan said they had no evidence against CORDERO, so they
allowed him to go home after he was initially invited to the police station. Vivencio Singalawa claimed Lagunday
admitted sole authorship of the crime. And because he was not properly identified by the State's prime witness,
CORDERO suggests that Barlam was merely coached by the family of Angel to implicate him.

We are not convinced. Jose Soriano could not have seen CORDERO with Angel that night because CORDERO
was somewhere else at the time. Prosecution witness Rolando Javar saw CORDERO and LAGARTO between 9:30
and 10:00 p.m. on 1 August 1994 standing by the warehouse at Kagitingin; as if they were waiting for someone
(palinga-linga). Javar is even related to CORDERO by affinity; his son being married to CORDERO's daughter, so
there appears no plausible reason for him to lie, especially in this case where his balae is faced with death
sentence. On the other hand, whatever Lagunday revealed to Singalawa is purely hearsay, since Lagunday died
even before arraignment.

As stated earlier, Barlam's sworn statement of 4 August 1994 was taken by PO3 Ko with the assistance of SPO2
Miranda. Since she is illiterate and at the time had not yet been equipped with a hearing aid, it is highly probable
that the essence of her narration was not captured in the translation and transcription. In any event, even if she did
not name CORDERO in her sworn statement, she undoubtedly and consistently pointed to him and LAGARTO in
open court, even slapping and boxing them at times to demonstrate her indignation. We agree with the trial court
that by her words and actions, Barlam had sufficiently and convincingly identified CORDERO and LAGARTO as two
of the men who raped and killed on 2 august 1994.

The manner in which Barlam testified in court betray not a single hint that anyone had coached or coaxed her to
implicate CORDERO. Defense witnesses Gloria Sigua and SPO2 Miranda supposedly witnessed how a companion
of Zenaida Alquiza showed Barlam a newspaper with CORDERO's picture in it. Sigua allegedly argued with this
woman after hearing her say, "ito ba, isama mo na ito sa pagturo." 84 Yet, SPO2 Miranda, who was
standing beside Barlam at the time, heard nothing. 85 What is even more telling is he believed there was nothing
wrong with Barlam, save for her hearing impairment, and that she was telling the truth. 86

For his part, Maj. Gacutan supposedly did not arrest CORDERO because had no evidence against him. The
information supplied by prosecution Lagman and Javar, linking CORDERO to the crime, was sufficient to give the
police a reason to arrest him. Ultimately, CORDERO's role in the crime charged was duly established when he was
positively identified in court by Barlam as the cohort of Lagunday and LAGARTO.

From the moment Barlam surfaced as an eyewitness to the crime, accused-appellants LAGARTO and CORDERO,
through counsel, have desperately tried to disqualify her on ground of incompetence. Obviously aware of the futility
of any to objection to Barlam's testimony on account of the psychiatric finding by the NCMH, after the three
examinations, that "she may be deemed competent," the defense attacked instead the damaging contents of the
NCMH psychiatric evaluation report anchored on the following grounds: (1) said report is hearsay because the
40

doctors who prepared and issued the same were not presented in court; and (2) it was not offered in evidence by
the prosecution.

This argument fails to consider the very nature of the NCMH report. Having made upon order of the trial court, such
report is in the nature of an official document in aid of judicial determination. It is not evidence for the prosecution or
against the defense but a document — a scientific report — prepared and issued by an entity totally removed from
the criminal proceedings, hence, indifferent, objective, and impartial. To be utilized by the trial court, it need not be
offered in evidence by the prosecution because the court may take judicial notice of its existence and composition. It
is also for this reason that its contents cannot be rejected on account of being hearsay.

The fate of accused-appellants LAGARTO and CORDERO depends greatly on the credibility of Barlam as a
witness. The trial court also recognized this, such that it propounded numerous classificatory questions throughout
the hearings of 3 and 4 October 1994, when Barlam was testifying on the witness stand after her psychiatric
examination, just to elucidate her responses amid the sea of queries unleased by the lawyers. It is in cases like this
where we find ourselves adhering more to the principle that factual findings of the trial court must be accorded
respect and even finality on appeal because the trial judge had every opportunity to question the witness, hear her
testify, and observe her demeanor and deportment.87 Exceptions to this rule exist, such as when the trial court's
evaluation was arbitrarily made, or when some substantial fact or circumstance which might affect the result of the
case has been overlooked, misunderstood, or misapplied, but no such peculiarity is apparent in the case at
bar.88 The trial court has "keenly observed (Barlam) during her testimony and . . . is convinced that she is speaking
the truth."89 After poring over the voluminous records of this case and scrutinizing the assailed Decision of 31
January 1995, we see no reason to depart from this conclusion.

We agree with the observation of the trial court that Barlam was referred to the NCMH precisely upon the repeated
motion of defense counsels. Because of her damaging testimony, her disqualification was the best ploy for the
defense. Barlam, however, adequately met the minimum requirements for qualifying as a witness under Sections 20
and 21, Rule 130 of the Revised Rules on Evidence, thus:

Sec. 20. Witnesses; their, qualifications. — Except as provided in the next succeeding section, all persons
who can perceive, and perceiving, can make known their perception to others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a crime, unless otherwise
provided by law, shall not be a ground for disqualification.

Sec. 21. Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be
witnesses:

(a) Those whose mental condition, at the time of their production for examination, is such that they
are incapable of intelligently making known their perception to others;

(b) . . .

Barlam could certainly perceive and make known her perception to others. Even if she is deaf, she saw what
happened on 2 August 1994. She related what she saw to the police on 4 August 1994; to the psychiatrists who
examined her at NCMH on 26, 29, and 31 August 1994; and to the trial court on 26 August, 3 and 4 October 1994.
Did she "intelligently" make known her perception to others, especially when she testified in court? Certainly, she
did. Everybody understood her even if some of her statements on minor points were inconsistent. A perusal of the
transcript of stenographic notes would readily reveal that counsels for the defense attempted in vain to confuse her
on relevant facts, even confronting her with her sworn statement — a clear indication that she connected with them
"intelligently."

Because of Barlam's "deafness and associated mental retardation," the defense harped that she should be
disqualified from testifying. The disquisition above, notwithstanding, we have ruled that even a mental retardate or a
feeble-minded person could qualify as a competent witness.90

Instead of finding Barlam, unfit to be a witness, the NCMH even bolstered her credibility by declaring her to be
competent and consistent in her recollection and narration of the events she witnessed on 2 August 1994. Barlam
was ordered by the court to undergo psychiatric tests because she exhibited some aberrant behavior. Her speech
was fragmented, at times unintelligible or incongruous, but this was due in most part to her congenital deafness and
anxieties. The fact remains that the thrust of her testimony regarding the circumstances surrounding the events that
transpired on 2 August 1994 never varied. Against the recommendation of the NCMH that her examination in court
should be free from distraction and intimidation, defense counsels literally tried every trick in the book to badger and
confuse her, derail her testimony by confronting her with her sworn statement, and otherwise cast doubt on her
capacity to testify. Yet, her testimony held.

When Barlam testified on 26 August 1994, prior to her psychiatric examination, she declared thus:
41

ATTY. PRINSIPE (Private Prosecutor):

Q           On August 2, 1994 at around 2:00 in the morning, will you tell the Court where were you?

Will you (the interpreter) please whisper to the right ear (of the witness) because this is a vital witness and
we (the prosecution) will request repeatedly.

WITNESS:

Kalsada.

ATTY. ESMAQUEL (Counsel de parte for Cordero):

At this juncture, may we manifest that the answer of the witness is not responsive. The only question
is - - - (cut short)

COURT:

She answered "kalsada"

ATTY. PRINSIPE:

Q           Where is that street you mentioned?

A           Kagitingan.

Q           And will you kindly tell the Honorable Court whether there was an unusual incident that happened
on that date and time?

A           It's Monday - - - (cut short)

ATTY. ESMAQUEL:

May we manifest that the answer is not responsive to the question. The question is whether there
was an unusual incident that happened on that date and time.

A           Oh, hindi ako nanloloko peksman.

ATTY. PRINSIPE:

Please related (sic) it to the Court.

A           Mama na naka salamin - - -

ATTY. ESMAQUEL:

May we request that the answer be stricken out of the record for not being responsive.

ATTY. BADANDO (Counsel de parte for Lagarto):

Your honor, I would like to make an observation on record that I could not see any man wearing an
eye glasses.

COURT:

Sige.

WITNESS:

The man wearing eye glasses - - sinaksak ang bata.

COURT:

Go down from where you, were and go to the person whom you said - - (cut short)
42

ATTY. PRINSIPE:

Before that your honor, I just want to make an important observation that immediately after the
witness pointed, that man Cordero, he removed his eye glasses, your honor.

INTERPRETER:

Please make it of record that the witness step(ped) down from the witness stand and she is now
going to the place - - - (cut short)

COURT:

Point to the man.

INTERPRETER:

- - - and she is now pointing to a man, and when asked to identify himself, he claims that he is
Ernesto Cordero — and the other one is Henry Lagarto.

ATTY. PRINSIPE:

The witness is very angry your honor, in pointing to the accused. 91

xxx     xxx     xxx

You pinpointed Cordero a while ago, why did you pinpoint him?

A           Iyan ang nakita ko. Iyan tali sako tapos tapon Moriones.

Q           You stated that somebody was hogtied or tying a sack, do you know whatever there was (anyone )
inside, that sack.

A           Marami sako, maraming tali, damit ng bata sira-sira na.

xxx     xxx     xxx

ATTY. PRINSIPE:

You were stating that you saw Cordero tying the sack, were there any other person present during that tying
of the sack?

A           Wala ngang tao. Lima kami, iyan, iyan, isa patay na. Anim iyon, patay na ang isa.

ATTY. BADANDO:

The first thing she said was "siya, ako at siya."

ATTY. ESMAQUEL:

Yes, let it be on record.

ATTY. BADANDO:

Which means three including herself.

ATTY. PRINSIPE:

You said three?

A           Iyong isa patay na.

ATTY. PRINSIPE:
43

Will you please look around and see whether the two whom you are referring to are inside the
courtroom?

Will you please step down from the witness stand and approach the two, tap them on the shoulder.

INTERPRETER:

The witness step(ped) down from the witness stand and she is now going to the two men, who,
when asked to identify themselves claim(ed) that they are (sic) Ernesto Cordero and Henry Lagarto.

ATTY. PRINSIPE:

Q You said that you saw Cordero tying the sack, why do you know, do you know the reason why he was
tying that sack?

ATTY. ESMAQUEL:

Incompetent to answer. The only thing is because the witness - - - he is asking about Cordero.

COURT:

Sustain.

ATTY. PRINSIPE:

Q           Why were you in that place you mentioned a while ago on that date and time?

A           Iinom ako kape. Iiyak iyak bata. Nagugutom ako. Dinig sabi nang mama, huwag ka ingay. - - tapos
pinalo ako, sabi ko bakit iyak bata, tapos sabi ko wala na patay na, ah ah ah.

FISCAL (Should be either Atty.; Esmaquel or Atty. Badando):

Do not allow her to be relating a story.

ATTY. PRINSIPE:

Who was the child you saw and you heard crying? What is the name?

ATTY. BADANDO:

Your honor, I object because she was (not) able to identify any child. What she stated (earlier) is a
certain Tetchie, a mother of that woman. There is no basis.

COURT:

Answer.

ATTY. ESMAQUEL:

May I join the objection on the ground that earlier, she was asked - - - (cut short)

COURT:

Let the witness answer. Objection overruled.

A           Batang sinaksak.

ATTY. PRINSIPE:

Q           Do you know the name of the child who was stabbed?

A           Oh oh.

ATTY. ESMAQUEL:
44

May we manifest that the witness failed to answer.

COURT:

In the interest of justice, repeat the question.

(Interpreter repeating)

A.           Oho.

ATTY. PRINSIPE:

What is the name?

A           Jingjing.

Q           Why do you know that the name of the child is Jingjing?

A           Dinig ko sa kalsada.

Q           If I will show you the picture of Jingjing, would you be able to recognize her?

A           Oho.92

On 3 October 1994, Barlam went back to court after being cleared by the NCMH to testify and after being fitted with
a hearing aid. Excerpts from that day's hearing are hereunder quoted minus the objections, comments, and oral
arguments of counsels. The questions were translated into Tagalog and her responses quoted verbatim by the court
interpreter. The pages where they appear in the TSN are in parentheses. Fiscal Narciso J. Rosero, Jr. began the
examination by asking what Barlam was doing in the morning of 1 August 1994 (or evening of 2 August 1994).

A           Iinom ako kape. Lalaba. Iihi ako. (24)

Iihi ako sa dulo. May tubig sa dulo. Doon ako huhugas. (25)

FISCAL:

Q           Were you able to finish washing?

A           Oh.

Q           After you were able to finish washing, what did you observe, if any?

ATTY. BADANDO:

Very vague.

COURT:

Answer.

A           Kita ko tatlo lalake, isa bata apat tao, tatlo lalake isa bata. Totoo sinasabi ko.

FISCAL:

Q           These three male persons who you saw that morning — these three male persons whom you saw
together with the female child, would you be able to recognize these three male persons if you see them
again? (27)

A           Oho.

Q           Will you please look around inside the courtroom and find out whether they are all here?

INTERPRETER:
45

The witness step(ped) down from the witness stand and the witness now is slapping the face of one
male person — two male persons, and when asked to identify themselves, they claimed that they
are (sic) Ernesto Cordero and Henry Lagarto.

A           Isa patay na.

FISCAL:

Q           How about the female child whom you saw in the company of these three male persons, if you see
her again; would you be able to recognize her?

A           Oho. (28)

At this point, Barlam was shown six pictures of seven different girls from she correctly picked out the picture of
Angel Alquiza.93

WITNESS:

Sabi nila, alis na, alis na sabi. Sabi ko ayoko, patayin na ninyo ako, hindi ako aalis.

FISCAL:

Q           So what happened when you answered them that you will not leave, maski na patayin ka.

A           Malayo ako doon, binato ako ng kahoy. Hindi ako loloko. Totoo yon.

Q           After you said one of these male persons hit you with a piece of wood on your left knee and on your
left elbow, what did you do next after that?

A           Aalis mata, aalis tenga, aalis hikaw, hiwa dito, hiwa kiki niya." Pag hindi totoo, ikukulong ako tapos.
(32)

ATTY. BADANDO:

Let it be made of record that. the witness is mentioning or motioning that after slashing the child
including the private part, she motion(ed) "anunta, anunta". The witness is touching her index finger
into her palm, and then pointing to her private part. That was aside from slashing.

FISCAL:

Q           Who, of these three male persons, who among them "anunta, anunta"?

ATTY. BADANDO:

Your honor, let it be reflected also on record that the witness said that there was a person who has
an eyeglasses, but when we look(ed) around, there was no such person wearing an eyeglasses.

INTERPRETER:

The witness is pointing to the two accused, (33) which, when asked answered by the name of
Ernesto Cordero.

ATTY. ESMAQUEL:

I would like to request, your honor, that the witness be admonished not to slap the accused.

FISCAL:

The actuation of the witness is merely a sign of her sincerity in conveying the truth to the Honorable
Court. (34)

xxx     xxx     xxx

FISCAL:
46

Q           Alright, aside from this "anunta, anunta", what did these two persons do next, if any?

A           Isa palo ulo, isa alis diyan, isa pinto, diyan ka, sabi, diyan ka muna, isa palo ako tapos hikaw alis.

Q           (A)fter all those things, what next did these three persons do?

A           Isa tali paa, pula, tapos isa dilaw, balot sako, kurtina, wala na, tapos na.

COURT:

Who was the one of the two accused who tie(d) the sack?

INTERPRETER:

The witness step(ped) down from the witness stand and (s)he is now going to the accused — (cut
short) (41)

ATTY. ESMAQUEL:

May I manifest, your honor, that what has been pointed out by the witness is the accused Lagarto,
your honor.

ATTY. BADANDO:

Let it be recorded that what has been stated earlier, the one pointed was Cordero. It is clear from the
transcript of stenographic notes dated August 26, 1994 that when asked by (sic) the same question,
the witness pointed to the accused Cordero as the one who tie(d) the sack.

FISCAL:

That is already on record.

ATTY. ESMAQUEL:

And now, the one pointed to was the accused Lagarto. (42)

COURT:

Who was the one who wrapped her with the yellow tablecloth?

Q           Iyan.

COURT:

You go down again and point to the one who wrapped the child with the yellow material?

A           Iyan tali. Iyan na nga ho.

COURT:

The witness pointed to the accused Cordero.

Q           You said that the eye was taken out, who remove(d) the eye?

ATTY. BADANDO:

And the witness was shouting yanyanyan.

COURT:

Ayan, ayan.

Q           You said that the face, was slash(ed), who slash(ed) the face? (43).
47

A           Kalbo.

INTERPRETER:

The witness step(ped) down again to (sic) the witness stand and she is now pointing to the accused
Lagarto.

COURT:

Who was the one who slashed the private part of the child?

A           Iyan nga dalawa. Kulit mo kausap. Iihi ako, saan ako iihi ako.

FISCAL:

Q           You stated a while ago that you heard a child somewhere crying, when you heard somewhere a
child crying, what did you do, if any?

A           Sabi ko, kawawang bata, tapos hiwa dito, tangal mata. Totoo iyon, hindi ako nagsisinungaling. (44)

ATTY. BADANDO:

The witness, a while ago, is motioning that tears (were) flowing down from the eye of the child.

FISCAL:

Q           How did you come to know that tears were flowing from the eye of the child?

A           Sindi ako kandila, kita ko tulo

INTERPRETER:

Witness referring to her two eyes.

WITNESS:

Hina lang.

FISCAL:

Q           At the time you lighted the candle, how far were you from the child?

A           Dito ako ihi, sa dulo, butas dito, dito bata.

ATTY. BADANDO:

We would like to stipulate as to the distance that that is only one arm(s) length. (45)

FISCAL:

About one arm(s)length or one a half arm(s)length.

Q           Where was (sic) these three persons at the time you saw the child crying?

A           Sa gilid. Dito kahoy, tapos tali sako, tapos balot dilaw, tali pula, tali paa.

INTERPRETER:

Witness is motioning to her feet.

WITNESS:

Totoo ho, hindi ako nanloloko.

48

FISCAL:

Q           What was the attire of the child, if any, when you saw her crying, if any?

A           Dilaw daster may manggas.

FISCAL:

Q           At the time the portion of her body was slashed, and the private part of the body was slashed (46)
by the accused, what was her attire, was she still wearing that attire?

A           Hindi na.

Q           What do you mean?

A           Patay na siya. Wala nang damit. (47)

The following day, 4 October 1994, Barlam was cross-examined. Her testimony, as that on direct, are similarly
quoted and paginated:

Q           Before the incident that you saw on August 2, 1994, did you already know Angel Alquiza?

A           Oo. Kakain ng lugaw.

Q           When for the first time did you meet Angel Alquiza before that incident on August 2, 1994?

A           Lima taon siya. Ito bahay, ito kalsada, ako lalaba. Ang ganda bata. (11)

xxx     xxx     xxx

ATTY. ESMAQUEL:

Q           Before the incident which you saw on August 2, 1994, have you already met or saw (sic) the
accused Cordero? (15)

A           Hindi pa.

Q           So when for the first time did you see the man with an eye glasses?

A           Noon nga, noong una doon. Tatlo iyan. Patay na isa.

Q           When you said "noon nag, what are you referring to?

A           Isa bata tatlo lalaki.

Q           And where did you see those three male(s) and one child?

A           Iihi ako dulo. Sindi ako kandila. Doon tubig huhugas ako, "uulan-ulan.

INTERPRETER:

Witness is motioning the size of the candle.

A           Tapos ligo na ako. Ihi ako tapos dito rinig ko bata aray. Nihiwa na.

INTERPRETER:

Witness is motioning to the eye, the ears, (16) the throat, the private organ.

A           Ako nga palo kahoy. (17)

Barlam's erratic behavior became manifest as the hearing droned on, but so did the clarity and consistency of her
narration. She pretended picking lice off the interpreter's head; she said her father's cousin was a tin can; she even
allegedly exposed her private part to the defense counsels. There is no denying, however, that she saw Angel
49

surrounded by these three men — one a pedicab operator with a history of abusing even his own daughters; the
other two, scavengers and occasional pedicab drivers. CORDERO stood before her as she knelt on the floor.
LAGARTO stayed by the door. Lagunday saw Barlam, shooed her away, then went after her and hit her with a piece
of wood when she would not leave. The left side of Angel's face was slashed twice by CORDERO, who also gouged
out her eyes and cut her vagina all the way to and beyond her anus. He took her earrings. Angel's head was bashed
in when she was hit with a piece of wood by LAGARTO and Lagunday. 94

Even on re-direct examination, Barlam was certain that it was CORDERO who slashed Angel's vagina and raped
her. ("Hiwa dito hiwa dito, anunta, anunta, hiwa kiki, tanda na hiwa pa kiki.") 95 The one who hit Angel with a thick
piece of wood was LAGARTO, and Barlam identified him in dramatic fashion by slapping and boxing him. 96 When
confronted with her sworn statement where she said that the man who hit Angel with a piece of wood was "Lando
walang ipen," it was made clear by the prosecution that such sworn statement was made in connection with an
investigation conducted by PO3 Ko when Barlam had not yet been fitted with a hearing aid. In fact, she did not and
could not read such statement so it had to be "read" to her by SPO2 Miranda without her hearing aid. Barlam never
deviated in relating to the court the complicity of Lagunday, CORDERO, and LAGARTO in the rape-slay of Angel. In
the assailed decision, the trial court even observed that from afar, LAGARTO looked as if his front teeth were
missing.97

Barlam's testimony, in our opinion, adequately established the liability of Lagunday, LAGARTO, and CORDERO for
raping and killing Angel Alquiza. She not only proved to be competent but also truthful in her narration of what
transpired on 2 August 1994. Her sworn statement might not entirely jibe with her oral testimony, but we have ruled
that in case of conflict between the contents of a sworn statement and testimony in open court, the latter generally
prevails since ex parte affidavits are often incomplete and inaccurate because by their nature, they are ordinarily
prepared by a person other than the affiant. 98 Barlam may have strangely at times, but such idiosyncrasy has no
bearing on the consistency and veracity of her testimony. She repeatedly pointed to accused-appellants LAGARTO
and CORDERO as she spoke, and slapped, boxed, and glowered at them when she was asked by the court to
identify the malefactors. Neither can we discount the psychiatric report which gave Barlam a clean bill of mental
health. For three days, she was examined by professional psychiatrists, but her story remained the same. It was the
same story she narrated in court, albeit with some minor inconsistencies.

It must also be noted that Barlam absolutely has no motive to falsely testify against LAGARTO and CORDERO. The
absence of evidence of any improper motive actuating her as the principal witness of the prosecution strongly tends
to sustain the conclusion that no such improper motive existed at the time she testified and her testimony is worthy
of full faith and credit.99

LAGARTO and CORDERO deny the allegations against them and said they were sleeping in their respective homes
at the time the crime was supposedly committed. By itself, alibi is a relatively weak defense; it is further emasculated
in the absence of any showing that it was physically impossible for the accused to have been at the crime scene or
its immediate vicinity at the moment it was being perpetrated. 100 CORDERO's home is merely ten blocks from the
warehouse at Kagitingan St. He denied any knowledge of its existence, which is highly dubious considering that it is
a roadside structure. His daughter Emily and Eriste supported his alibi, but only up to the time that he supposedly
slept at around 11:00 p.m. on 1 August 1994. LAGARTO, on the other hand, lived with his family at Parola Area D,
Tondo, Manila, which is a jeepney and tricycle ride from the warehouse at Kagitingan St. His neighbors, Besonia
and Badilla, and mother Noriana corroborated his story that he slept at around 7:00 p.m. on 1 August 1994 until
5:00 a.m. the following day. But on cross-examination, he admitted he was all alone in their house when he slept.

The fact that LAGARTO and CORDERO were at home in the evening of 1 August and in the morning of 2 August is
no indication that they were there the whole time. They were both placed at the crime by two witnesses. Javar saw
them in front of the warehouse between 9:30 and 10:00 on 1 August 1994, as if waiting for someone. Barlam saw
them inside the warehouse around 2:00 a.m. on 2 August 1994. CORDERO was the one who stabbed Angel in the
face, slashed her organ, raped her, and tied her feet. LAGARTO hit angel on the head. Together with Lagunday, the
three wrapped her in yellow tablecloth identical with the one Lagman saw CORDERO's house, put her in a sack
which they tied with a nylon cord, then, under a mantle of heavy rain, set her adrift in murky floodwater. Incidentally,
CORDERO raises in issue the delay in which Javar reported to the authorities what he knew about Angel Alquiza's
case. This was properly addressed by Javar when he said that he did not initially want to report the matter to anyone
because CORDERO was his balae. 101 In the end, his conscience convinced him to shun family ties in order to help
bring justice to Angel.

Besides, LAGARTO and CORDERO were positively identified by prosecution witness Barlam as the authors of the
crime charged. Their denial and alibi cannot prevail over the positive identification and assertions of Barlam. 102

LAGARTO and CORDERO make much of the perceived impossibility of committing the crime in the warehouse of
Mang Gorio. Maj. Gacutan visited the place on 4 August 1994 and found its perimeter adequately lit and surrounded
by residential houses, but its interior was so dark that anyone who peeped from the outside would not have seen
anything inside. He did not even find any evidence in the dark bodega.
50

This argument is untenable. It is established that rape is no respecter of time or place. It can be committed in small,
confined places, like a one-room shack and in the presence of other family members, 103 or a small hut on a raft
(alang).104 The same can be said of any other crime that accompanies and compounds the rape. In the case at bar,
even if there were houses around the warehouse and there was a lamppost nearby, there is no dispute that Angel
was assaulted therein at 2:00 in the morning during a heavy downpour. Under the condition then prevailing, the
desolation of the warehouse and its immediate vicinity provided a perfect cover for the atrocities perpetrated against
Angel. On the other hand, when the court conducted an ocular inspection of the warehouse on 22 November 1992,
it was noted that the holes through one or more of which Barlam had witnessed the crime have been patched up.
The protestation of CORDERO and LAGARTO cannot be given serious consideration because the trial court
gathered "from the Barangay Captain and other residents that there have been alterations in the warehouse; that
the opening had been covered, so much so that the actual conditions of the warehouse at the time of the
commission of the offense are no longer obtaining during the ocular inspection." 105 LAGARTO and CORDERO
likewise question the wisdom of this observation because there is allegedly no evidence, testimonial or otherwise,
which would support it. The ocular inspection was, however, conducted with the assistance of the Barangay Captain
and some residents. The conclusions of the court, therefore, is not conjectural but based on information supplied by
the escorts who were more familiar with the physical condition of the warehouse.

As regard Maj. Gacutan's investigation, which allegedly yielded no evidence against LAGARTO and CORDERO, the
trial court correctly observed that this is to be expected because Maj. Gacutan "did not take with him any (forensics)
expert to any instrument to recover any physical evidence." 106 Nonetheless, his failure to obtain any evidence from
the crime scene does not ipso facto eliminate the fact that a crime was committed therein, especially in view of the
damning testimonies of the prosecution witnesses.

The next crucial question to be resolved is whether LAGARTO and CORDERO, together with deceased Lagunday,
conspired to rape and kill Angel.

The following undisputed facts must be taken into consideration and read in connection with Barlam's testimony:

1. On the night in question, Angel was last seen being led by the hand of Lagunday. Javar saw Angel riding "Ernie
Sidecar No. 14" which was driven by Lagunday. Ligaya, wife of CORDERO, confirmed that on 1 August 1994,
Lagunday drove "sidecar No. 14" which was part of their fleet of pedicabs.

2. LAGARTO was arrested by the police after Lagunday implicated him along with accused Manlangit, Baltazar, and
Yaon.

3. Eyewitness Barlam positively identified Lagunday and LAGARTO from a police line-up as two of the tree men she
saw raping and killing a girl in the abandoned warehouse of Mang Gorio at Kagitingan St.

4. Lagunday and his co-accused Manlangit both used to work for Mang Gorio at the latter's junk shop, which is the
abandoned warehouse where the crime took place.

5 Lagman told the NBI and the police that the yellow tablecloth where Angel's body was wrapped was the one she
saw at the CORDERO residence.

6. Javar saw CORDERO and LAGARTO in front of the warehouse on the night in question as if they were waiting
for somebody.

7. During detention, Lagunday pointed to CORDERO as the alleged mastermind.

8 Barlam saw CORDERO slash Angel's face and genitals before raping her, while LAGARTO stood by the door.
Lagunday and LAGARTO both hit Angel's head with a piece of wood. When angel was dead, they tied her feet,
wrapped her in a round yellow tablecloth possibility owned by CORDERO, placed her in sack, then set adrift in the
floodwater of Del Pan.

All these demonstrate that the prosecution established beyond reasonable doubt that LAGARTO, CORDERO, and
Lagunday shared a common design to rape and kill Angel Alquiza. Although there is no direct proof of such unity of
purpose, conspiracy was properly appreciated in these premises by the trial court because their individual acts,
taken as a whole, showed that they were acting in unison and cooperation to achieve the same unlawful
objective.107 Under these premises. it is not even necessary to pinpoint the precise participation of each of the
accused, the act of one being the act of all.108 Thus, the trial court correctly observed that "conspiracy is established
by the concerted action of the accused in the commission of the crime as well as in their concerted efforts after the
commission of the crime as well as in their concerted efforts after the commission of the crime," 109 as when they
attempt to dispose of the body of the victim to hide their misdeed. In the case at bar, the trial court found that
CORDERO, LAGARTO, and Lagunday acted in concert to slay the victim and thereafter conceal her body by
wrapping it in a round yellow tablecloth, putting it in a sack, and leaving it in flooded street in Del Pan. Jurisprudence
constantly points out that the conduct of the accused before, during, and after the commission of the crime may be
considered to show an extant conspiracy.110 Even if by Barlam's testimony it would appear that only CORDERO
51

raped Angel, LAGARTO is still liable for the crime of rape with homicide because where conspiracy is adequately
shown, the precise modality or extent of participation of each individual conspirator becomes secondary. The
applicable rule, instead, is that the act of one conspirator is the act of all of them. 111

CORDERO insists that the trial court erred in failing to hold that he was illegally arrested and was not accorded the
right to a preliminary investigation.

This argument has no merit. CORDERO voluntarily entered a plea of "not guilty" when he was arraigned on 22
August 1994.112 By so pleading, he submitted to the jurisdiction of the trial court, thereby curing any defect in his
arrest, for the legality of an arrest affects only the jurisdiction of the court over his persons. 113 Besides, his act of
entering a plea when arraigned amounted to a waiver of the right to question any irregularity in his arrest. 114 It is too
late for CORDERO to protest his arrest because a valid information had been filed against him, he was properly
arraigned, trial commenced and was terminated, and a judgment of conviction had been rendered against
him.115 Besides, his illegal arrest, if such was the fact, did not have any bearing on his liability since an allegation of
an invalid warrantless arrest cannot deprive the State of his right to prosecute the guilty when all the facts on record
point to his culpability.116 Any irregularity in his arrest will not negate the validity of his conviction duly proven beyond
reasonable doubt by the prosecution. 117

LAGARTO and CORDERO were charged with and convicted and the special complex felony 118 of rape with
homicide, defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No.
7659, viz.:

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

1. . . .;

2. . . .;

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

xxx     xxx     xxx

When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death.

xxx     xxx     xxx

It having been established beyond any shadow of a doubt that LAGARTO and CORDERO raped and killed her on
the occasion of the rape, the mandatory penalty of death is inescapable. Four Justices have continued to maintain
their stand that R.A. No. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they
submit to the ruling of the majority to the effect that the law is constitutional and the death penalty can be lawfully
imposed in the case at bar.

In view of foregoing, it may no longer be necessary to consider if any of the qualifying and generic aggravating
circumstances alleged in the informations had been proven or if any mitigating circumstance had been established.
Article 63 of the Revised Penal Code, as amended, provides that in all cases in which the law prescribes a single
indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that
may have attended the commission of the deed. However, for determining the civil liability, an appreciation of one
aggravating circumstance — the cruelty that attended the rape and killing of Angel — may be in order. Angel was a
seven-year old child. Her captors and tormentors were grown-up men. The Autopsy Report (Exh. "C") listed her
injuries: numerous hematomas, abrasions, contused-hematomas, incised wounds, fractures, lacerations, and stab
wounds. Both of her eyes were missing. Her vagina was sliced, producing an incised wound 14 centimeters long
that went beyond her anus and causing disembowelment. This was done presumably so that her underdeveloped
organ could accommodate the organs of the assailants. She was bleeding to death, her intestines spilling out, when
CORDERO raped her in the presence of LAGARTO and Lagunday. Her head was hit so hard that part of her brain
began to leak through the fracture. Angel Alquiza suffered through all these. She did not die instantaneously. The
cruelty inflicted was too much and could only come from persons turned beast.

The presence of the aggravating circumstance of cruelty 119 warrants the award of exemplary damages,120 which we
hereby fix at P100,000.

The award of P500,000 as moral damages, which no longer requires proof per current case law, 121 has to be
reduced to P100,000.

Current jurisprudence122 has fixed at 100,000 the indemnity in cases of rape with homicide.
52

WHEREFORE, the judgment of the Regional Trial Court of Manila, Branch 47, as modified in the Order of 22 May
1996, in Criminal Case Nos. 94-138071 and 94-138138 dated 31 January 1995, imposing the death penalty on
accused-appellants HENRY LAGARTO y PETILLA. and ERNESTO CORDERO y MARISTELA is AFFIRMED, with
the MODIFICATION that said accused-appellants are hereby ordered, jointly and severally, to pay the heirs of the
victim, Angel L. Alquiza, the amounts of P100,000 as indemnity, P100,000 as moral damages, and P100,000 as
exemplary damages, in addition to the P52,000 awarded by the trial court as actual damages. 1âwphi1.nêt

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659,
upon finality of this decision, let the records of these cases be forwarded to the Office of the President for possible
exercise of executive clemency.

Costs against accused-appellants.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Buena, J., is on leave.
53
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55
56
57
58

G.R. No. 96848 January 21, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALEJANDRO SALOMON Y OLPANGO @ "ALE", @ "BOYET" and FELICIANO CONGE @ PEPING, accused-
appellants.

The Solicitor General for plaintiff-appellee.

Anecio R. Guades for accused-appellants.

CRUZ, J.:

The novel defense in this prosecution for rape is that the physical evidence of the complainant's violation was
caused not by the male organ but by the five fingers of one of the appellants that were thrust into her vagina in
anger and not lust. The defense faults the trial judge for giving credence to the complainant. It avers that her
testimony should not have been accepted at all because she is admittedly a mental retardate and therefore
unreliable per se.

These curious arguments will not be dismissed out of hand by this Court. The appellants are entitled to be heard in
their defense, no less than the prosecution, although neither party is necessarily to be believed if its evidence falls
short of the strict standards of the law.

The trial court found that on October 11, 1987, while Sylvia Soria, a
20-year old mental retardate, was walking along the Maharlika Highway at Casabahan, Gandara, Samar, Alejandro
Salomon and Feliciano Conge, who were apparently waiting for her, accosted her and forcibly took her to the
ricefield some ten meters away. There she was raped by Salomon with Conge's assistance. On her way home, she
met her brother Senecio, to whom she related her ordeal. The two of them reported her rape to their father. That
same night, the family walked the three-kilometer distance to the police station, where Restituto Soria signed a
complaint for the rape of his daughter by Salomon and Conge.  Sylvia was medically examined at the Gandara
1

General Hospital by Dr. Susan Tanseco, who issued the following certificate: 2

A physical examination has been done on Miss Sylvia Soria, 20 years of age, a resident of Brgy.
Casab-ahan, Gandara, Samar. P.E. showed a single, linear, laceration on the labia minora at 6:00
o'clock position. There are isolated erythematous areas on both thighs. There is also the presence of
sandy particles on the genital area. Speculum exam, however, showed negative findings.

Three days later, Salomon and Feliciano could no longer be found. It was only after a four-month search that they
were arrested in Aguado, Plaser, Masbate, from where, after being detained there for one month, they were taken
back to Samar.  Following a protracted investigation, an information for rape was filed against them on August 9,
3

1988, with the Regional Trial Court in Calbayog City. 4

The principal witness for the prosecution was Sylvia Soria herself, who recounted in detail the manner of her
ravishment by Salomon with the help of his co-accused Conge. She described how she was dragged to the ricefield
by the two accused and there undressed against her will. As Conge spread and pinned her legs, Salomon mounted
and penetrated her, although with difficulty because she was still a virgin. She felt pain in her vagina and "something
slippery." She could not cry out or repel the attack because the two were stronger than she and Conge was holding
a bolo.  After her rape, Salomon sucked and twisted her nipples and demanded that he suck his penis. Her low
5

mentality was demonstrated in her angry testimony of her refusal: "The devil with him, it is not an icedrop." 6

The prosecution presented several other witnesses,   including Dr. Tanseco, who affirmed her medical certificate of
7

the complainant's examination. On cross-examination, she declared that the laceration in Sylvia's vagina could have
been caused by penetration of a blunt instrument such as an average-sized penis. 8

The two accused flatly denied the charge against them. Conge swore that on the night in question, Sylvia arrived at
the highway and loudly demanded a lamp from the people in Epifanio de Guzman's house. He approached her and
said there was no lamp to spare, whereupon, as he turned his back to leave, she hit him in the neck with a piece of
wood, causing him to stagger. In swift reaction, he caught Sylvia by the waist and pushed her to the ground and as
she lay there exposed (she was not wearing any underwear), he angrily shoved his five fingers into her vagina.
59

Sylvia cried out at the top of her voice. Fearing that her relatives might come, he withdrew his hands and
immediately left the place. 9

Salomon corroborated his co-accused. He testified that he saw the whole incident, being then about three-arms
length away from the highway.   De Guzman agreed, saying that he was also in the yard of his house at the time,
10

and playing his guitar, when the encounter occurred.  11

Both Salomon and Conge also protested that they had not gone to Masbate in order to escape as the trial court
held. They pointed out that they were in fact investigated by the police the day following the alleged incident but no
action was taken against them.   The truth, they said, was that they had gone to Masbate to buy two horses on
12

instructions from Salomon's father, Epifanio, who had given them P3,000.00 for this purpose.  13

Judge Ricardo A. Navidad disbelieved the accused and found them guilty as charged. As conspirators, they were
each sentenced to reclusion perpetua and held solidarily liable to the complainant for P30,000.00 as civil indemnity,
P22,000.00 as moral damages, P5,000.00 as exemplary damages, and P5,000.00 as attorney's fees. They were
also ordered to pay the costs.  14

In the appellants' brief (incorrectly denominated as a Petition for Review), the defense suggests that the testimony
of Sylvia Soria is flawed because she is an insane person who was confined at the National Mental Hospital a few
months before the alleged incident.   It is also argued that her testimony was fabricated at the instance of her father,
15

who had a bone to pick with Salomon's father. The appellants insist that their own version of the incident is more
plausible and should not have been rejected by the trial court in view of the constitutional presumption of innocence
in their favor.

A mental retardate is not for this reason alone disqualified from being a witness. As in the case of other witnesses,
acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions
and the manner he can make them known to the court.  Thus, in People v. Gerones,  the Court accepted the
16 17

testimony of a rape victim notwithstanding that she had the mentality of a nine or ten-year old "because she was
able to communicate her ordeal... clearly and consistently." In the case of People vs. Rondina, this Court declared:

The testimony of the offended party herself was especially telling and credible despite the fact that
she was somewhat mentally deficient, as the trial court noticed. Although she was really of limited
intelligence, the complainant nevertheless did not forget the harrowing experience she suffered
during that frightful night in the bushes when the three men seared her memory with the lust they
forced upon her. The tale she narrated in court was not woven out of sheer imagination but born in
anguish and remembered with pain and as plain an unembellished as the simple life she led. If she
spoke in forthright language at the trial, it was because she was speaking the truth of that horrible
ravishment she could not push out of her mind.

In the case before us, the trial court noted that although Sylvia's speech was slurred and it was necessary at times
to ask her leading questions, "her testimony was positive, clear, plain, coherent and credible." Her mental condition
did not vitiate her credibility. We also believe, as we have observed often enough in many cases   that a woman will
18

not expose herself to the humiliation of a rape trail, with its attendant publicity and the morbid curiosity it will arouse,
unless she has been truly wronged and seeks atonement for her abuse.

The defense points to a supposed hostility between Sylvia's and Salomon's respective fathers due to a conflict over
a piece of land and the administrative charge Epifanio filed against Restituto when they were both teaching at the
local school. It suggests that this was the reason for Sylvia's false charge against Salomon, who has simply been
caught in the crossfire, as it were, between Restituto and Epifanio.

The connection is far-fetched. It is unnatural for a parent to use his offspring as an engine of malice, especially if it
will subject a daughter to embarassment and even stigma, as in this case. There is no evidence that Sylvia's father
is an unnatural parent. Besides, the enmity itself is in the view of the Court not deep enough to provoke the charge,
assuming that Restituto Soria was willing to use his daughter to falsely accuse his enemy's son. Significantly, the
complaint was filed by Restituto against the son and not the father who was his real adversary.

The lack of a finding of spermatozoa during Sylvia's medical examination did not conclusively establish an absence
thereof because the examining doctor simply did not have the necessary equipment to make a more thorough
report.   In fact, she suggested another examination at the Calbayog General Hospital.  At any rate, we have held
19 20

that the absence of spermatozoa in the complainant's vagina does not negate the commission of rape; there may be
a valid explanation for such absence, as when the semen may have been washed away or when the rapist failed to
ejaculate. 21

The appellants decry the trial judge's conclusion that they had gone to Masbate to escape, but it appears that this
was really their intention. In the first place, it is not true that they were investigated before they left, for the fact is
Salomon's father stopped the investigation on the ground that there was no lawyer to represent them.  It is also22

noted that Salomon used another name in Masbate and called himself Boyet instead of Ale, his real
60

nickname.  Salomon and Conge traveled from place to place in that province but were not able to buy a single
23

horse during the four months that they were there. Instead, they used the P3,000.00 Salomon's father had given
them not only for their daily needs but also "in dancing and drinking," as Conge put it.  Well indeed has it been said
24

that "wicked flee when no man pursueth but the innocent are as bold as a lion." The appellants' trip to Masbate was
unmistakably a flight from justice.

And now let us consider the interesting defense of what we may call Sylvia's "manual rape" for lack of a more
descriptive term. Admitting the laceration in Sylvia's vagina, Salomon nevertheless maintains that it was caused not
by his penis but by Conge's fingers. Conge's purpose was to punish her and to disable her and thus prevent her
from hitting him again.

The trouble with this defense is that it is too comical for words. It looks like a bawdy-house skit featuring a mad
avenger and his naughty fingers. Besides, the two accused and De Guzman have a confused recollection of how
this remarkable incident happened, the first perhaps in the annals of Philippine jurisprudence.

Conge declared in his affidavit that Sylvia hit him only once and then swore on direct examination that he was hit
twice, whereas both Salomon De Guzman swore he was hit only once.  Salomon and Conge said that Sylvia was
25

wearing pants but De Guzman insisted with equal certainty that it was a skirt.  Salomon said Sylvia's pants were
26

pulled down to her knees, but Conge declared that she was completely disrobed, then said the pants came down
only to her ankles.  Conge first said his fingers were spread when they thrust them inside Sylvia's vagina but,
27

sensing the trial court's disbelief, recanted and said he put his fingers together in the shape of a cone before
plunging them into Sylvia's bared organ. 28

We are satisfied with the findings of the trial court that the appellants, in conspiracy with each other, committed the
crime of rape upon Sylvia Soria, with Salomon actually violating her as Conge helped restrain her while also
frightening her with his bolo. The crime was committed with force and intimidation, and worse, against a mental
retardate, who fortunately was nevertheless able to narrate the details of her outrage. The theory of the defense is
absurd. The trial court was correct in rejecting it. The assessment of the evidence, especially the credibility of the
witnesses, is the primary function of the judge presiding at the trial. We defer to the findings of the trial court in the
case at bar, there being no showing that they were reached without basis.

The Court cannot conclude this opinion without remarking on the extraordinary lengths to which an accused will go
to falsify the truth and evade the sanctions of the law. The defense in this case is illustrative of such desperation.
What the appellants have not considered is that the Court is not without experience in detecting falsehood and
should not have been expected to be deluded by the ridiculous story they blandly submitted. Counsel should
remember that gullibility is not one of the traits of this Court.

WHEREFORE, the appeal is DISMISSED. The decision of the trial court is AFFIRMED, except for the award of
moral, exemplary, and actual damages and attorney's fees, which were disallowed. The civil indemnity is retained at
P30,000.00. Costs against the appellants.
61

SO ORDERED.

G.R. No. L-1709             June 8, 1948

ASCENCION ICUTANIM, petitioner,
vs.
FERNANDO HERNANDEZ, Judge of First Instance of Capiz, and DEMETRIO VINSON, Provincial
Fiscal, respondents.

Getulio Z. Guevara for petitioner.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Augusto M. Luciano for respondents.

PADILLA, J.:

Petitioner is charged with parricide for having killed his child of tender age. At the trial, the prosecution called to the
witness stand his wife who is the mother of the deceased child. Petitioner objected to his wife testifying against him.
The trial court overruled the objection, on the ground that the crime committed is against her; and for that reason the
rule invoked does not apply (section 26 [d], Rule 123).

Complaining that the overruling of the objection is not only against the law but also constitutes excess of jurisdiction
and a grave abuse of discretion, petitioner seeks in this Court the annulment of said order and a writ directing the
respondent court to refrain from giving it effect until it hear from this Court as to what it should do in the premises.

Without going into the merits of the question raised by the petitioner, suffice it to say that a writ of certiorari lies only
when an inferior tribunal exercising judicial functions has acted without or in excess of its jurisdiction or with grave
abuse of discretion and there is no appeal or other adequate, plain and speedy remedy in the ordinary course of
law. Granting, arguendo, that the ruling of the respondent court is erroneous, the remedy to correct the mistake is by
appeal. To allow parties litigant to come to this Court for the correction of errors committed in the course of the trial,
which may be done on appeal, would unduly burden this Court with cases to be brought to it on appeal.

Petition denied, with costs against the petitioner.

[G.R. No. L-25384. October 26, 1973.]

JOSE CARANDANG, Petitioner, v. HON. JOSE R. CABATUANDO, Judge of the Court of

Agrarian Relations, Seventh Regional District, Branch II, the PROVINCIAL SHERIFF OF
BATANGAS, and CONSUELO D. PANDY, Respondents.

Teofilo V . Ogsimer for Petitioner.

Jose N . Contreras for Private Respondent.

DECISION

ZALDIVAR, J.:

Petitioner Jose Carandang was the caretaker of private respondent Consuelo D. Pandy’s 1.5 hectare
of coconut land situated at Puting-Buhangin, San Juan, Batangas. He had a house inside the
landholding. He also owned a parcel of land adjoining it. On February 21, 1963 respondent Pandy
filed a verified petition (CAR Case No. 866) for ejectment and damages in the Court of Agrarian
Relations of San Pablo City alleging that petitioner, in gross violation of the terms and conditions
agreed upon between him and the landowner, had stubbornly refused and failed to clear the land of
bushes and grasses, to take proper care of the coconut land and improvements thereon, and to
perform the necessary work in accordance with the customs and proven practices in the locality; that
petitioner had been feeding his hogs and chickens with coconuts from the landholding; that he
gathered nuts and sold copra without notifying the respondent; and praying that petitioner be
dismissed as caretaker of the landholding and be ordered to pay as damages the sum of P370.00,
plus attorney’s fees.
62

Petitioner, having been served, on March 8, 1963, with the summons and a copy of the complaint,
and having failed to file his answer, the agrarian court, acting on the motion filed by respondent,
declared petitioner in default and set the reception of respondent’s evidence on July 2, 1963 before
the commissioner of the court.

On March 13, 1964, petitioner filed, through the Office of the Agrarian Counsel, a verified motion to
set aside the order of default, alleging that the failure of petitioner to file an answer was due to
mistake or excusable neglect, and that petitioner had a valid and meritorious defense, and praying
that petitioner be allowed to file his answer. The court, on April 17, 1964, denied the motion for
failure of movant "to allege either in his motion to set aside order of default or in his supporting
affidavit the facts constituting his alleged valid and meritorious defense." cralaw virtua1aw library

After respondent had presented ex parte her evidence, the court rendered its decision dated October
28, 1964, the dispositive portion of which reads as follows: jgc:chanrobles.com.ph

"In view of all the foregoing, judgment is hereby rendered: chanrob1es virtual 1aw library

1. Ordering defendant Jose Carandang to vacate forthwith the landholding of 1.5 hectares owned by
plaintiff hereinbefore described subject to the provisions of Section 22 of Republic Act 1199, as
amended;

2. Ordering the defendant to pay plaintiff the sum of P148.00 as damages, with interest at 6% per
annum from the filing of the complaint on February 21, 1963, until fully paid; and

3. Ordering defendant to pay plaintiff the sum of P250.00 as attorney’s fees, plus the costs of this
action."
cralaw virtua1aw library

Petitioner filed on December 24, 1964 a motion for reconsideration of the decision upon the grounds
that the court erred in not lifting the order of default, and in not determining the value of the labor
and expenses in the cultivation in accordance with the provisions of Section 22 of Republic Act 1199,
as amended.

The agrarian court issued, upon motion, an order of execution dated February 26, 1965, but the
court later set it aside for the reason that it was first necessary to determine the indemnification that
the defendant was entitled to pursuant to Section 22 of Republic Act No. 1199, and the court set for
hearing the motion for execution for March 25, 1965.

Petitioner submitted to the court a "bill of accounting", dated March 25, 1965, for the value of his
labor and plantings such as coconut, banana, black pepper, jackfruit, mango, santol and star apple
trees, in the total amount of P9,000.00.

Subsequently, the court ordered an ocular inspection of the landholding involved to determine the
number of coconut trees that were one year, two years, and five years old. The report of said
inspection, dated April 5, 1965, was submitted to the court.

The court, in its order dated August 4, 1965, acting on the report of the ocular inspection, written
and oral manifestations of respondent, and petitioner’s affidavit regarding the compensation claimed
by him for the planting of the coconuts, considered paragraphs 2 and 3 of the decision satisfied, and
directed the Clerk of Court to issue a writ of execution ordering petitioner to vacate the landholding.

The writ of execution was served on September 4, 1965 upon herein petitioner by the Provincial
Sheriff.

Upon motion of respondent, dated October 5, 1965, the court, on October 28, 1965, issued an order
of demolition, ordering petitioner to remove at his own expense his house from the landholding in
question not later than November 15, 1965, and that should he fail to do so, the Provincial Sheriff of
Batangas was authorized to demolish said house. This order was received by petitioner on November
24, 1965.

Alleging that the execution of the order of demolition "would work unwarranted hardship and
irreparable damage and injustice upon petitioner who have not been accorded his day in court and
has not been paid the indemnification due him, and not having any adequate, plain and speedy
remedy," the instant petition was filed on December 2, 1965 praying that a writ of certiorari,
prohibition and injunction be issued, ordering respondent court to desist from further proceedings in
the execution of the decision in CAR case No. 866, enjoining the Provincial Sheriff from enforcing the
63

writ of execution and order of demolition, and, after hearing the petition, to declare null and void the
proceedings in said case.

In its resolution dated September 6, 1965, this Court ordered respondent to file their answer to the
petition, and upon the posting of a bond, this Court, on December 16, 1965, restrained the Sheriff
from enforcing the writ of execution and order of demolition.

Respondent Consuelo D. Pandy, in her answer, alleged that the order of default was regularly issued
on June 10, 1963 by the trial court; that it was only on March 13, 1964 that petitioner filed a motion
to have it set aside; that said motion to set aside was denied on April 17, 1964, and the motion for
reconsideration dated May 4, 1964 was also denied; that the decision dated October 28, 1964 was
rendered in the valid exercise of the court’s jurisdiction; that the motion to reconsider the same,
after having been heard, was denied February 1, 1965; that after the denial no action or step was
taken by petitioner despite the availability of remedies provided by law; that the filing by petitioner
of the "Bill of Accounting" indicated unerringly his conformity to the decision insofar as the same
ordered him to vacate the landholding, for in said Bill, he only claimed indemnification under Section
22 of Republic Act No. 1199; that an ocular inspection of the landholding was ordered to determine
the indemnification due to petitioner; that petitioner presented no opposition to the report dated April
5, 1965; that petitioner, having been served with the writ of execution on September 4, 1965, made
no step to question it; that the court set for hearing the motion for the order of demolition but
petitioner did not appear in said hearing in spite of having received notice thereof; that the writ of
execution had been served on petitioner and complied with on December 3, 1965, i.e., ten days
before respondent received copy of the petition in the instant case; and that petitioner has not been
deprived of his day in court or of the indemnification due him. As affirmative defense, respondent
alleged that petitioner had no cause of action, for there was no averment of any irregularity in the
proceedings or that the respondent judge had acted without jurisdiction.

The Provincial Sheriff of Batangas, in his answer, alleged that petitioner’s house had already been
demolished on December 4, 1965 by virtue of the trial court’s order dated October 28, 1965.

In his memorandum, counsel for petitioner argued that this is a special civil action under Rule 65 of
the Rules of Court for the purpose of annulling the proceeding in CAR Case No. 866; that there is a
cause of action, as is evident from this Court’s resolution requiring respondents to answer; that
petitioner was denied his day in court when the proper motion to lift the order of default was denied
by the trial court; that the decision was based on incompetent self-serving testimony of respondent
Consuelo D. Pandy, so that the decision of ejectment was a grave abuse of discretion; that the
execution of the decision and the demolition of petitioner’s house on December 4, 1965, even after
the instant petition had been filed and shown to the Sheriff and respondent Pandy, was a violation of
the restraining order issued by this Court; that the trial court abused its discretion when it refused to
adjudicate in whole the indemnification petitioner was entitled to; that there being palpable excess of
authority in depriving petitioner of his rights and property without due process of law, and the
decision dated October 18, 1964 and the order of October 28, 1965, being in their nature
interlocutory, certiorari is the proper remedy.

Petitioner claims that the instant action is a special civil action under Rule 65 of the Rules of Court. In
a certiorari proceeding under section 1, Rule 65, of the Rules of Court, the court is confined to
questions of jurisdiction. The reason is that the function of the writ of certiorari is to keep an inferior
court within its jurisdiction, to relieve persons from arbitrary acts — that is, of acts which they have
no authority or power in law to perform — of courts and judges, and not to correct errors of
procedure or mistakes in the judge’s findings or conclusions (Bustos v. Moir and Fajardo, 35 Phil.
415, 417-418; Pacis v. Averia, L-22526, November 29, 1966, 18 SCRA 907, 914-915; Albert v. Court
of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 965; Estrada v. Sto.
Domingo, L-30570, July 29, 1969, 28 SCRA 890, 915). For a writ of certiorari to issue, it must not
only be shown that the board, tribunal or officer acted without or in excess of jurisdiction, or in grave
abuse of jurisdiction, but also that there is no appeal or other plain, speedy, and adequate remedy in
the course of law (Jose v. Zulueta, L-16598, May 31, 1961, 2 SCRA 574, 578; Atlas Development
and Acceptance Corporation v. Gozon, L-21588, July 31, 1967, 20 SCRA 886, 891).

Do the above-mentioned requisites for certiorari obtain in the instant case?

It cannot be seriously contended that the trial court had no jurisdiction over the subject-matter and
the parties in CAR Case No. 866. Petitioner never claimed such want of jurisdiction either in the court
below or in the instant petition. It cannot be gainsaid that the Court of Agrarian Relations had
authority to try and hear, decide and determine, the aforesaid case and to issue and enforce all its
lawful orders relative to the case.
64

The question, therefore, to be determined is whether the respondent Court of Agrarian Relations
exceeded its jurisdiction or gravely abused its discretion, and whether there was no appeal or any
plain, speedy and adequate remedy in the ordinary course of law.

Was there an abuse of discretion on the part of the court when it declared petitioner in default, and
did not lift, upon proper motion, said order? Petitioner claims there was, when he alleged that he
"was not heard, even upon proper motion to lift the order of default, all had been denied by the
respondent judge, in short he (petitioner) had not been afforded his right to due process of law." The
record belies said claim. The record shows that petitioner had not been deprived of his right to be
heard. The summons and copy of the complaint in CAR Case No. 866 were served upon petitioner on
March 8, 1963. No answer or responsive pleading had been filed within the reglementary period. The
answer should have been filed within 5 days after service of summons, pursuant to Rule 7 of the
Rules of Court of Agrarian Relations promulgated under the provisions of Section 10 of Republic Act
No. 1267, as amended by Section 6 of Republic Act No. 1409. Having failed to answer, the trial
judge, upon motion filed by respondent Pandy, declared, on June 10, 1963, petitioner in default. The
action of the CAR judge was perfectly legal. Under Rule 20 of the rules of the Court of Agrarian
Relations, the provisions of the rules of court relating to courts of first instance which are not
inconsistent with the rules of the Court of Agrarian Relations are applicable to eases pending before
the agrarian court. Even section 155 of the Agricultural Land Reform Code (Republic Act No. 3844)
provides that the Court of Agrarian Relations shall have all the powers and prerogatives inherent in,
or belonging to, the Court of First Instance, and it shall be governed by the Rules of Court, provided
that in the hearing, investigation, and determination of any question or controversy pending before
them, the courts, without impairing substantial rights, shall not be bound strictly by the `technical
rules of evidence and procedure, except in expropriation cases.

It cannot be seriously urged that the trial court abused its discretion when after having declared
petitioner in default, it proceeded to receive respondent’s evidence and render judgment granting
him such relief as the complaint and the facts proven warranted. The trial court simply acted in
accordance with the provisions of the rules of court.

The trial court cannot be said to have abused its discretion when it denied on April 17, 1964, the
motion dated March 13, 1964 to lift the order of default, for neither said motion nor the affidavit
supporting it stated facts constituting a valid and meritorious defense. Section 3, Rule 18, of the new
Rules of Court, already in force as of that date, provided that the motion to set aside the order of
default must show that the failure to answer was due to fraud, accident, mistake, or excusable
neglect and that the movant has a meritorious defense. Anent this matter it has been held that when
a motion to lift the order of default does not show that the defendant has a meritorious defense and
that his failure to answer the complaint on time is legally excusable, or that anything would be
gained by having the order of default set aside, the denial by the court of the motion to lift the order
of default does not constitute abuse of discretion (Manzanillo v. Jaramilla, 84 Phil. 809, 811).

The trial judge likewise legitimately exercised his jurisdiction, when he rendered the decision dated
October 28, 1964, based on respondent’s evidence, and when on February 1, 1965 he denied the
motion for reconsideration in open court.

From all the foregoing, it is apparent that herein petitioner was given notice and opportunity to be
heard before judgment was rendered. He was not denied of his right to due process of law. Due
process contemplates notice and opportunity to be heard before judgment is rendered affecting one’s
person or property. (Macabingkil v. Yatco, L-23174, September 8, 1967, 21 SCRA 150, 157;
Batangas Laguna Tayabas Bus Co. v. Cadiao, L-28725, March 12, 1968, 22 SCRA 987, 994; Bermejo
v. Barrios, 31 SCRA 764, 775).

Did the trial court commit a grave abuse of discretion when it rendered its decision based on
respondent’s evidence or ground that said evidence on the was self-serving? The law itself provides
that a party or any other person interested in the outcome of a case may testify (Section 18, Rule
130, Rules of Court). The testimony of an interested witness, this Court has said, should not be
rejected on the ground of bias alone, and must be judged on its own merits, and if such testimony is
clear and convincing and not destroyed by other evidence on record, it may be believed (U.S. v.
Mante, 27 Phil. 134, 138). Neither can said testimony be said to be self-serving. This Court has he
said that self-serving evidence is an evidence made by a party out of court at one time; it does not
include a party’s testimony as a witness in court (National Development Co. v. Workmen’s
Compensation Commission, L-21724, April 27, 1967, 19 SCRA 861, 865-866).

Even assuming, arguendo, that the trial judge committed an error in basing his decision on the
65

testimony of herein respondent, the petitioner had a remedy by appeal and not by a petition
for certiorari. Appeal from the decision of the Court of Agrarian Relations is provided in Section 156
of the Agricultural Land Reform Code (Republic Act No. 3844) and Rule 43 of the Rules of Court.
Petitioner did not avail of this remedy. Instead, on December 2, 1965, after the period for appeal had
lapsed, he filed the instant special civil action for certiorari. He cannot now avail of certiorari. Where
petitioner had failed to file a timely appeal from the trial court’s order, he can no longer avail of the
remedy of the special civil action for certiorari in lieu of his lost right of appeal, if there is no error of
jurisdiction committed by the trial court (Mabuhay Insurance & Guaranty, Inc. v. Court of Appeals, L-
28700, March 30, 1970, 32 SCRA, 245, 252).

Petitioner claims that the trial court abused its discretion by refusing to adjudicate in whole the
indemnification petitioner was entitled to as provided in section 22 of Republic Act No. 1199. It is to
be recalled that petitioner, having been declared in default, did not testify. It was to be expected that
there was no evidence to show that petitioner was entitled to indemnification. Even then the trial
judge, in the interest of justice, set aside the order of execution dated February 26, 1965, and
granted to petitioner herein the benefits of section 22 of Republic Act No. 1199 providing for the
payment of indemnification, as is shown by the order dated March 2, 1965, which recited: jgc:chanrobles.com.ph

"Wherefore, plaintiff’s motion for execution is hereby set for hearing on March 25, 1965 at 9:00
o’clock in the morning . . . to determine the said indemnification." cralaw virtua1aw library

Due hearing on the amount of indemnification was held and the court issued an order, dated April 2,
1965, directing the ocular inspection of the subject landholding. Petitioner was present at the ocular
inspection. The Report, dated April 5, 1965, on the ocular inspection, determining the number of
coconut trees and their ages, was submitted to the court. Petitioner did not file any objection to said
report. The matter was set for hearing on July 12, 1965, as per notice of hearing dated June 28,
1965. Petitioner did not appear at the hearing. Another hearing on the report was set for August 4,
1965, but petitioner again did not appear. The respondent judge, therefore, issued the order of
August 4, 1965 awarding to petitioner the amount of P173 as the "indemnification he is entitled to
under section 22 of Republic Act No. 1199," and at the same time directed the Clerk of Court to issue
a writ of execution covering paragraph 1 of the dispositive portion of the decision dated October 28,
1964 in the sense that petitioner herein was ordered to vacate the subject landholding. The order of
the court further states that the plaintiff (respondent herein) waived her right to the damages
awarded to her in the decision of October 28, 1964 in excess of P173.00. Copy of this order was
received by petitioner’s counsel on August 4, 1965. No step was taken to attack or assail this order of
execution, or the sufficiency of the indemnification. No motion for reconsideration or for new trial to
call the attention of the court to the insufficiency of the indemnification or to the illegality of the
order was ever filed, until 3 months later when the instant petition for certiorari was filed on
December 2, 1965. Such inaction could mean only that petitioner was completely satisfied with the
order of August 4, 1965, otherwise he could have filed within the reglementary period the necessary
motion for reconsideration or motion for new trial. The decision had become final; execution followed
as a matter of course, and the court cannot be accused of having exceeded its jurisdiction or gravely
abused its discretion in ordering the execution.

Can the trial court be accused of not having granted the whole indemnity to which petitioner was
entitled? The indemnity to the tenant was governed by Section 22 of Republic Act No. 1199, as
amended, which provides as follows: jgc:chanrobles.com.ph

"(4) The tenant shall have the right to be indemnified for his labor and expenses in the cultivation,
planting, or harvesting and other incidental expenses for the improvement of the crop raised in case
he is dispossessed of his holdings, whether such dismissal is for a just cause or not, provided the
crop still exists at the time of the disposition." cralaw virtua1aw library

On the basis of said statutory provision, Petitioner, in his "Bill of Accounting", dated March 25, 1965,
which he submitted to the trial court, claimed a total indemnity of P4,000 for various trees, besides
coconut trees, namely: coffee, banana, native atis, star apple, Persian atis, black pepper tree,
jackfruit, mango and santol, and P5,000 for his labor for 16 years, making a total of P9,000.00. It is
noteworthy that the aforequoted Section 22 enumerated the indemnity to which the tenant is entitled
— "for his labor and expenses in cultivation, planting or harvesting and other incidental expenses for
the improvement of the crop raised.." . . The landholding under consideration is a coconut land. The
crop raised is coconut. The tenant is entitled to indemnify for the labor and expenses in the
cultivation, planting or harvesting of the crop raised on the land at the time of dispossession. The
diverse fruit trees other than coconut which petitioner claimed to have planted were not for the
improvement of the crop raised. The law does not provide indemnity therefor. Thus in Paz v. Court of
Agrarian Relations, L-12570, April 28, 1962, 4 SCRA 1160, 1162, this Court held that it was an error
66

for the Court of Agrarian Relations to order a tenant to be indemnified for the value of fruit trees on
the land, this Court saying that Section 22 "does not provide for indemnity for the value of
permanent improvements existing on the land, . . . nor for the expenses in clearing the same upon
taking possession thereof originally by the tenant. . . . Such being the case, any award that may be
made with regard to the value of said permanent improvements, or the expenses of clearing the
land, whether fruit land or talahib land, is improper and unauthorized, and so the court a quo erred in
including in the award an indemnity for the items abovementioned." cralaw virtua1aw library

From the above discussions it is evident that the trial court committed no abuse of discretion and it
did not exceed its jurisdiction. The remedy of petitioner, if he was not satisfied with the trial court’s
decision, was appeal. This petition for certiorari must necessarily be denied.

In his prayer, petitioner prayed that pending the determination of the merits, the sheriff be enjoined
from enforcing the writ of execution and order of demolition issued by the respondent judge. The
record shows that the house of herein petitioner on the subject landholding was demolished on
December 4, 1965, as per Sheriff’s Return dated December 7, 1965. The order of this Court
restraining the enforcement of the writ of execution and order of demolition was issued only on
December 16, 1965. The demolition, therefore, could not have been made, as claimed by petitioner,
in violation of the restraining order. The established principle is that when the event sought to be
prevented by injunction or prohibition has already happened, nothing more could be enjoined or
prohibited because nothing more could be done in reference thereto. (Aragones v. Subido, L-24303,
September 23, 1968, 25 SCRA 95, 101.)

PREMISES CONSIDERED, this action for certiorari with prohibition and injunction must be dismissed,
and the restraining order issued by this Court on December 16, 1965 is ordered lifted. No
pronouncement as to costs.

It is so ordered.

[G.R. No. L-22995. June 29, 1967.]

WILLIAM ADDENBROOK Y BARKER, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

Ross, Selph & Carrascoso for Petitioner.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General A. A. Torres and Solicitor J .
M. Lantin for Respondent.

SYLLABUS

1. EVIDENCE; CREDIBILITY OF WITNESSES IS FACTUAL ISSUE. — Credibility of witnesses is a

question of fact (Rumbaba v. Arzaga, 84 Phil. 812; Lim; v. Calaguas, 83 Phil., 796) and, therefore
not reviewable by the Supreme Court (Abeto v. People, 90 Phil., 581).

2. CIVIL LAW; ACCIDENT; DRIVING OF MOTOR VEHICLE AT EXCESSIVE SPEED RENDERS DRIVER
LIABLE FOR DAMAGES. — That the accident could not be avoided because the victim was so close to
the truck when he suddenly darted across the streets, does not exculpate the accused, since the
latter was driving at excessive speed. While the general rule is that a driver is not held accountable
just because he failed to take the wisest choice in a sudden emergency, the rule does not apply
where the emergency is of the driver’s own creation or devising.

DECISION

REYES, J.B.L., J.:

Petition for certiorari to review the decision of the Court of Appeals affirming a conviction by the
Court of First Instance of Manila for homicide through reckless imprudence upon the petitioner
67

William Addenbrook y Barker.

The appellate court’s decision depicts the facts as follows: jgc:chanrobles.com.ph

". . . about 3:15 in the afternoon of 9 January 1960, the front bumper of the Stanvac Service Truck
with Plate No. 2740, Manila, 1960, while travelling southward along Marquez de Comillas, being
driven then by accused William Addenbrook, and in front of House No, 1010, came into contact with
the body of a pedestrian Wenceslao Risaldo, with the result that the latter fell and was taken to the
Philippine General Hospital by accused and his helper in the truck named Amando Valeriano, but was
dead on arrival, it having been found that he had received abrasions on the left forehead, and
contusions with lacerations on the face, left arm, right thigh, knee joints and right buttocks and waist
and fracture of the skull, Exh. B, so that the Fiscal filed the present criminal case for homicide thru
reckless imprudence against accused resulting in his conviction. . . ." cralaw virtua1aw library

Upon impact of the van against the victim, the latter fell and rolled to a distance of fifteen (15)
paces, as shown by two (2) sets of bloodstains observed by patrolman Emilio Guzman in his ocular
investigation immediately after the occurrence of the incident. From these facts, the appellate court
found it difficult to believe that the van was traveling at a slow and reasonable speed. Considering
further that as postulated by the accused himself, his view of the street was partly blocked by a
parked car in front of house No. 1010, Marquez de Comillas, from behind which the deceased tried to
cross the street; and with the added fact that the appellant did not blow his horn despite the visual
obstruction by the parked car, the Court of Appeals concluded that he failed to observe that
reasonable care required of a driver of a motor vehicle.

Appellant insists that such conclusion is error, and assails the credibility and competency of witness
Guzman.

Credibility of witnesses is a question of fact (Rumbaoa v. Arzaga, 84 Phil. 812; Lim v. Calaguas, 83
Phil. 796) and, therefore, not reviewable by the Supreme Court, (Abeto v. People, 90 Phil. 581). The
objection to patrolman Guzman’s competency because he was not presented as an expert witness,
nor did he see the incident actually happen, is untenable. What Guzman testified to are what he saw
in his ocular investigation, such as the two (2) sets of bloodstains and the 15 paces distance between
them, that were facts derived from his own perception.

The Court of Appeals gave no credence to the claim that the deceased suddenly darted from behind
the parked car. Neither did the trial court do so, considering the lack of corroboration of petitioner’s
version, and the circumstance that the victim, being a grown-up man, and not a child would not have
ignored the noise of the oncoming vehicle, there being no reason shown for his disregarding the
obvious danger.

At any rate, that the accident could not be avoided because the victim was so close to the truck when
he, as alleged by appellant, suddenly darted across the street, does not exculpate the accused, since
the latter was driving at excessive speed.

"The fact that a pedestrian came into the path of the car suddenly and so close that the driver could
not stop and avoid striking him will not excuse the driver, where the car was being driven at an
unreasonable rate of speed under the circumstances." (5 Am. Jur. p, 612, sec. 195).

While the general rule is that a driver is not held accountable just because he failed to take the
wisest choice in a sudden emergency, the rule does not apply where the emergency is of the driver’s
own creation or devising.

The other assigned errors raise questions of fact and credibility which this Court is not at liberty to
revise.

We, therefore, find no error in the appealed decision, and the same is hereby affirmed. Costs against
appellant, William Addenbrook y Barker. So ordered.

Concepcion, C.J., Dizon, Makalintal, Bengzon, J .P., Zaldivar, Sanchez and Castro, JJ., concur.

Rule 130 Section 22

M arital Disqualification AVELINO ORDOÑO, petitioner vs HON. ANGEL DAQUIGAN, presiding Judge of the
Court of First Instance of La Union, Branch I and CONRADO V. POSADAS, First Assistant Provincial Fiscal of
68

La Union and the PEOPLE OF THE PHILIPPINES, respondents G.R. No. L-39012 January 31, 1975

FACTS: Ordono was charged of rape committed against his 2 daughters. When the rape was first committed
against Leonora, no charges were filed because of the threats made by the accused against his daughter and
wife. When the second rape was committed against his daughter Rose, his wife filed a complaint against him.
When the mother was offered to give her oral testimony, the accused objected on the ground of marital
disqualification. ISSUE: Whether the wife should be disqualified as a witness on the ground of marital
disqualification. RULING: NO. - According to the Court, “where the marital and domestic relations are so
strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the
reason based upon such harmony and tranquility fails”. In such a case identity of interests disappears and the
consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security
and confidences of private life which the law aims at protecting will be nothing but ideals which, through their
absence, merely leave a void in the unhappy home. The wife is no longer disqualified by the rules. While it is
true that the rules merely sought to protect the sanctity and peace of the family, when such reasons ceases to
exist, the rule need no longer applied. Thus, the wife is not disqualified by the rules to testify.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN FRANCISCO, defendant-appellant. G.R.
No. L-568 July 16, 1947

FACTS: On March 4, 1945, defendant, who had been previously arrested on charges of robbery, was being
held as detention prisoner in the municipal jail of Mansalay, Mindoro. On that date he requested permission
from the chief of police, and he was allowed to go with Sergeant Pacifico Pimentel, who was detailed to guard
him. Upon their reaching the house, the sergeant allowed the prisoner to see his wife who was at the time in a
room of said house, while said sergeant remained at the foot of the stairs. After a few moments, Pimentel
heard the scream of a woman. Running upstairs, he met defendant's wife running out of the room and holding
her right breast which was bleeding. Still moments later, Pimentel saw defendant lying down with his little son
Romeo, aged one year and a half, on his breast. Pimentel also found defendant to have a wound in his belly
while his child had a wound in the back. Pimentel found the child dead. Juan Francisco was charged with
parricide. In the course of the proceeding the wife testifies against Francisco. The Defense contends that’s
such testimony should not be admissible as evidence against the defendant. ISSUE: Whether or not the
testimony of the wife of Francisco against him is inadmissible as evidence. RULING: The testimony of the wife
of is admissible. As a general rule the wife is prohibited to testify against his husband however it accepts
certain exceptions: in civil actions between the spouses and in criminal cases for offenses committed by one
against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted
cases, outweigh those in support of the general rule. It will be noted that the wife only testified against her
husband after the latter, testifying in his own defense, imputed upon her the killing of their son. By all rules of
justice and reason this gave the prosecution, which had theretofore refrained from presenting the wife as a
witness against her husband, the right to do so, as it did in rebuttal; and the wife herself the right to so testify,
at least, in self defense, not of course, against being subjected to punishment in that case in which she was not
a defendant but against any or all of various possible consequences which might flow from her silence,
namely: (1) a criminal prosecution against her which might be instituted by the corresponding authorities upon
the basis of her husband's aforesaid testimony; (2) in the moral and social sense, her being believed by those
who heard the testimony orally given, as well as by those who may read the same, once put in writing, to be
the killer of her infant child. It has been aptly said that the law of evidence is the law of common sense.

G.R. No. 96602 November 19, 1991

EDUARDO ARROYO, JR., petitioner,

vs.

COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

69

G.R. No. 96715 November 19, 1991

RUBY VERA-NERI, petitioner,

vs.

THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents.

Efren C. Carag for Eduardo C. Arroyo, Jr.

Singson, Valdes & Associates for Ruby Vera Neri.

RESOLUTION

FELICIANO, J.:

In G.R. No. 96602, the Court summarized the facts of the case in this manner:

Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Court (RTC), Branch 4, of
Benguet against his wife, Ruby Vera Neri, and Eduardo Arroyo committed on 2 November 1982 in the City of
Baguio.

Both defendants pleaded not guilty and after trial, the RTC convicted petitioner and Mrs. Ruby Vera Neri of
adultery as defined under Article 333 of the Revised Penal Code.

The essential facts of the case, as found by the trial court and the Court of Appeals, are as follows:

... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and witness
Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped first at the house of
Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to the Mines View Park
Condominium of the Neri spouses. At around 7:00 o' clock in the evening, accused Eduardo Arroyo arrived at
the Neris' condominium. Witness opened the door for Arroyo who entered, he went down to and knocked at
the master's bedroom where accused Ruby Vera Neri and her companion Linda Sare were. On accused Ruby
Vera Neri's request, Linda Sare left the master's bedroom and went upstairs to the sala leaving the two
70

accused. About forty-five minutes later, Arroyo Jr. came up and told Linda Sare that she could already come
down. Three of them, thereafter, went up to the sala then left the condominium. (Court of Appeals Decision,
p. 4) 1

Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision. Petitioner Ruby Vera
Neri also moved for reconsideration or a new trial, contending that a pardon had been extended by her
husband, private complain ant Dr. Jorge B. Neri, and that her husband had later con traded marriage with
another woman with whom he is presently co-habiting. Both motions were denied by the Court of Appeals.

Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this court denied in
a Resolution dated 24 April 1991.

In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February 1991.

Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23 May 1991 for
consolidation o G.R. No. 96602 with G.R. No. 96715.

On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in accordance with
long-stand ing practice of the Court.

On 29 July 1991, the Third Division deliberated upon the case which was then assigned to the ponente for the
writing of the Court's Resolution. 2

On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case against
petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4

Petitioners then filed their respective motions praying for the dismissal or for the granting of new trial of the
case claiming a basis for their motions Dr. Neri's manifestation. The Solicitor General was then asked to
comment on the manifestation; hi comment was filed with this Court on 18 October 1991. 5

In October 1991, the consolidated cases were, again in accordance with long-standing practice of the Court,
assigned to the First Division upon the assignment of the ponente to that division. On 4 November 1991, the
consolidated cases were re deliberated upon by the members of the First Division who reached the same
conclusion as the members of the Third Division of the Court.

In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following contentions:
71

1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure misunderstanding' raises
questions as to the truth of the alleged admission made by Mrs. Neri;

2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an illicit affair
but not that adultery was committed on the date and place in question;

3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent marriage to
another woman which, if proven would preclude either of the spouses from filing charges of adultery or
concubinage against each other.

In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:

1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration and/or new
trial of the petitioner;

2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of petitioner against self-
incrimination;

3. The Honorable Court of Appeals erred in failing to take into consideration the material inconsistencies of
the testimony of the complaining witness; and

4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the physical
impossibility of the petitioner to have committed the crime charged. 6

The issues in the consolidated cases may be summarized as follows:

1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his credibility;

2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated;

3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal complaint on the
ground of pari delicto; and

4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial.
72

Deliberating on the:

1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has failed to show
any ground that would warrant the Court reversing its Resolution dated 24 April 1991; and on the

2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera Neri has
failed to show reversible error on the part of the Court of Appeals in issuing its Decision dated 21 May 1990
and its Resolution, dated 18 December 1990.

Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on the basis of Dr.
Neri's pardon. He, together with petitioner Neri, now cites the same affidavit in the effort to cast doubts on
the credibility of Dr. Neri's testimony given before the trial court. However, in the Court's Resolution, dated 24
April 1991, dismissing the Petition for certiorari in G.R. No. 96602, the Court held that:

It has been our constant holding that:

In certiorari proceedings under Rule 45, the findings of fact of the lower court as well its conclusions on
credibility of witnesses are generally not disturbed, the question before the court being limited to questions of
law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the credibility of witnesses are given
considerable weight, since said court is in the best position to observe the demeanor, conduct and attitude of
witnesses at the trial. (Aguirre v. People, 155 SCRA 337 [1987]; emphasis supplied)

Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the Court does not
believe that such an admission by an unfaithful wife was inherently improbable or impossible. 7 (Emphasis
supplied)

The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs. Neri's
constitutional right against self-incrimination had been disregarded when her admission to her husband in the
privacy of their conjugal home that she had indeed lain with petitioner Arroyo was taken into account by the
trial court, to wit:

Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of 1982, he
surprised his wife while she was looking at some photographs in their bedroom in their house in Dasmariñas
Village, Makati. Accused Ruby Vera Neri then turned pale and started for the door. Struck by this unusual
behavior, Dr. Neri started looking around the dressing room and he came upon a Kodak envelope with film
negatives inside. He took the negatives for printing and a few days later, armed with the photographs which
showed his wife in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at this point
that Ruby Vera Neri admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in
Baguio on 2 and 3 November 1982.
73

xxx xxx xxx

As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that:

The right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask
questions to elicit information and/or confession or admissions from respondent-accused.(emphasis supplied)

In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a custodial
interrogation, hence, petitioner cannot now claim that Mrs. Neri's admission should have been rejected.

In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:

The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence
against him.

The rule is that any person, otherwise competent as witness, who heard the confession, is competent to
testify as to substance of what he heard if he heard and understood all of it. An oral confession need not be
repeated verbatim, but in such case it must be given in its substance.

Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous
statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally
admitted having slain the victim.

We also note that the husband is not precluded under the Rules of Court from testifying against his wife in
criminal cases for a crime committed by one against the other (Section 22, Rule 129, Revised Rules of Court).

In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as he was a
competent witness. Neither was said testimony rendered inadmissible by the constitutional provision on the
right to remain silent and the right to counsel of a "person under investigation for the commission of an
offense."

Petitioner next claims that the trial court erred in convicting him on the basis of the failure of Ruby Vera Neri
to take the witness stand. In People v. Gargoles (83 SCRA 282 [1978]), it was held that:
74

We have held that an accused has the right to decline to testify at the trial without having any inference of
guilt drawn from his failure to go on the witness stand. Thus, a verdict of conviction on the basis, solely or
mainly, of the failure or refusal of the accused to take the witness stand to deny the charges against him is a
judicial heresy which cannot be countenanced. Invariably, any such verdict deserves to be reserved.

Such situation does not obtain, however, in the case at bar. For while the trial court took note of the failure of
defendant to take the witness stand to deny the charge against him, the same was not the main reason, much
less the sole basis, of the trial court in holding, as credible the testimony of complainant, and in ultimately
concluding that the crime of rape had been committed by the accused-appellant. (Emphasis supplied)

Examination of the trial court decision here shows that said failure to testify was not the sole nor the main
basis of the conviction. Aside from accused's failure to deny Dr. Neri's testimony, the trial court also
considered the testimonies of Dr. Neri and other prosecution witnesses and the photographs of the two
accused in intimate poses (and three of which showed them half naked in bed). 8 (Emphasis supplied)

We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and concubinage
and that in such a case "it would be only a hypocritical pretense for such spouse to appear in court as the
offended spouse." 9

In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case, the Court
found that the complaining husband, by entering into an agreement with his wife that each of them were to
live separately and could marry other persons and by filing complaint only about a year after discovering his
wife's infidelity, had "consented to, and acquiesced in, the adulterous relations existing between the accused,
and he is, therefore, not authorized by law to institute the criminal proceedings." In fine, the Guinucud case
refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In
the present case, no such acquiescence can be implied: the accused did not enter into any agreement with Dr.
Neri allowing each other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint
after discovering the illicit affair.

Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the
Civil Code. The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal
consideration. 10 The case at bar does not involve any illegal contract which either of the contracting parties is
now seeking to enforce.

Petitioners also contend that Dr. Neri's manifestation which reads:

2. Even before I filed the complaint in court and before the pardon that I had extended to my wife and her co-
accused, I was in reality aware of what was going on between and therefore, tacitly consented to my wife's
infidelity, ...
75

should result in the dismissal of the case or, at the very least, in the remand of the case for new trial claiming
that in People v. Camara 11 it was held that "the consent of the spouse is valid defense to a prosecution for
adultery and/or concubinage." 12

Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by him before the
trial court. It is settled that not all recantations by witnesses should result in the granting of a new trial. 13 In
People v. Follantes and Jacinto, 14 it was held that:

... [R]ecantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a
new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances
of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover,
recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not
satisfied that such testimony is true. ... 15 (Emphasis supplied)

Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation. Dr. Neri had
two (2) previous occasions to make the claim contained in his manifestation: first, in the compromise
agreement 16 dated 16 February 1989 submitted before the Regional Trial Court of Makati, Branch 149 in
relation to Civil Case No. M-001; and second, his affidavit 17 dated 23 November 1988 submitted to the Court
of Appeals. Instead, however, these two (2) documents merely stated that Dr. Neri had pardoned petitioners
18 and the complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of the
adulterous relations. It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to cure
the deficiency noted by the Court in the two (2) previous documents in the disposition of the petition in G.R.
No. 96602:

Petitioner will find no solace in the cases he cites, in support of his prayer to dismiss the case based on Dr.
Neri's pardon. People v. Camara (100 Phil. 1098 (1957) is inapplicable as the affidavit there expressly stated
that the wife had consented to the illicit relationship. In Gomez v. Intermediate Appellate Court (135 SCRA 620
[1985]) a case involving estafa, the criminal case was dismissed as the affidavit of desistance specifically stated
that the accused had nothing to do whatsoever with the crime charged. In the present case, the pardon did
not state that Dr. Neri had consented to the illicit relationship petitioner and Mrs. Neri. Neither did it state
that the case was filed against the wrong parties. 20

Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of petitioner
Arroyo's motion for reconsideration, it was subscribed to only on 23 August 1991.

Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise agreement operate as
a pardon meriting a new trial. The Court notes that the cases of People v. Camara (supra) and Gomez v.
Intermediate Appellate Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No.
96602 which the Court has already held to be inapplicable in the present case.

The rule on pardon is found in Article 344 of the Revised Penal Code which provides:
76

ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed
by the offended spouse.

The offended party cannot institute criminal prosecution without including both parties, if they are both alive,
nor in any case, if he shall have consented or pardoned the offenders.

xxx xxx xxx

While there is a conceptual difference between consent and pardon in the sense that consent is granted prior
to the adulterous act while pardon is given after the illicit affair, 21 nevertheless, for either consent or pardon
to benefit the accused, it must be given prior to the filing of a criminal complaint. 22 In the present case, the
affidavit of desistance was executed only on 23 November 1988 while the compromise agreement was
executed only on 16 February 1989, after the trial court had already rendered its decision dated 17 December
1987 finding petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated and signed
after issuance of our Resolution in G.R. No. 96602 on 24 April 1991.

It should also be noted that while Article 344 of the Revise Penal Code provides that the crime of adultery
cannot be prosecuted without the offended spouse's complaint, once the complaint has been filed, the control
of the case passes to the public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor even
principally, a matter of vindication of the private honor of the offended spouse; much less is it a matter merely
of personal or social hypocrisy. Such enforcement relates, more importantly, to protection of the basic social
institutions of marriage and the family in the preservation of which the State has the strongest interest; the
public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is
set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect find strengthen the family as a basic
autonomous social institution ...

The same sentiment has been expressed in the Family Code o the Philippines in Article 149:

The family, being the foundation of the ration, is a basic social institution which public policy cherishes and
protects. Consequently, family relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect.

In U.S. v. Topiño, 24 the Court held that:

77

... The husband being the head of the family and the only person who could institute the prosecution and
control its effects, it is quite clear that the principal object in penalizing the offense by the state was to protect
the purity of the family and the honor of the husband, but now the conduct of the prosecution, after it is once
commenced by the husband, and the enforcement of the penalties imposed is also a matter of public policy in
which the Government is vitally interested to the extent of preserving the public peace and providing for the
general welfare of the community. ... 25 (Emphasis supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month after her
ceasarian operation, the Court agrees with the Solicitor General that this is a question of fact which cannot be
raised at this stage. In any case, we find no reason to overturn the Court of Appeals' finding that "a woman
who has the staying power to volley tennis bags for fifteen minutes at the [John Hay] tennis court would not
be incapable of doing the sexual act" which ball play was followed, as noted by the Court of Appeals "by a
picture taking of both accused in different intimate poses." 26

ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of merit and this
denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly DENIED for lack of merit. Costs
against petitioners.

Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23 August 1991 be
forwarded to the Department of Justice for inquiry into the possible liability of Dr. Neri for perjury.

Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.

ARROYO, JR. v. COURT OF APPEALS

G.R. No. 96602, 19 November 1991

FACTS:

A criminal complaint for adultery was filed by Dr. Neri (husband) against Ruby (wife) and Arroyo (petitioner).
After trial, the Regional Trial Court convicted the petitioner and the wife, based, among others on the wife's
admission to her husband that she sex with petitioner Arroyo. This decision was affirmed by the Court of
Appeals. The wife later filed a motion for reconsideration or new trial contending that a pardon had been
extended by her husband. The husband filed a manifestation praying for the dismissal of the case as he had
"tacitly consented" to his wife's infidelity.

ISSUES/RULINGS:

1. Whether the admission of adulterous conduct by the wife to her husband without the presence of her
counsel is admissible in evidence.

YES. The husband's testimony relating to the admission of adulterous conduct made by the wife to her
husband is admissible in evidence. The husband was neither a peace officer nor an investigating officer
conducting a custodial investigation. Neither was said testimony rendered inadmissible by the constitutional
provision on the right to remain silent and the right to counsel of a "person under investigation for the
commission of an offense."

The right to counsel attaches only upon the start of an investigation, i.e., when the investigating officer starts to
78

ask questions to elicit information and/or confession or admissions from respondent-accused.

2. Whether the husband is a competent witness against his wife

Yes. The husband is not precluded under the Rules of Court from testifying against his wife in criminal cases
for a crime committed by one against the other (Section 22, Rule 129, Revised Rules of Court). In short, the
trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as he was a competent witness.

JUDGE UBALDINO A. LACUROM, Presiding Judge, Regional Trial Court, Cabanatuan City, Branch 29 and
Pairing Judge, Branch 30, Complainant, vs. ATTY. ELLIS F. JACOBA and ATTY. OLIVIA VELASCO-JACOBA,
Respondents. 484 SCRA 206

FACTS: This administrative case arose from a complaint filed by Judge Ubaldino A. Lacurom against spouses
Jacoba and Velasco-Jacoba for violation of Rules 11.03,1 11.04,2 and 19.013 of the Code of Professional
Responsibility. Lacurom issued a Resolution reversing the earlier judgments rendered in favor of Veneracion.
Veneracion’s counsel filed a Motion for Reconsideration, however was suddenly reversed. In her Explanation,
Comments and Answer, Velasco-Jacoba claimed that His Honor knows beforehand who actually prepared the
subject Motion; records will show that the undersigned counsel did not actually or actively participate in this
case. Velasco-Jacoba disavowed any "conscious or deliberate intent to degrade the honor and integrity of the
Honorable Court. Judge Lacurom found Velasco-Jacoba guilty of contempt and penalized her with
imprisonment for five days. Velasco-Jacoba moved for reconsideration order. She recounted that on her way
out of the house for an afternoon hearing, Atty. Ellis Jacoba ("Jacoba") stopped her and said "O, pirmahan mo
na ito kasi last day na, baka mahuli” She signed the pleading handed to her without reading it, in "trusting blind
faith" on her husband of 35 years with whom she "entrusted her whole life and future Velasco-Jacoba
lamented that Judge Lacurom had found her guilty of contempt without conducting any hearing. She accused
Judge Lacurom of harboring "a personal vendetta," ordering her imprisonment despite her status as "senior
lady lawyer of the IBP Nueva Ecija Chapter, already a senior citizen, and a grandmother many times over."
Judge Lacurom issued another order this time directing Jacoba to explain why he should not be held in
contempt. Jacoba complied by filing an Answer with Second Motion for Inhibition, wherein he denied that he
typed or prepared the 30 July 2001 motion and invoked the marital privilege rule in evidence. Judge Lacurom
later rendered a decision finding Jacoba guilty of contempt of court and sentencing him to pay a fine of P500.
IBP Commissioner recommended the suspension IBP Board of Governors adopted Recommendation, except
for the length of suspension which the IBP Board reduced to three months. ISSUE: Whether or not the marital
privilege rule can apply to Jacoba. RULING: The marital privilege rule, being a rule of evidence, may be waived
by failure of the claimant to object timely to its presentation or by any conduct that may be construed as implied
consent. This waiver applies to Jacoba who impliedly admitted authorship of the 30 July 2001 motion.

A.C. No. 5921             March 10, 2006

JUDGE UBALDINO A. LACUROM, Presiding Judge, Regional Trial Court, Cabanatuan City, Branch 29 and
Pairing Judge, Branch 30, Complainant,
vs.
ATTY. ELLIS F. JACOBA and ATTY. OLIVIA VELASCO-JACOBA, Respondents.

DECISION

CARPIO, J.:

The Case

This administrative case arose from a complaint filed on 22 October 2001 by Judge Ubaldino A. Lacurom ("Judge
Lacurom"), Pairing Judge, Regional Trial Court of Cabanatuan City, Branch 30, against respondent-spouses Atty.
Ellis F. Jacoba and Atty. Olivia Velasco-Jacoba ("respondents"). Complainant charged respondents with violation of
Rules 11.03,1 11.04,2 and 19.013 of the Code of Professional Responsibility.

The Facts
79

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

On 29 June 2001, Judge Lacurom issued a Resolution ("Resolution") reversing the earlier judgments rendered in
favor of Veneracion.5 The dispositive portion reads:

WHEREFORE, this Court hereby REVERSES its Decision dated December 22, 2000, as well as REVERSES the
Decision of the court a quo dated July 22, 1997.

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

SO ORDERED.6

Veneracion’s counsel filed a Motion for Reconsideration (with Request for Inhibition) 7 dated 30 July 2001 ("30 July
2001 motion"), pertinent portions of which read:

II. PREFATORY STATEMENT

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

xxxx

III. GROUNDS FOR RECONSIDERATION

1. The Honorable Pairing Court Presiding Judge ERRED in Peremptorily and Suddenly Reversing the Findings of
the Lower Court Judge and the Regular RTC Presiding Judge: 1awph!l.net

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

xxxx

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

xxxx

4. The Honorable Pairing Court Presiding Judge ERRED in Holding That the Defendant is Entitled to a Homelot, and
That the Residential LOT in Question is That Homelot:

THIS ERROR IS STUPENDOUS and a real BONER. Where did the Honorable PAIRING JUDGE base this
conclusion? x x x This HORRENDOUS MISTAKE must be corrected here and now!

xxxx

6. The Honorable Pairing Court Presiding Judge ERRED Grievously in Holding and Declaring that The [court] A
QUO Erroneously Took Cognizance of the Case and That It Had No Jurisdiction over the Subject-Matter:

Another HORRIBLE ERROR! Even an average Law Student knows that JURISDICTION is determined by the
averments of the COMPLAINT and not by the averments in the answer! This is backed up by a Litany of Cases!

xxxx
80

7. FINALLY, the Honorable Pairing Court Presiding Judge Ridiculously ERRED in Ordering the Defendant To
Pay P10,000.00 to the Plaintiff As Payment for Plaintiff’s HOUSE:

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

xxxx

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

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

On 6 August 2001, Judge Lacurom ordered Velasco-Jacoba to appear before his sala and explain why she should
not be held in contempt of court for the "very disrespectful, insulting and humiliating" contents of the 30 July 2001
motion.10 In her Explanation, Comments and Answer,11 Velasco-Jacoba claimed that "His Honor knows beforehand
who actually prepared the subject Motion; records will show that the undersigned counsel did not actually or actively
participate in this case."12 Velasco-Jacoba disavowed any "conscious or deliberate intent to degrade the honor and
integrity of the Honorable Court or to detract in any form from the respect that is rightfully due all courts of
justice."13 She rationalized as follows:

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

xxxx

We most respectfully submit that plaintiff & counsel did not just fire a staccato of incisive and hard-hitting remarks,
machine-gun style as to be called contumacious and contemptuous. They were just articulating their feelings of
shock, bewilderment and disbelief at the sudden reversal of their good fortune, not driven by any desire to just cast
aspersions at the Honorable Pairing judge. They must believe that big monumental errors deserve equally big
adjectives, no more no less. x x x The matters involved were [neither] peripheral nor marginalized, and they had to
call a spade a spade. x x x14

Nevertheless, Velasco-Jacoba expressed willingness to apologize "for whatever mistake [they] may have committed
in a moment of unguarded discretion when [they] may have ‘stepped on the line and gone out of bounds’." She also
agreed to have the allegedly contemptuous phrases stricken off the record. 15

On 13 September 2001, Judge Lacurom found Velasco-Jacoba guilty of contempt and penalized her with
imprisonment for five days and a fine of P1,000.16

Velasco-Jacoba moved for reconsideration of the 13 September 2001 order. She recounted that on her way out of
the house for an afternoon hearing, Atty. Ellis Jacoba ("Jacoba") stopped her and said "O, pirmahan mo na ito kasi
last day na, baka mahuli." (Sign this as it is due today, or it might not be filed on time.) She signed the pleading
handed to her without reading it, in "trusting blind faith" on her husband of 35 years with whom she "entrusted her
whole life and future."17 This pleading turned out to be the 30 July 2001 motion which Jacoba drafted but could not
sign because of his then suspension from the practice of law.18

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

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

Section 3(e) of Republic Act No. 3019 ("RA 3019"). 22 The first charge became the subject of a preliminary
investigation23 by the City Prosecutor of Cabanatuan City. On the second charge, Veneracion set forth his
allegations in a Complaint-Affidavit24 filed on 28 August 2001 with the Office of the Deputy Ombudsman for Luzon.
81

Judge Lacurom issued another order on 21 September 2001, this time directing Jacoba to explain why he should
not be held in contempt.25 Jacoba complied by filing an Answer with Second Motion for Inhibition, wherein he denied
that he typed or prepared the 30 July 2001 motion. Against Velasco-Jacoba’s statements implicating him, Jacoba
invoked the marital privilege rule in evidence.26 Judge Lacurom later rendered a decision 27 finding Jacoba guilty of
contempt of court and sentencing him to pay a fine of P500.

On 22 October 2001, Judge Lacurom filed the present complaint against respondents before the Integrated Bar of
the Philippines (IBP).

Report and Recommendation of the IBP

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

IBP Commissioner Navarro, in her Report and Recommendation of 10 October 2002, recommended the suspension
of respondents from the practice of law for six months. 29 IBP Commissioner Navarro found that "respondents were
prone to us[ing] offensive and derogatory remarks and phrases which amounted to discourtesy and disrespect for
authority."30 Although the remarks were not directed at Judge Lacurom personally, they were aimed at "his position
as a judge, which is a smack on the judiciary system as a whole." 31

The IBP Board of Governors ("IBP Board") adopted IBP Commissioner Navarro’s Report and Recommendation,
except for the length of suspension which the IBP Board reduced to three months. 32 On 10 December 2002, the IBP
Board transmitted its recommendation to this Court, together with the documents pertaining to the case.

Several days later, Velasco-Jacoba sought reconsideration of the IBP Board decision, thus: 33

xxxx

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

4. We filed an Administrative Case against Judge Lacurom before the Supreme Court involving the same
issues we raised in the aforementioned Certiorari case, which was dismissed by the Supreme Court for
being premature, in view of the pending Certiorari case before the Court of Appeals;

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

The Court’s Ruling

On a preliminary note, we reject Velasco-Jacoba’s contention that the present complaint should be considered sub
judice in view of the petition for certiorari and mandatory inhibition with preliminary injunction ("petition for
certiorari")35 filed before the Court of Appeals.

The petition for certiorari, instituted by Veneracion and Velasco-Jacoba on 4 October 2001, seeks to nullify the
following orders issued by Judge Lacurom in Civil Case No. 2836: (1) the Orders dated 26 September 2001 and 9
November 2001 denying respondents’ respective motions for inhibition; and (2) the 13 September 2001 Order which
found Velasco-Jacoba guilty of contempt. The petitioners allege that Judge Lacurom acted "with grave abuse of
discretion [amounting] to lack of jurisdiction, in violation of express provisions of the law and applicable decisions of
the Supreme Court."36

Plainly, the issue before us is respondents’ liability under the Code of Professional Responsibility. The outcome of
this case has no bearing on the resolution of the petition for certiorari, as there is neither identity of issues nor
causes of action.

Neither should the Court’s dismissal of the administrative complaint against Judge Lacurom for being premature
impel us to dismiss this complaint. Judge Lacurom’s orders in Civil Case No. 2836 could not be the subject of an
administrative complaint against him while a petition for certiorari assailing the same orders is pending with an
appellate court. Administrative remedies are neither alternative nor cumulative to judicial review where such review
is available to the aggrieved parties and the same has not been resolved with finality. Until there is a final
declaration that the challenged order or judgment is manifestly erroneous, there will be no basis to conclude
whether the judge is administratively liable. 37
82

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

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

SEC. 3.Signature and address.—Every pleading must be signed by the party or counsel representing him x x x.

The signature of counsel constitutes a certificate by him that he has read the pleading, that to the best of
his knowledge, information, and belief there is good ground to support it, and that it is not interposed for
delay.

x x x Counsel who x x x signs a pleading in violation of this Rule, or alleges scandalous or indecent matter
therein x x x shall be subject to appropriate disciplinary action. (Emphasis supplied)

By signing the 30 July 2001 motion, Velasco-Jacoba in effect certified that she had read it, she knew it to be
meritorious, and it was not for the purpose of delaying the case. Her signature supplied the motion with legal effect
and elevated its status from a mere scrap of paper to that of a court document.

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

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

We now consider the evidence as regards Jacoba. His name does not appear in the 30 July 2001 motion. He
asserts the inadmissibility of Velasco-Jacoba’s statement pointing to him as the author of the motion.

The Court cannot easily let Jacoba off the hook. Firstly, his Answer with Second Motion for Inhibition did not contain
a denial of his wife’s account. Instead, Jacoba impliedly admitted authorship of the motion by stating that he "trained
his guns and fired at the errors which he perceived and believed to be gigantic and monumental." 40

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

Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying that Judge Lacurom await the outcome of
the petition for certiorari before deciding the contempt charge against him. 41 This petition for certiorari anchors some
of its arguments on the premise that the motion was, in fact, Jacoba’s handiwork. 42

The marital privilege rule, being a rule of evidence, may be waived by failure of the claimant to object timely to its
presentation or by any conduct that may be construed as implied consent. 43 This waiver applies to Jacoba who
impliedly admitted authorship of the 30 July 2001 motion.

The Code of Professional Responsibility provides:

Rule 11.03.—A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the
Courts.

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

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

Respondents nonetheless try to exculpate themselves by saying that every remark in the 30 July 2001 motion was
warranted. We disagree.
83

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

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

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

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

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

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

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

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

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

SO ORDERED.

P rivileged Communication – Marital Communication THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-
appellee, vs. FAUSTO V. CARLOS, defendant-appellant. G.R. No. L-22948 March 17, 1925

FACTS: It appears from the evidence that the victim of the alleged murder, Dr. Pablo G. Sityar, performed a
surgical operation upon the defendant's wife for appendicitis and certain other ailments and after her release
therefrom she was required to go several times to the clinic of Doctor Sityar for the purpose of dressing the
wounds caused by the operation. On these occasions she was accompanied by her husband, the defendant.
The defendant states that on one of the visits, Doctor Sityar sent him out on an errand to buy some medicine,
and that while defendant was absent on this errand Doctor Sityar outraged the wife. The defendant further
states that his wife informed him of the outrage shortly after leaving the clinic. The defendant, suffering from
some stomach trouble, entered the Philippine General Hospital where he was under the care of two other
physicians. While in the hospital he received a letter (Exhibit 5) from Doctor Sityar asking the immediate
settlement of the account for the professional services rendered his wife. Shortly after his release from the
hospital the defendant sought an interview with Doctor Sityar and went to the latter's office several times
without finding him in. In the afternoon of May 26th the defendant again went to the office of the deceased and
found him there alone. According to the evidence of the prosecution, the defendant then, without any
preliminary quarrel between the two, attacked the deceased with a fan knife and stabbed him twice. The
84

deceased made an effort to escape but the defendant pursued him and overtaking him in the hall outside the
office, inflicted another wound upon him and as a consequence if the three wounds he died within a few
minutes. The defendant made his escape but surrendered himself to the Constabulary at Malolos, Bulacan, in
the evening of the following day. ISSUE: Whether or not the letter offered as evidence can be considered
conclusive of the crime committed with premeditation and therefore constituted murder. RULING: No. Counsel
for the defendant argues vigorously that the letter was a privileged communication and therefore not
admissible in evidence. The numerical weight of authority is, however, to the effect that where a privileged
communication from one spouse to another comes into the hands of a third party, whether legally or not,
without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby
extinguished and the communication, if otherwise competent, becomes admissible. The letter Exhibit L must,
however, be excluded for reasons not discussed in the briefs. The letter was written by the wife of the
defendant and if she had testified at the trial the letter might have been admissible to impeach her testimony,
but she was not put on the witness-stand and the letter was therefore not offered for that purpose. If the
defendant either by answer or otherwise had indicated his assent to the statements contained in the letter it
might also have been admissible, but such is not the case here; the fact that he had the letter in his possession
is no indication of acquiescence or assent on his part. The letter is therefore nothing but pure hearsay and its
admission in evidence violates the constitutional right of the defendant in a criminal case to be confronted with
the witnesses for the prosecution and have the opportunity to cross-examine them. In this respect there can be
no difference between an ordinary communication and one originally privileged. The question is radically
different from that of the admissibility of testimony of a third party as to a conversation between a husband and
wife overheard by the witness. Testimony of that character is admissible on the ground that it relates to a
conversation in which both spouses took part and on the further ground that where the defendant has the
opportunity to answer a statement made to him by his spouse and fails to do so, his silence implies assent.
That cannot apply where the statement is contained in an unanswered letter.

G.R. No. L-22948             March 17, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FAUSTO V. CARLOS, defendant-appellant.

M.H. de Joya, Jose Padilla, Vicente Sotto and Monico Mercado for appellant.
Attorney-General Villa-Real and City Fiscal Guevara for appellee.

OSTRAND, J.:

This is an appeal from a decision of the Court of First Instance of the City of Manila finding the defendant Fausto V.
Carlos guilty of the crime of murder and sentencing him to suffer life imprisonment, with the accessory penalties
prescribed by law and with the costs.

It appears from the evidence that the victim of the alleged murder, Dr. Pablo G. Sityar, on March 3, 1924, in Mary
Chiles Hospital, performed a surgical operation upon the defendant's wife for appendicitis and certain other
ailments. She remained in the hospital until the 18th of the same month, but after her release therefrom she was
required to go several times to the clinic of Doctor Sityar at No. 40 Escolta, for the purpose of dressing the wounds
caused by the operation. On these occasions she was accompanied by her husband, the defendant. The defendant
states that on one of the visits, that of March 20, 1924, Doctor Sityar sent him out on an errand to buy some
medicine, and that while defendant was absent on this errand Doctor Sityar outraged the wife. The defendant further
states that his wife informed him of the outrage shortly after leaving the clinic. Notwithstanding this it nevertheless
appears that he again went there on March 28th to consult the deceased about some lung trouble from which he,
the defendant, was suffering.. He was given some medical treatment and appears to have made at least one more
visit to the clinic without revealing any special resentment.

On May 12, 1924, the defendant, suffering from some stomach trouble, entered the Philippine General Hospital
where he remained until May 18, 1924, and where he was under the care of two other physicians. While in the
hospital her received a letter (Exhibit 5) from Doctor Sityar asking the immediate settlement of the account for the
professional services rendered his wife. Shortly after his release from the hospital the defendant sought an interview
with Doctor Sityar and went to the latter's office several times without finding him in. On one of these occasions he
was asked by an employee of the office, the nurse Cabañera, if he had come to settle his account, to which the
defendant answered that he did not believe he owed the doctor anything.
85

In the afternoon of May 26th the defendant again went to the office of the deceased and found him there alone.
According to the evidence of the prosecution, the defendant then, without any preliminary quarrel between the two,
attacked the deceased with a fan-knife and stabbed him twice. The deceased made an effort to escape but the
defendant pursued him and overtaking him in the hall outside the office, inflicted another wound upon him and as a
consequence if the three wounds he died within a few minutes. The defendants made his escape but surrendered
himself to the Constabulary at Malolos, Bulacan, in the evening of the following day.

The defendant admits that he killed the deceased but maintains that he did so in self-defense. He explains that he
went to Doctor Sityar's office to protest against the amount of the fee charged by the doctor and, in any event, to ask
for an extension of the time of payment; that during the conversation upon that subject the deceased insulted him by
telling him that inasmuch as he could not pay the amount demanded he could send his wife to the office as she was
the one treated, and that she could then talk the matter over with the decease; that this statement was made in such
an insolent and contemptuous manner that the defendant became greatly incensed and remembering the outrage
committed upon his wife, he assumed a threatening attitude and challenged the deceased to go downstairs with him
and there settle the matter; that the deceased thereupon took a pocket-knife from the center drawer of his desk and
attacked the defendant, endeavoring to force him out of the office; that the defendant, making use of his knowledge
of fencing, succeeded in taking the knife away from the deceased and blinded by fury stabbed him first in the right
side of the breast and then in the epigastric region, and fearing that the deceased might secure some other weapon
or receive assistance from the people in the adjoining room, he again stabbed him, this time in the back.

The defendant's testimony as to the struggle described is in conflict with the evidence presented by the prosecution.
But assuming that it is true, it is very evident that it fails to establish a case of self-defense and that, in reality, the
only question here to be determined is whether the defendant is guilty of murder or of simple homicide.

The court below found that the crime was committed with premeditation and therefore constituted murder. This
finding can only be sustained by taking into consideration Exhibit L, a letter written to the defendant by his wife and
siezed by the police in searching his effects on the day of his arrest. It is dated May 25, 1924, two days before the
commission of the crime and shows that the writer feared that the defendant contemplated resorting to physical
violence in dealing with the deceased.

Counsel for the defendant argues vigorously that the letter was a privileged communication and therefore not
admissible in evidence. The numerical weight of authority is, however, to the effect that where a privileged
communication from one spouse to another comes into the hands of a third party, whether legally or not, without
collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby extinguished and the
communication, if otherwise competent, becomes admissible. (28 R.C.L., 530 and authorities there cited.) Such is
the view of the majority of this court.

Professor Wigmore states the rule as follows:

For documents of communication coming into the possession of a third person, a distinction should obtain,
analogous to that already indicated for a client's communications (ante, par. 2325, 2326); i. e., if they were
obtained from the addressee by voluntary delivery, they should still be privileged (for otherwise the privilege
could by collusion be practically nullified for written communications); but if they were obtained
surreptitiously or otherwise without the addressee's consent, the privilege should cease. (5 Wigmore on
Evidence, 2nd ed., par. 2339.)

The letter in question was obtained through a search for which no warrant appears to have been issued and counsel
for the defendant cites the causes of Boyd and Boyd vs. United States (116 U.S., 616) and Silverthorne Lumber Co.
and Silverthorne vs. United States (251 U.S., 385) as authority for the proposition that documents obtained by illegal
searches of the defendant's effects are not admissible in evidence in a criminal case. In discussing this point we can
do not better than to quote Professor Wigmore:

The foregoing doctrine (i. e., that the admissibility of evidence is not affected by the illegality of the means
through which the party has been enabled to obtain the evidence) was never doubted until the appearance
of the ill-starred majority opinion of Boyd vs. United States, in 1885, which has exercised unhealthy influence
upon subsequent judicial opinion in many States.

xxx     xxx     xxx

The progress of this doctrine of Boyd vs. United States was as follows: (a) The Boyd Case remained
unquestioned in its own Court for twenty years; meantime receiving frequent disfavor in the State Courts
(ante, par. 2183). (b) Then in Adams vs. New York, in 1904, it was virtually repudiated in the Federal
Supreme Court, and the orthodox precedents recorded in the State courts (ante, par. 2183) were expressly
approved. (c) Next, after another twenty years, in 1914 — moved this time, not by erroneous history, but by
misplaced sentimentality — the Federal Supreme Court, in Weeks vs. United States, reverted to the original
doctrine of the Boyd Case, but with a condition, viz., that the illegality of the search and seizure should first
have been directly litigated and established by a motion, made before trial, for the return of the things
86

seized; so that, after such a motion, and then only, the illegality would be noticed in the main trial and the
evidence thus obtained would be excluded. ... (4 Wigmore on Evidence, 2nd ed., par. 2184.)

In the Silverthorne Lumber Co. case the United States Supreme Court adhered to its decision in the Weeks Case.
The doctrine laid down in these cases has been followed by some of the State courts but has been severely
criticized and does not appear to have been generally accepted. But assuming, without deciding, that it prevails in
this jurisdiction it is, nevertheless, under the decisions in the Weeks and Silverthorne cases, inapplicable to the
present case. Here the illegality of the search and seizure was not "directly litigated and established by a motion,
made before trial, for the return of the things seized."

The letter Exhibit L must, however, be excluded for reasons not discussed in the briefs. The letter was written by the
wife of the defendant and if she had testified at the trial the letter might have been admissible to impeach her
testimony, but she was not put on the witness-stand and the letter was therefore not offered for that purpose. If the
defendant either by answer or otherwise had indicated his assent to the statements contained in the letter it might
also have been admissible, but such is not the case here; the fact that he had the letter in his possession is no
indication of acquiescence or assent on his part. The letter is therefore nothing but pure hearsay and its admission
in evidence violates the constitutional right of the defendant in a criminal case to be confronted with the witnesses
for the prosecution and have the opportunity to cross-examine them. In this respect there can be no difference
between an ordinary communication and one originally privileged.

The question is radically different from that of the admissibility of testimony of a third party as to a conversation
between a husband and wife overheard by the witness. Testimony of that character is admissible on the ground that
it relates to a conversation in which both spouses took part and on the further ground that where the defendant has
the opportunity to answer a statement made to him by his spouse and fails to do so, his silence implies assent. That
cannot apply where the statement is contained in an unanswered letter.

The Attorney-General in support of the contrary view quotes Wigmore, as follows:

. . . Express communication is always a proper mode of evidencing knowledge or belief. Communication to

a husband or wife is always receivable to show probable knowledge by the other (except where they are
living apart or are not in good terms), because, while it is not certain that the one will tell the other, and while
the probability is less upon some subjects than upon others, still there is always some probability, — which
is all that can be fairly asked for admissibility. ... (1 Wigmore, id., par. 261.)

This may possibly be good law, though Wigmore cites no authority in support of his assertion, but as far as we can
see it has little or nothing to do with the present case.

As we have already intimated, if Exhibit L is excluded, there is in our opinion not sufficient evidence in the record to
show that the crime was premeditated.

The prosecution maintains that the crime was committed with alevosia. This contention is based principally on the
fact that one of the wounds received by the deceased showed a downward direction indicating that the deceased
was sitting down when the wound was inflicted. We do not think this fact is sufficient proof. The direction of the
wound would depend largely upon the manner in which the knife was held.

For the reasons stated we find the defendant guilty of simple homicide, without aggravating or extenuating
circumstances.

The sentence appealed from is therefore modified by reducing the penalty to fourteen years, eight months and one
day of reclusion temporal, with the corresponding accessory penalties and with the costs against the appellant. So
ordered.

Johnson, Malcolm, Johns, and Romualdez, JJ., concur.

Separate Opinions

VILLAMOR, J., dissenting:

His Honor, the judge who tried this case, inserts in his decision the testimony of the witness Lucio Javillonar as
follows:

The witness, Lucio Javillonar, testified that he went to the office of the deceased some minutes before six
o'clock in that evening in order to take him, as had previously been agreed upon between them, so that they
87

might retire together to Pasig, Rizal, where they resided then; that having noticed that the deceased was
busy in his office, talking with a man about accounts, instead of entering, he stayed at the waiting room,
walking from one end to another, while waiting for that man to go out; that in view of the pitch of the voice in
which the conversation was held between the deceased and his visitor, and what he had heard, though little
as it was, of said conversation, he believes that there was not, nor could there have been, any change of
hard words, dispute or discussion of any kind; that shortly thereafter, he saw the screen of the door of the
deceased's office suddenly open, and the deceased rush out stained with blood, and followed closely by the
accused who then brandished a steel arm in the right hand; that upon seeing the deceased and overtaking
him, leaning upon one of the screens of the door of a tailor shop a few feet from his office, slightly inclined to
the right, with the arms lowered and about to fall to the floor, the accused stabbed him on the right side of
the chest, thereby inflicting a wound on the right nipple; and that then the accused descended the staircase
to escape away, at the same time that the deceased was falling to the ground and was being taken by him
with the assistance of other persons from said place to a lancape (a sofa) where he died a few minutes
later, unable to say a word.

In deciding the question as to whether the act committed is murder, with the qualifying circumstance of treachery, as
claimed by the Attorney-General, the trial judge says that the principal ground of the prosecution for holding that the
commission of the crime was attended by the qualifying circumstance of treachery is a mere inference from the
testimony of Lucio Javillonar, and that the nature of the wounds found on the epigastric region of the deceased and
his back do not mean anything, because they could have been inflicted while the deceased was standing, seated or
inclined.

A careful consideration of the testimony of Lucio Javillonar, as set out in the judgment appealed from, will show that,
according to said eyewitness, the deceased was with his arms lowered and about to fall to the floor when the
accused stabbed him on the right side of the chest with the weapon he was carrying, thereby inflicting a wound on
the right nipple, and that, according to the doctor who examined the wounds, anyone of them could have caused the
death of the deceased. These being the facts proven, I am of opinion that application must be made here of the
doctrine laid down by this court in the case of United States vs. Baluyot (40 Phil., 385), wherein it was held that
"Even though a deadly attack may be begun under conditions not exhibiting the feature of alevosia, yet if the assault
is continued and the crime consummated with alevosia, such circumstance may be taken into consideration as a
qualifying factor in the offense of murder." I admit that none of the witnesses who testified in this case has seen the
beginning of the aggression; but it positively appears from the testimony of the said witness Lucio Javillonar that,
notwithstanding that the deceased was already wounded and about to fall to the floor, he struck him with another
mortal blow with the weapon he was carrying, which shows that the accused consummated the crime with
treachery.

For the foregoing, I am of opinion that the judgment appealed from must be affirmed, considering the act committed
as murder, with the qualifying circumstance of treachery, and in this sense I dissent from the majority opinion.

[G.R. No. 10396. July 29, 1915. ]

THE UNITED STATES, Plaintiff-Appellee, v. TERESA CONCEPCION, Defendant-Appellant.

M. Jesus Cuenco for Appellant.

Attorney-General Avanceña for Appellee.

SYLLABUS

1. OPIUM; ILLEGAL POSSESSION OF OPIUM; ANIMUS POSSIDENDI. — The house of R, the husband
of the defendant, was searched for opium. During the search R told the defendant to take from the
bed a can alleged to contain opium, and throw it away. She went to the bed, found the can, and at
that moment was discovered by the policeman. She denied prior knowledge of the existence of the
can. This fact was supported by the declaration of her husband. There was no proof that she used
opium in any form. Held: That the proof was not sufficient to support the charges of the complaint.

2. WITNESSES; COMPETENCY; HUSBAND OR WIFE. — A husband cannot be examined for or against

his wife, without her consent; nor a wife for or against her husband, without his consent; nor can
either, during the marriage, or afterwards, be, without the consent of the other, examined as to any
communication made by one to the other during the marriage, but this exception does not apply to a
civil action or proceeding by one against the other, or to a criminal action or proceeding for a crime
committed by one against the other. (Par. 3, sec. 383, Act No. 190; sec. 58, General Orders No. 58.)
At the common law the rule was that the husband and wife could not testify for or against the other,
in any criminal proceedings, except in the prosecution of one for criminal injury to the other. The rule
is based upon considerations of public policy, growing out of the marital relation. To allow one to
testify for or against the other would be to subject him or her to great temptation to commit perjury
and to endanger the harmony and confidence of the marital relation.
88

3. ID.; ID.; ID.; DECLARATION MADE IN ANOTHER CASE. — R declared in a criminal action against
himself. Later, in a criminal action against C, said declaration was presented as proof and accepted,
over the objection of C. No proof was offered to show that R was not still alive. Said declarations are
not only not admissible by virtue of the provisions of section 383 of Act No. 190 and section 58 of
General Orders No. 58, but also by virtue of the provisions of paragraph 2 of section 5 of the Act of
Congress of July 1, 1902. C, the defendant, was not given an opportunity "to meet the witness face
to face." The acceptance of the testimony of her husband, R, given in another case, was in absolute
violation of her rights, and in direct contravention of the law.

DECISION

JOHNSON, J. :

The defendant was charged with a violation of the Opium Law. The complaint alleged that she had in
her possession and under her control a quantity of opium. She was arrested, arraigned, pleaded not
guilty, tried, found guilty, and sentenced to pay a fine of P300 and costs.

From that sentence she appealed to this court. In this court she alleges that the lower court
committed several errors, both of law and of fact. Upon the question of fact, she alleges that the
lower court committed an error in deciding that the evidence adduced during the trial of the cause
was sufficient to show that she was guilty of the crime charged beyond a reasonable doubt.

Upon that question the Attorney-General, in a carefully prepared brief in which he analyzes the proof,
reaches the conclusion that the facts are insufficient to show that she is guilty of the crime charged.

It appears from the evidence that on the night of the 2d of December, 1913, several policemen went
to the house of the defendant, where she was living with her husband, Felix Ricablanca. Upon
arriving there, they obtained permission to enter and immediately proceeded to make a search of the
premises for opium. While there is some dispute concerning the fact, we believe the proof shows that
the defendant, during the time the policemen were searching the house, went to a bed located in the
house, after being so ordered by her husband, and took from beneath a pillow a small can of opium,
said to contain about 7½ grams of opium, and attempted to throw it away. At that moment the
policemen took possession of the can. There is some conflict in the proof as to just what took place
at that moment. That the policemen inquired to whom the opium belonged is not denied. The conflict
arises in the answer which was given to that question. The defendant in the present case, according
to some of the witnesses, declared that it belonged to her. Her husband, Felix Ricablanca, according
to some witnesses, declared that he was the owner of the house and was responsible for everything
that was found within it. The policemen, at that moment, evidently believed that the opium belonged
to the husband, Felix Ricablanca, for the reason that they arrested him and took him to the pueblo,
and later filed a complaint against him for a violation of the Opium Law. He was later brought to trial
and was acquitted.

No complaint was presented against the present defendant until after a period of more than ten
months had elapsed. The policemen who were present at the time the opium was found certainly
knew no more about the facts at the time the complaint was presented against the present defendant
than they did on the night when the opium was found and when they arrested her husband. The fact
that the defendant took the opium from under the pillow on the bed, at the request of her husband,
seems to us to be entirely supported by the proof. Her husband was a confirmed user of opium. He
admitted that he was in the habit of smoking opium. That the defendant was temporarily in
possession of the opium is not denied, even by her. That her possession was such a possession as is
prohibited by the law, she strongly denies. The mere fact that she had in her possession the opium
for but a moment and took possession of it under her husband’s order, is not, in our opinion, such a
possession of opium as is intended to be condemned by the law. She certainly did not intend, even
remotely, to have in her possession opium. She did exactly what any other faithful wife would have
done under similar circumstances. There is no proof that she was a user of opium in any form. There
is no proof that she knew that the can contained opium and consequently there is no proof of the
animus possidendi. In the absence of such proof there can be no conviction under the complaint for
the illegal possession of opium.

The appellant makes another assignment of error which presents an important question of law. She
alleges that the lower court committed an error in permitting the testimony of her husband to be
89

presented against her over her objection. She alleges that the admission of that testimony was in
violation of paragraph 3 of section 383 of the Code of Procedure in Civil Actions. Said paragraph
provides: "A husband can not be examined for or against his wife without her consent; nor a wife for
or against her husband without his consent; nor can either, during the marriage or afterwards, be,
without the consent of the other, examined as to any communication made by one to the other
during the marriage; but this exception does not apply to a civil action or proceeding by one against
the other, or to a criminal action or proceeding for a crime committed by one against the other." cralaw virtua1aw library

It will be noted that said section prohibits a husband from giving testimony against his wife without
her consent, except in a civil action between husband and wife, and in a criminal action when the
crime was committed by one against the other. The present is not a civil action between husband and
wife, neither is it a criminal action where the crime was committed by one against the other. It would
seem to be clear, therefore, that the testimony of the husband is not admissible if the wife objected.
The testimony of the husband should not have been admitted.

There is still another objection to the admissibility of the testimony of the husband. His testimony
was not given in the present case. It was a copy of his declaration given in another case, in which he
was the defendant and in which he was charged with the illegal possession of the opium in question.
It will be remembered that at the time the opium was found in the house of the defendant, the
husband of the present defendant was arrested; that later a complaint was presented against him.
During the trial he testified in his own behalf. It was the testimony given in that case which was
presented as proof in the present case. He was not called as a witness. His testimony is not only not
admissible under the provisions above quoted of section 383, but it is not admissible under the
Philippine Bill, which provides: "In all criminal prosecutions the accused shall enjoy the right to be
heard by himself and counsel, to demand the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process
to compel the attendance of witnesses in his behalf." cralaw virtua1aw library

The defendant was not given an opportunity "to meet the witness face to face." The acceptance of
the testimony of her husband, given in another case, was in absolute violation of her rights and in
direct contravention of the law. The presentation and acceptance of the testimony of the husband
violated two well-recognized rules of law — first, paragraph 3 of section 383 of Act No. 190, and
[second,] paragraph 2 of section 5 of the Act of Congress of July 1, 1902.

At the common law the rule was that husband and wife could not testify for or against each other in
any criminal proceedings, except in the prosecution of one for criminal injury to the other. The
common-law rule has been adopted in practically all of the States of the United States. The rule is
based upon considerations of public policy growing out of the marital relation. To allow one to testify
for or against the other would be to subject him or her to great temptation to commit perjury and to
endanger the harmony and confidence of the marital relation. The cases supporting the rule are
innumerable.

For the foregoing reasons, the sentence of conviction must be revoked, and it is hereby ordered and
decreed that the complaint be dismissed and the defendant discharged from the custody of the law,
with costs de officio. So ordered.

Arellano, C.J., Torres and Araullo, JJ., concur.

Carson and Trent, JJ., concur in the result.

G.R. No. L-25643           June 27, 1968

JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners,

vs.
HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of Iloilo,
JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT and COLD STORAGE CO., INC., and
THE HON. COURT OF APPEALS, respondents.

Efrain B. Trenas and Sergio D. Mabunay for petitioners.

Ricardo J. Gerochi for respondents.

CASTRO, J.:
90

The issue tendered for resolution in this case is whether a wife, who is a co-defendant of her husband in an action,
may be examined as a hostile witness by the adverse party under section 6 of Rule 132 of the Rules of Court,
without infringing on her marital privilege not to testify against her husband under section 20 (b) of Rule 130. The
trial court, presided by the respondent Judge Jesus Rodriguez, ruled in the affirmative and required the wife to
appear and testify. The petitioners sued for certiorari but the Court of Appeals dismissed their petition 1 and denied
their motion for reconsideration.2 Hence this appeal.3

On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant & Cold Storage Co. in Iloilo, together
with C.N. Hodges and Ricardo Gurrea, filed an action in the Court of First Instance of Iloilo for the annulment of a
judgment rendered against the La Paz Ice Plant by the Court of First Instance of Manila in civil case 39827. Named
as defendants were Marciano C. Roque, in whose favor judgment was rendered, and the spouses Jose Manuel and
Paquita Lezama. The complaint alleged that, because of mismanagement by the Lezamas, the La Paz Ice Plant
was placed under the receivership of Dineros; that during the pendency of the receivership, Marciano C. Roque
brought an action against the La Paz Ice Plant in the Court of First Instance of Manila for the collection of P150,000,
which sum he had supposedly lent to it; that summons was served not on the receiver but on the spouses Jose
Manuel and Paquita Lezama; and that, through the collusion of the Lezamas, Roque was able to obtain judgment by
default against the company. It was claimed that, because the summons was served on Jose Manuel Lezama
instead of on the receiver, the Court of First Instance of Manila acquired no jurisdiction over the La Paz Ice Plant
and that, therefore, the decision of that court was void.
1ªvvphi1.nêt

In their answer, the defendant spouses (the herein petitioners), while admitting that the company was placed under
receivership, maintained that Jose Manuel Lezama nevertheless remained president of the La Paz Ice Plant and
that as such he had authority to receive in behalf of the company the court summons in civil case 39827. They
denied entering into collusion with Roque and averred that they did not contest Roque's claim because they knew it
to be a legitimate obligation which the La Paz Ice Plant had incurred pursuant to a resolution of its board of
directors.

Issues having been joined, the case was thereupon heard. At the hearing Dineros asked the court to issue
a subpoena to Paquita Lezama to testify as "a witness summoned by the plaintiffs in accordance with the Rules of
Court." The request was granted over the objection of the petitioners who invoked the following provision of the
Rules of Court:

A husband cannot be examined for or against his wife without her consent; nor a wife for or against her
husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other, or in a criminal case for a crime committed by one against the other. 4

This provision deals with two different matters which rest on different grounds of policy: the disqualification of
husband and wife to testify in each other's behalf, as well as their privilege not to testify against each other. 5 The
fundamental theory of the common law is said to be that relationship of the spouses, not their pecuniary interest, is
the basis of the disqualification. 6 Indeed section 20 of Rule 130 is entitled "Disqualification by reason of ...
relationship."

On the other hand, while a shelter of emotional reasons has been offered 7 for the privilege, the "true explanation
[which] is after all the simplest"8 and which constitutes "the real and sole strength of the opposition to abolishing the
privilege," is the natural repugnance in every fair-minded person to compelling a wife or husband to be the means of
the other's condemnation and to subjecting the culprit to the humiliation of being condemned by the words of his
intimate life partner.9

Here the request for subpoena indicated that Paquita Lezama was to do no more than testify as an adverse party in
the case and, indeed, in the light of the allegations both in the complaint and in the answer, the request was
apparently one that could reasonably be expected to be made. Thus, the complaint charged

13. — That in obtaining the judgment by default in Civil Case No. 39827 of the Court of First Instance of
Manila against the La Paz Ice Plant & Cold Storage Co., Inc. defendants, in gross and evident bad faith, and
in fraudulent conspiracy, made it appear that the La Paz Ice Plant & Cold Storage Co., Inc. had obtained a
loan of P150,000.00 from defendant Marciano C. Roque thru defendant Jose Manuel Lezama allegedly
upon an authority vested upon defendant Jose Manuel Lezama by the alleged Board of Directors of the La
Paz Ice Plant & Cold Storage Co., Inc. allegedly evidenced by the minutes of the meetings of the Board of
Directors of the said corporation signed by defendant Jose Manuel Lezama and attested to by Benjamin
Luis Borja and Paquita B. Lezama and that defendants spouses Jose Manuel Lezama and Paquita B.
Lezama had manipulated the books of the corporation by making it appear that such fictitious loan was then
in existence.

On the other hand, the answer claimed

13. That the herein defendants specifically deny all the allegations contained in paragraph 13 of the
complaint; the truth is, that the herein defendants have not conspired and acted in bad faith with the plaintiff
91

[Marciano C. Roque] in Civil Case No. 39827 of the Court of First Instance of Manila for the rendition of the
said judgment referred to therein; for the truth is, that the herein defendants, in their capacities as President-
Manager and Secretary of the La Paz Ice Plant & Cold Storage Co., Inc., believing as they believe that the
obligation sought to be enforced by said civil action being legitimate and the allegations of the complaint in
said Civil Case No. 39827 of the Court of First Instance of Manila are true, they did not deem it wise to
contest the same; that the obligation of P150,000.00 of the La Paz Ice Plant & Cold Storage Co., Inc., which
the defendant Marciano C. Roque sought to be enforced in Civil Case No. 39827 of the Court of First
Instance of Manila was legitimately contracted in accordance with law; that said obligation was duly entered
in the books of the corporation and that the said loan is not fictitious; that the amount realized therefrom was
spent for the benefit of the said corporation.

Thus, while the petitioners denied the charge that the loan was fictitious, they did not deny the allegation that it was
Paquita Lezama who, as secretary of the company, signed the minutes of the meeting at which Jose Manuel
Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as secretary, made the
entry in the books of the corporation.

It was obviously to test the truth of the assertion that the loan transaction was above board that Dineros, the
company receiver, wanted Paquita Lezama on the witness stand, not as a spouse witness "for or against her
husband," but rather as an adverse party in the case.

It is postulated that a party can make, as it were, such forays into his opponent's position on the strength of section
6 of Rule 132 which provides:

Direct examination of unwilling or hostile witnesses. — A party may interrogate any unwilling or hostile
witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of
a public or private corporation or of a partnership or association which is an adverse party, and interrogate
him by leading questions and contradict and impeach him in all respects as if he had been called by the
adverse party and the witness thus called may be contradicted and impeached by or on behalf of the
adverse party also, and may be cross-examined by the adverse party only upon the subject-matter of his
examination in chief.

The basic issue may therefore be restated thus: In this case where the wife is a co-defendant in a suit charging
fraud against the spouses, can the wife be compelled to testify as an adverse party witness concerning her
participation in the alleged fraud without violating section 20 (b) of Rule 130?

It is argued that the wife may be so compelled but her testimony would be receivable only against her. 10 It is even
suggested that "each may testify in his or her own behalf, although the testimony may inure to the benefit of the
other spouse, or against his or her own interest, although the testimony may also militate against the other
spouse."11 Upon the other hand, it is insisted that compelling Paquita Lezama to testify will transgress section 20(b)
of Rule 130, especially if her testimony will support the plaintiff's charge.

The complaint charges "fraudulent conspiracy" on the part of the spouses and one Marciano C. Roque to make it
appear that the La Paz Ice Plant & Cold Storage Co., Inc. was indebted to Roque. The wife, Paquita Lezama, is
called upon to testify as an adverse party witness on the basis of her following participation in the alleged fraudulent
scheme: "that it was Paquita Lezama who as Secretary of the company signed the minutes of the meeting during
which Manuel Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as
Secretary, made the entry in the books of the corporation."

Evidently, Paquita Lezama will be asked to testify on what actually transpired during the meeting and will be asked
questions on the matter of the veracity or falsity of the entry in the books of the corporation. Whether her testimony
will turn out to be adverse or beneficial to her own interest, the inevitable result would be to pit her against her
husband. The interests of husband and wife in this case are necessarily interrelated. Testimony adverse to the
wife's own interests would tend to show the existence of collusive fraud between the spouses and would then work
havoc upon their common defense that the loan was not fictitious. There is the possibility, too, that the wife, in order
to soften her own guilt, if guilty she is, may unwittingly testify in a manner entirely disparaging to the interests of the
husband.

Because of the unexpensive wording of the rule which provides merely that the wife cannot be examined "for or
against her husband without his consent," it is further argued that "when husband and wife are parties to an action,
there is no reason why either may not be examined as a witness for or against himself or herself alone," and his or
her testimony could operate only against himself or herself. 12

Even if such view were generally acceptable as an exception to the rule, or even as a separate doctrine, it would be
inapplicable in this case where the main charge is collusive fraud between the spouses and a third person, and the
evident purpose of examination of the wife is to prove that charge.
92

Indeed, in those jurisdictions which allow one spouse to be subjected to examination by the adverse party as a
hostile witness when both spouses are parties to the action, either the interests of the spouses are separate or
separable, or the spouse offered as a witness is merely a formal or nominal party. 13

The final point urged upon us is that to prevent one spouse from testifying would encourage alliance of husband and
wife as an instrument of fraud; for then what better way would there be to prevent discovery than to make a co-
conspirator in fraud immune to the most convenient mode of discovery available to the opposite party? This
argument overlooks the fact that section 6 of Rule 132 is a mere concession, for the sake of discovery, from the rule
which precludes the husband or the wife from becoming the means of the other's condemnation. The said rule of
discovery should therefore not be expanded in meaning or scope as to allow examination of one's spouse in a
situation where this natural repugnance obtains.

It may not be amiss to state in passing that the respondent Dineros has not demonstrated that there is no evidence
available to him other than the Lezamas' testimony to prove the charge recited in the complaint. 1äwphï1.ñët

ACCORDINGLY, the resolutions appealed from are versed, and this case is ordered remanded to the court of origin
for further proceedings in accordance with law. No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Angeles, and Fernando, JJ., concur.
Makalintal and Zaldivar, JJ., took no part.

G.R. No. L-25643           June 27, 1968

JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners,

vs.
HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of Iloilo,
JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT and COLD STORAGE CO., INC., and
THE HON. COURT OF APPEALS, respondents.

Efrain B. Trenas and Sergio D. Mabunay for petitioners.

Ricardo J. Gerochi for respondents.

CASTRO, J.:

The issue tendered for resolution in this case is whether a wife, who is a co-defendant of her husband in an action,
may be examined as a hostile witness by the adverse party under section 6 of Rule 132 of the Rules of Court,
without infringing on her marital privilege not to testify against her husband under section 20 (b) of Rule 130. The
trial court, presided by the respondent Judge Jesus Rodriguez, ruled in the affirmative and required the wife to
appear and testify. The petitioners sued for certiorari but the Court of Appeals dismissed their petition 1 and denied
their motion for reconsideration.2 Hence this appeal.3

On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant & Cold Storage Co. in Iloilo, together
with C.N. Hodges and Ricardo Gurrea, filed an action in the Court of First Instance of Iloilo for the annulment of a
judgment rendered against the La Paz Ice Plant by the Court of First Instance of Manila in civil case 39827. Named
as defendants were Marciano C. Roque, in whose favor judgment was rendered, and the spouses Jose Manuel and
Paquita Lezama. The complaint alleged that, because of mismanagement by the Lezamas, the La Paz Ice Plant
was placed under the receivership of Dineros; that during the pendency of the receivership, Marciano C. Roque
brought an action against the La Paz Ice Plant in the Court of First Instance of Manila for the collection of P150,000,
which sum he had supposedly lent to it; that summons was served not on the receiver but on the spouses Jose
Manuel and Paquita Lezama; and that, through the collusion of the Lezamas, Roque was able to obtain judgment by
default against the company. It was claimed that, because the summons was served on Jose Manuel Lezama
instead of on the receiver, the Court of First Instance of Manila acquired no jurisdiction over the La Paz Ice Plant
and that, therefore, the decision of that court was void.
1ªvvphi1.nêt

In their answer, the defendant spouses (the herein petitioners), while admitting that the company was placed under
receivership, maintained that Jose Manuel Lezama nevertheless remained president of the La Paz Ice Plant and
that as such he had authority to receive in behalf of the company the court summons in civil case 39827. They
denied entering into collusion with Roque and averred that they did not contest Roque's claim because they knew it
to be a legitimate obligation which the La Paz Ice Plant had incurred pursuant to a resolution of its board of
directors.

Issues having been joined, the case was thereupon heard. At the hearing Dineros asked the court to issue
a subpoena to Paquita Lezama to testify as "a witness summoned by the plaintiffs in accordance with the Rules of
Court." The request was granted over the objection of the petitioners who invoked the following provision of the
Rules of Court:
93

A husband cannot be examined for or against his wife without her consent; nor a wife for or against her
husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other, or in a criminal case for a crime committed by one against the other. 4

This provision deals with two different matters which rest on different grounds of policy: the disqualification of
husband and wife to testify in each other's behalf, as well as their privilege not to testify against each other. 5 The
fundamental theory of the common law is said to be that relationship of the spouses, not their pecuniary interest, is
the basis of the disqualification. 6 Indeed section 20 of Rule 130 is entitled "Disqualification by reason of ...
relationship."

On the other hand, while a shelter of emotional reasons has been offered 7 for the privilege, the "true explanation
[which] is after all the simplest"8 and which constitutes "the real and sole strength of the opposition to abolishing the
privilege," is the natural repugnance in every fair-minded person to compelling a wife or husband to be the means of
the other's condemnation and to subjecting the culprit to the humiliation of being condemned by the words of his
intimate life partner.9

Here the request for subpoena indicated that Paquita Lezama was to do no more than testify as an adverse party in
the case and, indeed, in the light of the allegations both in the complaint and in the answer, the request was
apparently one that could reasonably be expected to be made. Thus, the complaint charged

13. — That in obtaining the judgment by default in Civil Case No. 39827 of the Court of First Instance of
Manila against the La Paz Ice Plant & Cold Storage Co., Inc. defendants, in gross and evident bad faith, and
in fraudulent conspiracy, made it appear that the La Paz Ice Plant & Cold Storage Co., Inc. had obtained a
loan of P150,000.00 from defendant Marciano C. Roque thru defendant Jose Manuel Lezama allegedly
upon an authority vested upon defendant Jose Manuel Lezama by the alleged Board of Directors of the La
Paz Ice Plant & Cold Storage Co., Inc. allegedly evidenced by the minutes of the meetings of the Board of
Directors of the said corporation signed by defendant Jose Manuel Lezama and attested to by Benjamin
Luis Borja and Paquita B. Lezama and that defendants spouses Jose Manuel Lezama and Paquita B.
Lezama had manipulated the books of the corporation by making it appear that such fictitious loan was then
in existence.

On the other hand, the answer claimed

13. That the herein defendants specifically deny all the allegations contained in paragraph 13 of the
complaint; the truth is, that the herein defendants have not conspired and acted in bad faith with the plaintiff
[Marciano C. Roque] in Civil Case No. 39827 of the Court of First Instance of Manila for the rendition of the
said judgment referred to therein; for the truth is, that the herein defendants, in their capacities as President-
Manager and Secretary of the La Paz Ice Plant & Cold Storage Co., Inc., believing as they believe that the
obligation sought to be enforced by said civil action being legitimate and the allegations of the complaint in
said Civil Case No. 39827 of the Court of First Instance of Manila are true, they did not deem it wise to
contest the same; that the obligation of P150,000.00 of the La Paz Ice Plant & Cold Storage Co., Inc., which
the defendant Marciano C. Roque sought to be enforced in Civil Case No. 39827 of the Court of First
Instance of Manila was legitimately contracted in accordance with law; that said obligation was duly entered
in the books of the corporation and that the said loan is not fictitious; that the amount realized therefrom was
spent for the benefit of the said corporation.

Thus, while the petitioners denied the charge that the loan was fictitious, they did not deny the allegation that it was
Paquita Lezama who, as secretary of the company, signed the minutes of the meeting at which Jose Manuel
Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as secretary, made the
entry in the books of the corporation.

It was obviously to test the truth of the assertion that the loan transaction was above board that Dineros, the
company receiver, wanted Paquita Lezama on the witness stand, not as a spouse witness "for or against her
husband," but rather as an adverse party in the case.

It is postulated that a party can make, as it were, such forays into his opponent's position on the strength of section
6 of Rule 132 which provides:

Direct examination of unwilling or hostile witnesses. — A party may interrogate any unwilling or hostile
witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of
a public or private corporation or of a partnership or association which is an adverse party, and interrogate
him by leading questions and contradict and impeach him in all respects as if he had been called by the
adverse party and the witness thus called may be contradicted and impeached by or on behalf of the
adverse party also, and may be cross-examined by the adverse party only upon the subject-matter of his
examination in chief.
94

The basic issue may therefore be restated thus: In this case where the wife is a co-defendant in a suit charging
fraud against the spouses, can the wife be compelled to testify as an adverse party witness concerning her
participation in the alleged fraud without violating section 20 (b) of Rule 130?

It is argued that the wife may be so compelled but her testimony would be receivable only against her. 10 It is even
suggested that "each may testify in his or her own behalf, although the testimony may inure to the benefit of the
other spouse, or against his or her own interest, although the testimony may also militate against the other
spouse."11 Upon the other hand, it is insisted that compelling Paquita Lezama to testify will transgress section 20(b)
of Rule 130, especially if her testimony will support the plaintiff's charge.

The complaint charges "fraudulent conspiracy" on the part of the spouses and one Marciano C. Roque to make it
appear that the La Paz Ice Plant & Cold Storage Co., Inc. was indebted to Roque. The wife, Paquita Lezama, is
called upon to testify as an adverse party witness on the basis of her following participation in the alleged fraudulent
scheme: "that it was Paquita Lezama who as Secretary of the company signed the minutes of the meeting during
which Manuel Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as
Secretary, made the entry in the books of the corporation."

Evidently, Paquita Lezama will be asked to testify on what actually transpired during the meeting and will be asked
questions on the matter of the veracity or falsity of the entry in the books of the corporation. Whether her testimony
will turn out to be adverse or beneficial to her own interest, the inevitable result would be to pit her against her
husband. The interests of husband and wife in this case are necessarily interrelated. Testimony adverse to the
wife's own interests would tend to show the existence of collusive fraud between the spouses and would then work
havoc upon their common defense that the loan was not fictitious. There is the possibility, too, that the wife, in order
to soften her own guilt, if guilty she is, may unwittingly testify in a manner entirely disparaging to the interests of the
husband.

Because of the unexpensive wording of the rule which provides merely that the wife cannot be examined "for or
against her husband without his consent," it is further argued that "when husband and wife are parties to an action,
there is no reason why either may not be examined as a witness for or against himself or herself alone," and his or
her testimony could operate only against himself or herself. 12

Even if such view were generally acceptable as an exception to the rule, or even as a separate doctrine, it would be
inapplicable in this case where the main charge is collusive fraud between the spouses and a third person, and the
evident purpose of examination of the wife is to prove that charge.

Indeed, in those jurisdictions which allow one spouse to be subjected to examination by the adverse party as a
hostile witness when both spouses are parties to the action, either the interests of the spouses are separate or
separable, or the spouse offered as a witness is merely a formal or nominal party. 13

The final point urged upon us is that to prevent one spouse from testifying would encourage alliance of husband and
wife as an instrument of fraud; for then what better way would there be to prevent discovery than to make a co-
conspirator in fraud immune to the most convenient mode of discovery available to the opposite party? This
argument overlooks the fact that section 6 of Rule 132 is a mere concession, for the sake of discovery, from the rule
which precludes the husband or the wife from becoming the means of the other's condemnation. The said rule of
discovery should therefore not be expanded in meaning or scope as to allow examination of one's spouse in a
situation where this natural repugnance obtains.

It may not be amiss to state in passing that the respondent Dineros has not demonstrated that there is no evidence
available to him other than the Lezamas' testimony to prove the charge recited in the complaint. 1äwphï1.ñët

ACCORDINGLY, the resolutions appealed from are versed, and this case is ordered remanded to the court of origin
for further proceedings in accordance with law. No costs.

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

PEOPLE OF THE PHILIPPINES, petitioner,

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

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

Moises Sevilla Ocampo for private petitioner.

Cicero J. Punzalan for respondent.

95

SANTOS, J.:

On the basis of the complaint   of his wife, Victoria M. Manaloto, herein private respondent Benjamin Manaloto was
1

charged before the Court of First Instance of Pampanga, presided by respondent Judge, Hon. Mariano C.
Castaneda Jr., with the crime of Falsification of Public Document committed, according to the Information, as
follows:

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

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

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

xxx xxx xxx

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

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

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

On June 20, 1977, this Court resolved — (a) to issue a temporary restraining order, and (b) to require the Solicitor
General to appear as counsel for the petitioner.   The Office of the Solicitor General filed its Notice of Appearance on
3

June 27, 1977,   and its Memorandum in support of the Petition on August 30, 1977.   The respondents filed their
4 5

Memorandum on September 5, 1977.   Whereupon, the case was considered submitted for decision. 
6 7

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

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

1. The act complained of as constituting the crime of Falsification of Public Document is the forgery by the accused
of his wife's signature in a deed of sale, thereby making it appear therein that said wife consented to the sale of a
house and lot belonging to their conjugal partnership when in fact and in truth she did not. It must be noted that had
the sale of the said house and lot, and the signing of the wife's name by her husband in the deed of sale, been
made with the consent of the wife, no crime could have been charged against said husband Clearly, therefore, it is
the husband's breach of his wife's confidence which gave rise to the offense charged. And it is this same breach of
trust which prompted the wife to make the necessary complaint with the Office of the Provincial Fiscal which,
accordingly, filed the aforesaid criminal case with the Court of First Instance of Pampanga. To rule, therefore, that
such criminal case is not one for a crime committed by one spouse against the other is to advance a conclusion
which completely disregards the factual antecedents of the instant case.
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2. This is not the first time that the issue of whether a specific offense may be classified as a crime committed by
one spouse against the other is presented to this Court for resolution. Thus, in the case of Ordoño v.
Daquigan,   this Court, through Mr. Justice Ramon C. Aquino, set up the criterion to be followed in resolving the
8

issue, stating that:

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

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

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

With more reason must the exception apply to the instant case where the victim of the crime and the person who
stands to be directly prejudiced by the falsification is not a third person but the wife herself. And it is undeniable that
the act comp of had the effect of directly and vitally impairing the conjugal relation. This is apparent not only in the
act Of the wife in personally lodging her complaint with the Office of the Provincial Fiscal, but also in her insistent
efforts   in connection with the instant petition, which seeks to set aside the order disqualified her from testifying
10

against her husband. Taken collectively, the actuations of the witness-wife underacore the fact that the martial and
domestic relations between her and the accused-husband have become so strained that there is no more harmony
to be preserved said nor peace and tranquility which may be disturbed. In such a case, as We have occasion to
point out in previous decisions, "identity of interests disappears and the consequent danger of perjury based on that
Identity is nonexistent. Likewise, in such a situation, the security and confidence of private life which the law aims at
protecting will be nothing but Ideals which, through their absence, merely leave a void in the unhappy home.   Thus,
11

there is no reason to apply the martial disqualification rule.

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

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

SO ORDERED.

JOSE MANUEL LEZAMA & PAQUITA LEZAMA, Petitioners, vs HON. JESUS RODRIGUEZ, JUDGE OF THE
COURT OF FIRST INSTANCE OF ILOILO, JOSE DINEROS, IN HIS CAPACITY AS RECEIVER OF THE LA
PAZ ICE PLANT & COLD STORAGE CO., INC., & AND THE HON. COURT OF APPEALS, Respondents 23
SCRA 1166 (1968)

FACTS: La Paz Ice Plant Inc. located in Iloilo was led by its President, Jose Manuel Lezama. Unfortunately the
Ice plant was going bankrupt and so the company was placed under receivership under Jose Dineros. A
collection for sum of money was filed by Marciano Roque in the CFI of Manila being a resident thereof, he
supposedly had lent to the company the amount of P150, 000. Jose Dineros who was the acting as the
receiver of the La Paz Ice plant after receiving an unfavorable judgement in the CFI of Manila upon the
collection case, filed an action in the CFI of Iloilo for the annulment of the judgment of the CFI of Manila. In the
filed action, he named Marciano Roque and the spouses Jose Manuel and Paquita Lezama as defendants
alleging that because of the mismanagement of the Lezamas, the La Paz Ice Plant was placed under
receivership and that through the collusion of the Lezamas, Roque had obtained a favorable decision against
97

the company. He also contend that the summons by the CFI of Manila was served not on him who is the
receiver but on the spouses Lezama‘s, therefore the CFI of Manila acquired no jurisdiction of the case and the
decision being void. Spouses Lezama, while admitting that the company was placed under receivership, they
maintained that Jose Lezama nevertheless remained President even while on receivership and as such he had
the authority to receive court summons in behalf of the company and he denied entering into collusion with
Roque and averred that the reason they never contested Roque’s claim because they knew it to be legitimate
pursuant to a board of director’s resolution. Dineros then asked the court to subpoena testificandum Paquita
Lezama who was the wife of Jose Manuel Lezama to testify as a hostile witness. The request was granted by
the court over the objection of the petitioners invoking the Marital Disqualification Rule. ISSUE: Whether or not
a wife who is a co-defendant of her husband in an action, may be examined as a hostile witness by the
adverse party without infringing on her marital privilege not to testify against her husband. RULING: No. She
may not be examined as a hostile witness. The Supreme court said that the Marital Disqualification Rule is two
edged. 1) the disqualification of husband and wife to testify in each other’s behalf and 2) As well as the
privilege not to testify against each other.

PEOPLE OF THE PHILIPPINES, Petitioner, vs HON. MARIANO C. CASTANEDA, JR., AS JUDGE OF THE
COURT OF FIRST INSTANCE OF PAMPANGA, BRANCH III, & BENJAMIN F. MANALOTO, Respondents,
G.R. No. L-46306 February 27, 1979

FACTS: This is a case of falsification of public document. The document falsified was a Deed of Sale of a
house and lot. The one who falsified was the husband knowing very well that the object sold was a conjugal
property in need of mutual consent in order to effect a valid contract of sale. The one suing was the wife herself
alleging that her husband executed a Deed of Sale making it appear that she the spouse gave her marital
consent to the said sale. Here’s the court scene. Prosecution called wife to the witness stand. Defense moved
to disqualify her as a witness invoking Sec. 20 of Rule 130 of the Rules of Court. Prosecution defended its
stand resting on the exception to that rule. Notwithstanding such opposition the respondent judge favored the
husband and granted the defense’ motion to disqualify the wife to testify. The wife elevated the case to the CA.
CA affirmed the lower court and the case was brought to the Supreme Court for Certiorari.

ISSUES: 1. May a crime of Falsification of Public Document be considered as a criminal case committed by a
husband against the wife. 2. And if it is, may it therefore come under the exception to the rule of the marital
disqualification. RULING: Court answered on the affirmative. When the offense directly attacks or impairs the
conjugal relation, then it clearly comes within the exception. You see in this case it’s the husband’s breach of
his wife’s confidence that gave rise to the offense. So the court said “Therefore with more reason the exception
must apply since the one directly prejudiced is not a third person but the wife herself” who is a party to the
conjugal property being purported dubiously to be sold. The wife wins the

[G.R. No. L-58164. September 2, 1983.]

JOSE GUERRERO, MARIA GUERRERO, MAGDALENA GUERRERO ESPIRITU, assisted by her

husband CANDIDO ESPIRITU, GREGORIO GUERRERO, CLARA GUERRERO, Et Al., Petitioner,
v. ST. CLARE’S REALTY CO., LTD., GUILLERMO T. GUERRERO, CECILIA GUERRERO, assisted
by ANGELO CARDEÑO, PERLINDA GUERRERO, etc., Et Al., Respondents.

Romeo J. Callejo, for Petitioners.

Poblador, Nazareno, Azada, Tomacruz & Paredez Law Offices for respondent United
Housing Corp.

Neptali Gonzales & Associates for respondent Guerreros.

F.B. Santiago & Associates for respondent St. Clare’s Realty Co., Ltd.

SYLLABUS
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1. REMEDIAL LAW; EVIDENCE; WITNESSES; INCOMPETENCY UNDER SEC. 20(a), RULE 130, RULES
OF COURT, CONSTRUED. — The plain truth is that Laura Cervantes and Jose Cervantes are not
parties in the present case, and neither are they assignors of the parties nor "persons in whose
behalf a case is prosecuted." They are mere witnesses by whose testimonies the plaintiffs aimed to
establish that it was not Cristina Guerrero, but Andres Guerrero, who owned the disputed land at the
time of its alleged sale to Manuel Guerrero; that Cristina Guerrero did not really sell but merely
mortgaged the property to Manuel Guerrero. It may be said that competency to testify established in
Sec. 20(a), Rule 130, Rules of Court, affects only the persons therein mentioned, and no others, that
is, only parties plaintiff or their assignors, persons in whose behalf a case is prosecuted. Mere
witnesses who are neither parties plaintiff, nor their assignors, nor persons in whose behalf a case is
prosecuted, are not included in the prohibition. (Moran, Comments on the Rules of Court, 1970 ed.,
Vol. 5, p. 166) By excluding the testimonies of the two witnesses and by barring them from further
testifying, upon reasoning that unduly strained the meaning of the provisions of the Rules of Court
relied upon, the trial court deprived itself of the opportunity of knowing the truth in this case.

2. ID.; ID.; ID.; DEAD MAN’S RULE; INAPPLICABLE IN THE CASE AT BAR. — The present case is not
a claim or demand against the estate of the deceased Manuel Guerrero. The defendants Guerreros
are not the executors or administrators or representatives of such deceased. They are being sued as
claimants of ownership in their individual capacities of the disputed lot. The lot is not a part of the
estate of Manuel Guerrero. Hence, the inapplicability of dead man’s rule. "It has been held that
statutes providing that a party in interest is incompetent to testify where the adverse party is dead or
insane, must be applied strictly in accordance with their express wording, irrespective of their spirit.
The law uses the word ‘against an executor or administrator or other representative of a deceased
person.’ It should be noted that after the mention of an executor or administrator the words or other
representative follows, which means that the word ‘representative’ includes only those who, like the
executor or administrator, are sued in their representative, not personal, capacity. And that is
emphasized by the law by using the words ‘against the estate of such deceased persons,’ which
convey the idea of an estate actually owned by the deceased at the time the case was brought and
that, therefore, it is only his rights that are to be asserted and defendant in the litigation by the
person representing him, not the personal rights of such representative." (Moran, ibid., pp. 169-171)

3. ID.; ID.; IMPROVIDENT EXCLUSION AND PRECLUSION FROM PRESENTING FURTHER PROOF;
CASE AT BAR. — Prior to the issuance of the court’s order of June 14, 1974, by which the plaintiffs
were "deemed to have waived their right to further present or formally offer their evidence," the
following had testified as witnesses of the plaintiffs, namely: Alfredo Zamora, Roman Mataverde,
Moises Javillionar, Dominador Ramirez, Bonifacio Sumulong, Frisco Cervantes, Laura Cervantes and
Jose Cervantes. It was error to hold that the testimonial evidence should have been formally offered,
or that without such offer, such evidence was waived. The offer of testimonial evidence is effected by
calling the witness to the stand and letting him testify before the court upon appropriate questions.
(Moran, Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p. 122)

4. ID.; JUDGMENT RENDERED SOLELY ON THE BASIS OF DEFENDANTS’ EVIDENCE DISREGARDING

THAT OF THE PLAINTIFFS’; REMAND TO TRIAL COURT PROPER RECOURSE. — The trial court
rendered its decision solely on the basis of the defendants’ evidence and without regard to the proofs
that the plaintiffs had presented on July 17, 1974 before the Court of Appeals could finally resolve
plaintiffs’ petition to disqualify the trial judge. As modified by the Court of Appeals, the decision
sentences the plaintiffs to pay damages and attorney’s feet, apart from the costs of suit, in the
staggering amount of Two Million One Hundred Eighty Three Thousand and Five Hundred
(P12,183,500.00) Pesos, without plaintiffs having been gives, the chance to complete their evidence,
to cross-examine the witnesses of the defense, and to present rebuttal evidence. The way the trial
court and the Court of Appeals proceeded in this case, litigation became more a game of
technicalities than a proceeding to search the truth and mete justice. No other fairer course of action
is demanded but for this Court to remand the case for further proceedings.

DECISION

VASQUEZ, J.:

In their petition for review by certiorari, petitioners are seeking a reversal of the decision of the
former Court of Appeals (now the Intermediate Appellate Court) dated April 30, 1981 in CA-G.R No.
57597-R, and its resolution dated September 3, 1981 which denied the petitioners’ motion for
99

reconsideration thereof. Our resolution of May 25, 1981 gave due course to the petition.

The action initiated by the petitioners in the Court of First Instance of Rizal prayed for a judgment: jgc:chanrobles.com.ph

"1. Declaring the in existence of the ‘Deed of Sale of Lands, Annex ‘A’ hereof, and ‘Deeds of Absolute
Sale’, Annexes ‘B’ and ‘C’, as well as the Original Certificate of Title No. 4591 and Transfer
Certificates of Title Nos. 339629 and 340842 of the Registry of Deeds, null and void;

2. Declaring the plaintiffs (now petitioners) the owners in fee simple of the aforedescribed property,
pro-indiviso;

3. Ordering the private defendants (now private respondents) to reconvey to the plaintiffs the
aforedescribed lot;

4. Declaring the ‘Joint Venture Agreement’ executed by the defendant partnership and the defendant
corporation null and void and ineffective insofar as the plaintiffs are concerned;

5. Ordering the defendant Register of Deeds of Rizal to issue a new transfer certificate of title in favor
of the plaintiffs over the said lot;

6. Condemning the defendants, except the defendant Register of Deeds, to pay the plaintiffs, actual
and exemplary damages, the amounts of which they will prove during the hearing of the instant case
on the merit;

7. Condemning the defendants, except the defendant Register of Deeds, to pay to the plaintiffs
attorney’s fees in the amount of P5,000.00; plus costs of suit." (Printed Record on Appeal, pp. 116-
118.)

Petitioners’ original and amended complaints alleged that during their lifetime the spouses Isidoro
Guerrero and Panay Ramos were the absolute owners of the disputed property, which is a parcel of
land located at San Dionisio, Parañaque, Rizal, with an area of 42,299 square meters, more or less.
The spouses had six children, named Andres, Juliana, Aurelio, Leona, Jose and Cristina, and all
surnamed Guerrero. Panay Ramos predeceased Isidoro Guerrero. Before his demise, Isidoro Guerrero
verbally willed and ordained that the questioned lot be assigned and adjudicated to Andres Guerrero
as his share in the inheritance, the other children having been assigned other lots. Accordingly, upon
the death of Isidoro Guerrero, Andres Guerrero physically possessed the lot and cultivated it through
his tenant Dominador Ramirez, who earned a 50% share in the net produce, the other 50% being
retained by Andres Guerrero who defrayed the cultivation expenses and real estate taxes on the
property. Shortly after the beginning of the Japanese occupation, Andres Guerrero entrusted the land
to his sister, Cristina Guerrero, and allowed her to have the property cultivated and to retain the
owner’s share in the harvests. The arrangement between brother and sister was that Cristina
Guerrero could continue in the cultivation of the land and enjoyment of the owner’s share in the
produce for as long as she needed the property. Dominador Ramirez continued his tenancy until
shortly before the death of Andres Guerrero. Sometime in July 1943, Andres Guerrero died survived
by his widow, Segunda Laquindanum, and their children, who are the petitioners in this case. Cristina
Guerrero continued as trustee of the deceased Andres Guerrero. chanrobles virtual lawlibrary

The complaints further alleged that as early as December 10, 1957, the land was surveyed by the
Bureau of Lands for and in the name of Andres Guerrero as Lot No. 4752, Case No. 4, Cadastre No.
229 of the Parañaque Cadastre. Sometime during the latter part of 1971 certain people who
introduced themselves as agents or buyers of the land approached some of the plaintiffs in order to
secure their consent to the sale of the property. Said plaintiffs were informed that the land was titled
in the name of their cousin, Manuel Guerrero. Plaintiffs made inquiries and discovered the following:
that Manuel Guerrero was able to have the lot titled in his name on the basis of a ‘Deed of Sale of
Land’ dated April 24, 1948 purportedly executed by Cristina Guerrero; that he caused the lot to be
surveyed in his name as Lot No. 4752 and he was issued advance Plan No. AP-10008 on February
28, 1962; that in the advance plan issued to him, it was duly noted that Lot No. 4752 had been
previously surveyed for Andres Guerrero; that in 1963, Manuel Guerrero, assisted by Felicisimo
Guerrero, father of the defendants Guerreros, filed an application for registration of land with the
Court of First Instance of Rizal; that notwithstanding the opposition of the heirs of Cristina Guerrero,
the court ruled that Manuel Guerrero owned the lot; that despite oppositors’ appeal to a higher court,
the Register of Deeds issued Original Certificate of Title No. 4591 to the applicant; that on September
14, 1971, there was filed with the Register of Deeds of Rizal a "Deed of Absolute Sale" purportedly
executed by Manuel Guerrero in favor of the defendants Guerreros; that the Register of Deeds gave
due course to the registration of that deed, cancelled OCT No. 4591 and was issued Transfer
100

Certificate No. 339629 in its stead; that on the same day that the deed of sale was registered, the
defendants Guerreros caused to be notarized an "Articles of Partnership" of St. Clare’s Realty
Company, Ltd., constituting themselves as partners; that on September 28, 1971, the defendants
Guerreros sold the disputed lot in a "Deed of Absolute Sale" to the St. Clare’s Realty Company, Ltd.;
that by virtue thereof, the Register of Deeds issued TCT No. 340842 in the name of said realty
company.

According to the original and amended complaints, the Deed of Sale in favor of Manuel Guerrero was
fraudulent, simulated and falsified for the reason, among others, that Cristina Guerrero was not the
owner of the land at the time she purportedly sold it; that Manuel Guerrero obtained OCT No. 4591 in
fraud of the plaintiffs; that the Deeds of Sale to the defendants Guerreros and St. Clare’s Realty
Company, Ltd. and the transfer certificates of title in their favor are fraudulent and simulated, and
ineffective against the plaintiffs for the reason, among others, that at the time of execution of the
Deeds of Sale, the defendants Guerreros knew that the property belonged to Andres Guerrero; that
long after the complaint in the present case has been filed, the plaintiffs came to know that the St.
Clare’s Realty Company, Ltd. executed a "Joint Venture Agreement" with the United Housing
Corporation under which the latter bound itself to develop the property into a residential subdivision;
and that the said agreement was entered into in gross and evident bad faith.

Separate answers were filed by the defendants Guerreros, St. Clare’s Realty Company, Ltd. and
United Housing Corporation. The defendants Guerreros alleged that Cristina Guerrero was the
absolute owner of the property; that the action of the plaintiffs had prescribed and they are guilty of
laches. St. Clare’ s Realty Company, Ltd. averred that its contract with United Housing Corporation
was made in good faith. United Housing Corporation averred that there is no privity of interest
between plaintiffs and this defendant considering that the plaintiffs are not parties to the Joint
Venture Agreement.

Issues having been joined, the case proceeded to trial.

Frisco Cervantes, grandson of Cristina Guerrero, testified as a witness of the plaintiffs that having
had previous information that the disputed lot was borrowed from Andres Guerrero and that Cristina
Guerrero merely mortgaged it to Manuel Guerrero, he went to the house of Manuel Guerrero in Barrio
San Dionisio, Parañaque, Rizal, in 1968 at the behest of the plaintiffs, to inquire about the mortgage;
that in reply, Manuel Guerrero stated that the land had been sold but it would be changed with
another lot of the same area; that in 1970, Sotero Cervantes and Laura Cervantes, children of
Cristina Guerrero, and he went to see Manuel Guerrero at the Sta. Rita Church in Parañaque; that
Sotero and Laura asked if they could get the land back, that Manuel Guerrero answered that it were
better to change the disputed lot with another parcel of the same area and value; that as he was not
satisfied with the answer, Frisco Cervantes went to the Office of the Register of Deeds in Pasig, Rizal,
where he obtained a copy of a Deed of Sale in favor of Manuel Guerrero which he delivered to the
children of Andres Guerrero. chanroblesvirtualawlibrary

Roman Mataverde, Chief Geodetic Engineer of the Bureau of Lands designated as Officer-In-Charge
of the Surveys Division, testified for the plaintiffs that in the Bureau’s Lot Data Computation Book
showing the list of claimants for Lot 4752, Case 4, Cadastre 299, Parañaque, Rizal, (Exhibit A), which
was surveyed on December 10, 1957, Andres Guerrero is listed as claimant. The records of the
Bureau of Lands from 1957 (when Lot 4752 was cadastrally surveyed for Andres Guerrero) until 1962
show no claimant to the property except Andres Guerrero. In 1962, the Bureau of lands received a
letter with an affidavit attached to it from Manuel Guerrero requesting that an advance plan be made.
Advance Plan No. 10008 was made without Andres Guerrero being notified. But in the advance plan,
the Bureau of Lands listed Andres Guerrero as original claimant so that he would not be prejudiced
when a case comes to trial.

Dominador Ramirez testified that during the rainy season of 1936, Andres Guerrero asked him to
work on his land located at Barrio San Dionisio, Parañaque, Rizal, with an area of four (4) hectares,
more or less. As tenant, his agreement with Andres Guerrero was that he would till the land in
consideration of 50% of the harvests with Andres Guerrero shouldering the cultivation expenses.
From 1936 to about 1941 or 1942, he worked on the land and gave 50% of the produce to Andres
Guerrero who went personally to the field to get the same. In 1941 or 1942, he stopped working on
the land because war had broken out.

On October 19, 1973, Laura Cervantes testified that her mother, Cristina Guerrero, had been sick for
a long time before she died at the age of 80 years in 1948; and that her mother could walk only
inside their house in Parañaque; that the money spent for the illness of her mother came from
Manuel Guerrero; and that, through her children, Cristina Guerrero could ask money from Manuel
101

Guerrero because of the land that Andres Guerrero had lent to her.

After Laura Cervantes had thus testified, counsel for the defendants Guerreros objected to the line of
questioning on the ground that the said witness was testifying "on matters which are prohibited
under Sec. 20(a), Rule 130, of the Rules of Court." The trial court having ruled that the witness "may
answer", defendants’ counsel registered a continuing objection. The court allowed the witness to
continue her testimony subject to such objection. (TSN, pp. 9-20, October 19, 1973.)

Resuming her testimony, Laura Cervantes stated that the land was lent by Andres Guerrero to
Cristina Guerrero; that Manuel Guerrero loaned money to Cristina Guerrero for quite some time; that
shortly after the death of Cristina Guerrero, Manuel Guerrero went to their house, accompanied by
Felicisimo Guerrero, and summed up the loans he had extended to Cristina Guerrero in the total
amount of P1,900.00; and that Felicisimo Guerrero asked Laura Cervantes to sign a piece of paper to
attest to the fact that a certain amount of money had been borrowed from Manuel Guerrero. cralawnad

On October 24, 1973, the defendants Guerreros filed a written motion to disqualify Laura Cervantes
as a witness on the basis of Section 20(a), Rule 130, of the New Rules of Court. The motion was
opposed by the plaintiffs. On November 16, 1973, the trial court granted the motion and declared
that Laura Cervantes, Jose Cervantes as well as other witnesses similarly situated, are disqualified to
testify in the case.

On February 12, 1974, plaintiffs filed a "Motion For The Honorable Presiding Judge Of This Honorable
Court To Inhibit Himself And/Or To Transfer Case To Another Branch." Oppositions to the said motion
were filed. On April 26, 1974, the trial court denied the motion.

At the continuation of the trial on June 14, 1974, plaintiffs and their counsel failed to appear despite
due notice and repeated previous warnings to their lawyer. Instead of appearing in court, plaintiffs,
thru counsel, filed an urgent motion to reset the hearing, which was opposed by the defendants. On
even date, the court issued an order as follows: jgc:chanrobles.com.ph

"In view of the non-appearance of the plaintiffs as well as their counsel for today’s hearing, they are
deemed to have waived their right to further present or formally offer their evidence in court, and on
motion of defendants’ counsels, the Clerk of Court, Atty. Juan A. Carambas, is hereby authorized and
commissioned to receive the evidence for the defendants. After the defendants have closed their
case, they are given 10 days within which to file their respective memoranda and the case is deemed
submitted for decision after receipt of the complete transcript of stenographic notes." (Record on
Appeal, p. 212.)

On June 22, 1974, plaintiffs filed a "Manifestation" to the effect that they did not waive their rights to
present further evidence, to cross-examine defendants’ witnesses, and to present rebuttal evidence;
and that they were reserving the exercise of those rights upon the finality of the decision of the Court
of Appeals in a petition for certiorari, prohibition and mandamus against the Presiding Judge of the
trial court, which they were then preparing to file.

Indeed, on June 25, 1974, plaintiffs instituted the said special civil action, which was docketed in the
Court of Appeals as its CA-G.R. No. SF-03120. The action sought the disqualification of the trial judge
from continuing with the hearing of the case. On June 27, 1974, the Court of Appeals denied the
petition outright. Copy of the resolution was received by the plaintiffs on July 2, 1974. They filed a
motion for reconsideration on July 17, 1974.

On the same date, July 17, 1974, the trial court rendered its decision with the following dispositive
part: jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered in favor of the defendants (and) against the plaintiffs: chanrob1es virtual 1aw library

1. Dismissing the complaint and Amended Complaint;

2. Ordering the plaintiffs to pay the private defendant Guerreros the amount of P20,000.00 for actual
damages, P500,000.00 for moral damages and P10,000.00 as attorney’s fees;

3. Ordering the plaintiffs to pay the defendant St. Clare’s Realty Co. Ltd., the amount of
P1,923,000.00 as actual damages, P50,000.00 as exemplary damages and P5,000.00 as attorney’s
fees;

4. Ordering the plaintiffs to pay the defendant United Housing Corporation the amount of P90,500.00
102

as actual damages; P100,000.00 for loss of goodwill and business reputation, P80,000.00 as
exemplary damages, P15,000.00 as lawyer’s fees; and

5. To pay the cost of suit.

The Register of Deeds of Rizal is hereby directed to cancel the Lis Pendens in Transfer Certificate of
Title No. 340842 in the name of the St. Clare’s Realty Co., Ltd., Book T-1971. Meanwhile, the
defendant United Housing Corporation is ordered to proceed and continue with its commitments
under the Memorandum Agreement dated October 12, 1971." (Record on Appeal, pp. 259-261.) cralawnad

On July 20, 1974, or three (3) days before plaintiffs received the decision, they filed with the trial
court a "Motion Ex-Abundantia Cautela" praying that should the Court of Appeals render an adverse
resolution in CA-G.R. No. SF-03120, the lower court should set aside its order of June 14, 1974 and
allow plaintiffs to present other evidence, cross-examine witnesses of the defendants, and present
rebuttal evidence.

On August 21, 1974, plaintiffs filed a motion for reconsideration of the decision which they received
on July 23, 1974.

Early in 1975, Judge Arsenio Alcantara who rendered the decision was replaced by Judge Floreliana
Castro-Bartolome. In her order of February 13, 1975, Judge Castro-Bartolome resolved that: jgc:chanrobles.com.ph

"1) The plaintiffs’ ‘Motion Ex-Abundantia Cautela’ dated July 18, 1974, having been passed upon by
Judge Arsenio B. Alcantara by the rendition of the Decision dated July 17, 1974, is deemed to have
been clearly denied by the Honorable Judge who penned the said decision;

2) The plaintiffs’ ‘Motion for Reconsideration’ dated August 21, 1974 and ‘Supplemental Motion for
Reconsideration’ dated August 22, 1974, have to be as they are hereby, denied;

x          x           x

5) The plaintiffs’ ‘Motion for Reconsideration’ and ‘Supplemental Motion for Reconsideration’ are not
pro-forma and have suspended the running of the period of appeal." cralaw virtua1aw library

On February 21, 1975, plaintiffs perfected their appeal to the Court of Appeals where the case was
docketed as CA-G.R. No. 57597-R. On April 20, 1981, the Court of Appeals rendered its decision as
follows:jgc:chanrobles.com.ph

"WHEREFORE, all the foregoing considered, the decision appealed from is hereby affirmed, with
modification in regard to damages as follows: (a) for the defendants Guerreros, P50,000.00 moral
damages, and P10,000.00 exemplary damages; (b) for the defendant St. Clare’s Realty Co., Ltd.,
P10,000.00 exemplary damages; (c) for the defendant United Housing Corporation, P40,000.00 for
loss of goodwill and business reputation and P10,000.00 exemplary damages. The actual damages
and attorney’s fees are hereby maintained." cralaw virtua1aw library

On May 27, 1981, the Court of Appeals denied plaintiffs’ motion for reconsideration.

Hence, the present petition for review by certiorari.

In their instant petition for review, petitioners have raised substantive and procedural points on
which the lower tribunals have allegedly erred. The substantive issues refer to the lack of basis for
the grant of actual, moral and exemplary damages in the huge amount of over two million pesos;
and the error of ruling that the action was barred by prescription and laches. Petitioners underscore
the procedural errors they attribute to the lower courts which resulted in the deprivation of their full
opportunity to ventilate their case and prove the validity of their claim. They assail the ruling that
their witnesses Laura Cervantes, Jose Cervantes "and others similarly situated" are disqualified to
testify; and that they waived the right to present their evidence when they failed to appear at a
hearing set by the trial judge during the pendency of proceedings taken by the petitioners to
disqualify him due to alleged hostility manifested by the latter towards the petitioners. chanroblesvirtualawlibrary

At this instance, We consider it unnecessary to discuss the substantive merits of the petitioners’
cause of action. The record reveals that they have not yet completed the presentation of their
evidence. Whatever evidence they had previously presented were apparently not considered in the
rendition of the questioned decisions for not having been "formally offered." It does not strike Us as
103

fair and just that the petitioners would be made answerable for damages in such a huge amount for
having filed an allegedly baseless and unfounded action without affording them the full opportunity of
establishing the merit of their claim. On the face of the record, We are convinced that they had been
denied that chance due to some mistaken and capricious application of pertinent procedural rules.

The first question of importance that engages the attention of this Court is whether or not the
witnesses Laura Cervantes and Jose Cervantes were correctly disqualified from testifying in the case
and their testimonies excluded on the basis of Section 20(a), Rule 130, of the Rules of Court, which
provides as follows:jgc:chanrobles.com.ph

"Section 20. Disqualification by reason of interest or relationship. — The following persons cannot
testify as to matters in which they are interested, directly or indirectly as herein enumerated: chanrob1es virtual 1aw library

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against
an executor or administrator or other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such became of unsound mind." cralaw virtua1aw library

Upon the facts and under the law, this Court is fully persuaded that the affirmative rulings of both the
trial court and the Court of Appeals were made in error. The plain truth is that Laura Cervantes and
Jose Cervantes are not parties in the present case, and neither are they assignors of the parties nor
"persons in whose behalf a case is prosecuted." They are mere witnesses by whose testimonies the
plaintiffs aimed to establish that it was not Cristina Guerrero, but Andres Guerrero, who owned the
disputed land at the time of its alleged sale to Manuel Guerrero; that Cristina Guerrero did not really
sell but merely mortgaged the property to Manuel Guerrero. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

"Following this rule of construction, it may be said that incompetency to testify established in the
provision above quoted, affects only the persons therein mentioned, and no others, that is, only
parties plaintiff or their assignors, persons in whose behalf a case is prosecuted. Mere witnesses who
are neither parties plaintiff, nor their assignors, nor persons in whose behalf a case is prosecuted, are
not included in the prohibition." (Moran, Comments on the Rules of Court, 1970 ed., Vol. 5, p. 166.)

By excluding the testimonies of the two witnesses and by barring them from further testifying, upon
reasoning that unduly strained the meaning of the provisions of the Rules of Court relied upon, the
trial court deprived itself of the opportunity of knowing the truth in this case.

Moreover, the present case is not a claim or demand against the estate of the deceased Manuel
Guerrero. The defendants Guerreros are not the executors or administrators or representatives of
such deceased. They are being sued as claimants of ownership in their individual capacities of the
disputed lot. The lot is not a part of the estate of Manuel Guerrero. Hence, the inapplicability of the
dead man’s rule.

"It has been held that statutes providing that a party in interest is incompetent to testify where the
adverse party is dead or insane, must be applied strictly in accordance with their express wording,
irrespective of their spirit. The law uses the word ‘against an executor or administrator or other
representative of a deceased person.’ It should be noted that after the mention of an executor or
administrator the words or other representative follows, which means that the word ‘representative’
includes only those who, like the executor or administrator, are sued in their representative, not
personal, capacity. And that is emphasized by the law by using the words ‘against the estate of such
deceased persons’, which convey the idea of an estate actually owned by the deceased at the time
the case was brought and that, therefore, it is only his rights that are to be asserted and defendant
in the litigation by the person representing him, not the personal rights of such representative."
(Moran, ibid, pp. 169-171.)

The next question that requires attention is whether or not the exclusion of plaintiffs’ evidence and
their preclusion from presenting further proof was correctly sustained by the respondent Court of
appeals. Prior to the issuance of the court’s order of June 14, 1974, by which the plaintiffs were
"deemed to have waived their right to further present or formally offer their evidence", the following
had testified as witnesses of the plaintiffs, namely: Alfredo Zamora, Roman Mataverde, Moises
Javillonar, Dominador Ramirez, Bonifacio Sumulong, Frisco Cervantes, Laura Cervantes and Jose
Cervantes. It was error to hold that the testimonial evidence should have been formally offered, or
that without such offer, such evidence was waived. The offer of testimonial evidence is effected by
calling the witness to the stand and letting him testify before the court upon appropriate questions.
(Moran, Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p. 122.) chanrobles virtual lawlibrary
104

Notwithstanding rigid cross-examination conducted by the lawyers of the defendants, the witnesses
discovered the following facts: In the 1930’s Andres Guerrero physically possessed the disputed lot,
paid the real estate taxes for it, had the same cultivated through a tenant, defrayed the cultivation
expenses, and exclusively enjoyed the owner’s share in the harvests. Andres Guerrero loaned the lot
to his sister, Cristina Guerrero, before he died. Cristina Guerrero became ill prior to the year 1948.
She could walk only inside her house in Parañaque, Rizal. The money spent for her illness was
borrowed from Manuel Guerrero. After the death of Cristina Guerrero, Manuel Guerrero and
Felicisimo Guerrero came to her house and the money loaned to her was totalled in the amount of
P1,900.00. On December 10, 1957, the questioned lot was cadastrally surveyed and denominated as
Lot 4752 of the Parañaque Cadastre. Andres Guerrero was the lone claimant. Until 1962, no other
person claimed the lot.

The foregoing proofs bear materially on the questions raised by the plaintiffs as to whether or not:
(1) Cristina Guerrero or Andres Guerrero owned the lot when the former purportedly sold it to
Manuel Guerrero in 1948; (2) Cristina Guerrero really sold or merely mortgaged the land to Manuel
Guerrero; (3) Manuel Guerrero and, after him, the defendants Guerreros were buyers in good faith.
Instead of insulating itself from evidence that could lead it to the truth, the trial court should have
addressed itself to the questions why: (1) if it is true that Cristina Guerrero was the owner of the
disputed lot in 1948, the cadastral surveyors who actually repaired to the field listed Andres Guerrero
as the sole claimant of the property, (2) until 1962, no other person except Andres Guerrero claimed
the lot as his own; (3) notwithstanding the purported deed of sale by Cristina Guerrero to Manuel
Guerrero was executed on April 24, 1948, it was presented for registration with the Register of Deeds
almost ten (10) years later only on February 27, 1958 (TSN, p. 15, January 9, 1974); (4) in the deed
of sale to Manuel Guerrero, it is stated that he appeared in Parañaque, Rizal, before Atty. Jose D.
Villena who was a notary public in Makati, Rizal; (5) the area of the land bought by Manuel Guerrero
was 33,090 square meters whereas the area of the land sold by him to the defendants Guerreros was
42,299 square meters. The court also ought rather to have noticed the fact that in the deed of sale in
favor of Manuel Guerrero, it is stated that the subject parcel of land "is surrounded by muddikes
besides the stone monuments that visibly marked all its "boundaries", which clearly indicate a
previous survey and which may in turn lead to the question if the deed of sale to Manuel Guerrero
might have been made after the cadastral survey in 1957 and not in 1948.

The trial court rendered its decision solely on the basis of the defendants’ evidence and without
regard to the proofs that the plaintiffs had presented on July 17, 1974 before the Court of Appeals
could finally resolve plaintiffs’ petition to disqualify the trial judge. As modified by the Court of
Appeals, the decision sentences the plaintiffs to pay damages and attorney’s fees, apart from the
costs of suit, in the staggering amount of Two Million One Hundred Eighty Three Thousand and Five
Hundred (P2,183,500.00) Pesos, without plaintiffs having been given the chance to complete their
evidence, to cross-examine the witnesses of the defense, and to present rebuttal evidence. The way
the trial court and the Court of Appeals proceeded in this case, litigation became more a game of
technicalities than a proceeding to search the truth and mete justice. No other fairer course of action
is demanded but for this Court to remand the case for further proceedings. chanrobles.com.ph : virtual law library

WHEREFORE, the decision of the respondent Court of Appeals is hereby set aside. Let the records of
the case be remanded to the court of origin with instruction to the trial court to allow the plaintiffs to
complete their evidence, to cross-examine the defendants’ witnesses, and to present rebuttal
evidence if they so desire, and thereafter to decide the case anew.

SO ORDERED.

D ead Man’s Statute Guerrero vs. St. Claire’s Realty & Corporation 124 SCRA 553, 1983

FACTS: Spouses Isidoro Guerrero and Panay Ramos were the absolute owners of the disputed property,
which is a parcel of land located at San Dionisio, Parañaque, Rizal, with an area of 42,299 square meters,
more or less. The spouses had six children, named Andres, Juliana, Aurelio, Leona, Jose and Cristina, and all
surnamed Guerrero. Panay Ramos predeceased Isidoro Guerrero. Before his demise, Isidoro Guerrero
verbally willed and ordained that the questioned lot be assigned and adjudicated to Andres Guerrero as his
share in the inheritance, the other children having been assigned other lots. . Shortly after the beginning of the
Japanese occupation, Andres Guerrero entrusted the land to his sister, Cristina Guerrero, and allowed her to
have the property cultivated and to retain the owner's share in the harvests. The arrangement between brother
and sister was that Cristina Guerrero could continue in the cultivation of the land and enjoyment of the owner's
share in the produce for as long as she needed the property. Sometime in July 1943, Andres Guerrero died
105

survived by his widow, Segunda Laquindanum, and their children, who are the petitioners in this case. Cristina
Guerrero continued as trustee of the deceased Andres Guerrero. The complaints further alleged that as early
as December 10, 1957, the land was surveyed by the Bureau of Lands for and in the name of Andres Guerrero
as Lot No. 4752, Case No. 4, Cadastre No. 229 of the Parañaque Cadastre. Sometime during the latter part of
1971 certain people who introduced themselves as agents or buyers of the land ap¬proached some of the
plaintiffs in order to secure their consent to the sale of the property. Said plaintiffs were informed that the land
was titled in the name of their cousin, Manuel Guerrero. The court ruled that Manuel Guerrero owned the lot;
that despite oppositors' appeal to a higher court, the Register of Deeds issued Original Certificate of Title No.
4591 to the applicant; that on September 14, 1971, there was filed with the Register of Deeds of Rizal a "Deed
of Absolute Sale" purportedly executed by Manuel Guerrero in favor of the defendants Guerreros; that the
Register of Deeds gave due course to the registration of that deed, cancelled OCT No. 4591 and was issued
Transfer Certificate of Title No. 339629 in its stead; that on the same day that the deed of sale was registered,
the defendants Guerreros caused to be notarized an "Articles of Partnership" of St. Clare's Realty Company,
Ltd., constituting themselves as partners; that on September 28, 1971, the defendants Guerreros sold the
disputed lot in a "Deed of Absolute Sale" to the St. Clare's Realty Company, Ltd.; that by virtue thereof, the
Register of Deeds issued TCT No. 340842 in the name of said realty company. However, the Deed of Sale in
favor of Manuel Guerrero was discovered to be fraudulent, simulated and falsified for the reason, among
others, that Cristina Guerrero was not the owner of the land at the time she purportedly sold it; that Manuel
Guerrero obtained OCT No. 4591 in fraud of the plaintiffs; that the Deeds of Sale to the defendants Guerreros
and St. Clare's Realty Company, Ltd. and the transfer certificates of title in their favor are fraudulent and
simulated, and ineffective against the plaintiffs for the reason, among others, that at the time of execution of
the Deeds of Sale, the defendants Guerreros knew that the property belonged to Andres Guerrero; that long
after the complaint in the present case has been filed, the plaintiffs came to know that the St. Clare's Realty
Company, Ltd. executed a "Joint Venture Agreement" with the United Housing Corporation under which the
latter bound itself to develop the property into a residential subdivision; and that the said agreement was
entered into in gross and evident bad faith. ISSUE: Whether or not the Dead Man’s Statute will apply in the
present case. RULING: No. The Dead Man’s rule is not applicable in the case at bar.

The present case is not a claim or demand against the estate of the deceased Manuel Guerrero. The
defendants Guerreros are not the executors or administrators or representatives of such deceased. They are
being sued as claimants of ownership in their individual capacities of the disputed lot. The lot is not a part of
the estate of Manuel Guerrero. "It has been held that statutes providing that a party in interest is incompetent
to testify where the adverse party is dead or insane, must be applied strictly in accordance with their express
wording, irrespective of their spirit. The law uses the word 'against an executor or administrator or other
representative of a deceased person.' It should be noted 'that after the mention of an executor or administrator
the words or other representative follows, which means that the word 'representative' includes only those who,
like the executor or administrator, are sued n their representative, not personal, capacity. And that is
emphasized by the law by using the words 'against the estate of such deceased persons', which convey the
idea of an estate actually owned by the deceased at the time the case was brought and that, therefore, it is
only his rights that are to be asserted and defendant in the litigation by the person representing him, not the
personal rights of such representative."

G.R. No. L-27434 September 23, 1986

GENARO GOÑI, RUFINA P. vda. DE VILLANUEVA, VIOLA P. VILLANUEVA, OSCAR P. VILLANUEVA,

MARINA P. VILLANUEVA, VERNA P. VILLANUEVA, PRAXEDES P. VILLANUEVA, JR., JOSE P. VILLANUEVA,
SAMUEL P. VILLANUEVA, LOURDES P. VILLANUEVA, MILAGROS P. VILLANUEVA DE ARRIETA, petitioners-
appellants,
vs.
THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees.

Ambrosio Padilla Law Office for petitioners-appellants.

San Juan, Africa, Gonzales & San Agustin Law Office for respondents-appellees.

FERNAN, J.:
106

This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R. No. 27800-R
entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro Goni, et. al., Defendants-Appellants" as well as from the
resolution denying petitioners' motion for reconsideration.

The factual backdrop is as follows:

The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria situated in the Municipality of
Bais, Negros Oriental, were originally owned by the Compania General de Tabacos de Filipinas [TABACALERA].
Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest of petitioners, negotiated with
TABACALERA for the purchase of said haciendas. However, as he did not have sufficient funds to pay the price,
Villanueva with the consent of TABACALERA, offered to sell Hacienda Sarria to one Santiago Villegas, who was
later substituted by Joaquin Villegas. Allegedly because TABACALERA did not agree to the transaction between
Villanueva and Villegas, without a guaranty private respondent Gaspar Vicente stood as guarantor, for Villegas in
favor of TABACALERA. The guarantee was embodied in a document denominated as "Escritura de Traspaso de
Cuenta." 1

Either because the amount realized from the transaction between Villanueva and Villegas still fell short of the
purchase price of the three haciendas, or in consideration of the guaranty undertaken by private respondent
Vicente, Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de
Maria for the sum of P13,807.00. This agreement was reduced to writing and signed by petitioner Genaro Goni as
attorney-in-fact of Villanueva, thus:

En consideracion a la garantia que Don Gaspar Vicente assume con la Cia. Gral. de Tabacos de
Filipinas por el saldo de Don Santiago Villegas de P43,539.75 asumido por Don Joaquin Villegas el
que Subscribe Praxedes T. Villanueva se compromete ceder es venta a Don Gaspar Vicente los
campos nos. 3, 4 y 13 del plano de porcelario de la Hacienda Dulce Nombre de Maria, en compra
projectada de la Cia. Gral. de Tabacos de Filipinas. Estas campos representan 6-90-35 hectares por
valor de P13,807.00 que Don Gasper Vicente pagara directamente a Praxedes T. Villanueva

Bais Central, Octubre 24, 1949.

Fdo. Praxedes T. Villanueva

Por: Fdo Genaro Goñi Apoderado 2

Private respondent Vicente thereafter advised TABACALERA to debit from his account the amount of P13,807.00
as payment for the balance of the purchase price. However, as only the amount of P12,460.24 was actually needed
to complete the purchase price, only the latter amount was debited from private respondent's account. The
difference was supposedly paid by private respondent to Villanueva, but as no receipt evidencing such payment
was presented in court, this fact was disputed by petitioners.

It is alleged by petitioners that subsequent to the execution of the contract/promise to sell, Villanueva was able to
raise funds by selling a property in Ayungon, Negros Oriental. He thus went to private respondent Vicente for the
purpose of rescinding the contract/promise to sell However, as the amount of P12,460.24 had already been debited
from private respondent's account, it was agreed that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would
merely be leased to private respondent Vicente for a period of five (5) years starting with crop-year 1950-51 at an
annual rental of 15% of the gross income, said rent to be deducted from the money advanced by private respondent
and any balance owing to Villanueva would be delivered by Vicente together with the lots at the end of the stipulated
period of lease.

On December 10, 1949, TABACALERA executed a formal deed of sale covering the three haciendas in favor of
Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce Nombre de Maria were thereafter registered in the name
of Villanueva under TCT No. T-4780 of the Register of Deeds of Negros Oriental. The fields were likewise
mortgaged by Villanueva to the Rehabilitation Finance Corporation (RFC), later transferred to the Philippine
National Bank on December 16, 1955, for a total indebtedness of
P334,400.00. 3

Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the 1949-1950 milling season in
January and February, 1950.

On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive" in favor of Joaquin Villegas, covering
Lot No. 314 of the Cadastral Survey of Bais with an area of 468,627 square meters, more or less. (Hacienda Sarria).
A supplemental instrument was later executed by Villanueva in favor of Villegas to include in the sale of June 17,
1950 the sugar quota of the land.

On November 12, 1951, Villanueva died. Intestate proceedings were instituted on November 24, 1951 before the
then Court of First Instance of Negros Oriental, docketed as Special Case No. 777. Among the properties included
107

in the inventory submitted to the court were fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria. Field no. 13
with an area of 1 hectare, 44 ares and 95 centares was listed as Lot no. 723 of the inventory while fields nos. 3 and
4, with areas of 3 hectares, 75 ares and 60 centares, and 1 hectare, 69 ares and 80 centares, respectively, were
included in Lot no. 257 of the inventory.

On October 7, 1954, the day before the intestate proceedings were ordered closed and the estate of the late
Praxedes Villanueva delivered to his heirs, private respondent Vicente instituted an action for recovery of property
and damages before the then Court of First Instance of Negros Oriental against petitioner Goñi in his capacity as
administrator of the intestate estate of Praxedes Villanueva. In his complaint docketed as Civil Case No. 2990,
private respondent Vicente sought to recover field no. 3 of the Hacienda Dulce Nombre de Maria, basing his
entitlement thereto on the contract/promise to sell executed by the late Praxedes Villanueva in his favor on October
24, 1949. He likewise prayed by way of attorney's fees and other costs the sum of P2,000.00 and for such other
further relief which the court may deem just and equitable in the premises.  4

On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990, filed an answer with counterclaim for
accounting of the produce of fields nos. 4 and 13, as well as the surrerder thereof on June 20, 1955, the end of the
fifth crop-year, plus moral damages in the sum of P30,000.00 and P3,000.00 as attorney's fees. After an answer to
the counter-claim had been filed, private respondent Vicente amended his complaint on September 1, 1955, to
include a prayer for damages representing the produce of field no. 3 from 1949-50 until delivery thereof to him. An
answer with counterclaim to the amended complaint was duly filed, and on April 25, 1956, private respondent
Vicente amended his complaint anew to include as parties-defendants the heirs of the late Praxedes Villanueva.

On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others, on the costs of production
and produce of the three fields in question. The case thereafter proceeded to trial. Plaintiff presented two (2)
witnesses: then party-plaintiff Gaspar Vicente, himself, who over the objection of therein defendants testified on
facts occurring before the death of Praxedes Villanueva, and Epifanio Equio a clerk of TABACALERA Agency in the
Bais Sugar Central. Defendants presented Genaro Goni, who testified on the alleged verbal lease agreement.

On December 18, 1959, the trial court rendered a decision ordering therein defendants-heirs to deliver to Gaspar
Vicente field no 3, to execute a formal deed of sale covering fields nos. 3, 4 and 13 in favor of Vicente, to pay the
latter actual or compensatory damages in the amount of P 81,204.48, representing 15% of the total gross income of
field no. 3 for crop-years 1950-51 to 1958-59, and such other amounts as may be due from said field for the crop
years subsequent to crop-year 1958-59, until the field is delivered to Vicente, and to pay the sum of P2,000.00 as
attorney's fees plus costs. Therein defendant Goñi was relieved of any civil liability for damages, either personally or
as administrator of the estate. 5

Both parties appealed the decision to the then Court of Appeals; the plaintiff from the portion awarding damages on
a claim that he was entitled to more, and defendants, from the entire decision.

On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of the lower court, with the
modification that the amount of damages to be paid by defendant-heirs to the plaintiff should be the total net income
from field no. 3 from the crop year 1950-51 until said field is finally delivered to the plaintiff plus interest thereon at
the legal rate per annum. 6

Petitioners filed a motion for reconsideration, but were denied the relief sought in a resolution dated February 9,
1967. Hence, the present appeal by certiorari whereby petitioners raise the following questions of law:

MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT OCCURRING

BEFORE THE DEATH OF PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A CLAIM OR
DEMAND UPON HIS ESTATE. IN VIOLATION OF RULE 123, SEC, 26, PAR. (C), NOW RULE 130,
SEC. 20 PAR. (A)?

MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24,1949 BE NOVATED INTO A
VERBAL AGREEMENT OF LEASE DURING THE LIFETIME OF THE PROMISSOR, WHOSE
DEATH OCCURRED ON NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES
SUBSTANTIATED BY COMPETENT ORAL EVIDENCE IN THIS CASE?

SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID P12,460.24 WHICH WAS TO BE
ACCOUNTED AND TO BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN
HIS ORIGINAL COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF
P2,000.00 AS ATTORNEY'S FEES, RECEIVE A JUDGMENT FOR DAMAGES IN THE AMOUNT
OF P74,056.35 WHICH CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE CROP
YEARS 1950-51 TO 1958-59 AND FOR P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR
SUBSEQUENT TO 1958-59 PLUS
INTEREST? 7
108

We find that neither the trial nor appellate court erred in ruling for the admissibility in evidence of private respondent
Vicente's testimony. Under ordinary circumstances, private respondent Vicente   would be disqualified by reason of interest from
8

testifying as to any matter of fact occurring before the death of Praxedes T. Villanueva, such disqualification being anchored on Section 20(a) of Rule 130,
commonly known as the Survivorship Disqualification Rule or Dead Man Statute, which provides as follows:

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

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

The object and purpose of the rule is to guard against the temptation to give false testimony in regard to the
transaction in question on the part of the surviving party and further to put the two parties to a suit upon terms of
equality in regard to the opportunity of giving testimony.  It is designed to close the lips of the party plaintiff when death has closed the lips of
9

the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased.  10

The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the latter had been
distributed to them, remains within the ambit of the protection. The reason is that the defendants-heirs are properly
the "representatives" of the deceased, not only because they succeeded to the decedent's right by descent or
operation of law, but more importantly because they are so placed in litigation that they are called on to defend
which they have obtained from the deceased and make the defense which the deceased might have made if living,
or to establish a claim which deceased might have been interested to establish, if living.  11

Such protection, however, was effectively waived when counsel for petitioners cross-examined private respondent
Vicente. "A waiver occurs when plaintiff's deposition is taken by the representative of the estate or when counsel for
the representative cross-examined the plaintiff as to matters occurring during deceased's lifetime.   It must further be 12

observed that petitioners presented a counterclaim against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity as
plaintiff in the action for recovery of property and as defendant in the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in
the counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva, said action not having been
brought against, but by the estate or representatives of the estate/deceased person.

Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions or
communications with the deceased or incompetent person which were made with an agent of such person in cases
in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to
those transactions or communications which were had with the agent.   The contract/promise to sell under consideration was signed
13

by petitioner Goñi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding the execution of such contract and
therefore could either confirm or deny any allegations made by private respondent Vicente with respect to said contract. The inequality or injustice sought to be
avoided by Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to either confirm or rebut the testimony of the other because death
has permanently sealed the former's lips, does not actually exist in the case at bar, for the reason that petitioner Goñi could and did not negate the binding effect of
the contract/promise to sell. Thus, while admitting the existence of the said contract/promise to sell, petitioner Goñi testified that the same was subsequently
novated into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria.

Novation takes place when the object or principal condition of an obligation is changed or altered.  14
 In order, however, that
an obligation may be extinguished by another which substitutes the same, it is imperative that it be so declared in unequivocal terms, or that the old and the new
obligations be on every point incompatible with each other. 15 "Novation is never presumed. It must be established that the old and the new contracts are
incompatible in all points, or that the will to novate appear by express agreement of the parties or in acts of equivalent import. 16

The novation of the written contract/promise to sell into a verbal agreement of lease was clearly and convincingly
proven not only by the testimony of petitioner Goñi, but likewise by the acts and conduct of the parties subsequent
to the execution of the contract/promise to sell. Thus, after the milling season of crop year 1949-50, only fields nos.
4 and 13 were delivered to private respondent Vicente. Fields nos. 3, 4 and 13 were subsequently registered in
Villanueva's name and mortgaged with the RFC. Villanueva likewise executed a deed of sale covering Hacienda
Sarria in favor of Joaquin Villegas. All these were known to private respondent Vicente, yet he did not take any
steps toward asserting and/or protecting his claim over fields nos. 3, 4 and 13 either by demanding during the
lifetime of Villanueva that the latter execute a similar document in his favor, or causing notice of his adverse claim to
be annotated on the certificate of title of said lots. If it were true that he made demands on Villanueva for the
surrender of field no. 3 as well as the execution of the corresponding deed of sale, he should have, upon refusal of
the latter to do so, immediately or within a reasonable time thereafter, instituted an action for recovery, or as
previously observed, caused his adverse claim to be annotated on the certificate of title. Considering that field no. 3,
containing an area of three (3) hectares, 75 ares and 60 centares, is the biggest among the three lots, an ordinary
prudent man would have taken these steps if he honestly believed he had any right thereto. Yet, private respondent
Vicente did neither. In fact such inaction persisted even during the pendency of the intestate proceedings wherein
he could have readily intervened to seek exclusion of fields nos. 3, 4 and 13 from the inventory of properties of the
late Praxedes Villanueva.

The reason given by private respondent Vicente that field no. 3 was not delivered to him together with fields nos. 4
and 13 because there were small sugar cane growing on said field at that time belonging to TABACALERA, might
be taken as a plausible explanation why he could not take immediate possession of lot no. 3, but it certainly could
109

not explain why it took him four years before instituting an action in court, and very conveniently, as petitioners
noted, after Villanueva had died and at the time when the verbal contract of lease was about to expire.

Both the trial and appellate courts chose to believe in the contract/promise to sell rather than the lease agreement,
simply because the former had been reduced to writing, while the latter was merely verbal. It must be observed,
though, that the contract/promise to sell was signed by petitioner Goñi as attorney-in-fact of the late Praxedes
Villanueva, an indication, to our mind, that final arrangements were made by petitioner Goñi in the absence of
Villanueva. It was therefore natural for private respondent Vicente to have demanded that the agreement be in
writing to erase any doubt of its binding effect upon Villanueva. On the other hand, the verbal lease agreement was
negotiated by and between Villanueva and private respondent Vicente themselves. Being close friends and
relatives   it can be safely assumed that they did not find it necessary to reduce the same into writing.
17

In rejecting petitioners' contention respecting the verbal lease agreement, the appellate court put much weight on
the failure of petitioners to demand an accounting of the produce of fields nos. 4 and 13 from 1950 to 1954, when
the action for recovery of property was filed. Such failure was satisfactorily explained by petitioners in their motion
for reconsideration filed before the then Court of Appeals, in this manner:

... Mr. Genaro Goni is also a farmer by profession and that there was no need for him to demand a
yearly accounting of the total production because the verbal lease agreement was for a term of 5
years. The defendant Mr. Genaro Goni as a sugar planter has already full knowledge as to the
annual income of said lots nos. 4 and 13, and since there was the amount of P12,460.25 to be
liquidated, said defendant never deemed it wise to demand such a yearly accounting. It was only
after or before the expiration of the 5 year lease that said defendant demanded the accounting from
the herein plaintiff regarding the production of the 2 lots that were then leased to him.

It is the custom among the sugar planters in this locality that the Lessee usually demands an
advance amount to cover the rental for the period of the lease, and the demand of an accounting will
be only made after the expiration of the lease period. It was adduced during the trial that the amount
of P12,460.75 was considered as an advance rental of the 2 lots which was leased to the Plaintiff,
lots nos. 4 and 13; so we humbly believe that there was no necessity on the part of defendant Mr.
Genaro Goñi to make a yearly demand for an accounting for the total production of 2 parcels leased
to the plaintiff. 18

Petitioners, having clearly and sufficiently shown that the contract/promise to sell was subsequently novated into a
verbal lease agreement, it follows that they are entitled to a favorable decision on their counterclaim. Discussion of
the third issue raised therefore becomes unnecessary.

WHEREFORE, the decision appealed from is hereby reversed. The judicial administrator of the estate of private
respondent Gaspar Vicente and/or his successors-in-interest are hereby ordered to: a) surrender possession of
fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners; b) render an accounting of the produce
of said fields for the period beginning crop-year 1950-51 until complete possession thereof shall have been
delivered to petitioners; and c) to pay the corresponding annual rent for the said fields in an amount equivalent to
15% of the gross produce of said fields, for the periods beginning crop-year 1950-51 until said fields shall have been
surrendered to petitioners, deducting from the amount due petitioners the sum of P12,460.24 advanced by private
respondent Gaspar Vicente.

SO ORDERED.

GENARO GOÑI, RUFINA P. vda. DE VILLANUEVA, et al, petitioners-appellants, vs. THE COURT OF
APPEALS and GASPAR VICENTE, respondents-appellees GR No. L-27434 September 23, 1986

FACTS: Praxedes Villanueva was interested in buying the haciendas of San Sebastian, Sarria, and Dulce
Nombre de Maria owned by Tabacalera. Due to insufficiency of funds, Gaspar Vicente stood as guarantor for
Villegas in favor of Tabacalera. Villanueva further promised to sell field nos. 3, 4, and 13 of Hacienda Dulce
Nombre de Maria for P13, 807.00 in favor of Vicente. This agreement was reduced to writing and signed by
herein petitioner Genaro Goni as the attorney-in-fact of Villanueva. Shortly after the execution of the promise to
sell, Villanueva was able to raise the funds needed for the payment of the haciendas which prompted him to
rescind the agreement. However, since the amount has already been credited from Vicente’s account, it was
agreed that lots 4 and 13 would be leased to the latter for five years. Villanueva thereafter died, and intestate
proceedings followed. Vicente instituted an action for recovery of property and damages against Goni in his
capacity as the administrator of the estate of Villanueva. Said complaint was based from the promise to sell
110

executed by the deceased. Full trial ensued, for which Vicente testified on matters of fact occurring before the
death of Villanueva. The opposing party was likewise given the opportunity to cross examine him. ISSUE:
Whether or not the testimony of Vicente is barred by the Dead Man’s Statute. RULING: Under ordinary
circumstances, private respondent Vicente would be disqualified by reason of interest from testifying as to any
matter of fact occurring before the death of Praxedes T. Villanueva, such

disqualification being anchored on Section 20(a) of Rule 130, commonly known as the Survivorship
Disqualification Rule or Dead Man Statute, which provides as follows: Section 20. Disqualification by reason of
interest or relationship.-The following persons cannot testify as to matters in which they are interested, directly
or indirectly, as herein enumerated: (a) Parties or assignors of parties to a case, or persons in whose behalf a
case is prosecuted, against an executor or administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against the estate of such deceased person or
against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such person became of unsound mind. The object and purpose of the rule is to
guard against the temptation to give false testimony in regard to the transaction in question on the part of the
surviving party and further to put the two parties to a suit upon terms of equality in regard to the opportunity of
giving testimony. It is designed to close the lips of the party plaintiff when death has closed the lips of the party
defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of
fictitious claims against the deceased. The case at bar, although instituted against the heirs of Praxedes
Villanueva after the estate of the latter had been distributed to them, remains within the ambit of the protection.
The reason is that the defendants-heirs are properly the "representatives" of the deceased, not only because
they succeeded to the decedent's right by descent or operation of law, but more importantly because they are
so placed in litigation that they are called on to defend which they have obtained from the deceased and make
the defense which the deceased might have made if living, or to establish a claim which deceased might have
been interested to establish, if living. Such protection, however, was effectively waived when counsel for
petitioners cross-examined private respondent Vicente. "A waiver occurs when plaintiff's deposition is taken by
the representative of the estate or when counsel for the representative cross-examined the plaintiff as to
matters occurring during deceased's lifetime. It must further be observed that petitioners presented a
counterclaim against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual
capacity as plaintiff in the action for recovery of property and as defendant in the counterclaim for accounting
and surrender of field nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not disqualified from
testifying as to matters of fact occurring before the death of Praxedes Villanueva, said action not having been
brought against, but by the estate or representatives of the estate/deceased person.

G.R. No. 74306 March 16, 1992

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

G.R. No. 74315 March 16, 1992

VICENTE B. CHUIDIAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E. RAZON, INC., respondents.

GUTIERREZ, JR., J.:

The main issue in these consolidated petitions centers on the ownership of 1,500 shares of stock in E. Razon, Inc.
covered by Stock Certificate No. 003 issued on April 23, 1966 and registered under the name of Juan T. Chuidian in
the books of the corporation. The then Court of First Instance of Manila, now Regional Trial Court of Manila,
declared that Enrique Razon, the petitioner in G.R. No. 74306 is the owner of the said shares of stock. The then
Intermediate Appellate Court, now Court of Appeals, however, reversed the trial court's decision and ruled that Juan
T. Chuidian, the deceased father of petitioner Vicente B. Chuidian in G.R. No. 74315 is the owner of the shares of
stock. Both parties filed separate motions for reconsideration. Enrique Razon wanted the appellate court's decision
reversed and the trial court's decision affirmed while Vicente Chuidian asked that all cash and stock dividends and
all the pre-emptive rights accruing to the 1,500 shares of stock be ordered delivered to him. The appellate court
denied both motions. Hence, these petitions.
111

The relevant Antecedent facts are as follows:

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

xxx xxx xxx

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

xxx xxx xxx

The evidence of the plaintiff shown that he is the administrator of the intestate estate of Juan
Telesforo Chuidian in Special Proceedings No. 71054, Court of First Instance of Manila.

Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the purpose of bidding for the
arrastre services in South Harbor, Manila. The incorporators consisted of Enrique Razon, Enrique
Valles, Luisa M. de Razon, Jose Tuason, Jr., Victor Lim, Jose F. Castro and Salvador Perez de
Tagle.

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

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

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

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

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

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

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

In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's decision on its alleged misapplication of
the dead man's statute rule under Section 20(a) Rule 130 of the Rules of Court. According to him, the "dead man's
statute" rule is not applicable to the instant case. Moreover, the private respondent, as plaintiff in the case did not
112

object to his oral testimony regarding the oral agreement between him and the deceased Juan T. Chuidian that the
ownership of the shares of stock was actually vested in the petitioner unless the deceased opted to pay the same;
and that the petitioner was subjected to a rigid cross examination regarding such testimony.

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

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

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is

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

x x x           x x x          x x x

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

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

The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the administrator
or its representative of an estate upon a claim against the estate of the deceased person. (See Tongco v. Vianzon,
50 Phil. 698 [1927])

In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein) to the
affect that the late Juan Chuidian, (the father of private respondent Vicente Chuidian, the administrator of the estate
of Juan Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that the 1,500 shares of stock in E.
Razon, Inc. are actually owned by the defendant unless the deceased Juan Chuidian opted to pay the same which
never happened. The case was filed by the administrator of the estate of the late Juan Chuidian to recover shares
of stock in E. Razon, Inc. allegedly owned by the late Juan T. Chuidian.

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

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

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

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

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

E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the purpose of participating in the bidding for
the arrastre services in South Harbor, Manila. The incorporators were Enrique Razon, Enrique Valles, Luisa M. de
Razon, Jose Tuazon, Jr., Victor L. Lim, Jose F. Castro and Salvador Perez de Tagle. The business, however, did
not start operations until 1966. According to the petitioner, some of the incorporators withdrew from the said
corporation. The petitioner then distributed the stocks previously placed in the names of the withdrawing nominal
113

incorporators to some friends, among them the late Juan T. Chuidian to whom he gave 1,500 shares of stock. The
shares of stock were registered in the name of Chuidian only as nominal stockholder and with the agreement that
the said shares of stock were owned and held by the petitioner but Chuidian was given the option to buy the same.
In view of this arrangement, Chuidian in 1966 delivered to the petitioner the stock certificate covering the 1,500
shares of stock of E. Razon, Inc. Since then, the Petitioner had in his possession the certificate of stock until the
time, he delivered it for deposit with the Philippine Bank of Commerce under the parties' joint custody pursuant to
their agreement as embodied in the trial court's order.

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

The petitioner's contention is not correct.

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

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

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

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

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

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

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

The petition is impressed with merit.

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

The rights of stockholders are generally enumerated as follows:

xxx xxx xxx

114

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

WHEREFORE, judgment is rendered as follows:

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

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

SO ORDERED.

ENRIQUE RAZON, petitioner, vs. INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his
capacity as Administrator of the Estate of the Deceased JUAN T. CHUIDIAN, respondents. 2007 SCRA 234
(1992)

FACTS: Vicente Chuidian (administrator of the estate of his deceased father) filed a complaint for thedelivery
of the certificates of stocks representing the 1,500 share holdings of his deceased father, Juan Chuidian, in the
E. Razon, Inc. (organized for the purpose of bidding for the arrastre services in South Harbor, Manila). In the
answer, Razon alleged that he owned the shares and the same remained in his possession. It was alleged that
the late Juan Chuidan did not pay any amount whatsoever for the 1,500 shares in question. CHUIDIAN’s
EVIDENCE: On April 23, 1966, stock certificate No. 003 for 1,5000 shares of stock of defendant corporation
was issued in the name of Juan Chuidian (Juan). Razon had not questioned (not until the demand was made)
Juan’s ownership of the shares and had not brought any action to have the certificate of stock over the said
shares cancelled. RAZON’s EVIDENCE (In the answer and in his oral Testimony): After organizing E. Razon,
Inc., Razon distributed shares, previously placed in the names of the withdrawing nominal incorporators, to
some friends including Juan. The shares of stock were registered in the name of Juan only as nominal
stockholder and with the agreement that the said shares were owned and held by the Razon (as he was the
one who paid for all the subscription). Juan was given the option to buy the same but did not do so. CFI (RTC)
declared that Enrique Razon is the owner of the said shares. IAC (CA) reversed and ruled that Juan Chuidian
is the owner. IAC excluded the testimony of Razon under the deadman’s statute rule (DMS) under Section 20
(a) Rule 130 of the Rules of Court, although such testimony was not objected to during trial. ISSUE: Whether
or not Razon’s testimony is within the prohibition under Dead Man Statute Rule. RULING: No. The case was
not filed against the administrator of the estate, nor was it filed upon claims against the estate. The purpose of
DMS Rule is that “if persons having a claim against the estate of the deceased or his properties were allowed
to testify as to the supposed statements made by him (deceased person), many would be tempted to falsely
impute statements to deceased persons as the latter can no longer deny or refute them, thus unjustly
subjecting their properties or rights to false or unscrupulous claims or demands. The purpose of the law is to
'guard against the temptation to give false testimony in regard to the transaction in question on the part of the
surviving party. ”However, the rule is only applicable to “a case against the administrator or its representative
of an estate upon a claim against the estate of the deceased person.”
_____________________________________________________________________________________

DEAD MAN’S STATUTE – Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a deceased person, or against a
person of unsound mind, upon a claim or demand against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased
person or before such person became of unsound mind. (Sec. 23 Rule 130)

Rule 130 Section 24 – Disqualification by Reason of Privileged Communication

115

G.R. No. L-13109            March 6, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
DALMACEO ANTIPOLO, defendant-appellant.

Irureta Goyena and Recto for appellant.

Acting Attorney-General Paredes for appellee.

FISHER, J.:

The appellant was prosecuted in the Court of First Instance of the Province of Batangas, charged with the murder of
one Fortunato Dinal. The trial court convicted him of homicide and from that decision he was appealed. One of the
errors assigned is based upon the refusal of the trial judge to permit Susana Ezpeleta, the widow of the man whom
the appellant is accused of having murdered, to testify as a witness on behalf of the defense concerning certain
alleged dying declarations. The witness was called to the stand and having stated that she is the widow of Fortunato
Dinal was asked: "On what occasion did your husband die?" To this question the fiscal objected upon the following
ground:

I object to the testimony of this witness. She has just testified that she is the widow of the deceased,
Fortunato Dinal, and that being so I believe that she is not competent to testify under the rules and
procedure in either civil or criminal cases, unless it be with the consent of her husband, and as he is dead
and cannot grant that permission, it follows that this witness is disqualified from testifying in this case in
which her husband is the injured party.

Counsel for defendant insisted that the witness was competent, arguing that the disqualification which the fiscal
evidently had in mind relates only to cases in which a husband or wife of one of the parties to a proceeding is called
to testify; that the parties to the prosecution of a criminal case are the Government and the accused; that,
furthermore the marriage of Dinal to the witness having been dissolved by the death of her husband, she is no
longer his wife, and therefore not subject to any disqualification arising from the status of marriage.

These propositions were rejected by the trial judge, and the objection of the fiscal as to the testimony of the woman
Ezpeleta was sustained. To this objection counsel took exception and made an offer to prove by the excluded
witness the facts which he expected to establish by her testimony. Concerning these facts it is sufficient at this time
to say that some of them would be both material and relevant, to such a degree that if proven to the satisfaction of
the court, they might have lead to the acquittal of the accused, as they purported to relate to the dying declarations
of the deceased, concerning the cause of his death, the general purport being that his injuries were due to fall and
not to the acts imputed to the accused.

Section 58 of General Orders No. 58 (1900) reads as follows:

Except with the consent of both, or except in cases of crime committed by one against the other, neither
husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to
which one or both shall be parties.

The reasons for this rule are thus stated in Underhill's work on Criminal Evidence (second edition) on page 346:

At common law, neither a husband nor a wife was a competent witness for or against the other in any
judicial proceedings, civil or criminal, to which the other was a party. . . . If either were recognized as a
competent witness against the other who was accused of crime, . . . a very serious injury would be done to
the harmony and happiness of husband and wife and the confidence which should exist between them.

In Greenleaf's classical work on evidence, in section 337 [vol. I], the author says, in stating the reasons for the rule
at common law:

The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon
all confidential communications between husband and wife; and whatever has come to the knowledge of
either by means of the hallowed confidence which that relation inspires, cannot be afterwards divulged in
testimony even though the other party be no longer living.

This case does not fall with the text of the statute or the reason upon which it is based. The purpose of section 58 is
to protect accused persons against statements made in the confidence engendered by the marital relation, and to
relieve the husband or wife to whom such confidential communications might have been made from the obligation of
revealing them to the prejudice of the other spouse. Obviously, when a person at the point of death as a result of
116

injuries he has suffered makes a statement regarding the manner in which he received those injuries, the
communication so made is in no sense confidential. On the contrary, such a communication is made for the express
purpose that it may be communicated after the death of the declarant to the authorities concerned in inquiring into
the cause of his death.

The same theory as that upon which section 58 of General Orders No. 58 is based, underlies section 383,
paragraph 3 of Act No. 190, which reads as follows:

A husband cannot be examined for or against his wife without her consent; nor a wife for or against her
husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of
the other, examined as to any communication made by one to the other during the marriage; but this
exception does not apply to a civil action or proceeding by one against the other, or to a criminal action or
proceeding for a crime committed by one against the other.

The only doubt which can arise from a reading of this provision relates to the meaning of the words "during the
marriage or afterwards," and this doubt can arise only by a consideration of this phrase separately from the rest of
the paragraph. Construed as a whole it is evident that it relates only to cases in which the testimony of a spouse is
offered for or against the other in a proceeding to which the other is a party. The use of the word "afterwards" in the
phrase "during the marriage or afterwards" was intended to cover cases in which a marriage has been dissolved
otherwise than by death of one of the spouses — as, for instance, by decree of annulment or divorce.

The declarations of a deceased person while in anticipation of certain impending death, concerning the
circumstances leading up to the death, are admissible in a prosecution of the person charged with killing the
declarant. (U. S. vs. Gil, 13 Phil., Rep., 530.) Such dying declarations are admissible in favor of the defendant as
well as against him. (Mattox vs. U. S., 146 U. S., 140.) It has been expressly held in several jurisdictions in the
United States that the widow of the deceased may testify regarding his dying declarations. In the case of the State
vs. Ryan (30 La. Ann., 1176), cited by appellant in his brief, the court said:

The next bill is as to the competency of the widow of the deceased to prove his dying declarations. We see
no possible reason for excluding her . . . after the husband's death she is no longer his wife, and the rules of
evidence, as between husbands and wives, are no longer applicable.

In the case of Arnett vs. Commonwealth (114 Ky., 593, 596), the testimony of the widow of the deceased as to his
dying declarations made to her was objected to upon the express ground that under the terms of the Kentucky
Code, "the wife was incompetent to testify even after the cessation of the marriage relation, to any communication
made by her by her husband during the marriage."

This contention was rejected, the court saying:

On grounds of public policy the wife can not testify against her husband as to what came to her from him
confidentially or by reason of the marriage relation, but this rule does not apply to a dying communication
made by the husband to the wife on the trial of the one who killed him. The declaration of the deceased
made in extremes in such cases is a thing to be proven, and this proof may be made by any competent
witness who heard the statement. The wife may testify for the state in cases of this character as to any other
fact known to her. . . . It can not be contended that the dying declaration testified to by the witness was a
confidential communication made to her; on the contrary, it was evidently made in the furtherance of justice
for the express purpose that it should be testified to in the prosecution of the defendant.

We are therefore of the opinion that the court below erred in excluding the testimony of the witness Susana
Ezpeleta, and that by reason of such exclusion, the accused was deprived of one of his essential rights. That being
the case, a new trial must be granted.

For the reason stated, the judgment of the court below is hereby set aside and a new trial is granted at which the
testimony of the witness Susana Ezpeleta will be admitted, together with any additional evidence which may be
offered on the part of the prosecution or the defense. At the new trial granted the accused, the testimony taken at
the former hearing shall be considered. The costs of this appeal shall be de officio. So ordered.
117
118

STANLEY J. FORTICH, Petitioner, v. COURT OF APPEALS and FELIX T.

GALLERON, Respondents.

Uldarico B. Mejorada and Yolinda C . Bautista for Petitioner.

Siguion Reyna, Montecillo & Ongsiako for Private Respondent.

SYLLABUS

1. CRIMINAL LAW; LIBEL; ELEMENTS OF PUBLICITY IN LIBEL; THE KEY ELEMENTS OF PUBLICITY IN
THE DEFINITION OF LIBEL ARE NOT PRESENT IN THE CASE AT BAR. — Firstly, the assailed letter was
obviously part and parcel of the initial investigation surrounding the non-remittance of collections by
petitioner. The right hand caption of the memorandum clearly shows the phrase "Inter-office
Memorandum," implying confidentiality. Secondly, petitioner was unable to prove that the letter was
circulated or publicized, much less read by officers of the corporation other than those involved in the
investigation or those directly supervising the petitioner’s work. While imputation of a vice or defect
on the petitioner’s character might have been apparent from the second to the last paragraph of the
memorandum, the imputation was never really made publicly. chanrobles virtual lawlibrary

2. ID.; MALICE IN LIBEL; THE LAW PRESUMES EVERY DEFAMATORY IMPUTATION TO BE MALICIOUS;
THE PRESENT CASE FALLS UNDER THE EXCEPTION, NAMELY, THE PRIVILEGED COMMUNICATION
RULE. — Petitioner in the court below was not able to establish satisfactorily that the issuance of the
letter and its offending paragraph was motivated by malice. Malice exists when there is an intentional
doing of a wrongful act without just cause. An imputation is legally malicious if done without any
reason that would justify a normally conscientious man in so making the imputation. While the law
presumes every defamatory imputation to be malicious, there are exceptions to this rule. The record
indicates that this case falls under the settled exceptions to the rule: the private respondent’s inter-
office memorandum falls within the ambit of privileged communication rule.

3. ID.; PRIVILEGED COMMUNICATION; WHEN PROPERLY CONSTITUTED. — A privileged

communication is one made bona fide upon any subject matter in which the party communicating
has an interest, or in reference to which he has a duty. Discussing the scope of this rule, former Chief
Justice Fernando, in Mercado v. CFI of Rizal, explained that: . . .. Even when the statements are
found to be false, if there is probable cause for belief in their truthfulness and the charge is made in
good faith, the mantle of privilege may still cover the mistake of the individual. But the statements
must he made under an honest sense of duty; . . .

DECISION

KAPUNAN, J.:

For over five years since August 1973, petitioner Stanley J. Fortich was employed as an area
salesman of the soft drinks division of the San Miguel Corporation in Dipolog City, a job which
required him to collect various sums of money from the retailers and buyers of the company along
his designated route.

On June 5, 1979, petitioner received a Memorandum ordering him to stop plying his route and
collecting the sums owed by customers to the company for the stated reason of his alleged
"NONISSUANCE (SIC) OF EITHER CHANGE REFUND NOR OFFICIAL RECEIPT FOR EMPTIES
RETRIEVED FROM OUTLETS WITH TEMPORARY CREDIT SALES." 1 The order grounding petitioner,
signed by herein respondent Felipe T. Carreon in his capacity as District Sales Supervisor, likewise
directed petitioner to instead report directly "to the sales office every working day at the prescribed
company time." 2

Following up on his first memorandum and alleging that petitioner misappropriated the amount of
P1,605.00 from his collections (through non-issuance of invoices to several customers) private
respondent, on June 11, 1975, submitted a second inter-office memorandum addressed to the
Regional Sales Manager summarizing the findings of an initial investigation he conducted on the
matter, which he concluded with the following paragraph: jgc:chanrobles.com.ph
119

"In addition, I would like to further inform management that S/M Stanley Fortich is an avid mahjong
player and a cockfighting enthusiast. In spite of several advices, there seems to be no change in his
lifestyle. Also, respondent had a similar case last September 11, 1978." 3

After further investigation by the company which found petitioner guilty of misappropriating company
funds, petitioner was preventively suspended from his job. The order suspending petitioner also
decreed his dismissal "upon receipt of clearance from the Ministry of Labor." 4

Claiming that the above-quoted second memorandum issued by the private respondent was "wilfull,
malicious and done in gross bad faith," 5 petitioner, on September 28, 1979 filed a complaint for
"Damages Arising from Libel" with the Court of First Instance (now Regional Trial Court) of
Zamboanga Del Norte. In his complaint, he alleged that: chanrob1es virtual 1aw library

x          x           x

[T]he defendant has pictured the plaintiff in his report (Annex "B") as a thief, corrupt or dishonest
man and even going to the extent of exposing in public the alleged vices of the plaintiff such as
mahjong and cockfighting.

[T]he defendant is guilty of gross bad faith and malice in the highest degree for making and
publishing a false, and libelous report for the purpose of putting down the good name and reputation
of the plaintiff and his family.

x       x       x 6

Petitioner then prayed that the trial court grant the total amount of P171,000.00 to him as moral and
exemplary damages, attorney’s fees and expenses of litigation.

On November 5, 1990, the Regional Trial Court rendered its decision 7 in favor of herein petitioner,
the dispositive portion of which states the following: chanrob1es virtual 1aw library

PREMISES CONSIDERED, the Court hereby renders judgment —

1. Ordering the defendant to pay to the plaintiff the following sums: (a) P150,000.00 for moral
damages; (b) P50,000.00 for exemplary damages; (c) P20,000.00 for attorney’s fees and (d)
P1,000.00 for litigation expenses;

2. Dismissing the defendant’s counterclaim for lack of merit; and

3. Ordering the defendant to pay the costs. 8

Principally contending in his assignment of errors that no actual malice existed or had been shown in
respect to the questioned (second) memorandum and that in any case, the assailed letter was
protected by the privileged communication rule, the private respondent appealed the trial court’s
decision to the Court of Appeals.chanrobles virtual lawlibrary

On February 21, 1995, respondent court reversed the trial court’s decision on the ground that the
memorandum was not libelous being "within the ambit of privileged communications." Motion for
Reconsideration was denied by the Court of Appeals on May 31, 1995, hence, the instant petition for
review on certiorari.

The appeal is not impressed with merit.

The provisions of law applicable to the case at bar are embodied in Articles 353 and 354 of the
Revised Penal Code which state the following: chanrob1es virtual 1aw library

Art. 353. Definition of Libel. — A libel is a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
120

following cases: chanrob1es virtual 1aw library

1. A private communication made by any person to another in the performance of any legal, moral or
social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act performed by public officers in the
exercise of their functions.

Nothing in the evidence on record would suggest that the key elements of publicity found in the
definition of libel in Article 353 of the Revised Penal Code are present in the case before us.

Firstly, the assailed letter was obviously part and parcel of the initial investigation surrounding the
non-remittance of collections by petitioner. The right hand caption of the memorandum clearly shows
the phrase "Inter-office Memorandum," 9 implying confidentiality. Secondly, petitioner was unable to
prove that the letter was circulated or publicized, much less read by officers of the corporation other
than those involved in the investigation or those directly supervising the petitioner’s work. While
imputation of a vice or defect on the petitioner’s character might have been apparent from the
second to the last paragraph of the memorandum, the imputation was never really made publicly.

More importantly, petitioner in the court below was not able to establish satisfactorily that the
issuance of the letter and its offending paragraph was motivated by malice. As respondent Court of
Appeals correctly held: chanrob1es virtual 1aw library

Neither does this Court find positive proof that the appellant was motivated by malice in the issuance
of the memorandum claimed to be libelous, addressed to the proper officials of San Miguel
Corporation. In other words, the onus of proving actual malice is placed on the plaintiff- appellee who
must convince the Court that the offender was prompted by malice or ill will. Once this is
accomplished, the defense of privilege is unavailing. (Nanerico D. Santos v. The Court of Appeals, Et
Al., 203 SCRA 110, 114.) Our ruling is buttressed by the fact that no proof has been adduced to
show that the subject Memorandum was released to persons other than the officials concerned. . . .
10

Malice exists when there is an intentional doing of a wrongful act without just cause. An imputation is
legally malicious if done without any reason that would justify a normally conscientious man in so
making the imputation. 11 While the law presumes every defamatory imputation to be malicious,
there are exceptions to this rule. The record indicates that this case falls under the settled exceptions
to the rule: the private respondent’s inter-office memorandum falls within the ambit of privileged
communication rule.

A privileged communication is one made bona fide upon any subject matter in which the party
communicating has an interest, or in reference to which he has a duty. 12 Discussing the scope of
this rule, former Chief Justice Fernando, in Mercado v. CFI of Rizal, 13 explained that: chanrob1es virtual 1aw library

. . . Even when the statements are found to be false, if there is probable cause for belief in their
truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake
of the individual. But the statements must be made under an honest sense of duty;. . . .

In the instant case, it is well-worth stressing that the private respondent was, as the District Sales
Supervisor of the corporation’s Dipolog office, the immediate supervisor of petitioner. In this
capacity, respondent was charged with the duty to carry out and enforce company rules and policies,
including the duty to undertake initial investigation of possible irregularities in customer accounts in
order to suggest further action which could be taken by the company. In fact, the communications
initially submitted by the private respondent to his superiors prompted the investigation which
eventually led to petitioner’s preventive suspension and to the decision by the company’s proper
officers to terminate the latter’s employment. In making his earlier recommendation, the private
respondent relied on the affidavits submitted by at least three of the company’s clients (all attesting
to irregularities) 14 and his initial though yet-unsubstantiated findings that respondent was an "avid
mahjong player and a cockfight enthusiast." That the affidavits were subsequently found to have
been gathered by the private respondent himself did not diminish their quality. Investigation
necessarily includes the gathering and solicitation of information.

Even granting that the questioned memorandum — particularly the above quoted paragraph —
contains statements which could be slanderous and therefore actionable were they not protected by
121

the rule on privileged communications, still as no malice was shown, we agree with the respondent
court’s conclusion that the assailed memorandum report was an official act done in good faith, an
honest innocent statement arising from a moral and legal obligation which the private respondent
certainly owed to the company in the performance of his duties. The opinion which the private
respondent expressed in the discharge of his duty might have skirted the boundary which usually
separates innocent opinion from actionable defamation. Paradoxically, however, if he did not hazard
the warning, though it might have subsequently turned out to be a reckless one, he would have been
remiss in his responsibilities to the company. The rule on privileged communications allows the
latitude of expression embodied in the private respondent’s second memorandum.

WHEREFORE, there being no reversible error in the decision sought to be reviewed, the petition is
hereby DENIED.

SO ORDERED.
122
123

JOSE MANUEL LEZAMA & PAQUITA LEZAMA, Petitioners, vs HON. JESUS RODRIGUEZ, JUDGE OF THE
COURT OF FIRST INSTANCE OF ILOILO, JOSE DINEROS, IN HIS CAPACITY AS RECEIVER OF THE LA
PAZ ICE PLANT & COLD STORAGE CO., INC., & AND THE HON. COURT OF APPEALS, Respondents 23
SCRA 1166 (1968)

FACTS: La Paz Ice Plant Inc. located in Iloilo was led by its President, Jose Manuel Lezama. Unfortunately the
Ice plant was going bankrupt and so the company was placed under receivership under Jose Dineros. A
collection for sum of money was filed by Marciano Roque in the CFI of Manila being a resident thereof, he
supposedly had lent to the company the amount of P150, 000. Jose Dineros who was the acting as the
receiver of the La Paz Ice plant after receiving an unfavorable judgement in the CFI of Manila upon the
collection case, filed an action in the CFI of Iloilo for the annulment of the judgment of the CFI of Manila. In the
filed action, he named Marciano Roque and the spouses Jose Manuel and Paquita Lezama as defendants
alleging that because of the mismanagement of the Lezamas, the La Paz Ice Plant was placed under
receivership and that through the collusion of the Lezamas, Roque had obtained a favorable decision against
the company. He also contend that the summons by the CFI of Manila was served not on him who is the
receiver but on the spouses Lezama‘s, therefore the CFI of Manila acquired no jurisdiction of the case and the
decision being void. Spouses Lezama, while admitting that the company was placed under receivership, they
maintained that Jose Lezama nevertheless remained President even while on receivership and as such he had
the authority to receive court summons in behalf of the company and he denied entering into collusion with
Roque and averred that the reason they never contested Roque’s claim because they knew it to be legitimate
pursuant to a board of director’s resolution. Dineros then asked the court to subpoena testificandum Paquita
Lezama who was the wife of Jose Manuel Lezama to testify as a hostile witness. The request was granted by
the court over the objection of the petitioners invoking the Marital Disqualification Rule. ISSUE: Whether or not
a wife who is a co-defendant of her husband in an action, may be examined as a hostile witness by the
adverse party without infringing on her marital privilege not to testify against her husband. RULING: No. She
may not be examined as a hostile witness. The Supreme court said that the Marital Disqualification Rule is two
edged. 1) the disqualification of husband and wife to testify in each other’s behalf and 2) As well as the
privilege not to testify against each other.
_____________________________________________________________________________________
DISQUALIFICATION BY REASON OF MARRIAGE (SPOUSAL IMMUNITY) • During their marriage, neither
the husband nor the wife may testify for or against the other without the consent of the affected spouse, except
in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or
the latter's direct descendants or ascendants. • The spouses must be legally married to each other to invoke
the benefit of the rule; it does not cover an illicit relationship. When the marriage is dissolved on the grounds
provided for by law like annulment or declaration of nullity, the rule can no longer be invoked. A spouse can
already testify against the other despite an objection being interposed by the affected spouse. If the testimony
for or against the other spouse is offered during the existence of the marriage, it does not matter if the facts
subject of the testimony occurred before the marriage. It only matters that the affected spouse objects to the
offer of testimony. • The testimony covered by the marital disqualification rule not only consists of utterances
but also the production of documents.
124

[G.R. NO. 143439 October 14, 2005]

MAXIMO ALVAREZ, Petitioner, v. SUSAN RAMIREZ, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a Petition for Review on Certiorari 1 assailing the Decision2 of the Court of Appeals dated
May 31, 2000 in CA-G.R. SP No. 56154, entitled "Susan Ramirez, Petitioner, versus, Hon. Benjamin
M. Aquino, Jr., as Judge RTC, Malabon, MM, Br. 72, and Maximo Alvarez, Respondents."

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

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

Esperanza testified as follows:

"ATTY. ALCANTARA:

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

COURT:

Swear in the witness.

xxx

ATTY. MESIAH: (sic)

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

COURT:

You may proceed.

xxx

DIRECT EXAMINATION

ATTY. ALCANTARA:

xxx

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

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

Q: For the record, Mrs. Witness, can you state the name of that person, if you know? cralawlibrary
125

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

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

A: Yes, sir.

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

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

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

On June 30, 1999, petitioner, through counsel, filed a motion 5 to disqualify Esperanza from testifying
against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification.

Respondent filed an opposition6 to the motion. Pending resolution of the motion, the trial court
directed the prosecution to proceed with the presentation of the other witnesses.

On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez
from further testifying and deleting her testimony from the records. 7 The prosecution filed a motion
for reconsideration but was denied in the other assailed Order dated October 19, 1999. 8

This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933-MN,
to file with the Court of Appeals a Petition for Certiorari9 with application for preliminary injunction
and temporary restraining order.10

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

Hence, this Petition for Review on Certiorari .

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

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

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

The reasons given for the rule are:

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

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

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

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

But like all other general rules, the marital disqualification rule has its own exceptions, both in civil
actions between the spouses and in criminal cases for offenses committed by one against the other.
Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases,
outweigh those in support of the general rule. For instance, where the marital and domestic relations
are so strained that there is no more harmony to be preserved nor peace and tranquility which may
be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of
interests disappears and the consequent danger of perjury based on that identity is non-existent.
Likewise, in such a situation, the security and confidences of private life, which the law aims at
126

protecting, will be nothing but ideals, which through their absence, merely leave a void in the
unhappy home.12

In Ordoño v. Daquigan,13 this Court held:

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

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

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

As correctly observed by the Court of Appeals:

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

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

At this point, it bears emphasis that the State, being interested in laying the truth before the courts
so that the guilty may be punished and the innocent exonerated, must have the right to offer the
direct testimony of Esperanza, even against the objection of the accused, because (as stated by this
Court in Francisco14), "it was the latter himself who gave rise to its necessity."

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court, RTC, Branch 72,
Malabon City, is ordered to allow Esperanza Alvarez to testify against petitioner, her husband, in
Criminal Case No. 19933-MN. Costs against petitioner.

SO ORDERED.
127

ALVAREZ vs. RAMIREZ

GR No.143439

October 14, 2005

FACTS:

Respondent Susan Ramirez was the complaining witness in a criminal case or arson pending before the RTC.
The accused was petitioner Maximo Alvarez, stranged husband of Esperanza Alvarez, sister of respondent. On
June 21, 1999, Esperanza Alvarez was called to the witness stand as the first witness against petitioner, her
husband. Petitioner filed a motion to disqualify Esperanza from testifying against him pursuant to Rule 130 of
the Revised Rules of Court on marital disqualification.

Respondent filed an opposition to the motion. Pending resolution of the motion, the trial court directed the
prosecution to proceed with the presentation of the other witnesses. On September 2, 1999, the trial court
issued the questioned Order disqualifying Esperanza Alvarez from further testifying and deleting her testimony
from the records. The prosecution filed a motion for reconsideration but was denied in the other assailed
Order dated October 19, 1999. This prompted respondent to file with the Court of Appeals a petition for
certiorari with application for preliminary injunction and temporary restraining order. On May 31, 2000, the
Appellate Court rendered a Decision nullifying and setting aside the assailed Orders issued by the trial court.
Hence, this petition for review on certiorari.

ISSUE: Whether or not Esperanza can testify over the objection of her estranged husband on the ground of
marital privilege.

HELD:

Yes, Esperanza may testify over the objection of her husband. The disqualification of a witness by reason of
marriage under Sec. 22, Rule 130 of the Revised Rules of Court has its exceptions as where the marital
relations are so strained that there is no more harmony to be preserved. The acts of the petitioner stamp out
all major aspects of marital life. On the other hand, the State has an interest in punishing the guilty and
exonerating the innocent, and must have the right to offer the testimony of Esperanza over the objection of
her husband.
128

A.C. No. 4078            July 14, 2003

WILLIAM ONG GENATO, complainant,

vs.
ATTY. ESSEX L. SILAPAN, respondent.

PUNO, J.:

In this complaint for disbarment filed by William Ong Genato against respondent Atty. Essex L. Silapan, complainant
alleged that in July 1992, respondent asked if he could rent a small office space in complainant's building in Quezon
City for his law practice. Complainant acceded and introduced respondent to Atty. Benjamin Dacanay, complainant's
retained lawyer, who accommodated respondent in the building and made him handle some of complainant's cases.
Hence, the start of the legal relationship between complainant and respondent.

The conflict between the parties started when respondent borrowed two hundred thousand pesos (P200,000.00)
from complainant which he intended to use as downpayment for the purchase of a new car. In return, respondent
issued to complainant a postdated check in the amount of P176,528.00 to answer for the six (6) months interest on
the loan. He likewise mortgaged to complainant his house and lot in Quezon City but did not surrender its title
claiming that it was the subject of reconstitution proceedings before the Quezon City Register of Deeds.

With the money borrowed from complainant, respondent purchased a new car. However, the document of sale of
the car was issued in complainant's name and financed through City Trust Company.

In January 1993, respondent introduced to complainant a certain Emmanuel Romero. Romero likewise wanted to
borrow money from complainant. Complainant lent Romero the money and, from this transaction, respondent
earned commission in the amount of P52,289.90. Complainant used the commission to pay respondent's arrears
with the car financing firm.

Subsequently, respondent failed to pay the amortization on the car and the financing firm sent demand letters to
complainant. Complainant tried to encash respondent's postdated check with the drawee bank but it was dishonored
as respondent's account therein was already closed.

Respondent failed to heed complainant's repeated demands for payment. Complainant then filed a criminal case
against respondent for violation of Batas Pambansa Blg. 22 and a civil case for judicial foreclosure of real estate
mortgage.

In the foreclosure case, respondent made the following allegation in his Answer:

x x x           x x x           x x x

4. That complainant is a businessman who is engaged in the real estate business, trading and buy and sell
of deficiency taxed imported cars, shark loans and other shady deals and has many cases pending in court;

x x x           x x x           x x x

Complainant denied respondent's charges and claimed that respondent's allegation is libelous and not
privilege as it was irrelevant to the foreclosure case. Complainant further pointed to paragraph 12 of
respondent's Answer, thus:

12. That on January 29, 1993, before paying for the next installment on his car on January 30, 1993,
defendant Essex L. Silapan asked the complainant to execute a Deed of Sale transferring ownership of the
car to him but the latter said that he will only do so after the termination of his criminal case at Branch 138 of
the Regional Trial Court of Makati, Metro Manila, x x x where he (complainant) wanted Essex L. Silapan, his
former counsel in that case, to offer bribe money to the members of the review committee of the Department
of Justice where a petition for review of the resolution of the Investigating Prosecutor was pending at the
time, x x x or, in the event that the said petition for review is denied, he wanted Essex L. Silapan to offer
bribe money to the prosecutor assigned at the above-mentioned Court, and even to the presiding Judge, for
his eventual acquittal, which defendant Essex L. Silapan all refused to do not only because such acts are
immoral and illegal, but also because the complainant confided to him that he was really involved in the
commission of the crime that was charged of in the above-mentioned case. (emphasis supplied)

Complainant gripes that the foregoing allegations are false, immaterial to the foreclosure case and maliciously
designed to defame him. He charged that in making such allegations, respondent is guilty of breaking their
confidential lawyer-client relationship and should be held administratively liable therefor. Consequently, he filed this
complaint for disbarment, praying also that an administrative sanction be meted against respondent for his issuance
of a bouncing check.
129

When required by the Court to comment, respondent explained 1 that it was complainant who offered him an office
space in his building and retained him as counsel as the latter was impressed with the way he handled a B.P. 22
case2 filed against complainant. Respondent insisted that there was nothing libelous in his imputations of dishonest
business practices to complainant and his revelation of complainant's desire to bribe government officials in relation
to his pending criminal case. He claimed to have made these statements in the course of judicial proceedings to
defend his case and discredit complainant's credibility by establishing his criminal propensity to commit fraud, tell
lies and violate laws. He argued that he is not guilty of breaking his confidential lawyer-client relationship with
complainant as he made the disclosure in defense of his honor and reputation.

Secondly, respondent asserted that he executed the real estate mortgage in favor of complainant without
consideration and only as a "formal requirement" so he could obtain the P200,000.00 loan and for this reason, he
did not surrender his title over the mortgaged property to complainant.

Thirdly, respondent claimed that he issued the postdated check, not for account or for value, but only: (a) to serve
as "some kind of acknowledgment" that he already received in advance a portion of his attorney's fees from the
complainant for the legal services he rendered, and (b) as a form of assurance that he will not abandon the cases
he was handling for complainant.

Lastly, respondent denied that he received a P52,289.90 commission from Romero's loan which he allegedly helped
facilitate. He alleged that the amount was paid to him by Romero as attorney's fees, the latter being his client. He
used this amount to pay his arrears with the car financing firm. On January 29, 1993, before paying the next
amortization on the car, he asked complainant to execute a deed of sale transferring ownership of the car to him.
Complainant refused and insisted that he would transfer ownership of the car only after the termination of his
criminal case which respondent was handling as his defense lawyer. Consequently, respondent stopped paying the
amortization on the car. Respondent also alleged that he filed a perjury case against complainant who, in turn, filed
a complaint for libel against him.

In a Resolution, dated October 27, 1993, the Court referred the administrative case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.

On August 3, 2002, the Board of Governors of the IBP approved the report of the investigating commissioner finding
the respondent guilty as charged and recommending his suspension from the practice of law for one (1) year.

We affirm the findings and recommendation of the IBP.

Prefatorily, we stress that we shall not delve into the merits of the various criminal and civil cases pending between
the parties. It is for the trial courts handling these cases to ascertain the truth or falsity of the allegations made
therein. For this reason, it is not for us to sanction respondent for his issuance of a bouncing check. His liability has
yet to be determined by the trial court where his case is pending.

The only issue in this administrative case is whether respondent committed a breach of trust and confidence by
imputing to complainant illegal practices and disclosing complainant's alleged intention to bribe government officials
in connection with a pending case.

Canon 17 of the Code of Professional Responsibility provides that a lawyer owes fidelity to the cause of his client
and shall be mindful of the trust and confidence reposed on him. The long-established rule is that an attorney is not
permitted to disclose communications made to him in his professional character by a client, unless the latter
consents. This obligation to preserve the confidences and secrets of a client arises at the inception of their
relationship.3 The protection given to the client is perpetual and does not cease with the termination of the litigation,
nor is it affected by the party's ceasing to employ the attorney and retaining another, or by any other change of
relation between them. It even survives the death of the client. 4

It must be stressed, however, that the privilege against disclosure of confidential communications or information is
limited only to communications which are legitimately and properly within the scope of a lawful employment of a
lawyer. It does not extend to those made in contemplation of a crime or perpetration of a fraud. 5 If the unlawful
purpose is avowed, as in this case, the complainant's alleged intention to bribe government officials in relation to his
case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is
not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for
hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense.

Be that as it may, respondent's explanation that it was necessary for him to make the disclosures in his pleadings
fails to satisfy us. The disclosures were not indispensable to protect his rights as they were not pertinent to the
foreclosure case. It was improper for the respondent to use it against the complainant in the foreclosure case as it
was not the subject matter of litigation therein and respondent's professional competence and legal advice were not
being attacked in said case. A lawyer must conduct himself, especially in his dealings with his clients, with integrity
in a manner that is beyond reproach. His relationship with his clients should be characterized by the highest degree
of good faith and fairness.
130

Thus, the Court agrees with the evaluation of the IBP and finds that respondent's allegations and disclosures in the
foreclosure case amount to a breach of fidelity sufficient to warrant the imposition of disciplinary sanction against
him. However, the recommended penalty of one (1) year suspension of respondent from the practice of law seems
to be disproportionate to his breach of duty considering that a review of the records of this Court reveals that this is
the first administrative complaint against him.

IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered suspended from the practice of law for a period
of six (6) months effective upon receipt of this Decision. Let a copy of this Decision be furnished the Office of the Bar
Confidant and the Integrated Bar of the Philippines. The Court Administrator is directed to circulate this order of
suspension to all courts in the country.

SO ORDERED.

Panganiban, Corona, and Carpio-Morales, JJ., concur.

Sandoval-Gutierrez, J., on official leave.

[G.R. No. 91114. September 25, 1992.]

NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON. MANUEL D. VICTORIO, as

131

Presiding Judge of RTC-Rosales, Pangasinan, Branch 53, and JUAN SIM, Respondents.

Quisumbing, Torres & Evangelista for Petitioner.

Bince, Oficiana & Dancel for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT

PRIVILEGE; RATIONAL BEHIND THE RULE. — This rule on the physician-patient privilege is intended
to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts,
circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for
the general interest of the community.

2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. — Since the object of the privilege is to protect the
patient, it may be waived if no timely objection is made to the physician’s testimony.

3. ID.; ID.; ID.; ID.; ID.; REQUISITES. — In order that the privilege may be successfully claimed,
the following requisites must concur: "1. the privilege is claimed in a civil case; 2. the person against
whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; 3.
such person acquired the information while he was attending to the patient in his professional
capacity; 4. the information was necessary to enable him to act in that capacity; and 5. the
information was confidential, and, if disclosed, would blacken the reputation (formerly character) of
the patient."cralaw virtua1aw library

4. ID.; ID.; ID.; ID.; CONDITIONS. — These requisites conform with the four (4) fundamental
conditions necessary for the establishment of a privilege against the disclosure of certain
communications, to wit: "1. The communications must originate in a confidence that they will not be
disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance
of the relation between the parties. 3. The relation must be one which in the opinion of the
community ought to be sedulously fostered 4. The injury that would inure to the relation by the
disclosure of the communications must be greater than the benefit thereby gained for the correct
disposal of litigation." cralaw virtua1aw library

5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. — The physician may be considered to
be acting in his professional capacity when he attends to the patient for curative, preventive, or
palliative treatment. Thus, only disclosures which would have been made to the physician to enable
him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized
that "it is the tenor only of the communication that is privileged. The mere fact of making a
communication, as well as the date of a consultation and the number of consultations, are therefore
not privileged from disclosure, so long as the subject communicated is not stated." cralaw virtua1aw library

6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO CLAIMS PRIVILEGED
COMMUNICATIONS MUST PROVE REQUISITES THEREOF. — One who claims this privilege must prove
the presence of these aforementioned requisites.

7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; INFORMATION

GATHERED IN PRESENCE OF THIRD PARTIES, NOT PRIVILEGED. — There is authority to the effect
that information elicited during consultation with a physician in the presence of third parties removes
such information from the mantle of the privilege: "Some courts have held that the casual presence
of a third person destroys the confidential nature of the communication between doctor and patient
and thus destroys the privilege, and that under such circumstances the doctor may testify. Other
courts have reached a contrary result." cralaw virtua1aw library

8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. — while it may be true that
counsel for the petitioner opposed the oral request for the issuance of a subpoena ad testificandum
to Dr. Acampado and filed a formal motion for the quashal of the said subpoena a day before the
witness was to testify, the petitioner makes no claim in any of her pleadings that her counsel had
objected to any question asked of the witness on the ground that it elicited an answer that would
violate the privilege, despite the trial court’s advise that said counsel may interpose his objection to
the testimony "once it becomes apparent that the testimony, sought to be elicited is covered by the
132

privileged communication rule." The particular portions of the stenographic notes of the testimony of
Dr. Acampado quoted in the petitioner’s Petition and Memorandum, and in the private respondent’s
Memorandum, do not at all show that any objections were interposed. Even granting ex gratia that
the testimony of Dr. Acampado could be covered by the privilege, the failure to seasonably object
thereto amounted to a waiver thereof.

DECISION

DAVIDE, JR., J.:

This petition brings into focus the rule on the confidentiality of the physician-patient relationship.
Petitioner urges this Court to strike down as being violative thereof the resolution of public
respondent Court of Appeals in C.A.-G.R. SP No. 16991 denying due course to a petition to annul the
order of the trial court allowing a Psychiatrist of the National Mental Hospital to testify as an expert
witness and not as an attending physician of petitioner.

The parties are in agreement as to the following facts: chanrob1es virtual 1aw library

Petitioner and private respondent are lawfully married to each other.

On 25 November 1987, private respondent filed with Branch 53 of the Regional Trial Court (RTC) of
Pangasinan a petition for annulment of such marriage on the ground that petitioner has been
allegedly suffering from a mental illness called schizophrenia "before, during and after the marriage
and until the present." After the issues were joined and the pre-trial was terminated, trial on the
merits ensued. Private respondent presented three (3) witnesses before taking the witness stand
himself to testify on his own behalf. On 11 January 1989, private respondent’s counsel announced
that he would present as his next witness the Chief of the Female Services of the National Mental
Hospital, Dr. Lydia Acampado, a Doctor of Medicine who specializes in Psychiatry. Said counsel
forthwith orally applied for the issuance of a subpoena ad testificandum requiring Dr. Acampado to
testify on 25 January 1989. Petitioner’s counsel opposed the motion on the ground that the
testimony sought to be elicited from the witness is privileged since the latter had examined the
petitioner in a professional capacity and had diagnosed her to be suffering from schizophrenia. Over
such opposition, the subpoena was issued on 12 January 1989. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On 24 January 1989, petitioner’s counsel filed an urgent omnibus motion to quash the subpoena and
suspend the proceedings pending resolution of the motion.

Before Dr. Acampado took the witness stand on 25 January 1989, the court heard this urgent
motion. Movant argued that having seen and examined the petitioner in a professional capacity, Dr.
Acampado is barred from testifying under the rule on the confidentiality of a physician-patient
relationship. Counsel for private respondent contended, however, that Dr. Acampado would be
presented as an expert witness and would not testify on any information acquired while attending to
the petitioner in a professional capacity. The trial court, per respondent Judge, denied the motion and
allowed the witness to testify. Dr. Acampado thus took the witness stand, was qualified by counsel
for private respondent as an expert witness and was asked hypothetical questions related to her field
of expertise. She neither revealed the illness she examined and treated the petitioner for nor
disclosed the results of her examination and the medicines she had prescribed.

Since petitioner’s counsel insisted that the ruling of the court on the motion be reduced to writing,
respondent Judge issued the following Order on the same date: jgc:chanrobles.com.ph

"In his omnibus motion filed with the Court only yesterday, January 24, 1989, petitioner seeks to
prevent Dr. Lydia Acampado from testifying because she saw and examined respondent Nelly Lim in
her professional capacity perforce her testimony is covered by the privileged (sic) communication
rule.

Petitioner contends that Dr. Acampado is being presented as an expert witness and that she will not
testify on any information she acquired in (sic) attending to Nelly Lim in her professional capacity.

Based on the foregoing manifestation of counsel for petitioner, the Court denied the respondent’s
motion and forthwith allowed Dr. Acampado to testify. However, the Court advised counsel for
133

respondent to interpose his objection once it becomes apparent that the testimony sought to be
elicited is covered by the privileged communication rule.

On the witness box, Dr. Acampado answered routinary (sic) questions to qualify her as an expert in
psychiatry; she was asked to render an opinion as to what kind of illness (sic) are stelazine tablets
applied to; she was asked to render an opinion on a (sic) hypothetical facts respecting certain
behaviours of a person; and finally she admitted she saw and treated Nelly Lim but she never
revealed what illness she examined and treated her (sic); nor (sic) the result of her examination of
Nelly Lim, nor (sic) the medicines she prescribed.

WHEREFORE, the omnibus motion dated January 19, 1989 is hereby DENIED." 1

On 3 March 1989, petitioner filed with the public respondent Court of Appeals a petition 2
for certiorari and prohibition, docketed therein as C.A.-G.R. SP No. 16991, to annul the aforesaid
order of respondent Judge on the ground that the same was issued with grave abuse of discretion
amounting to lack of jurisdiction, and to prohibit him from proceeding with the reception of Dr.
Acampado’s testimony. chanrobles.com : virtual law library

On 18 September 1989, the Court of Appeals promulgated a resolution 3 denying due course to the
petition on the ground that "the petitioner failed in establishing the confidential nature of the
testimony given by or obtained from Dr. Acampado when she testified on January 25, 1989." Hence,
the respondent Judge committed no grave abuse of discretion. In support thereof, the respondent
Court discussed the conditions which would render as inadmissible testimonial evidence between a
physician and his patient under paragraph (c), Section 24, Rule 130 of the Revised Rules of Court
and made the following findings: jgc:chanrobles.com.ph

"The present suit is a civil case for annulment of marriage and the person whose testimony is sought
to be stopped as a privileged communication is a physician, who was summoned by the patient in her
professional capacity for curative remedy or treatment. The divergence in views is whether the
information given by the physician in her testimony in open court on January 25, 1989 was a
privileged communication. We are of the opinion that they do not fall within the realm of a privileged
communication because the information were (sic) not obtained from the patient while attending her
in her professional capacity and neither were (sic) the information necessary to enable the physician
to prescribe or give treatment to the patient Nelly Lim. And neither does the information obtained
from the physician tend to blacken the character of the patient or bring disgrace to her or invite
reproach. Dr. Acampado is a Medical Specialist II and in-charge (sic) of the Female Service of the
National Center for Mental Health a fellow of the Philippine Psychiatrist Association and a Diplomate
of the Philippine Board of Psychiatrists. She was summoned to testify as an expert witness and not as
an attending physician of petitioner.

After a careful scrutiny of the transcript of Dr. Acampado’s testimony, We find no declaration that
touched (sic) or disclosed any information which she has acquired from her patient, Nelly Lim, during
the period she attended her patient in a professional capacity. Although she testified that she
examined and interviewed the patient, she did not disclose anything she obtained in the course of
her examination, interview and treatment of her patient. Given a set of facts and asked a
hypothetical question, Dr. Acampado rendered an opinion regarding the history and behaviour of the
fictitious character in the hypothetical problem. The facts and conditions alleged in the hypothetical
problem did not refer and (sic) had no bearing to (sic) whatever information or findings the doctor
obtained from attending the (sic) patient. A physician is not disqualified to testify as an expert
concerning a patient’s ailment, when he can disregard knowledge acquired in attending such patient
and make answer solely on facts related in (sic) the hypothetical question. (Butler v. Role, 242 Pac.
436; Supreme Court of Arizona Jan. 7, 1926). Expert testimony of a physician based on hypothetical
question (sic) as to cause of illness of a person whom he has attended is not privileged, provided the
physician does not give testimony tending to disclose confidential information related to him in his
professional capacity while attending to the patient. (Crago v. City of Cedar Rapids, 98 NW 354, see
Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).

The rule on privilege (sic) communication in the relation of physician and patient proceeds from the
fundamental assumption that the communication to deserve protection must be confidential in their
origin. Confidentiality is not to be blindly implied from the mere relation of physician and patient. It
might be implied according to circumstances of each case, taking into consideration the nature of the
ailment and the occasion of the consultation. The claimant of the privilege has the burden of
establishing in each instance all the facts necessary to create the privilege, including the confidential
nature of the information given." 4
134

Her motion to reconsider the resolution having been denied, petitioner took this recourse under Rule
45 of the Rules of Court. In her view, the respondent Court of Appeals "seriously erred" : chanrob1es virtual 1aw library

"I.

. . . in not finding that all the essential elements of the rule on physician-patient privileged
communication under Section 21, Rule 130 of the Rules of Court (Section 24, Rule 130 of the Revised
Rules of Evidence) exist in the case at bar.

II.

. . . in believing that Dr. Acampado ‘was summoned as an expert witness and not as an attending
physician of petitioner.’

III.

. . . in concluding that Dr. Acampado made ‘no declaration that touched (sic) or disclosed any
information which she has acquired from her patient, Nelly Lim, during the period she attended her
patient in a professional capacity.’

IV.

. . . in declaring that ‘the petitioner failed in establishing the confidential nature of the testimony
given by or obtained from Dr. Acampado.’" 5

We gave due course to the petition and required the parties to submit their respective Memoranda 6
after the private respondent filed his Comment 7 and the petitioner submitted her reply 8 thereto.
The parties subsequently filed their separate Memoranda.

The petition is devoid of any merit. Respondent Court of Appeals committed no reversible error in its
challenged resolution.

The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence which reads: jgc:chanrobles.com.ph

"SECTION 24. Disqualification by reason of privileged communication. — The following persons

cannot testify as to matters learned in confidence in the following cases: chanrob1es virtual 1aw library

x          x           x

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

This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of Court with
two (2) modifications, namely: (a) the inclusion of the phrase "advice or treatment given by him,"
and (b) substitution of the word reputation for the word character. Said Section 21 in turn is a
reproduction of paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court with a modification
consisting in the change of the phrase "which would tend to blacken" in the latter to "would blacken."
9 Verily, these changes affected the meaning of the provision. Under the 1940 Rules of Court, it was
sufficient if the information would tend to blacken the character of the patient. In the 1964 Rules of
Court, a stricter requirement was imposed; it was imperative that the information would blacken
such character. With the advent of the Revised Rules on Evidence on 1 July 1989, the rule was
relaxed once more by the substitution of the word character with the word reputation. There is a
distinction between these two concepts." ‘Character’ is what a man is, and ‘reputation’ is what he is
supposed to be in what people say he is.’Character’ depends on attributes possessed, and
‘reputation’ on attributes which others believe one to possess. The former signifies reality and the
latter merely what is accepted to be reality at present." 10

This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential
135

disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the witness stand, to
the end that the physician may form a correct opinion, and be enabled safely and efficaciously to
treat his patient. 11 It rests in public policy and is for the general interest of the community. 12

Since the object of the privilege is to protect the patient, it may be waived if no timely objection is
made to the physician’s testimony. 13

In order that the privilege may be successfully claimed, the following requisites must concur: jgc:chanrobles.com.ph

"1. the privilege is claimed in a civil case;

2. the person against whom the privilege is claimed is one duly authorized to practice medicine,
surgery or obstetrics;

3. such person acquired the information while he was attending to the patient in his professional
capacity;

4. the information was necessary to enable him to act in that capacity; and

5. the information was confidential, and, if disclosed, would blacken the reputation (formerly
character) of the patient." 14

These requisites conform with the four (4) fundamental conditions necessary for the establishment of
a privilege against the disclosure of certain communications, to wit: jgc:chanrobles.com.ph

"1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the
relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered

4. The injury that would inure to the relation by the disclosure of the communications must be
greater than the benefit thereby gained for the correct disposal of litigation." 15

The physician may be considered to be acting in his professional capacity when he attends to the
patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have
been made to the physician to enable him "safely and efficaciously to treat his patient" are covered
by the privilege. 16 It is to be emphasized that "it is the tenor only of the communication that is
privileged. The mere fact of making a communication, as well as the date of a consultation and the
number of consultations, are therefore not privileged from disclosure, so long as the subject
communicated is not stated." 17

One who claims this privilege must prove the presence of these aforementioned requisites. 18

Our careful evaluation of the submitted pleadings leads Us to no other course of action but to agree
with the respondent Court’s observation that the petitioner failed to discharge that burden. In the
first place, Dr. Acampado was presented and qualified as an expert witness. As correctly held by the
Court of Appeals, she did not disclose anything obtained in the course of her examination, interview
and treatment of the petitioner; moreover, the facts and conditions alleged in the hypothetical
problem did not refer to and had no bearing on whatever information or findings the doctor obtained
while attending to the patient. There is, as well, no showing that Dr. Acampado’s answers to the
questions propounded to her relating to the hypothetical problem were influenced by the information
obtained from the petitioner. Otherwise stated, her expert opinion excluded whatever information or
knowledge she had about the petitioner which was acquired by reason of the physician-patient
relationship existing between them. As an expert witness, her testimony before the trial court cannot
then be excluded. The rule on this point is summarized as follows: chanrobles virtual lawlibrary

"The predominating view, with some scant authority otherwise, is that the statutory physician-patient
privilege, though duly claimed, is not violated by permitting a physician to give expert opinion
testimony in response to a strictly hypothetical question in a lawsuit involving the physical mental
condition of a patient whom he has attended professionally, where his opinion is based strictly upon
the hypothetical facts stated, excluding and disregarding any personal professional knowledge he
may have concerning such patient. But in order to avoid the bar of the physician-patient privilege
136

where it is asserted in such a case, the physician must base his opinion solely upon the facts
hypothesized in the question, excluding from consideration his personal knowledge of the patient
acquired through the physician and patient relationship. If he cannot or does not exclude from
consideration his personal professional knowledge of the patient’s condition he should not be
permitted to testify as to his expert opinion." 19

Secondly, it is quite clear from Dr. Acampado’s testimony that the petitioner was never interviewed
alone. Said interviews were always conducted in the presence of a third party, thus: jgc:chanrobles.com.ph

"Q I am asking you, doctor, whom did you interview?

A I interviewed the husband first, then the father and after having the history, I interviewed the
patient, Nelly.

Q How many times did Juan Sim and Nelly Lim go to your office?

A Now, the two (2) of them came three (3) times. As I have stated before, once in the month of April
of 1987 and two (2) times for the month of June 1987, and after that, since July of 1987, it was the
father of Nelly, Dr. Lim, who was bringing Nelly to me until November of 1987.

Q Now, Dr. Lim is a fellow physician?

A Yes, I understand.

Q Was there anything that he told you when he visited with you in a clinic?

A I would say that there was none. Even if I asked information about Nelly, I could not get anything
from Dr. Lim.

Q Now, when Dr. Lim and his daughter went to your clinic, was there any doctor who was also
present during that interview?

A No, sir, I don’t remember any." 20

There is authority to the effect that information elicited during consultation with a physician in the
presence of third parties removes such information from the mantle of the privilege: jgc:chanrobles.com.ph

"Some courts have held that the casual presence of a third person destroys the confidential nature of
the communication between doctor and patient and thus destroys the privilege, and that under such
circumstances the doctor may testify. Other courts have reached a contrary result." 21

Thirdly, except for the petitioner’s sweeping claim — that" (T)he information given by Dr. Acampado
brings disgrace and invite (sic) reproach to petitioner by falsely making it appear in the eyes of the
trial court and the public that the latter was suffering from a mental disturbance called schizophrenia
— which caused, and continues to cause, irreparable injury to the name and reputation of petitioner
and her family," 22 — which is based on a wrong premise, nothing specific or concrete was offered to
show that indeed, the information obtained from Dr. Acampado would blacken the former’s
"character" (or "reputation"). Dr. Acampado never disclosed any information obtained from the
petitioner regarding the latter’s ailment and the treatment recommended therefor. chanrobles.com : virtual law library

Finally, while it may be true that counsel for the petitioner opposed the oral request for the issuance
of a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the quashal of the said
subpoena a day before the witness was to testify, the petitioner makes no claim in any of her
pleadings that her counsel had objected to any question asked of the witness on the ground that it
elicited an answer that would violate the privilege, despite the trial court’s advise that said counsel
may interpose his objection to the testimony "once it becomes apparent that the testimony, sought
to be elicited is covered by the privileged communication rule." The particular portions of the
stenographic notes of the testimony of Dr. Acampado quoted in the petitioner’s Petition 23 and
Memorandum, 24 and in the private respondent’s Memorandum, 25 do not at all show that any
objections were interposed. Even granting ex gratia that the testimony of Dr. Acampado could be
covered by the privilege, the failure to seasonably object thereto amounted to a waiver thereof.

WHEREFORE, the instant petition is DENIED for lack of merit.

Costs against petitioner.

137

SO ORDERED.

[G.R. No. 108854. June 14, 1994.]

MA. PAZ FERNANDEZ KROHN, Petitioner, v. COURT OF APPEALS and EDGAR KROHN,

JR., Respondents.

SYLLABUS
138

1. REMEDIAL LAW; EVIDENCE; PRIVILEGED COMMUNICATION; PHYSICIAN-PATIENT PRIVILEGE;

PURPOSE. — statutes making communications between physician and patient privileged are intended
to inspire confidence in the patient and encourage him to make a full disclosure to his physician of his
symptoms and condition. Consequently, this prevents the physician from making public information
that will result in humiliation, embarrassment, or disgrace to the patient. For, the patient should rest
assured with the knowledge that the law recognizes the communication as confidential, and guards
against the possibility of his feelings being shocked or his reputation tarnished by their subsequent
disclosure. The physician-patient privilege creates a zone of privacy, intended to preclude the
humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain types of
information communicated in the context of the physician-patient relationship fall within the
constitutionally protected zone of privacy, including a patient’s interest in keeping his mental health
records confidential. Thus, it has been observed that the psychotherapist-patient privilege is founded
upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in
need of treatment for emotional problems to secure the services of a psychotherapist.

2. ID.; ID.; ID.; ID.; REQUISITES; NOT COMPLIED WITH IN CASE AT BAR. — Lim v. Court of Appeals
(214 SCRA 273 [1992]) clearly lays down the requisites in order that the privilege may be
successfully invoked: (a) the privilege is claimed in a civil cases; (b) the person against whom the
privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person
acquired the information while he was attending to the patient in his professional capacity; (d) the
information was necessary to enable him to act in that capacity; and, (e) the information was
confidential and, if disclosed, would blacken the reputation (formerly character) of the patient." In
the instant case, the person against whom the privilege is claimed is not one duly authorized to
practice medicine, surgery obstetrics. He is simply the patient’s husband who wishes to testify on a
document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed
prohibition. Neither can his testimony be considered a circumvention of the prohibition because his
testimony cannot have the force and effect of the testimony of the physician who examined the
patient and executed the report.

3. ID.; ID.; HEARSAY TESTIMONY; EFFECT OF FAILURE TO OBJECT THERETO. — Counsel for
petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it
was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on
privileged communications but never questioned the testimony as hearsay. It was a fatal mistake.
For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his right
to make such objection and, consequently, the evidence offered may be admitted.

4. CONSTITUTIONAL LAW; SUPREME COURT; TRIAL JUDGE AND COUNSELS ENJOINED TO AVOID
STRATAGEMS THAT FURTHER DELAY CASE; CASE AT BAR. — The instant appeal has taken its toll on
the petition for annulment. Three years have already lapsed and private respondent herein, as
petitioner before the trial court, has yet to conclude his testimony thereat. We thus enjoin the trial
judge and the parties’ respective counsel to act with deliberate speed in resolving the main action,
and avoid any and all stratagems that may further delay this case. If all lawyers are allowed to
appeal every perceived indiscretion of a judge in the course of trial and include in their appeals
depthless issues, there will be no end to litigations, and the docket of appellate courts will forever be
clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing lower
court rulings and raise only legitimate issues so as not to retard the resolution of cases. Indeed,
there is no point in unreasonably delaying the resolution of the petition and prolonging the agony of
the wedded couple who after coming out from a storm still have the right to a renewed blissful life
either alone or in the company of each other.

DECISION

BELLOSILLO, J.:

A confidential psychiatric evaluation report is being presented in evidence before the trial court in a
petition for annulment of marriage grounded on psychological incapacity. The witness testifying on
the report is the husband who initiated the annulment proceedings, not the physician who prepared
the report.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
139

The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged
communication between physician and patient, seeks to enjoin her husband from disclosing the
contents of the report. After failing to convince the trial court and the appellate court, she is now
before us on a petition for review on certiorari. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent de Paul
Church in San Marcelino, Manila. The union produced three children, Edgar Johannes, Karl Wilhelm
and Alexandra. Their blessings notwithstanding, the relationship between the couple developed into a
stormy one. In 1971, Ma. Paz underwent psychological testing purportedly in an effort to ease the
martial strain. The effort however proved futile. In 1973, they finally separated in fact.

In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz prepared
and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978, presenting the
report among others, he obtained a decree ("Conclusion") from the Tribunal Metropolitanum
Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the ground of "incapacitas
assumendi onera conjugalia due to lack of due discretion existent at the time of the wedding and
thereafter." 1 On 10 July 1979, the decree was confirmed and pronounced "Final and Definite." 2

Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of Pasig, Br.
II, issued an order granting the voluntary dissolution of the conjugal partnership.

On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the
trial court. 3 In his petition, he cited the Confidential Psychiatric Evaluation Report which Ma. Paz
merely denied in her Answer as "either unfounded or irrelevant." 4

At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of
the Confidential Psychiatric Evaluation Report. This was objected to on the ground that it violated the
rule on privileged communication between physician and patient. Subsequently, Ma. Paz filed a
Manifestation expressing her "continuing objection" to any evidence, oral or documentary, "that
would thwart the physician-patient privileged communication rule," 5 and thereafter submitted a
Statement for the Record asserting among others that "there is no factual or legal basis whatsoever
for petitioner (Edgar) to claim ‘psychological incapacity’ to annul their marriage, such ground being
completely false, fabricated and merely an afterthought." 6 Before leaving for Spain where she has
since resided after their separation, Ma. Paz also authorized and instructed her counsel to oppose the
suit and pursue her counterclaim even during her absence. chanrobles virtual lawlibrary

On 29 May 1991, Edgar opposed Ma. Paz’ motion to disallow the introduction of the confidential
psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz’ Statement for the
Record. 8

On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric Evaluation
Report in evidence and ruling that —

. . . the Court resolves to overrule the objection and to sustain the Opposition to the respondent’s
Motion; first, because the very issue in this case is whether or not the respondent had been suffering
from psychological incapacity; and secondly, when the said psychiatric report was referred to in the
compliant, the respondent did not object thereto on the ground of the supposed privileged
communication between patient and physician. What was raised by the respondent was that the said
psychiatric report was irrelevant. So, the Court feels that in the interest of justice and for the
purpose of determining whether the respondent as alleged in the petition was suffering from
psychological incapacity, the said psychiatric report is very material and may be testified to by
petitioner (Edgar Krohn, Jr.) without prejudice on the part of the respondent to dispute the said
report or to cross-examine first the petitioner and later the psychiatrist who prepared the same if the
latter will be presented. 9

On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4, 1991,
and directed that the Statement for the Record filed by Ma. Paz be stricken off the record. A
subsequent motion for reconsideration filed by her counsel was likewise denied.

Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision
promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10 On 5
February 1993, the motion to reconsider the dismissal was likewise denied. Hence, the instant
petition for review.
chanrobles lawlibrary : rednad

Petitioner now seeks to enjoin the presentation and disclosure of the contents of the psychiatric
140

report and prays for the admission of her Statement for the Record to form part of the records of the
case. She argues that since Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician
from testifying on matters which he may have acquired in attending to a patient in a professional
capacity, "WITH MORE REASON should a third person (like respondent-husband in this particular
instance) be PROHIBITED from testifying on privileged matters between a physician and patient or
from submitting any medical report, findings or evaluation prepared by a physician which the latter
has acquired as a result of his confidential and privileged relation with a patient." 12 She says that
the reason behind the prohibition is —

. . . to facilitate and make safe, full and confidential disclosure by a patient to his physician of all
facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his patient. 13

She further argues that to allow her husband to testify on the contents of the psychiatric evaluation
report "will set a very bad and dangerous precedent because it abets circumvention of the rule’s
intent in preserving the sanctity, security and confidence to the relation of physician and his patient."
14 Her thesis is that what cannot be done directly should not be allowed to be done indirectly.

Petitioner submits that her Statement for the Record simply reiterates under oath what she asserted
in her Answer, which she failed to verify as she had already left for Spain when her Answer was filed.
She maintains that her "Statement for the Record is a plain and simple pleading and is not as it has
never been intended to take the place of her testimony;" 15 hence, there is no factual and legal basis
whatsoever to expunge it from the records. chanrobles virtual lawlibrary

Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the
prohibition applies only to a physician. Thus . . . . the legal prohibition to testify is not applicable to
the case at bar where the person sought to be barred from testifying on the privileged
communication is the husband and not the physician of the petitioner." 16 In fact, according to him,
the Rules sanction his testimony considering that a husband may testify against his wife in a civil
case filed by one against the other.

Besides, private respondent submits that privileged communication may be waived by the person
entitled thereto, and this petitioner expressly did when she gave her unconditional consent to the use
of the psychiatric evaluation report when it was presented to the Tribunal Metropolitanum
Matrimoniale which took it into account among others in deciding the case and declaring their
marriage null and void. Private respondent further argues that petitioner also gave her implied
consent when she failed to specifically object to the admissibility of the report in her Answer where
she merely described the evaluation report as "either unfounded or irrelevant." At any rate, failure to
interpose a timely objection at the earliest opportunity to the evidence presented on privileged
matters may be construed as an implied waiver. chanrobles.com:cralaw:red

With regard to the Statement for the Record filed by petitioner, private respondent posits that this in
reality is an amendment of her Answer and thus should comply with pertinent provisions of the Rules
of the Court, hence, its exclusion from the records for failure to comply with the Rules is proper.

The treatise presented by petitioner on the privileged nature of the communication between
physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making
communications between physician and patient privileged are intended to inspire confidence in the
patient and encourage him to make a full disclosure to his physician of his symptoms and condition.
17 Consequently, this prevents the physician from making public information that will result in
humiliation, embarrassment, or disgrace to the patient. 18 For, the patient should rest assured with
the knowledge that the law recognizes the communication as confidential, and guards against the
possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. 19
The physician-patient privilege creates a zone of privacy, intended to preclude the humiliation of the
patient that may follow the disclosure of his ailments. Indeed, certain types of information
communicated in the context of the physician-patient relationship fall within the constitutionally
protected zone of privacy, 20 including a patient’s interest in keeping his mental health records
confidential. 21 Thus, it has been observed that the psychotherapist-patient privilege is founded upon
the notion that certain forms of antisocial behavior may be prevented by encouraging those in need
of treatment for emotional problems to secure the services of a psychotherapist. chanrobles law library

Petitioner’s discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly lays
down the requisites in order that the privilege may be successfully invoked: (a) the privilege is
claimed in a civil cases; (b) the person against whom the privilege is claimed is one duly authorized
141

to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was
attending to the patient in his professional capacity; (d) the information was necessary to enable him
to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the
reputation (formerly character) of the patient." cralaw virtua1aw library

In the instant case, the person against whom the privilege is claimed is not one duly authorized to
practice medicine, surgery obstetrics. He is simply the patient’s husband who wishes to testify on a
document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed
prohibition. Neither can his testimony be considered a circumvention of the prohibition because his
testimony cannot have the force and effect of the testimony of the physician who examined the
patient and executed the report.

Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the
ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he
invoked the rule on privileged communications but never questioned the testimony as hearsay. It
was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay,
counsel waived his right to make such objection and, consequently, the evidence offered may be
admitted.

The other issue raised by petitioner is too trivial to merit the full attention of this Court. The
allegations contained in the Statement for the Records are but refutations of private respondent’s
declarations which may be denied or disproved during the trial. chanrobles law library : red

The instant appeal has taken its toll on the petition for annulment. Three years have already lapsed
and private respondent herein, as petitioner before the trial court, has yet to conclude his testimony
thereat. We thus enjoin the trial judge and the parties’ respective counsel to act with deliberate
speed in resolving the main action, and avoid any and all stratagems that may further delay this
case. If all lawyers are allowed to appeal every perceived indiscretion of a judge in the course of trial
and include in their appeals depthless issues, there will be no end to litigations, and the docket of
appellate courts will forever be clogged with inconsequential cases. Hence, counsel should exercise
prudence in appealing lower court rulings and raise only legitimate issues so as not to retard the
resolution of cases. Indeed, there is no point in unreasonably delaying the resolution of the petition
and prolonging the agony of the wedded couple who after coming out from a storm still have the
right to a renewed blissful life either alone or in the company of each other. 23

WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed Decision of
respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED. cralawnad

SO ORDERED.

Cruz, Davide, Jr., Bellosillo, Quiason and Kapunan, JJ., concur.

MA. PAZ FERNANDEZ KROHN, Petitioner, vs. COURT OF APPEALS and EDGAR KROHN,
JR.,Respondents. G.R. No. 108854, June 14, 1994

FACTS: Edgar Krohn, Jr. and petitioner, Ma. Paz Fernandez Krohn, were married in 1964. They had been
experiencing marital problems prompting petitioner to undergo a psychological testing in order to ease their
tension. However, the same proved futile. In 1975, the husband was able to secure a decree nullifying their
church marriage. Subsequently, he also filed a petition before the trial court asking for the annulment of their
marriage. He testified on the

witness stand regarding the Confidential Psychiatric Evaluation Report issued to petitioner when the latter
underwent a psychological evaluation. Petitioner objected on the ground of privileged communication between
physician and patient. But the trial court admitted said report. The case reached the Court of Appeals through
petition for certiorari but the same was dismissed. ISSUE: Whether or not the prohibition on privileged
communication between physician and patient is applicable in the case at bar. RULING: No, the prohibition on
privileged communication between physician and patient does not find application in the case at bar.
Physician-patient privilege protects the privacy of the patient in order that he may disclose freely to his
physician all information regarding his ailment without fear of humiliation or embarrassment from the public as
the same is deemed confidential. The case of Lim v. Court of Appeals which was decided on September 25,
142

1992, lays down the requisites for the privilege to apply: (a) the privilege is claimed in a civil case; (b) the
person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics;
(c) such person acquired the information while he was attending to the patient in his professional capacity; (d)
the information was necessary to enable him to act in that capacity; and (e) the information was confidential
and, if disclosed, would blacken the reputation of the patient. In the case at bar, the person against whom the
privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics as it is the husband
and not the doctor who examined petitioner and made the psychiatric report. Therefore, this case will not fall
within the acknowledged prohibition. If at all, the husband’s testimony could have squarely fallen into the
hearsay rule and can be thus, excluded. But since that objection was not raised, the same is deemed waived.
_____________________________________________________________________________________

Rule 130 Section 36 – Hearsay Rule

G.R. No. L-45283-84 March 19, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUCILA VALERO y VARILLA, defendant-appellant.

ERICTA, J.:

Lucila Valero alias Rosing and Alfonsito Valero alias "Pipe" were accused in the Municipal Court of San Rafael,
Bulacan in two separate complaints, one of double murder and the other of frustrated murder.

After the preliminary investigations, the complaints against Alfonsito Valero were dismissed "on the ground that he is
a deaf-mute and, therefore, all the proceedings against him were beyond his comprehension". Lucila Valero
remained as the sole defendant. After the trial in the Court of First Instance of Bulacan where the records were later
forwarded for appropriate proceedings, the trial Court convicted Lucila Valero of the complex crime of double
murder and frustrated murder and imposed upon her the extreme penalty of death.

Hence, this automatic review.

The following facts are not disputed. In the morning of February 22, 1969 between 7:00 and 9:00 o'clock of
Saturday, Michael, aged 9 months, and Annabel, aged 1 year and 9 months, both of whom are the children of
Ceferino Velasco, died of poisoning after eating bread containing endrin, a commercial insecticide. Likewise,
Imelda, another minor child of Ceferino, tasted the poisoned bread and would have died as a consequence were it
not for the timely medical assistance given her. All these three minor children were in the balcony of their house at
San Rafael, Bulacan, when they partook of the poisoned bread.

On the same morning at about the same time that the three minor children partook of the poisoned bread, three (3)
puppies of Ceferino Velasco under the balcony also died of poisoning.

Earlier that same morning at about 6:00 o'clock, Ceferino Velasco, father of the victims, was seen throwing
poisoned rats into a river near his house. Investigations were conducted by Cpl. Bucot and Pat. Arturo Ventuso both
of the Police Department of San Rafael, Bulacan. Upon their arrival, they saw the dead bodies of Michael and
Annabel in the house of Ceferino Velasco and the dead puppies under the balcony. They also saw several pieces of
sliced pan scattered in the sala of the house, near the balcony, and under the balcony. They picked up some pieces
of sliced bread under the balcony, wrapped them in a piece of paper and submitted them to a chemist for
examination. It was found that the bread contained endrin, a poisonous insecticide. The two minor children, Michael
and Annabel, were also autopsied and the necropsy reports showed that both children died of poisoning by endrin.
Samples of the blood and internal organs of both Michael and Annabel were also examined by a chemist and it was
found that they contained endrin.

The evidence of the prosecution and the defense conflict as to the source of the poisoned bread. The evidence of
the prosecution shows that the poisoned bread was given to the children by Alfonso Valero alias Pipe, a deaf-mute
brother of the defendant Lucila Valero, and that it was Lucila Valero who gave the bread to Pipe for delivery to the
minor children. On the other hand, the defendant Lucila Valero denies that she ever gave bread to her deaf-mute
brother, Pipe, for delivery to the minor children. The evidence for the defense tends to show that the Velasco
children might have eaten one of the sliced poisoned bread used by their father in poisoning rats in his garden.
143

It is not denied that Ceferino Velasco has a vegetable garden in his yard. He uses an insecticide called Polidol to
spray the vegetable and uses the same insecticide to kill rats. According to the testimony of the defendant, which
was never rebutted by Ceferino Velasco, Ceferino also planted vegetables in the yard of the defendant whose
house is just across the street from the house of Ceferino Velasco. She further testified that Ceferino dipped sliced
bread into an insecticide called endrin, dried them up and later used the poisoned bread as a bait to kill rats in the
yard located by the side of his house. 1

More of the controversial facts will be presented in the following discussion.

We first discuss and assess the evidence for the prosecution. Out of the nine witnesses for the prosecution three
witnesses, namely Rodolfo Quilang, Federico Jaime, and Ceferino Velasco were presented to prove that the
defendant Lucila Valero gave the poisoned bread to her deaf-mute brother Pipe with the alleged instruction to
deliver the bread to the Velasco children.

We now analyze the testimonies of these three witnesses:

1. Rodolfo Quilang

Only Rodolfo Quilang, among the nine prosecution witnesses testified that he saw the defendant Lucila Valero
deliver "something wrapped in a piece of paper" 2 to her deaf-mute brother Pipe with the alleged instruction by sign
language to deliver the same to the Velasco children. Quilang never saw what was inside the piece of paper. At the time
Quilang saw the delivery to Pipe of the wrapped object, the defendant and her brother were in the balcony of their house,
which was just near the gate of Ceferino Velasco's house where he (Quilang) was standing. Upon receipt of the wrapped
object, Pipe allegedly proceeded towards Velasco's house.

According to Quilang, he was "in the act of leaving Velasco's gate when Pipe "was entering the gate of Ceferino
Velasco". 3

Whether or not Quilang saw the delivery to the Velasco children of the "something wrapped in a piece of paper" is a
question that involved this star prosecution witness into a series of self-contradictions, aptly called by the appellant's
counsel as a "series of basic somersaults" which earned for Quilang a reprimand from the trial Judge, who,
surprisingly later, based the conviction mainly on the testimony of this flip-flopping witness.

In his affidavit, dated March 8, 1972 (Exhibit "4", p. 437, Record of murder case) or three (3) years after the
poisoning of the Velasco children, Quilang stated that he actually saw Pipe deliver the wrapped object to the
children. The statement reads as follows:

3. Na nakita kong si Pipe ay nagpunta sa bahay nina Ceferino Velasco at dala-dala ang inabot ni
Lucilang nakabalot sa papel, at noong dumating sa may hagdanan ni Ceferino, ay nakita kong
iniabot ang nakabalot sa mga bata na anak ni Ceferino Velasco.

Three years later during the trial on September 15, 1975, he declared on cross-examination, as follows:

Q. When you left the residence of Demetria and Severino (sic)

Velasco, Pipe was just entering the gate of that house, is it not?

A. Yes.

Q. In other words, you did not see Pipe give that something wrapped
in a piece of paper to anybody in the premises because you have
already left?

A. Really not.

Q. Are you sure of that?

A. I did not really see. 4

When confronted with the contradiction, Quilang reiterated that he did not see Pipe deliver the bread, in the following
testimony:

Q. You did not answer the question, you stated in open court that you
did not see Pipe give the bread to the children of Ceferino and
Demetria Velasco is that correct?

A. I really said that. 5

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On being pressed further to explain the contradiction, Quilang made the absurd explanation that the self-
contradictory statements were both correct. Thus:

Q. And you, of course, realized that you said that under oath?

A. Yes.

Q. Now, in your statement, dated March 8, 1969 (should be March 8,

1972) which was also under oath, you stated that you saw Pipe give
that thing wrapped in a piece of paper to the children of Severino (sic)
and Demetria Velasco, are you telling that is also true?

A. Yes. 6

The judge must have been so flabbergasted with the inconsistencies that he, himself, propounded the following
question:

Court:

Q. The Court will ask you, did you see Pipe hand over to the
deceased children that something which was wrapped in a piece of
paper?

A. Yes, sir. 7

The confusing inconsistencies prompted the Court to proceed further as follows:

Q. A while ago, you were asked by Atty. Rodrigo. You clearly state
that you did not see Pipe hand over this wrapped thing in the paper,
do you remember that?

A. Yes, sir.

Q. The Court is now confused, which of these statements it will

believe, do you realize that these two statements are contradictory to
each other? 8

After some evasive answers in this attempt to extricate himself from this web of self-contradictions, the Court
insisted as follows:

Q. You are not answering the question, in fact, I remember having

asked you whether or not you saw Pipe hand over this something
wrapped to the children and you said that you did not see, and now
you say you saw, can you explain these inconsistent statements?

A. The truth of the matter was that he handed over. 9

Convinced that Quilang was a lying witness, the trial Judge could not help but explode an expletive in Tagalog
during the cross-examination, as follows:

Atty. Rodrigo:

Q. Did you see that wrapped thing being given or you were just
guessing?

A. I saw that he handed over.

Q. But I thought, Mr. Quilang, that when Pipe was just entering the
gate of Ceferino Velasco, and Demetria Velasco, you were already
departing from the place and that you have already left, and this is
the reason why you did not see Pipe handed over that something
wrapped on a piece of paper?

A. I was not able to say that.

145

Court:

Ano ka ba? Narinig kong sinabi mo iyon ah! 10

The tendency of Quilang to prevaricate is shown not only in his self-contradictory statements on the witness stand but
also in the other portions of the record. The first statement of Quilang (Exhibit "4", p. 437, Record of the Murder case) is
dated March 8, 1972. This date appears twice in the affidavit, first at the end of the affidavit and second, in the jurat. In
both places of the affidavit, the words "March" and "1972" are typewritten by the same typewriter used in typing the entire
affidavit. The date, however, was left blank so that originally what appeared at the end of the affidavit and in the jurat was
practically "March — 1972 ". Apparently, the affidavit must have been prepared in March of 1972. The date "8",
presumably the date of the swearing before the Fiscal, was typewritten with a different typewriter on the blank space.

On the witness stand, Quilang stated that he made an affidavit on February 23, 1969. 11 He must have made this
statement to make it appear that he was not an "eleventh-hour witness" as alleged by the defense. When confronted with
the discrepancies in the date appearing in his affidavit, to wit, March 8, 1972, and his testimony on the witness stand, he
insisted that the correct date was February 23, 1969 and that either the Fiscal or the one acting in his behalf committed
the error in indicating the date in his affidavit. 12 It is incredible that a Fiscal administering the oathtaking on February 23,
1969 and signs the jurat postdates the oath-taking to March 8, 1972, three years later.

There are other equally strong considerations indicating the lack of credibility of Quilang. He is what the appellant's
counsel calls an "eleventh-hour witness". When the complaint for frustrated murder and the complaint for murder,
both dated March 11, 1969, were filed with the Municipal Court of San Rafael, Bulacan, Rodolfo Quilang was not
listed as one of the several witnesses. Quilang never made any statement to the police who initially investigated the
case nor to the Philippine Constabulary which made its own investigation. When the Municipal Court asked
searching questions from several witnesses during the first stage of the preliminary investigation on March 12, 1969,
only Ceferino Velasco, Concepcion Velasco, Delfin Senorosa, Federico Jaime and Demetria Manalastas were
investigated. Rodolfo Quilang was not one of them. 13

Again, when the information for frustrated murder (pp. 87 to 88, Record of Frustrated Murder case) and the
information for murder (p. 76, Records of Murder case) were filed in February 1971, the star witness, Rodolfo
Quilang, was not listed among the nine (9) prosecution witnesses. Then on September 15, 1975 or six (6) years
after the tragedy, Quilang was suddenly sprung as the star witness, the only witness who allegedly saw the delivery
by the defendant to Pipe of "something wrapped in a piece of paper" with the alleged instruction by sign language to
deliver the same to the Velasco children. Without the testimony of Quilang, there would be no evidence to show that
the poisoned bread which was allegedly delivered by Pipe to the Velasco children came from the defendant.
Realizing that there was a missing link, the prosecution thought of presenting Quilang to provide the missing link six
years after the occurrence of the tragedy.

This witness, Aniceto Decalos, a neighbor and old friend of Ciriaco Jimenez, like the alleged
eyewitness Candido Autor did not figure in the list of witnesses for the prosecution, either in the
criminal complaint filed by PC Capt. Golez or in the Fiscal's indictment. His name was not amongst
those who gave affidavits to back up the criminal charge. This gives the impression that Aniceto
Decalos, the neighbor of the deceased, was but an eleventh-hour witness. To take his testimony on
its face value, we fear, is to rate truth so lightly. 14

2. Federico Jaime and Ceferino Velasco

On the other hand, both Ceferino Velasco and Federico Jaime did not see the delivery by the defendant to her deaf-
mute brother "something wrapped in a piece of paper". They never saw or heard her giving any instruction to Pipe to
deliver the wrapped object to the children. Both claimed that they learned or obtained the information from Pipe after
interviewing him by means of sign language. Which the trial Court accepted as competent, trustworthy and credible

The following testimony of Federico Jaime speaks for itself:

Q. Will you please stand up and demonstrate to this Honorable Court

how you talked to him (Pipe) through signs?

A. When I went down, I made this sign to him. (Witness was waiving
his two hands with his palms down and both hands horrizontal along
the waist.)

Q. When you made that sign, what was the meaning or Idea that you
wanted to convey ?

A. I was asking him as to what happened to the children and the sign
made by him was like this. (Witness demonstrated by one of his
146

hands demonstrating some kind of height and at the same time the
left hand pointing upwards where the children were.)

xxx xxx xxx

Q. What do you mean by the sign when your right hand indicating
some height and your left hand pointing towards upward?

A. What I wanted to imply is, I was asking Pipe as to who gave food
to them, your Honor.

Q. Why did it occur to you to go down and try to communicate with

Pipe?

A. I saw him down below and he was making signs and I asked the
children as to what happened and he told me that the children were
given bread.

Q. What came into your mind when you saw Pipe demonstrating in
the manner that you described ?

A. I just wanted to know as to who gave food to the children, your

Honor.

Q. Did you catch any significance in those signs that you saw to
Pipe?

A. Yes, your Honor.

Q. What significance that you had in mind?

A. Because the children said that it was Pipe who gave bread, your
Honor.

Court:

Proceed.

Fiscal Calderon, Jr.

Q. When you made that sign pointing one hand upward, what was
the answer of Panchito?

A. I inquired from him through signs as to who gave bread to the

children by demonstrating like this (witness demonstrated by
seemingly eating something inside the house with his right hand and
his left hand index finger towards the front and then pointed towards
his left index finger).

Q. Towards what direction was Panchito pointing his index finger ?

A. To the sister, sir.

Q. And who is that sister?

A. Precila (sic), sir. Precila (sic) Valero. 15

There is nothing in the foregoing testimony pointing to the defendant Lucila Valero as the source of the poisoned bread.
What is evident is nothing but confusion. What Jaime asked from Pipe was "Who gave the bread to the children?" The
evidence of the prosecution already shows that Pipe gave the bread to the children. In reply, it seems that Pipe pointed to
the defendant who was standing nearby.

Here, the confusion is clear. Pipe could not have said that his sister handed over the poisoned bread to the children
because the evidence of the prosecution shows that Pipe himself, gave the bread to the children. It is clear that Pipe
did not understand the sign language of Jaime and vice-versa.
147

The testimony of Ceferino Velasco, father of the victims, did not help the prosecution much either. The following is
Ceferino's testimony:

Witness:

Upon seeing Ponsito I asked him what was that and he answered me that it was a piece of bread
and he told me that she was the one who caused the giving of the bread, sir. (witness pointing to the
accused Lucila Valero)

Atty. Rodrigo, Jr.

I would like to make of record that during the narration as to how he asked Alfonsito, the witness was
only demonstrating by using his index finger moving up and down, your Honor.

Fiscal Calderon, Jr.

Q. When you first asked that question who gave the bread to you,
how did Alfonsito answer?

A. After having given the bread, I asked him who gave the bread, and he said that
the bread came from her (witness demonstrated by swaying his right arm and
pointing his forefinger sidewise.)

Q. Where was Lucila Valero at the time that Alfonsito was demonstrating to you his
answer?

A. She was there on the side of the street, sir. 16

There is nothing in the aforequoted testimony indicating that the deaf-mute, Pipe, pointed to her sister Lucila Valero
as the source of the poisoned bread. We have examined the entire transcript of the stenographic notes, and, except
the aforequoted portions of the testimony of Federico Jaime and Ceferino Velasco, there is nothing in the record
showing that Pipe communicated to the prosecution witnesses by comprehensible sign language that his sister was
the source of the poisoned bread.

Aside from the foregoing observation, there are several compelling reasons that should have made the trial Court
reject the testimony of both Jaime and Velasco.

Pipe who was the alleged source of the vital information for the prosecution was never presented as a witness either
for the prosecution or for the defense. Jaime and Velasco were presented as prosecution witnesses to convey to the
Court what they learned from Pipe by sign language.

The evidence is purely hearsay. 17 The presentation of such evidence likewise violates the principle of res inter alios
acta. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. 18

With particular reference to the testimony of Ceferino Velasco, its admission cannot be justified by claiming that it is a part
of the res gestae. When Pipe allegedly revealed to Ceferino Velasco that the source of the poisoned bread was the
defendant, the children had not eaten or tasted it. Nobody was yet poisoned. Stated otherwise, there was no startling
Occurrence yet. 19

With reference to the testimony of Jaime, there is no showing that Pipe made the extrajudicial revelation
spontaneously when he was still under the influence of a startling occurrence. Pipe made his extrajudicial revelation
not spontaneously but after an interview through the complicated process of sign language.

The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or
evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not
give such evidence any probative value. The lack of objection may make any incompetent evidence
admissible. 20 But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether
objected to or not has no probative value. 21

To give weight to the testimonies of Federico Jaime and Ceferino Velasco, whether considered as hearsay evidence or as
part of res gestae and make the same the basis for the imposition of the death penalty gravely violates the constitutional
right of the defendant to meet the witnesses face to face and to subject Pipe to the rigid test of cross-examination, the
only effective means to test the truthfulness, memory, intelligence, and in this particular case, the ability of the deaf-mute,
Alfonso Valero alias Pipe, to communicate with the outside world. In conflict between a provision of the constitution giving
the defendant a substantive right and mere technical rules of evidence, we have no choice but to give effect to the
constitution.
148

The cross-examination of Pipe, the source of the vital information for the prosecution, would have shown clearly his
incompetence as a witness. During the preliminary investigation in the Municipal Court, experts on deaf-mutes like
Belen Herreros who is the official interpreter of the only school for the deaf and the blind in the Philippines, assisted
by Mrs. Felicidad Vinluan who is the principal of the school of the deaf and the blind, Mesdames Gilda Tatum and
Salud Natividad, examined Alfonsito Valero alias Pipe and reported to the Municipal Court that "questions
addressed to him (Alfonso Valero) and answers given by him cannot be accurately interpreted". 22

As a result of the testimonies and the report made by the aforementioned experts, the Municipal Court dismissed
the murder and frustrated murder cases against Alfonsito Valero, alias Pipe, who was then the co-accused of Lucila
Valero, "on the ground that he (Pipe) is a deaf-mute and, therefore, all the proceedings against him were beyond his
comprehension". 23

Even prosecution witnesses Ceferino Velasco and Federico Jaime admitted on cross-examination that their
interpretations of the sign language of Pipe were only guess work.

Thus, Ceferino admitted on cross-examination:

Q. As a matter of fact, most of your interpretation would be only guess work on your
part, is it not?

A. Yes, sir. 24

Jaime practically made a similar admission, as follows:

Q. When you were requested to demonstrate how you conveyed the Idea to Pipe
about the giving of the bread to the children, you pointed to a height, is it not?

A. Yes, sir.

Q. How do you demonstrate to Pipe if you wanted to convey that what is to be taken
is star-apple?

Fiscal Calderon:

I object, your Honor.

Court:

May answer.

A. Like that also, sir. (witness demonstrated to be putting something in his mouth.)

Q. In other words, anything which will be taken by mouth, you just use the same sign
language?

A. Yes, the same sign, sir.

Q. So that it would be safe to conclude that Pipe might have

misunderstood your signs. He could have misunderstood it for rice,
bibingka, star-apple or for anything else?

A. witness gave no answer.  25

Obviously the trial Court committed the grave error of accepting, and worse still, of giving weight to the testimonies of
Federico Jaime and Ceferino Velasco interpreting the alleged extrajudicial information to them by sign language of Pipe,
when the source of the information himself, Alfonsito Valero alias Pipe, would have been an incompetent witness had he
taken the witness stand.

When Jaime allegedly learned from Pipe that the latter's sister was the source of the poisoned bread, the defendant
was only at the gate of the Velascos near Jaime but he did not confront her.

Q. When Pipe pointed to Lucila and when you gave the meaning to
that sign that it was Lucila who offered Pipe to give the bread to the
children, did you (Federico Jaime confront Lucila immediately?

A. No, sir.
149

Q. Did it not occur to you (Federico Jaime to confront, Lucila considering that you already suspected
that it was her (sic) who caused the poisoning of the children ?

A. No, sir. I did not. 26

The natural reaction of Jaime who is the uncle of the mother of the victims 27, upon learning the killer of his relatives
would have been a violent action or at least an angry confrontation. Neither did Ceferino Valero confront Lucila Valero
upon allegedly learning that the latter poisoned his children.

Q. After allegedly knowing from Alfonsito that the bread was allegedly given to him by Lucila, did you
(Ceferino Velasco) confront her?

A. No, sir.

Q. As a matter of fact, you never confronted her until you filed this case about the poisoning of your
children?

A. No, sir. I have been very patient with her since the beginning. 28

Moreover, when Ceferino Velasco made a sworn statement on February 25, 1969 or three (3) days after the poisoning of
his children, he declared that he did not know who gave the poisoned bread to his children, thus:

T — Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng tinapay na ibinigay sa inyong anak?

S — Ang nalalaman ko lamang po ay sa kanila siya galing hindi ko po alam kung

sino ang nagbigay sa kanya. 29

But when he took the witness stand on July 23, 1975 or six years later, he declared that on that very morning of February
22, 1969, he learned from Pipe, when the latter was in the act of delivering the bread to the children, that the source of the
bread was the defendant Lucila Valero. 30

When confronted during the cross-examination with the previous affidavit (Exhibit "1-d"), Ceferino Velasco admitted
that he made the answers in the affidavit.

Q. You also stated that Alfonsito, by means of sign, told you that the bread came
from his sister, Lucila, the accused in this case?

A. Yes, sir.

Q. You are sure of that?

A. Yes, sir.

Q. Let me now read to you portion of Exh. "1"

T — Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng

tinapay na ibinigay sa inyong anak?

S — Ang nalalaman ko lamang po ay sa kanila siya galing. Hindi ko

po alam kung sino ang nagbigay sa kanya". Do you remember having
given that answer?

A. Yes, sir.

Q. You affirm that answer under your present oath?

A. Yes, sir. 31

This answer prompted the Court to remark: "There seems to be inconsistency". 32 We may add that the inconsistency is on
the very fact in issue, namely, the guilty participation of Lucila Valero.

When further repeatedly asked by the defense counsel why Ceferino did not state in his affidavit (Exh. 1-d) that he
learned that Lucila was the source of the poisoned bread, he gave irresponsive and evasive answers. 33
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When a witness makes two sworn statements and these two statements incur in the gravest
contradictions, the Court cannot accept either statements as proof. 34

A witness who changes his name and statements, like a Chameleon changes color, does not inspire
confidence. 35

Obviously, Ceferino Velasco is a lying witness. If Ceferino Velasco really learned from Pipe that Lucila Valero
poisoned his three children, he might have become violent. Surprisingly, he kept quiet. He did not confront Lucila
Valero. 36

The reason is that the first suspicion of Ceferino Velasco when his three children were still suffering from the effects of the
poison was that his children were "nausog" (victim of witchcraft). Thus, testified Onofre Adriano, a 73-year old relative of
Ceferino Velasco:

Q. On February 22, 1969 at around 9:00 o'clock in the morning, do

you remember having seen Mr. Ceferino Velasco?

A. I was fetched at home, sir.

Q. Who fetched you in your house?

A. Ceferino Velasco, sir.

Q. Why did he fetch you in your house?

A. Because according to him one of his children is sick and might

have been "nausog".

Q. Why did he fetch you for that purpose?

A. I have a knowledge in the curing of "nausog", sir. 37

Demetria Manalastas, mother of the victims, also testified:

Q. While you were at the market place of Baliuag, what happened?

A. A son of mine came to call me, sir.

Q. What is the name of your son?

A. Francisco Velasco, sir.

Q. Why did Francisco fetch you?

A. He said that the children were "nausog", sir.  38

Aside from the weakness of the evidence for the prosecution, there are other considerations which negate the guilt of the defendant.

There was no motive for Pipe and Lucila Valero to poison the three children. Both Pipe and Lucila Valero loved the
children. Ceferino Velasco admitted that even when Pipe was only a small boy, the latter frequented his house to
visit his children. 39 When the children were dying because of the poison, Pipe alternately fanned Michael and Annabel.

The prosecution, however, claims that the motive of the poisoning was the quarrel in the morning of February 21,
1969 between Demetria Manalastas, mother of the victims, and the defendant Lucila Valero. The cause of the
quarrel was the interference of the defendant to protect the children from the scolding and maltreatment to their own
mother. The interference was resented by Manalastas prompting her to say to the defendant "Don't interfere in the
matter because I am scolding these children of mine." 40 The defendant is not a relative of the Velasco children. Her
intervention in their behalf only shows her affectionate concern for them. The defendant quarrelled with Demetria
Manalastas, not with the Velasco children. There is no motive whatsoever for the defendant to poison the children. Even
Ceferino Velasco, father of the victims, stated that the cause of the quarrel was "Wala pong kabagay-bagay" meaning,
"very trivial". 41 The quarrel was not a sufficient cause to commit a heinous crime.

This leaves Us speculating as to the source of the poisoned bread. Rodolfo Quilang stated that he saw the
defendant give Pipe "something wrapped in a piece of paper." According to Ceferino Velasco in his Affidavit of
February 25, 1969, Pipe gave to his children "isa pong pandesal". 42 He practically reiterated this statement during his
testimony on July 23, 1975 when he described what Pipe allegedly brought as "just one  piece of wrapped bread". 43
151

But when the police investigated the premises of the house of Ceferino Velasco in the morning of February 22,
1969, they found not only one pandesal but "several sliced pan" scatterred in the sala, near the balcony, and under
the balcony. 44 According to the defendant, in her testimony not rebutted by the prosecution, Ceferino Velasco, who was
her tenant, dipped sliced pieces of bread in endrin dried them up and used them as bait in his barn. As a matter of fact, at
6:00 o'clock in the morning of February 22, 1969, Ceferino Velasco threw into a nearby river a long string of poisoned rats.
Three puppies died of poisoning under the balcony. The rats, the dogs, or maybe even his minor children must have
found the poisoned slices of bread somewhere in the barn or in the house, scattered them, and the children, not knowing
the danger of the poison, ate them.

The thought that he might have poisoned his own children must have caused Ceferino Velasco some kind of
trauma. So galling to a father is the thought that he, himself, might have caused the death of his two children and
the near death of a third child, albeit unintentionally, that his natural reaction is to escape from it by throwing the
blame to someone else not only to appease his own conscience but also to avoid embarassment before his
relatives, friends and neighbors.

The tragic poisoning of the three children is unfortunate. The tragedy was compounded when the trial Court
imposed the death penalty on the accused although the evidence against her does not justify a conviction. Inspite of
the self-contradictions of Rodolfo Quilang on very material points noticed by the trial Judge, himself, Quilang's
obvious tendency to prevaricate and the fact that he is what the appellant's counsel calls an "eleventh-hour
witness", which is true, and inspite of the incompetence of the testimonies of Federico Jaime and Ceferino Velasco
whose testimonies are hearsay evidence, and the practical impossibility of interpreting correctly the sign language of
Pipe, the trial Judge readily accepted their testimonies as basis for imposing the death penalty in gross violation of
the hearsay rule and the constitutional right of the accused to meet the witness face to face (in the instant case, the
deaf-mute, Pipe), and to cross-examine Pipe in order to determine his ability to communicate with the outside world.

Realizing that there is completely no motive for the defendant to commit the heinous crime, the trial Judge conjured
up something as the probable cause that might have impelled the defendant to commit the crime. The conjecture of
the Judge is stated, thus:

There is something disquieting about those seemingly unfading smiles on the face of the accused;
with her sharp, penetrating look, her unsolicited smiles are clues to her real personality; they
forebode some out-of-the ordinary dispositions in the inner recesses of her mind; perhaps, only a
trained psychiatrist or an experienced psychologist could fathom or decipher the meaning of this
characteristic of the accused; it is unfortunate that the prosecution and the defense have chosen not
to delve into the personality of the accused; however, because of these queer manifestations on the
facial expressions of the accused, could she have intended to produce the gravity of her felonious
act; had she a fore-knowledge that the poisons used to kill rats or insects would also cause death to
the children. Was her intention merely to cause some malady or discomfort to the children to shout
and vent her hatred on the mother of the children. These are some questions that find no definite
answer from the records of these cases; these questions notwithstanding, the court strongly feels
that it is not entirely improbable for the accused to possess a violent or cruel disposition ... 45

In effect, motive was not necessary to compel the defendant to commit the crime because according to the
observation of the Judge, she was suffering from some kind of psychiatric abnormality or mental disorder that can
make her violent.

It is most unfair for the trial Judge to unexpectedly spring the aforementioned observation in his decision without
having mentioned it in the course of the trial. Such a procedure is unfair to the accused, for she is thereby deprived
of her chance to either deny or affirm the truth of such a very material finding which has important bearing in the
judgment. This procedure of the trial Judge practically denies the accused the right to due process.

The surprising finding of the trial Judge goes far beyond mere observation on the manner a witness testified, which
admittedly may be considered subjectively by the Judge in evaluating the credibility of the witness. The surprising
finding of the Judge relates not only to the credibility of a witness but to the sanity of the defendant. Its aim is not
only to weigh the testimony of the witness but to establish a motive for the crime charged.

WHEREFORE, finding that the prosecution has not established the guilt of the defendant, We hereby reverse the
decision of the trial Court and instead render judgment of acquittal without cost.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Melencio-
Herrera, Plana and Escolin JJ., concur.

 
152

Separate Opinions

AQUINO, J., dissenting.:

I dissent. The lower court's judgment of conviction was based on the following facts proven by the prosecution:

The spouses Ceferino Velasco and Demetria Manalastas resided in the poblacion of San Rafael, Bulacan. Across
the street from their house was the house of their neighbor, Lucila Valero, whom they had known for a long time. On
February 21, 1969, Lucila and Demetria had a heated altercation when Demetria scolded and maltreated her
children and Lucila interfered. Demetria resented the interference of Lucila. A policeman pacified the two women.

In the morning of the following day, February 22, Demetria went to the public market where she worked as a vendor.
Her husband Velasco went to the farm. Left in their house were their five small children named Benilda,
Concepcion, Imelda, Annabelle and Michael.

At about seven o'clock that morning, Rodolfo Quilang was at the gate of the house of the Velasco spouses because
he wanted to collect five pesos as the price of two chickens which he had sold to Demetria. While waiting for her,
Quilang saw Lucila and her deaf-mute brother Alfonsito in the balcony of their house.

Quilang saw Lucila giving Alfonsito something wrapped in a piece of paper. Alfonsito crossed the street, went up the
house of the Velasco spouses and proceeded to the balcony where the Velasco children were playing. Quilang
noticed that Alfonsito gave to the children pieces of bread which had been wrapped in a piece of paper.

Quilang left the gate and while on his way to the house of Demetria's sister, he met Velasco coming from the farm.
Velasco went to the corral and fed his carabao. He saw his children playing in the balcony. He also saw Alfonsito
offering a piece of bread, first, to Concepcion, 7, who refused it because she had already eaten her breakfast. Then,
Alfonsito offered it to Imelda who accepted it, tasted it and then dropped it on the floor.

Annabelle, about twenty months old, picked it up, divided it and gave a part of the bread to the baby, Michael, nine
months old. The two ate the pieces of bread. After eating the bread, Benilda noticed that Annabelle and Michael
turned pale. Their mouths frothed or had bubbles. Benilda instinctively felt that something was wrong. She called
her father who was at the foot of the stairs.

Velasco went up and directed Benilda to take Annabelle to the hospital. Velasco panicked and cried for help.
Several persons came to his house. One of them, Federico Jaime, on learning the cause of the Velasco children's
plight, confronted Alfonsito and, by means of sign language, Jaime learned that the bread given by Alfonsito to the
children came from Lucila who at that time was in the balcony of her house witnessing the commotion in the house
of Velasco.

Annabelle was not admitted to the hospital because medical treatment would have been futile. She was brought
home almost dead and placed beside the baby Michael who was already dead.

Imelda was brought to the clinic of Doctor Artemio Marcelo who was able to arrest the toxic effects of the poison. He
treated her for about three months. Luckily, she survived. Doctor Marcelo testified that she would have died of
toxemia had not timely medical treatment been administered to her.

The investigation revealed that the same piece of bread which Alfonsito had given to the children was eaten by
some dogs which also died of poisoning.

Doctor Ernesto Brion, a medico-legal officer, and Andres Santiago, a chemist, both of the National Bureau of
Investigation, examined the internal organs of Michael and Annabelle and found that they were poisoned as a result
of their having eaten pieces of bread containing endrine, an insecticide.

Lucila denied any complicity in the poisoning of the Velasco children. She declared that she and her brother had no
motive for killing the children who were very dear to them. Lucila said that Demetria was mad at her (Lucila)
because Lucila charged interest on the money which Demetria had borrowed from Lucila's sister-in-law.

She testified that Velasco, who was her tenant on a parcel of land used as a vegetable garden, used endrine on
bread which was then dried and later placed as a bait in the barn and that several rats were killed by means of the
bread dipped in the endrine solution.

The trial judge noted that Lucila had a "sharp, penetrating look" and on the witness stand was always grinning (she
had "unfading smiles"). The trial judge found that there was no doubt that Lucila gave the poisoned bread to her
deaf-mute brother who had no criminal intent and who did not know that the bread was poisoned. Alfonsito exhibited
153

some compassion for the children after he noticed that something had happened to them. On the other hand, Lucila
did not make any effort to help the victims.

The trial court did not err in concluding that Lucila's guilt was proven beyond reasonable doubt.

The trial court and the Solicitor General regarded the two murders and the frustrated murder as a complex crime
resulting from the single act of Lucila in giving the poisoned bread to Alfonsito with the instruction (made in sign
language) that the same be fed to the Velasco children. Hence, the death penalty was imposed.

The single criminal impulse of Lucila to poison the Velasco children gave rise to a complex offense (See People vs.
Peñas, 66 Phil. 682; People vs. Pincalin, L-38755, January 22, 1981, 102 SCRA 136).

I vote for the imposition of reclusion perpetua on the accused, Lucila Valero. The trial court did not award any
indemnity. Lucila should be adjudged liable to pay an indemnity of P24,000 to the Velasco spouses for the death of
Annabelle and Michael and to pay an indemnity of P10,000 to Imelda Velasco.

BARREDO, J., concurring:

I concur. But I must say that the failure of the prosecution to present Imelda as witness spoiled the cause of the
prosecution. She could have clarified the whole issue of who gave the poisoned bread to him.

Separate Opinions

AQUINO, J., dissenting.:

I dissent. The lower court's judgment of conviction was based on the following facts proven by the prosecution:

The spouses Ceferino Velasco and Demetria Manalastas resided in the poblacion of San Rafael, Bulacan. Across
the street from their house was the house of their neighbor, Lucila Valero, whom they had known for a long time. On
February 21, 1969, Lucila and Demetria had a heated altercation when Demetria scolded and maltreated her
children and Lucila interfered. Demetria resented the interference of Lucila. A policeman pacified the two women.

In the morning of the following day, February 22, Demetria went to the public market where she worked as a vendor.
Her husband Velasco went to the farm. Left in their house were their five small children named Benilda,
Concepcion, Imelda, Annabelle and Michael.

At about seven o'clock that morning, Rodolfo Quilang was at the gate of the house of the Velasco spouses because
he wanted to collect five pesos as the price of two chickens which he had sold to Demetria. While waiting for her,
Quilang saw Lucila and her deaf-mute brother Alfonsito in the balcony of their house.

Quilang saw Lucila giving Alfonsito something wrapped in a piece of paper. Alfonsito crossed the street, went up the
house of the Velasco spouses and proceeded to the balcony where the Velasco children were playing. Quilang
noticed that Alfonsito gave to the children pieces of bread which had been wrapped in a piece of paper.

Quilang left the gate and while on his way to the house of Demetria's sister, he met Velasco coming from the farm.
Velasco went to the corral and fed his carabao. He saw his children playing in the balcony. He also saw Alfonsito
offering a piece of bread, first, to Concepcion, 7, who refused it because she had already eaten her breakfast. Then,
Alfonsito offered it to Imelda who accepted it, tasted it and then dropped it on the floor.

Annabelle, about twenty months old, picked it up, divided it and gave a part of the bread to the baby, Michael, nine
months old. The two ate the pieces of bread. After eating the bread, Benilda noticed that Annabelle and Michael
turned pale. Their mouths frothed or had bubbles. Benilda instinctively felt that something was wrong. She called
her father who was at the foot of the stairs.

Velasco went up and directed Benilda to take Annabelle to the hospital. Velasco panicked and cried for help.
Several persons came to his house. One of them, Federico Jaime, on learning the cause of the Velasco children's
plight, confronted Alfonsito and, by means of sign language, Jaime learned that the bread given by Alfonsito to the
children came from Lucila who at that time was in the balcony of her house witnessing the commotion in the house
of Velasco.

Annabelle was not admitted to the hospital because medical treatment would have been futile. She was brought
home almost dead and placed beside the baby Michael who was already dead.
154

Imelda was brought to the clinic of Doctor Artemio Marcelo who was able to arrest the toxic effects of the poison. He
treated her for about three months. Luckily, she survived. Doctor Marcelo testified that she would have died of
toxemia had not timely medical treatment been administered to her.

The investigation revealed that the same piece of bread which Alfonsito had given to the children was eaten by
some dogs which also died of poisoning.

Doctor Ernesto Brion, a medico-legal officer, and Andres Santiago, a chemist, both of the National Bureau of
Investigation, examined the internal organs of Michael and Annabelle and found that they were poisoned as a result
of their having eaten pieces of bread containing endrine, an insecticide.

Lucila denied any complicity in the poisoning of the Velasco children. She declared that she and her brother had no
motive for killing the children who were very dear to them. Lucila said that Demetria was mad at her (Lucila)
because Lucila charged interest on the money which Demetria had borrowed from Lucila's sister-in-law.

She testified that Velasco, who was her tenant on a parcel of land used as a vegetable garden, used endrine on
bread which was then dried and later placed as a bait in the barn and that several rats were killed by means of the
bread dipped in the endrine solution.

The trial judge noted that Lucila had a "sharp, penetrating look" and on the witness stand was always grinning (she
had "unfading smiles"). The trial judge found that there was no doubt that Lucila gave the poisoned bread to her
deaf-mute brother who had no criminal intent and who did not know that the bread was poisoned. Alfonsito exhibited
some compassion for the children after he noticed that something had happened to them. On the other hand, Lucila
did not make any effort to help the victims.

The trial court did not err in concluding that Lucila's guilt was proven beyond reasonable doubt.

The trial court and the Solicitor General regarded the two murders and the frustrated murder as a complex crime
resulting from the single act of Lucila in giving the poisoned bread to Alfonsito with the instruction (made in sign
language) that the same be fed to the Velasco children. Hence, the death penalty was imposed.

The single criminal impulse of Lucila to poison the Velasco children gave rise to a complex offense (See People vs.
Peñas, 66 Phil. 682; People vs. Pincalin, L-38755, January 22, 1981, 102 SCRA 136).

I vote for the imposition of reclusion perpetua on the accused, Lucila Valero. The trial court did not award any
indemnity. Lucila should be adjudged liable to pay an indemnity of P24,000 to the Velasco spouses for the death of
Annabelle and Michael and to pay an indemnity of P10,000 to Imelda Velasco.

BARREDO, J., concurring:

I concur. But I must say that the failure of the prosecution to present Imelda as witness spoiled the cause of the
prosecution. She could have clarified the whole issue of who gave the poisoned bread to him.

G.R. No. 93516 August 12, 1992

THE PEOPLE OF THE PHILLIPPINES, plaintiff-appellee,

vs.
BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accused-appellant.

The Solicitor General for plaintiff-appellee.

155

MEDIALDEA, J.:

The accused-appellant, Basilio Damaso, was originally charged in an information filed before the Regional Trial
Court of Dagupan City with violation of Presidential Decree No. 1866 in furtherance of, or incident to, or in
connection with the crime of subversion, together with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y
Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess, Eric
Tanciangco y Capira @ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information was later
amended to exclude all the above-enumerated persons except the accused-appellant from the criminal charge. The
amended information reads:

That an or about the 19th day of June, 1988, in the City of Dagupan, Philippines, and within the
territorial jurisdiction of this Honorable Court, the above-named accused, Basilio DAMASO @
Bernardo/Bernie Mendoza @ KA DADO, did then and there, willfully, unlawfully and criminally, have
in his possession, custody and control one (1) M14 Rifle bearing Serial No. 1249935 with magazine
and Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in connection with the crime
of subversion, filed against said accused in the above-entitled case for Violation of Republic Act
1700, as amended by Executive Order No. 276.

Contrary to Third Paragraph of Sec. 1, P.D. 1866. (Records, p. 20)

Upon arraignment, the accused-appellant pleaded not guilty to the crime charged (Records, p. 37). Trial on the
merits ensued. The prosecution rested its case and offered its exhibits for admission. The counsel for accused-
appellant interposed his objections to the admissibility of the prosecution's evidence on grounds of its being
hearsay, immaterial or irrelevant and illegal for lack of a search warrant. On these bases, he, thereafter, manifested
that he was not presenting any evidence for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990,
the trial court rendered decision, the dispositive portion of which states:

WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie Mendoza alias Ka

Dado guilty beyond reasonable doubt of Violation of Presidential Decree Number 1866, and
considering that the Violation is in furtherance of, or incident to, or in connection with the crime of
subversion, pursuant to Section 1, Paragraph 3 of Presidential Decree Number 1866 hereby
sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs of the
proceedings.

The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the articles and/or items
seized on June 19, 1988 in connection with this case and marked and submitted in court as
evidence are ordered confiscated and forfeited in favor of the government, the same to be turned
over to the Philippine Constabulary Command at Lingayen, Pangasinan.

SO ORDERED. (Rollo, p. 31)

Thus, this present recourse with the following assignment of errors:

A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND
AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT TO, OR IN CONNECTION WITH THE
CRIME OF SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE PRESENTED BY
THE PROSECUTION.

B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE QUALIFYING

CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN BY THE PROSECUTION.

C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE FIREARMS

DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER THEY WERE DECLARED
INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH OF THE SAME COURT AND THE SAID
EVIDENCE ARE THE FRUITS OF AN ILLEGAL SEARCH.

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSED-
APPELLANT BECAUSE THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM
ABSORBED THE CHARGE FOR ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OF
OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION. (pp. 55-66, Rollo)

The antecedent facts are set forth by the Solicitor General in his Brief, as follows:

On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer connected with the 152nd
PC Company at Lingayen, Pangasinan, and some companions were sent to verify the presence of
CPP/NPA members in Barangay Catacdang, Arellano-Bani, Dagupan City. In said place, the group
156

apprehended Gregorio Flameniano, Berlina Aritumba, Revelina Gamboa and Deogracias Mayaoa.
When interrogated, the persons apprehended revealed that there was an underground safehouse at
Gracia Village in Urdaneta, Pangasinan. After coordinating with the Station Commander of
Urdaneta, the group proceeded to the house in Gracia Village. They found subversive documents, a
radio, a 1 x 7 caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989).

After the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rented
apartment of Rosemarie Aritumba, sister of Berlina Aritumba whom they earlier arrested. They
interviewed Luzviminda Morados, a visitor of Rosemarie Aritumba. She stated that she worked with
Bernie Mendoza, herein appellant. She guided the group to the house rented by appellant. When
they reached the house, the group found that it had already been vacated by the occupants. Since
Morados was hesitant to give the new address of Bernie Mendoza, the group looked for the
Barangay Captain of the place and requested him to point out the new house rented by appellant.
The group again required Morados to go with them. When they reached the house, the group saw
Luz Tanciangco outside. They told her that they already knew that she was a member of the NPA in
the area. At first, she denied it, but when she saw Morados she requested the group to go inside the
house. Upon entering the house, the group, as well as the Barangay Captain, saw radio sets,
pamphlets entitled "Ang Bayan," xerox copiers and a computer machine. They also found persons
who were companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa, Maries Calosa,
Eric Tanciangco and Luzviminda Morados). The group requested the persons in the house to allow
them to look around. When Luz Tanciangco opened one of the rooms, they saw books used for
subversive orientation, one M-14 rifle, bullets and ammunitions, Kenwood radio, artificial beard,
maps of the Philippines, Zambales, Mindoro an(d) Laguna and other items. They confiscated the
articles and brought them to their headquarters for final inventory. They likewise brought the persons
found in the house to the headquarters for investigation. Said persons revealed that appellant was
the lessee of the house and owned the items confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-
10, 31, tsn, October 31, 1989). (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo)

While We encourage and support law enforcement agencies in their drive against lawless elements in our society,
We must, however, stress that the latter's efforts to this end must be done within the parameters of the law. In the
case at bar, not only did We find that there are serious flaws in the method used by the law officers in obtaining
evidence against the accused-appellant but also that the evidence as presented against him is weak to justify
conviction.

We reverse.

The records of this case show that the accused-appellant was singled out as the sole violator of P.D. No. 1866, in
furtherance of, or incident to, or in connection with the crime of subversion. Yet, there is no substantial and credible
evidence to establish the fact that the appellant is allegedly the same person as the lessee of the house where the
M-14 rifle and other subversive items were found or the owner of the said items. The prosecution presented two
witnesses who attested to this fact, thus:

Lieutenant Candito Quijardo

Fiscal

Q How about this Bernie Mendoza, who was the one renting the house?

A He was not around at that time, but according to Luz (Tanciangco) who mentioned

the name Bernie Mendoza (as) the one who was renting the house and at the same
time claiming that it was Bernie Mendoza who owns the said items. (TSN of October
31, 1989, p. 40)

x x x           x x x          x x x

Q I am showing you another picture which we request to be marked as Exhibit "K-2,"

tell us if it has any connection to the house?

A The same house, sir.

Q Now, this person who according to you allegedly occupied the house at Bonuan
Gueset, by the name of Bernie Mendoza, in your capacity as a Military officer, did
you find out the identity?

A I am not the proper (person) to tell the real identity of Bernie de Guzman.
157

Q Can you tell the Honorable Court the proper person who could tell the true identity
of Bernie Mendoza?

A The Intelligence of the Pangasinan PC Command.

Q Can you name these officers?

A Captain Roberto Rosales and his assistant, First Lt. Federico Castro. (ibid, pp. 54-
55)

M/Sqt. Artemio Gomez

Q That underground house, do you know who was the principal occupant of that
house?

x x x           x x x          x x x

A During our conversation with the occupants, they revealed that a certain Ka Bernie
is the one occupying the house, Bernie Mendoza alias Basilio Damaso.

. . . (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not on their own
personal knowledge. The Solicitor General, however, argues that while the testimonies may be hearsay, the same
are admissible because of the failure of counsel for appellant to object thereto.

It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence. But, one should
not be misled into thinking that since these testimonies are admitted as evidence, they now have probative value.
Hearsay evidence, whether objected to or not, cannot be given credence. In People vs. Valero, We emphatically
declared that:

The failure of the defense counsel to object to the presentation of incompetent evidence, like
hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the
striking out of the same does not give such evidence any probative value. The lack of objection may
make any incompetent evidence admissible. But admissibility of evidence should not be equated
with weight of evidence. Hearsay evidence whether objected to or not has no probative value.
(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis supplied)

It is unfortunate that the prosecution failed to present as witnesses the persons who knew the appellant as
the lessee and owner of the M-14 rifle. In this way, the appellant could have exercised his constitutional right
to confront the witnesses and to cross-examine them for their truthfulness. Likewise, the records do not
show any other evidence which could have identified the appellant as the lessee of the house and the owner
of the subversive items. To give probative value to these hearsay statements and convict the appellant on
this basis alone would be to render his constitutional rights useless and without meaning.

Even assuming for the sake of argument that the appellant is the lessee of the house, the case against him still will
not prosper, the reason being that the law enforcers failed to comply with the requirements of a valid search and
seizure proceedings.

The right against unreasonable searches and seizures is enshrined in the Constitution (Article III, Section 2). The
purpose of the law is to prevent violations of private security in person and property, and unlawful invasions of the
sanctity of the home by officers of the law acting under legislative or judicial sanction and to give remedy against
such usurpations when attempted (see Alvero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute.
There are instances when a warrantless search and seizure becomes valid, namely: (1) search incidental to an
arrest; (2) search of a moving vehicle; and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-
58889, July 31, 1986, 143 SCRA 267, 276). None of these exceptions is present in this case.

The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo entered the appellant's house upon
invitation of Luz Tanciangco and Luzviminda Morados, helper of the appellant; that when Luz Tanciangco opened
one of the rooms, they saw a copier machine, computer, M-14 rifle, bullets and ammunitions, radio set and more
subversive items; that technically speaking, there was no search as the group was voluntarily shown the articles
used in subversion; that besides, a search may be validly conducted without search warrant with the consent of the
person searched in this case, appellant's helper and Luz Tanciangco allowed them to enter and to look around the
appellant's house; and that since the evidence seized was in plain view of the authorities, the same may be seized
without a warrant.
158

We are not persuaded. The constitutional immunity from unreasonable searches and seizures, being personal one,
cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do
so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In the case at bar, the records show that appellant
was not in his house at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed the authorities to
enter it (TSN, October 31, 1989, p. 10). We Find no evidence that would establish the fact that Luz Morados was
indeed the appellant's helper or if it was true that she was his helper, that the appellant had given her authority to
open his house in his absence. The prosecution likewise failed to show if Luz Tanciangco has such an authority.
Without this evidence, the authorities' intrusion into the appellant's dwelling cannot be given any color of legality.
While the power to search and seize is necessary to the public welfare, still it must be exercised and the law
enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of government (Rodriguez v. Evangelista, 65 Phil.
230, 235). As a consequence, the search conducted by the authorities was illegal. It would have been different if the
situation here demanded urgency which could have prompted the authorities to dispense with a search warrant. But
the record is silent on this point. The fact that they came to the house of the appellant at nighttime (Exh. J, p.
7, Records), does not grant them the license to go inside his house. In Alih v. Castro, We ruled that:

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They
knew where the petitioners were. They had every opportunity to get a search warrant before making
the raid. If they were worried that the weapons inside the compound would be spirited away, they
could have surrounded the premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly processes required by the
Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all
the menace of a military invasion. (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286)

Another factor which illustrates the weakness of the case against the accused-appellant is in the identification of the
gun which he was charged to have illegally possessed. In the amended information (supra, pp. 1-2), the gun was
described as an M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a different serial number
thus:

FISCAL

Q Will you kindly restate again the items that you found inside the house?

Lt. Quijardo:

A When she opened the doors of the rooms that we requested for, we immediately
saw different kinds of books of which we believed to be used for subversive
orientation and the M-14 rifle.

Q In what portion of the house did you find this M-14 rifle which you mentioned?

A In the same room of which the subversive documents were placed.

Q If this firearm would be shown to you would you be able to identify the same?

A Yes, sir.

Q I am showing to you a rifle bearing a serial number 1249985 which for purposes of

identification, may we request your Honor, that this rifle be marked as Exhibit "D."

COURT:

Mark it.

FISCAL:

Q Kindly examine the said firearm and tell the Honorable Court the relation of that
firearm to the firearm which according to you you found inside the room allegedly
occupied by one Bernie Mendoza?

A This is the same rifle which was discovered during our raid in the same house.
(TSN, October 31, 1989, pp. 36-38, emphasis supplied).

The Solicitor General contends that the discrepancy is merely a typographical error.
159

We do not think so. This glaring error goes into the substance of the charge. Its correction or lack of it could spell the
difference between freedom and incarceration of the accused-appellant.

In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the existence of
the firearm and that the accused who possessed or owned the firearm does not have the corresponding license for
it. Since the gun as identified at the trial differs from the gun described in the amended information, the corpus
delicti (the substance of the crime, the fact that a crime has actually been committed) has not been fully established.
This circumstance coupled with dubious claims of appellant's connection to the house (where the gun was found)
have totally emasculated the prosecution's case.

But even as We find for the accused-appellant, We, take exception to the argument raised by the defense that the
crime of subversion absorbs the crime of illegal possession of firearm in furtherance of or incident to or in
connection with the crime of subversion. It appears that the accused-appellant is facing a separate charge of
subversion. The defense submits that the trial court should have peremptorily dismissed this case in view of the
subversion charge. In People of the Philippines v. Asuncion, et al., We set forth in no uncertain terms the futility of
such argument. We quote:

If We are to espouse the theory of the respondents that force and violence are the very essence of
subversion, then it loses its distinction from rebellion. In People v. Liwanag (G.R. No. 27683, 1976,
73 SCRA 473, 480 [1976]), the Court categorically distinguished subversion from rebellion, and held:

Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a

crime distinct from that of actual rebellion. The crime of rebellion is committed
by rising publicly and taking up arms against the Government for any of the purposes
specified in Article 134 of the Revised Penal Code; while the Anti-Subversion Act
(Republic Act No. 1700) punishes affiliation or membership in a subversive
organization as defined therein. In rebellion, there must be a public uprising and
taking of arms against the Government; whereas, in subversion, mere
membership in a subversive association is sufficient and the taking up of arms by a
member of a subversive organization against the Government is but a circumstance
which raises the penalty to be imposed upon the offender. (Emphasis supplied)

Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109 289 (1981]), this
Court said that subversion, like treason, is a crime against national security, while rebellion is a
crime against public order. Rising publicly and taking arms against the Government is the very
element of the crime on rebellion. On the other hand, R.A. 1700 was enacted to outlaw the
Communist Party of the Philippines (CPP) , other similar associations and its successors because
their existence and activities constitute a clear, present and grave danger to national security.

The first Whereas clause of R.A. 1700 states that the CPP is an organized conspiracy to overthrow
the Government, not only by force and violence but also by deceit, subversion, and other illegal
means. This is a recognition that subversive acts do not only constitute force and violence (contrary
to the arguments of private respondents), but may partake of other forms as well. One may in fact be
guilty of subversion by authoring subversive materials, where force and violence is neither
necessary or indispensable.

Private respondents contended that the Court in Misolas v. Panga impliedly ruled that if an accused
is simultaneously charged with violation of P.D. 1866 and subversion, the doctrine of absorption of
common crimes as applied in rebellion would have found application therein. The respondents relied
on the opinion of this Court when it said:

. . . in the present case, petitioner is being charged specifically for the qualified
offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT
BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH
ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY
CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS.
Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no
application in this case.

This is however a mere obiter. In the above case, the Court upheld the validity of the charge under
the third paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez
case is not applicable in that case, considering that the legislature deemed it fit to provide for two
distinct offenses: (1) illegal possession of firearms qualified by subversion (P.D. 1866) and (2)
subversion qualified by the taking up of arms against the Government (R.A. 1700). The practical
result of this may be harsh or it may pose grave difficulty on an accused in instances similar to those
that obtain in the present case, but the wisdom of the legislature in the lawful exercise of its power to
enact laws is something that the Court cannot inquire into . . . (G.R. Nos. 83837-42, April 22, 1992).
160

Nonetheless, the evidence in hand is too weak to convict the accused-appellant of the charge of illegal possession
of firearm in furtherance of, or incident to or in connection with the crime of subversion, We are therefore, left with no
option, but to acquit the accused on reasonable doubt.

ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant is ACQUITTED with costs de
oficio.

SO ORDERED.

Griño-Aquino and Bellosillo, JJ., concur.

eople v. Damaso, G.R. No. 93516, 212 SCRA 547, August 12, 1992

"Maid allowed entry into the house"

The right against unreasonable searches and seizures is a personal right.

The constitutional immunity from unreasonable searches and seizures, being personal one, cannot be waived
by anyone except 1) the person whose rights are invaded or 2) one who is expressly authorized to do so in his
or her behalf.

The group of Lt. Quijardo were sent to verify the presence of CPP/NPA members in Dagupan City.

They put under surveillance the rented apartment of Rosemarie, sister of someone whom they earlier
arrested.

They interviewed Luzviminda Morados, a visitor of Rosemarie, who stated that she worked with Bernie
Mendoza alias Basilio Damaso, the appellant.

Together with Morados, they reached the house of Damaso where they saw Luz Tanciangco, a helper.
Tanciangco then allowed the group to enter inside the house.

The group of Lt. Quijardo entered the dwelling of Damaso without a valid warrant when the latter was absent.
They requested the persons in the house to allow them to look around. In one of the rooms, they saw
subversive materials which they confiscated. They likewise brought the persons found in the house to the
headquarters for investigation and the persons revealed that Damaso was the lessee of the house and owned
the items confiscated.

Based on this, Damaso was charged with illegal possession of firearms.

Whether the evidence is admissible? NO.

The Court ruled that the law enforcers failed to comply with the requirements of a valid search and seizure.
None of these exceptions for a warrantless search is present in this case.

Moreover, the constitutional immunity from unreasonable searches and seizures, being personal one, cannot
be waived by anyone except 1) the person whose rights are invaded or 2) one who is expressly authorized to
do so in his or her behalf.

In this case, the records show that Damaso was not in his house at that time Luz, his alleged helper, allowed
the authorities to enter. There was no evidence that would establish the fact that Luz was indeed Damaso’s
161

helper or if it was true that she was his helper, that Damaso had given her authority to open his house in his
absence.

Being a helper, she does not qualify as a person authorized to waive such right in representation of her
employer.

Thus, the search being invalid for lack of warrant, the evidence obtained thereafter is inadmissible.

A.M. No. MTJ-94-979 October 25, 1995

JUDGE EMERITO M. AGCAOILI, RTC-BRANCH 10, APARRI, CAGAYAN, complainant,

vs.
JUDGE ADOLFO B. MOLINA, MCTC, GONZAGA-STA. TERESITA, CAGAYAN, respondent.

KAPUNAN, J.:

The members of the bench are, undoubtedly, expected to be knowledgeable in the law, its basic tenets and
principles.

Unfortunately, respondent judge fell short of the norm.

The instant case was brought to this Court in connection with the order  of complainant Judge Emerito M.
1

Agcaoili dated 9 August 1993 charging Judge Adolfo B. Molina with grave ignorance of the law in relation to
Criminal Case No. 10-435, entitled "People of the Philippines v. Rolando Anama," for homicide. A directive
was contained in said order to furnish this Court with a copy thereof "for its information and appropriate
action."

In the aforecited order, complainant judge alleged that respondent, in conducting the preliminary investigation of the
above-mentioned criminal case, failed to exercise utmost care in the issuance of a warrant of arrest against the
accused, Rolando Anama, based as it was, merely on the statements of two (2) witnesses who had no personal
knowledge of the commission of the offense charged.

Such action, complainant judge averred, was a clear violation of section 2, Article III of the 1987 Constitution which
requires that before a warrant of arrest is issued, "the judge must personally determine the existence of probable
cause from an examination under oath of the complainant and his witnesses." 2

Mere hearsay evidence cannot be the basis that probable cause exists, stated complainant judge. There must be
something more concrete.

Consequently, in the same order, complainant judge recalled the warrant of arrest and the order directing its
issuance and directed the National Bureau of Investigation, through Regional Office No. 2, Ilagan, Isabela, to
conduct an investigation in order to avoid a possible miscarriage of justice.

In his Comment, respondent admitted that he was the inquest judge in the preliminary investigation of the above
entitled case and finding the existence of probable cause, he ordered the issuance of the warrant of arrest against
the accused and as the case was cognizable by the Regional Trial Court, it was forwarded to the Provincial
Prosecutor's Office in Aparri, Cagayan. 3

Respondent explained that since the case was cognizable by the Regional Trial Court, the Provincial Prosecutor's
Office, which has the final say and disposition on the existence of probable cause on cases cognizable by the
Regional Trial Court, should carry the brunt of the responsibility for "erroneous" finding of probable cause.4

Respondent judge argued that the findings of complainant judge in his 9 August 1993 order is his opinion-argument
and contended that "the proper remedy for a seemingly weak probable cause finding is a reinvestigation." 5

On 17 November 1993, Judge Antonino A. Aquilizan, Acting Presiding Judge of the Regional Trial Court of
Cagayan, Branch 10 denied with finality the motion filed by Assistant Provincial Prosecutor Melencio Unciano for
reconsideration of the 9 August 1993 order of then Presiding Judge Emerito M. Agcaoili and dismissed the
aforestated criminal case provisionally on grounds of absence of probable cause against the accused. 6
162

In its report and evaluation dated 26 April 1995, the Office of the Court Administrator recommended that respondent
be admonished to be more careful in the determination of the existence of probable cause before issuing a warrant
of arrest. Thus, opined the Office of the Court Administrator:

Close perusal of the records disclosed that the complaining witnesses do not have personal
knowledge of the facts which became the basis of the filing of the crime charged and of the issuance
of the warrant of arrest. From the affidavits of the affiants alone (Rollo, pp. 6-7), it is very clear that
they learned the killing of victim Virgilio Capa from a certain Wilma Anama. Respondent Judge,
however, on the basis of the said affidavits, issued an Order dated October 8, 1992 directing the
issuance of a warrant of arrest for the temporary confinement of the accused. Thereafter, the
warrant of arrest was issued on the same day.

Respondent Judge in issuing the warrant of arrest failed to observe the elementary requirement that
the complainant and his witnesses should have personal knowledge of the commission of the
offense charged. Just like in the issuance of search warrants, mere hearsay evidence, cannot,
standing alone, justify the issuance of a warrant of arrest (See Quintero vs. National Bureau of
Investigation, G.R. 35149, June 23, 1988, Padilla J). Respondent Judge should be reminded that
under Section 36, Rule 130, Revised Rules on Evidence, "A witness can testify only to those facts
which he knows of his personal knowledge; that is, which are derived from his own perception, . . .
(309)".

We concur with the findings of the Office of the Court Administrator.

Section 6(b), Rule 112 of the New Rules of Criminal Procedure requires that a warrant of arrest shall be issued only
when the "municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing in
the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing
the respondent under immediate custody in order not to frustrate the ends of justice." This is in conformity with the
constitutional mandate that no "warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce. 7

In turn, probable cause for the issuance of a warrant of arrest has been defined as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the
person sought to be arrested. 8

Although the foregoing provisions seemingly grant judges wide latitude and unbridled discretion in determining
probable cause, an elementary legal principle must not be compromised — hearsay evidence cannot be the basis of
probable cause. The rules on evidence are explicit. A witness can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his own perception.  Hearsay evidence, therefore, has no
9

probative value whatsoever.   Yet, in the case at bench, respondent judge found probable cause and even issued
10

an arrest warrant on the basis of the testimonies of Mencelacion Padamada and Rosita Castillo which were
obviously hearsay. Consider the preliminary investigation conducted by respondent judge:

xxx xxx xxx

Q: You said that you are Mencelacion Padamada, is this Mencelacion Padamada the
same as Mencelacion Castillo Capa?

A: Yes, sir.

Q: Do you know Virgilio Capa?

A: Yes, sir.

Q: Why do you know him?

A: He is my son.

Q: You said you are Mrs. Padamada, how come that the family name of your son is
Capa?

A: He is my child in my first nuptial.

Q: Was your first husband still alive?

A: He died already.
163

Q: Are you legally married with your husband.

A: No, sir, he is only common law husband.

Q: You said that Virgilio Capa is your son, do you know where is your son now?

A: He was already dead and buried at the cemetery of Sta. Ana, Cagayan.

Q: Do you know the cause of his death?

A: Yes, sir, they killed him.

Q: You said that they killed him do you know the person who killed him?

A: I do not know his name but his sister came to me and reported the incident.

Q: Will you please tell the name of the person who killed your son Virgilio Capa?

A: Rolando Anama.

Q: How did Rolando Anama, killed your son, if you know?

A: They stabbed him to death.

Q: What kind of weapon did he use in killing your son?

A: I do not know sir, all I know he was killed by Rolando Anama.

Q: So is the court made to understand that you were not present during the killing of
your son, isn't it?

A: Yes, sir, I was not present because I was at home.

Q: So it is understood that you were only informed about the death of your son?

A: Yes, sir, because his sister Wilma Anama, came to me and reported the incident
regarding the death of my son Virgilio Capa.

Q: What is the name of his sister?

A: Wilma Anama.

Q: What did you do when Wilma Anama came to your house and reported the killing
incident of your son Virgilio Capa?

A: We went to see.

Q: What did you do at that time when you were informed about the killing of your
son?

A: I went to see and verify it.

Q: Where?

A: At San Vicente, Sta. Ana, Cagayan, to the house of Rolando Anama.

Q: What did you find out when you reach the house of Rolando Anama?

A: I found out that my son, is already buried.

Q: How did you come to know that your son was buried?

A: Wilma Anama reported to me sir.

164

COURT: That is all. (Emphasis ours)

xxx xxx xxx

Q: Please state your name and other personal circumstances?

A: Rosita Castillo, 52 years old, married, housekeeper and resident of Parada-Batu,

Sta. Ana, Cagayan.

COURT:

Q: On June 15, 1992 in the morning, can you still recall where were you?

A: I was in your house sir.

Q: While you were inside your house can you recall some (newbits) that reached
you?

A: Yes, sir.

Q: What was that news items that reached you?

A: Wilma Anama told me that Virgilio Capa was killed by Rogelio Anama.

Q: Who is this Wilma Anama how is she related to the accused?

A: They are brother and sister.

Q: When Wilma Anama related to you that Virgilio Capa was killed by Rolando
Anama, what did you do?

A: I informed the mother of Virgilio Capa.

Q: Who is the mother of Virgilio Capa?

A: Mencelacion Capa.

Q: When you informed the mother of Virgilio Capa was killed by Rolando Anama,
what did you do?

A: I informed the mother of Virgilio Capa.

Q: Who is the mother of Virgilio Capa?

A: Mencelacion Capa.

A: When you informed the mother of Virgilio Capa about the killing incident of her son
what did you do if there be any?

A: I informed Mencelacion Padamada, about the killing of her son and further
instructed her to go and see her son.

Q: Is the court made to understand that you were not present during the killing
incident happened?

A: No, sir.

Q: And you do not know the day when Rogelio Anama killed Virgilio Capa isn't it?

A: Yes, sir.

Q: You were only informed by Wilma Anama the sister of the herein accused about
the killing of Virgilio Capa isn't it?
165

A: Yes, sir.

Q: Aside from that report made by Wilma Anama what else did Wilma Anama tell you
if there be any?

A: No more sir, those were only the things told to me by Wilma Anama, but she even
revealed that Virgilio Capa, was buried by her brother Rogelio Anama after killing
him.

Q: Did he tell the place where he was buried?

A: Yes, sir.

Q: To whom did Wilma Anama reveal that Virgilio Capa was buried after he was
killed by Rolando Anama?

A: I, sir.

Q: How about the mother of Virgilio Capa was she present at that time when Wilma
Anama reported the incident to you?

A: The mother was not present.

Q: So it was you to whom Wilma Anama related the killing of Virgilio Capa by
Rolando Anama?

A: Yes, sir.   (Emphasis ours)

11

xxx xxx xxx

We are as perplexed as complainant judge Agcaoili why Wilma Anama, who apparently witnessed the alleged crime
or has personal knowledge thereof, was not summoned by respondent for investigation. She could have been the
key to determining whether or not Rolando Anama was the probable perpetrator of the grisly killing.

Respondent cannot pass the blame and burden to the provincial prosecutor. The determination of probable cause is
a function of the judge and is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge
alone makes this determination.  12

Liberty, in any part of the civilized world is a basic human right, the curtailment of which must be in strict conformity
with the procedure laid down by law. It is, therefore, this constant reminder which compels us to remain ever vigilant.

WHEREFORE, respondent judge is hereby REPRIMANDED for his failure to comply with the pertinent rules on the
issuance of a warrant of arrest, with a warning that repetition of the same or similar acts will be dealt with more
severely. Let a copy of this resolution be entered in his record.

SO ORDERED.
166

G.R. No. L-28482 January 30, 1971

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN BRIOSO and MARIANO TAEZA, defendants-appellants.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Frine' C. Zaballero and Solicitor
Rosalio A. de Leon for plaintiff-appellee.

Cirilo F. Asprilla, Jr., as counsel de oficio for defendants-appellants.

167

REYES, J.B.L., J.:

Appeal from a judgment of the Court of First Instance of Abra, in its Criminal Case No. 626, finding the two
appellants Juan Brioso and Mariano Taeza guilty of murder, and sentencing each to suffer life imprisonment and to
indemnify, jointly and severally, the heirs of Silvino Daria in the sum of P6,000.00 but without subsidiary
imprisonment in case of insolvency, and to pay the costs.

An information filed by the Provincial Fiscal dated 16 January 1967 charged the two accused, Juan Brioso and
Mariano Taeza, with the crime of murder under Article 248 of the Revised Penal Code, committed as follows:

That on or about the 23rd day of December, 1966, in the Municipality of Tayum, Province of Abra,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed
with firearms of different calibers, by confederating and mutually helping one another, with deliberate
intent to kill and without justifiable motive, with treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously, assault, attack and shot one, Silvino Daria, inflicting upon
him multiple gunshot wounds on the different parts of his body, which wounds caused his death
thereafter.

CONTRARY TO LAW, with the aggravating circumstances in the commission of the crime, to wit: (a)
treachery and evident premeditation; (b) advantage was taken of superior strength; and (c) with the
use of firearm.

The records of the case show that on 23 December 1966, between 8 and 9 in the evening, the spouses Silvino
Daria and Susana Tumalip were in their house at barrio Tiker, Tayum, Abra. The husband was making rope in the
annex of their house, while the wife, four meters away, was applying candle wax to a flat iron. Silvino Daria was
using a lamp where he worked. Outside, the night was bright because of the moon overhead.

Cecilia Bernal, a niece and neighbor of the spouses, was alarmed by the barking of dogs. She peeped through a
crack in the wall of her house and saw appellants herein pass southward in the direction of the house of Silvino
Daria that was six meters away. Brioso was carrying a long gun. Her suspicions awakened, she went downstairs
and, shielded by the fence, witnessed each appellant point a gun at the bamboo wall of Daria's house. Two
detonations followed, and thereafter she heard Daria moaning and his wife call for help, saying her husband had
been shot. Bernal went to the house and found the victim prostrate, wounded and unable to speak. The widow,
however, testified that right after being shot, she rushed to her husband's side and he told her that he was shot by
Juan Brioso and Mariano Taeza. Silvino Daria expired one hour later as a result of gunshot wounds in the abdomen
and leg. A few days later, Cecilia Bernal and the widow, Susana Tumalip, executed affidavits pointing to the two
accused as the killers (Exhibits "B" and "C," respectively).

The cause of the death of Silvino Daria was "Shock due to severe hemorrhage secondary to gunshot wounds at the
abdomen and leg," as found by Dr. Isabelo B. Lucas, Municipal Health Officer of Tayum, Abra, contained in his
Medico-Legal Necropsy Report, Exhibit "A".

The motive for the killing appears to have been the disapproval by the spouses Silvino and Susana Daria of Mariano
Taeza's courtship of their daughter, Angelita. Angelita was even sent to Manila for her to avoid Mariano Taeza. The
courtship is admitted by Mariano Taeza.

The two accused appealed the conviction and assigned the following errors as committed by the court a quo:

1. The lower court erred in relying on the uncorroborated and contradictory testimony and statement
of the prosecution witness Cecilia Bernal on the physical identity of the accused;

2. The lower court erred in disregarding the affidavit (Exhibit 2) of Antonio Daria, son of the
deceased, clearing the accused Mariano Taeza, which affidavit had been identified in court by the
fiscal before whom the same was executed; and

3. The lower court erred in finding the accused guilty of the crime of murder.

The assigned errors are discussed together, being closely inter-related.

We find no discrepancy in the testimony of Cecilia Bernal on the material points. She stated that she did not see
Mariano Taeza carry a gun when both the accused passed by. But this brief observation does not necessarily mean
that he was not actually armed or carrying a gun on his person. The fact that he did was proved when both the said
accused were seen pointing their respective gun at the victim and each subsequently fired once at him, Taeza using
a short weapon (t.s.n. Millare, page 17) that could have been carried concealed in his person.
168

The house of Cecilia Bernal was only six meters away from that of Silvino Daria's. The night was brightly illuminated
by the moon. Cecilia Bernal had known both accused for a long time and it is admitted that they also know her.
There could have been no difficulty in identifying the accused under the circumstances.

Cecilia Bernal had no motive to impute falsely this heinous charge of murder against the above-said accused,
considering that Mariano Taeza is a nephew of the deceased by a first degree cousin. Even Juan Brioso specifically
said that he knew of no reason why she should testify against him. Hence, her statement that she came to court
only to tell the truth should be believed. The witness also stated that she was hard of hearing and could not
understand some of the questions; thus, the alleged inconsistencies in her testimony do not detract from the
"positive and straightforward"1 identification of the accused as the ones who were seen at the scene of the crime and
who actually shot Silvino Daria.

It is noteworthy that the trial judge observed witness Bernal closely, warning her several times not to exaggerate, yet
in the decision gave her full credence, being obviously satisfied of her truthfulness.  The general rule, based on
lâwphî1.ñèt

logic and experience, is that the findings of the judge who tried the case and heard the witnesses are not disturbed
on appeal, unless there are substantial facts and circumstances which have been overlooked and which, if properly
considered, might affect the result of the case,2 which in this case have not been shown to exist.

Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the victim, who told his wife that it
was Juan Brioso and Mariano Taeza who shot him. This statement does satisfy the requirements of an ante mortem
statement. Judged by the nature and extent of his wounds, Silvino Daria must have realized the seriousness of his
condition, and it can be safely inferred that he made the same under the consciousness of impending
death,3 considering that he died only one hour after being shot.

The defense of both the accused is alibi. Mariano Taeza's own account was that in the evening of 23 December
1966 he was at the barrio clinic of Tiker playing the guitar with Antonio Daria (son of the deceased), Narciso Valera
and Jose Cabais. While in the said place, they heard two gun explosions. Soon afterwards, Macrino Arzadon and
Taurino Flores came running towards them, informing Antonio Daria that his father was already dead.

Exhibit "2," the alleged affidavit of Antonio Daria, was presented in court to corroborate Mariano Taeza's testimony.
But while the said affidavit was identified by the Provincial Fiscal as having been subscribed and sworn to before
him, he also stated that he did not know Antonio Daria personally and that was the only time he appeared before
him. Exhibit "2" does not have the seal of the Fiscal's Office. Moreover, the said exhibit was never identified by the
supposed affiant and there was no opportunity for the prosecution to cross-examine him. As stated in People vs.
Mariquina4, affidavits are generally not prepared by the affiants themselves but by another who uses his own language in
writing the affiants' statements, which may thus be either committed or misunderstood by the one writing them. For this
reason, and for the further reason that the adverse party is deprived of the opportunity to cross-examine the affiants,
affidavits are generally rejected in a judicial proceeding as hearsay, unless the affiants themselves are placed on the
witness stand to testify thereon. In view hereof, We find Exhibit "2" of no probative value, and that the lower court did not
err when it rejected the same. In this connection, it is markworthy that the prosecuting attorney stated in open court that
Antonio Daria had also executed another affidavit (Exhibit "D") in the Fiscal's office "to the effect that he went to the office
of defense counsel, ...... and there affixed his thumbmark on a statement that was never read to him." Be that as it may,
not one of the other persons who, Mariano Taeza claimed, were with him in the barrio clinic (Narciso Valera and Jose
Cabais) was produced in court to support his alibi. Mariano Taeza's testimony, therefore, remains uncorroborated. It has
been repeatedly held that in the face of direct evidence, alibi  is necessarily a weak defense and becomes more so if
uncorroborated. 5 It is worse if the alibi could have been corroborated by other persons mentioned by the accused but
they are not presented. 6

By Mariano Taeza's own admission, he and the other accused, Juan Brioso, are close friends. It was shown that
Mariano Taeza's house is only about two hundred meters from that of Silvino Daria's and that the barrio clinic is only
about eighty to one hundred meters from the said victim's place. Mariano Taeza himself stated that Silvino Daria
died "may be less than thirty minutes, may be five minutes" after his arrival at the victim's house with the latter's son
and other persons. As held in another case 7 the defense of alibi is so weak that in order to be believed there
should be a demonstration of physical impossibility for the accused to have been at the scene of the crime at the
time of its commission. Mariano Taeza was so near the victim's house that it was easy for him to be there when the
shooting occurred.

The other accused, Juan Brioso, stated that he was in sitio Catungawan, barrio Basbasa, Tayum, on 23 December
1966. He was there upon invitation of his first cousin, Nestorio Flores, to cut and mill sugar cane. He left his house
in Addamay at 8 in the morning of the said day, arriving in Catungawan before the noon meal. They cut sugar cane
from 4 to 5 in the afternoon. At 6:30, after supper, he, his cousin, and the latter's son, Felix Flores, started milling the
sugar cane which they had cut. The milling lasted up to 2 in the early morning of the following day. He never left the
place where they were milling. He learned of the death of Silvino Daria only when he returned to Addamay because
his parents informed him of the news. He admitted knowing Cecilia Bernal and that she likewise knows him.

He denied being a close friend of Mariano Taeza (thereby contradicting Mariano Taeza's testimony) 8; denied that he
had gone to the house of Angelita Daria, and his having knowledge of the courtship of Angelita by Mariano Taeza; or that
both of them used to drink and go out together. On cross-examination, however, he admitted that he went with Mariano
169

Taeza when they attended dances. One such occasion was during the birthday of his first degree cousin in Addamay way
back in 1965.

Nestorio Flores was presented to corroborate the alibi of the accused. But while both exhibited wonderful memory
as to what happened between sunset and midnight of 23 December 1966, they contradict each other as to what
happened in the earlier hours or events. As already stated, Juan Brioso testified that he left his place in Addamay at
8 in the morning and arrived at his cousin's house before the noon meal of 23 December 1966; but Nestorio Flores
asserted that it was 8 in the morning when Juan Brioso arrived. Brioso claimed that they cut sugar cane from 4 to 5
in the afternoon of the said day. His cousin testified that they cut sugar cane in the morning after Brioso's arrival until
lunchtime. Brioso stated that they milled sugar cane for the third time in that place in 1966, the first occasion being
on 29 November, and the second on 8 December. Flores denied this, saying that they did not cut sugar cane in
November, 1966, although in other years they did. He further stated that it was already in December of that year that
Brioso came. In fact, the same witness showed uncertainty as to the exact date, when he answered even on direct
examination that "may be that was the time when he came." 9 In cases of positive identification of the culprit by reliable
witnesses, it has been held that the defense of alibi  must be established by "full, clear and satisfactory evidence." 10 It is
obvious that this witness, who is a close relative of the accused, was merely presented in court in an attempt to save Juan
Brioso from punishment for the crime committed. We believe the trial court when it found that the witness has an interest
in the fate of the accused Juan Brioso, and, therefore, his testimony should not be given credence.

Evidence also shows that from Tiker to Catungawan is only about nine kilometers and only a two-hour walk. The
place is also accessible by motor transportation, although motor vehicles are allegedly rare in the said place. As in
the case of Mariano Taeza, it was not physically impossible for Juan Brioso to be at the locus criminis at the time
the crime was committed.

It has been clearly and sufficiently proved that the killing of Silvino Daria was qualified by treachery
(alevosia)." 11 The victim was quietly making rope in his own house. He was caught off-guard and defenseless when
suddenly and unexpectedly the two accused fired at him. He had no chance either to evade or repel the aggression. The
trial court correctly held that treachery absorbs nocturnity and abuse of superior strength. 12 But while these aggravating
circumstances are always included in the qualifying circumstance of treachery, the commission of the crime in the victim's
dwelling is not, 13 hence the crime is murder attended by one aggravating circumstance, which has been held to be
present where the victim was shot inside his house although the triggerman was outside. 14 There being no mitigating
circumstance to offset it, the apposite penalty is death. However, for lack of sufficient votes, the penalty imposable is
reduced to life imprisonment.

WHEREFORE, the sentence under appeal is affirmed, with the sole modification that the amount of the indemnity is
increased to P12,000.00. 15

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Villamor and Makasiar, JJ., concur.

Barredo, J., took no part.

CHARACTER EVIDENCE • Character evidence not generally admissible; exceptions. – In Criminal Cases: •
The accused may prove his good moral character which is pertinent to the moral trait involved in the offense
charged. • Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent it to the
moral trait involved in the offense charged. • Note that in criminal cases, the prosecution goes first. Hence, it
cannot present evidence on the bad moral character of the accused on its evidence in chief. • The good or bad
moral character of the offended party may be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged. In Civil Cases: • Evidence of the moral character of a party
in a civil case is admissible only when pertinent to the issue of character involved in the case.

A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived
from his own perception, except as otherwise provided in these rules. (Sec. 36 Rule 130)

Hearsay Rule PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN BRIOSO and MARIANO TAEZA,
defendants-appellants. G.R. No. L-28482 January 30, 1971

FACTS: Defendants Juan Brioso and Mariano Taeza, were charged with the crime of murder of Silvino Daria
under Article 248 of the Revised Penal Code. Cecilia Bernal, a niece and neighbor of the spouses, was
alarmed by the barking of dogs. She peeped through a crack in the wall of her house and saw appellants
herein pass southward in the direction of the house of Silvino Daria that was six meters away. Brioso was
carrying a long gun. Her suspicions awakened, she went downstairs and, shielded by the fence, witnessed
each appellant point a gun at the bamboo wall of Daria's house. Two detonations followed, and thereafter she
heard Daria moaning and his wife call for help, saying her husband had been shot. Bernal went to the house
and found the victim prostrate, wounded and unable to speak. The widow, however, testified that right after
170

being shot, she rushed to her husband's side and he told her that he was shot by Juan Brioso and Mariano
Taeza. Silvino Daria expired one hour later as a result of gunshot wounds in the abdomen and leg. A few days
later, Cecilia Bernal and the widow, Susana Tumalip, executed affidavits pointing to the two accused as the
killers. ISSUE: Whether the testimonial knowledge of the witness is sufficient to establish the facts of the case.
RULING: Yes. We find no discrepancy in the testimony of Cecilia Bernal on the material points. The house of
Cecilia Bernal was only six meters away from that of Silvino Daria's. The night was brightly illuminated by the
moon. Cecilia Bernal had known both accused for a long time and it is admitted that they also know her. There
could have been no difficulty in identifying the accused under the circumstances. Cecilia Bernal had no motive
to impute falsely this heinous charge of murder against the abovesaid accused, considering that Mariano
Taeza is a nephew of the deceased by a first degree cousin. Even Juan Brioso specifically said that he knew of
no reason why she should testify against him. Hence, her statement that she came to court only to tell the truth
should be believed. Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the
victim, who told his wife that it was Juan Brioso and Mariano Taeza who shot him. This statement does satisfy
the requirements of an ante mortem statement. Judged by the nature and extent of his wounds, Silvino Daria
must have realized the seriousness of his condition, and it can be safely inferred that he made the same under
the consciousness of impending death, considering that he died only one hour after being shot.

G.R. No. L-24877             June 30, 1969

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
GAUDENCIO MONGADO, JILLY SEGADOR, and BELESANDE SALAR, accused.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio A. Torres and Solicitor
Eduardo C. Abaya for plaintiff.
Pacifica B. Tacub for accused.

PER CURIAM:, F

Up for automatic review, in this case of robbery with double homicide and rape, is the trial court's decision imposing
the capital penalty upon the accused Gaudencio Mongado, Jilly Segador and Belesande Salar, on a plea of
guilty 1 entered into by each of them with the assistance of counsel de officio to the second amended information of
June 16, 1965, which reads:

SECOND AMENDED INFORMATION

The undersigned Assistant Provincial Fiscal hereby accuses GAUDENCIO MONGADO, JILLY SEGADOR,
BELESANDE SALAR, ANASTACIO CADENAS and ANDRES CAGADAS of the crime of ROBBERY WITH
DOUBLE HOMICIDE AND RAPE, committed as follows:

That on or about the 17th day of March, 1965, in the municipality of Mainit, province of Surigao del Norte,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, Gaudencio Mongado, Jilly
Segador, Belesande Salar, Anastacio Cadenas and Andres Cagadas with evident premeditation, conspiring,
confederating together and mutually helping one another, and armed with an unlicensed .22 cal. revolver, a
small sharp-pointed bolo, a toy revoler marked `Kit gun' and a wooden club, with intent to gain, after having
gained entrance to the residence of Silvino Lincuna and Emilia Dalit, husband and wife respectively, by
abusing the goodwill of the said spouses, the latter being the uncle and aunt respectively of the accused
Gaudencio Mongado, did then and there willfully, unlawfully and feloniously by means of force upon things
thru violence as alleged in the third paragraph of this information that is by breaking the aparadors and a
trunk where valuables and personal effects were then kept, take, steal and carry away the following articles,
to wit:

1. One (1) shotgun, 12 gauge ......................... P250.00 more or less

2. One (1) radio Kharman .............................. 250.00 " " ".
3. One (1) radiophono ................................... 450.00 " " ".
4. One (1) ring ............................................... 75.00 " " ".
5. One (1) ring ............................................... 40.00 " " ".
6. One (1) necklace (chinese gold) ............. 180.00 " " ".
7. One (1) necklace (chinese gold) ................. 75.00 " " ".
8. One (1) microphone .................................. 90.00 " " ".
Cash money ............................................... 300.00
171

P1,710.00

having a total value of P1,710.00, more or less, belonging to the said Silvino Lincuna and Emilia Dalit, as
owners, to their ultimate damage and prejudice in the aforementioned amount.

That on the same occasion, in the foregoing manner as charged and pursuant to their conspiracy, the said
accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack and assault in a
treacherous manner the said spouses, Silvino Lincuna and Emilia Dalit; that is, the accused Belesande
Salar clubbing Silvino Lincuna on the head; Gaudencio Mongado tying him helplessly to a chair with the use
of radio antennae and stuffing his mouth with rolls of gauze, and Jilly Segador attacking him with fatal
thrusts by means of a sharp-pointed bolo, and finally with Belesande Salar, also with the use of the same
sharp-pointed bolo, stabbing Emilia Dalit with several fatal thrusts; who as a result thereof suffered the
following injuries, to wit:

SILVINO LINCUNA

Contusion: 1. Frontal region left;

2. Orbital region, left;
3. Maxillary region, left;
4. Nasal region.
Incised wounds:
1. Earlobe, left;
2. Hemathorax, anteriorly, left (4) (a) 4 inches below midelivicular bone; 3 inches deep
(b) Upper-lateral to nipple
(c) Below nipple
(d) Lateral to nipple

EMILIA DALIT

1. Contusions buccal region with fracture right mandible;

2. Incised wounds

1. Infraclavicular region, left;

2. Mammary region, laterally left;
3. 4 inches below axilla, mid-axillary line, right;
4. Humeral region (2) right:

a. Lateral aspect
b. Medical aspect

5. Mammary region, upper right;

6. Numural region, left;
7. Infrascapular region, left (3);
8. Back right.

which injuries directly caused the death of the said Silvino Lincuna and Emilia Dalit.

That on the occasion of the said Robbery, with Double Homicide, in the manner as charged in this
information and pursuant to their conspiracy, the accused Belesande Salar after having fatally assaulted the
wife, Emilia Dalit, and while she was alive and helpless, did then and there willfully, unlawfully and
feloniously have carnal knowledge with the said Emilia Dalit at the residence referred to where the
aforementioned crime was committed.

Contrary to Article 294, paragraphs 1 and 2 of the Revised Penal Code with the aggravating circumstances
of treachery, ignominy evident premeditation and abuse of confidence, and with an additional aggravating
circumstance of recidivism against Gaudencio Mongado for having been previously convicted of the crime
for Robbery in Case No. 2470 before this Honorable Court of December 8, 1960 and made to suffer the
penalty of not less than 2 years, 4 months and one day of prision correccional, as minimum, to not more
than 8 years of prision mayor, as maximum.

Surigao, Surigao del Norte, June 16, 1965

(SGD.) ILDEFONSO G. MANTILLA          

Assistant Provincial Fiscal.          
172

It was on June 28, 1965 when the three accused, together with two others, were arraigned before His Honor, Judge
Teofilo B. Buslon of the Court of First Instance of Surigao del Norte.  2 According to the decision below, during the
arraignment, the information was translated to the accused "into the Visayan dialect, the dialect which each of the
five accused speaks and understands." The accused Gaudencio Mongado, Jilly Segador and Belesande Salar
pleaded guilty. The two others, Anastacio Cadenas and Andres Cagadas, pleaded not guilty. Those who admitted
guilt were asked by the court, in the words of the trial judge, "if they understood the consequence of their plea of
guilty which is that they would be punished according to law which might be death in the Electric Chair, to which
question each of the three accused answered in the affirmative." Thus did the trial court state in its decision that it "is
satisfied that when each of the above-named accused, GAUDENCIO MONGADO, BELESANDE SALAR and JILLY
SEGADOR, entered the plea of guilty, each of them was well aware of its consequences and that each of them did
so freely and voluntarily."

On July 8, 1965, without taking any evidence, but taking stock of the affidavits of admission of the three accused, as
attached to the record, the trial court found that the Commission of the crime charged was attended by the
aggravating circumstances of treachery, ignomity, evident premeditation, dwelling and abuse of confidence for all
the three accused, and recidivism as regards the accused Gaudencio Mongado (who was a parolee at the time of
the commission of this crime), all offset only by the mitigating circumstance of voluntary plea of guilty. The court,
accordingly, sentenced the three, Gaudencio Mongado, Belesande Salar and Jilly Segador (Anastacio Cadenas and
Andres Cagadas were to be tried separately) to suffer the penalty of death for the crime of robbery with double
homicide and rape defined and penalized under Article 294, paragraphs 1 and 2 of the Revised Penal Code, to
indemnify jointly and severally the hearirg of the victims Silvino Lincuna and Emilia Dalit in the amount of P6,000
each, plus P596.15, 3 the value of the things taken by the accused but not recovered, with 3/5 of the costs. The trial
court also directed the return to the heirs of the victims, of a radio receiving set, a radiophono, cash money of
P163.85, six pieces of assorted clothes of the victims and other things taken by the accused but recovered; and
likewise ordered the deposit with the Philippine Constabulary Provincial Command of Surigao del Norte of the 12 ga.
shotgun until it can be bought by any qualified person, the proceeds of which shall be turned over to the heirs of the
victims. The home-made revolver, cal. 22, the rounds of ammunitions thereof, the toy gun revolver, the small sharp-
pointed bolo, and the wooden club used as instruments of the crime, were ordered forfeited in favor of the
government.

On July 15, 1965, the trial court came out with an order directing that the decision disposing of the things recovered
and forfeiting to the government all the articles used in the commission of the crime, shall not be implemented until
after the case of the remaining two defendants, Andres Cagadas and Anastacio Cadenas, "will have been tried and
decided."

1. It is clear error on the part of the trial court to consider the affidavits of admission of the three accused attached to
the record in appreciating aggravating circumstances against them. Affidavits are generally classed as hearsay
evidence; they are objectionable on hearsay grounds;  4 they are not admissible evidence of the facts they
narrate. 5 These affidavits must first be formally offered and admitted in evidence before the court may consider their
contents. Thus, in People vs. Parayno (1968), 24 SCRA 3, 17, affidavits of prosecution witnesses and the record of
the preliminary investigation "were offered as exhibits" and "legally before the Court" and were thus properly
considered. And again, in People vs. Tarrayo, L-26489, April 21, 1969, a capital case, the transcript of stenographic
notes taken at the preliminary investigation was received in evidence after the accused pleaded guilty. It was thus
also appropriately utilized by the court.

The fundamental rule on this point is found in Section 35, Rule 132, Rules of Court, which provides that "[t]he court
shall consider no evidence which has not been formally offered." It is the duty of the judge to rest his findings of
facts and his judgment only and strictly upon the evidence adduced.  6 Here, the affidavits of admission have not been
formally offered, much less admitted, in evidence. They cannot be taken into account.

The result is that solely the factual averments in the second amended information — to which the three accused
have pleaded guilty — may be made the basis of any court finding as to the aggravating circumstances.

2. Of importance here is the existence of circumstances in aggravation or in mitigation of the penalty for the crime
committed. For, at stake are the lives of the three accused. Deep-rooted in criminal law is the precept that the
existence of aggravating circumstances must be based on positive and conclusive proof, not merely on hypothetical
facts, no matter how truthful suppositions and presumptions may seem.  7

There is, of course, the firmly settled jurisprudential principle that an unqualified plea of guilty constitutes an
admission of all the material facts alleged in the information including the aggravating circumstances therein
stated. 8 Excepted therefrom are conclusions of fact, 9 and mere conjectures. 10 Thus it is, that a plea of guilty is
sufficient to sustain a conviction of any offense charged in the information, even a capital offense, without the
introduction of further evidence, the defendant having himself supplied the necessary proof. 11

Parting from the foregoing premises, we take a look at the aggravating circumstances found by the trial court.
173

3. Counsel de officio contends that alevosia may not be considered in aggravation because here it did not exist at
the inception of the attack.

True, the general rule is that treachery should normally attend the inception of the attack. 12 But "if a person is first
seized and bound, with a view to rendering him incapable of defense, and he is then slain either by the person who
reduced him to his helpless state or by another," alevosia is present. 13 Reason for this is that "[i]n a case of that kind
it is obvious that the binding of the victim of the aggression introduces a material change in the conditions of the
homicide; and in slaying a person so circumstance, the author of the crime obviously avails himself of a form or
means directly tending to insure the execution of the deed without risk to himself from any defense on the part of the
person slain." 14

In this case, the second amended information specifically charged that defendants killed Silvino Lincuna "in a
treacherous manner ... that is, the accused Belesande Salar clubbing Silvino Lincuna on the head, Gaudencio
Mongado tying him helplessly to a chair with the use of radio antennae and stuffing his mouth with rolls of gauze,
and Jilly Segador attacking him with fatal thrusts by means of a sharp-pointed bolo." No doubt, the principles
heretofore stated fit into the foregoing facts. Treachery has been properly appreciated.

4. Ignominy was deemed an aggravating circumstance because of the rape committed on the occasion of the
robbery with double homicide.

The second amended information charges: "That on the occasion of the said Robbery, with Double Homicide, in the
manner as charged in this information and pursuant to their conspiracy, the accused Belesande Salar after having
fatally assaulted the wife, Emilia Dalit, and while she was still alive and helpless, did then and there willfully,
unlawfully and feloniously have carnal knowledge with the said Emilia Dalit at the residence referred to where the
aforementioned crime was committed."

Article 14 of the Revised Penal Code, in enumerating aggravating circumstances, states in its paragraph 17: "That
means be employed or circumstances brought about which add ignominy to the natural effects of the act."

We do not believe that the rape here committed added ignominy to the crime. Nothing in the information suggests
that the rape of Emilia Dalit was perpetrated by the satyr in the presence or with the knowledge of her husband
Silvino Lincuna. This act was done after the fatal thrusts were inflicted on Lincuna. Thereafter, the wife was first
fatally assaulted and, while still alive and helpless, was ravished. This last averment by itself and without more
leaves us under serious doubt as to whether rape did really "add ignominy" to the killing.

The foregoing notwithstanding, it is the uniform jurisprudence of this Court that where the crime charged is robbery
with homicide and rape, the legal definition of the crime is robbery with homicide punishable under paragraph 1,
Article 294 of the Penal Code; and the rape committed on the occasion of that crime is considered an aggravating
circumstance. 15 Instead of ignominy, therefore, it is the rape itself that aggravates.

5. Dwelling was properly included as an aggravating circumstance, although not specifically alleged in the
information as such an aggravating circumstance. 16 And this, because from the factual narration in the second
amended information, the robbery, the killing and the rape were all perpetrated in the "residence" of the offended
parties. We have said in the recent case of People vs. Apduhan (August 30, 1968), supra, at p. 815, that —

The settled rule is that dwelling is aggravating in robbery with violence or intimidation of persons, 17 like the offense
at bar. The rationale behind this pronouncement is that this class of robbery could be committed without the
necessity of transgressing the sanctity of the home. Morada is inherent only in crimes which could be committed in
no other place than in the house of another, such as trespass and robbery in an inhabited house. This Court
in People vs. Pinca, citing People vs. Valdez, ruled that the "circumstances (of dwelling and scaling) were certainly
not inherent in the crime committed, because, the crime being robbery with violence or intimidation against persons
(specifically, robbery with homicide) the authors thereof could have committed it without the necessity of violating or
scaling the domicile of their victim." Cuello Calon opines that the commission of the crime in another's dwelling
shows greater perversity in the accused and produces greater alarm."

No reason exists why we should depart from the pronouncement just quoted. 18

6. Counsel de officio invokes in mitigation lack of instruction. But lack of instruction should be proved; it cannot be
inferred. 19 There is no such proof here. It was not invoked below.

The result, therefore, of our review of the record is that the crime here under consideration is attended by the
aggravating circumstances of (1) treachery, (2) dwelling, and (3) rape against all the three accused, with the added
aggravating circumstance of (4) recidivism against Gaudencio Mongado. And only one mitigating circumstance —
that of voluntary plea of guilty — can be considered in favor of the three accused. By the law, the three accused
merit the penalty of death. We do not thus find it necessary to pass upon the lower court's pronouncement that the
aggravating circumstances of evident premeditation and abuse of confidence also attended the commission of the
crime. The result is the same. The penalty is death. 1awphil.nêt
174

FOR THE REASONS GIVEN, the decision under review is hereby affirmed; the three defendants Gaudencio
Mongado, Jilly Segador and Belesande Salar are hereby sentenced to DEATH, and are ordered, jointly and
severally, to indemnify the heirs of each of the deceased, Silvino Lincuna and Emilia Dalit, in the sum of P12,000.00,
and to pay the said heirs, jointly and severally, the sum of P596.15, the value of the things taken but not recovered,
and to pay the costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee and
Barredo, JJ., concur.
Dizon, J., took no part.

G.R. No. 117401 October 1, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BERNARDO QUIDATO, JR., accused-appellant.

ROMERO, J.:

Before us is an appeal from the judgment of the Regional Trial Court of Davao, Branch 4, dated March 2, 1994,
finding accused-appellant Bernardo Quidato, Jr. guilty of the crime of parricide.

On January 17, 1989, accused-appellant was charged with the crime of parricide before the Regional Trial Court of
Davao. The information reads as follows:
175

The undersigned accuses BERNARDO QUIDATO, JR. of the crime of Parricide under Article 246 of
the Revised Penal Code, committed as follows:

That on or about September 17, 1988, in the Municipality of Kaputian, Province of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping with Reynaldo Malita and Eddie Malita, who are
charged for (sic) Murder in a separate information, did then and there wilfully, unlawfully and
criminally, with the use of a bolo and an iron bar, assault, hack and stab his father, Bernardo
Quidato, Sr., on the different parts of his body, thereby inflicting upon him wounds which caused his
death, and further causing actual, moral and compensatory damage to the heirs of the victim.

Contrary to law. 
1

Accused-appellant's case was tried jointly with the murder case filed against his co-accused Reynaldo Malita and
Eddie Malita who, however, withdrew their "not guilty" plea during the trial and were accordingly sentenced. Thus,
only accused-appellant's case was tried on the merits.

The prosecution, in offering its version of the facts, presented as its witnesses accused-appellant's brother Leo
Quidato, appellant's wife Gina Quidato, as well as Patrolman Lucrecio Mara. Likewise, the prosecution offered in
evidence affidavits containing the extra-judicial confessions of Eddie Malita and Reynaldo Malita. The two brothers
were, however, not presented by the prosecution on the witness stand. Instead, it presented Atty. Jonathan Jocom
to prove that the two were assisted by counsel when they made their confessions. Similarly, the prosecution
presented MTC Judge George Omelio who attested to the due and voluntary execution of the sworn statements by
the Malita brothers.

Based on the foregoing pieces of evidence, the prosecution's version of the facts is as follows:

Bernardo Quidato, Sr. was the father of accused-appellant Bernardo Quidato, Jr. and Leo Quidato. Being a
widower, Bernardo lived alone in his house at Sitio Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned sixteen
hectares of coconut land in the area.

On September 16, 1988, Bernardo, accompanied by his son, herein accused-appellant, and two hired hands,
Reynaldo Malita and Eddie Malita, went to Davao City to sell 41 sacks of copra. After selling the copra, Bernardo
paid the Malita brothers for their labor, who thereafter left. Bernardo and accused-appellant went back to Sitio Libod
that same day. 2

According to Gina Quidato, on the evening of the next day, September 17, 1988, accused-appellant and the Malita
brothers were drinking tuba at their house. She overheard the trio planning to go to her father-in-law's house to get
money from the latter. She had no idea, however, as to what later transpired because she had fallen asleep before
10:00 p.m.  Accused-appellant objected to Gina Quidato's testimony on the ground that the same was
3

prohibited by the marital disqualification rule found in Section 22 of Rule 130 of the Rules of Court.   The 4

judge, acknowledging the applicability of the so-called rule, allowed said testimony only against accused-
appellant's co-accused, Reynaldo and Eddie.

As adverted to earlier, the Malita brothers confessed to their participation in the crime, executing affidavits
detailing how Bernardo was killed. Their version shows that Eddie had been living with accused-appellant
for the past four years. At around 6:00 p.m. of September 17, 1988, accused-appellant asked Reynaldo to
come to the former's house to discuss an important matter. Upon Reynaldo's arrival at accused-appellant's
house, he saw that his brother Eddie was already there. They started drinking beer. The Malita brothers
alleged that it was at this juncture that accused-appellant proposed that they rob and kill his father. They
went to Bernardo's house only at 10:00 p.m., after the rain had stopped. Reynaldo brought along a bolo.
Upon reaching the house, accused-appellant knocked on the door, asking his father to let them in. When
Bernardo opened the door, Eddie rushed in and knocked the old man down. Reynaldo then hacked
Bernardo on the nape and neck. Accused-appellant and Eddie ransacked Bernardo's aparador looking for
money but they found none; so, the three of them left.

The body of Bernardo was discovered the next day by accused-appellant's son, who had gone there to call
his Lolo for breakfast. The cause of death, as stated in Bernardo's death certificate was "hypovolemic
shock secondary to fatal hacking wound on the posterior neck area."  5

On September 27, 1988, Leo Quidato confronted his brother regarding the incident and learned that
Reynaldo and Eddie Malita were the ones responsible for Bernardo's death. The two were promptly arrested
by the police. Aside from arresting the latter two, however, the police also arrested accused-appellant.

On September 29, 1988, the Malita brothers were interrogated by Patrolman Lucrecio Mara at the Kaputian
Police Station. When Mara apprised them of their constitutional rights, including their right to counsel, they
signified their intent to confess even in the absence of counsel. Aware that the same would be useless if
176

given in the absence of counsel, Mara took down the testimony of the two but refrained from requiring the
latter to sign their affidavits. Instead, he escorted the Malita brothers to Davao City and presented them,
along with their unsigned affidavits, to a CLAO (now PAO) lawyer, Jonathan Jocom. 6

Informed of the situation, Atty. Jocom conferred with Reynaldo and Eddie, again advising the two of their
constitutional rights. The CLAO lawyer explained the contents of the affidavits, in Visayan, to the Malita
brothers, who affirmed the veracity and voluntary execution of the same. Only then did Reynaldo and Eddie
affix their signatures on the affidavits.
7

In his defense, accused-appellant denied the allegations of the Malita brothers. He claimed that the Malita
brothers were not at his house on the evening of September 17, 1988. They, however, passed by his house
at around 10:00 p.m. and asked him to come with them to his father's house, threatening him with harm if he
refused. Out of fear, he led the way to Bernardo's house and even knocked on the latter's door until
Bernardo opened the same. In the ensuing commotion, he scampered away, but in his confusion, reached
his house only at around 11:00 p.m., although the same was only about one hundred fifty meters away from
Bernardo's house. He did not call for help. Eddie arrived a while later. Accused-appellant claimed not to
have seen the actual killing, having run away earlier. He, however, admitted finding a bolo, encrusted with
blood, at his house. He turned the same over to his brother, who, in turn, surrendered the same to the
police. Accused-appellant did not feel uneasy having Eddie around even if he knew of the latter's
participation in the crime.
8

After due trial, the court a quo rendered the following judgment:

WHEREFORE, IN THE LIGHT OF THE FOREGOING, the court finds the accused, Bernardo
Quidato, Jr., guilty beyond reasonable doubt as a co-principal in the offense of Parricide
which falls under Article 246 (of the Revised Penal Code), for the death of his father,
Bernardo Quidato, Sr., and accordingly, is hereby sentenced by this court to suffer the
penalty of RECLUSION PERPETUA, with all the accessory penalties provided by law and to
indemnify the other heirs of Bernardo Quidato, Sr., the amount of P50,000.00, in accordance
with current case doctrines of the Supreme Court, and to pay the costs.

SO ORDERED. 9

From the aforesaid judgment of conviction, appellant interposed the present appeal, assigning the following
errors:

1. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE EXTRAJUDICIAL

CONFESSIONS OF REYNALDO MALITA (EXH. C) AND EDDIE MALITA (EXH. D)
IN CLEAR VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED-
APPELLANT TO CONFRONT WITNESSES.

2. THE TRIAL COURT ERRED IN FINDING (THE) EXISTENCE OF CONSPIRACY

IN THE CASE AT BAR.

3. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE RAISED BY

THE ACCUSED AND DISREGARDING (ANY) ILL-MOTIVE OF REYNALDO AND
EDDIE MALITA IN KILLING THE VICTIM.

Accused-appellant must be acquitted.

In indicting accused-appellant, the prosecution relied heavily on the affidavits executed by Reynaldo and
Eddie. The two brothers were, however, not presented on the witness stand to testify on their extra-judicial
confessions. The failure to present the two gives these affidavits the character of hearsay. It is hornbook
doctrine that unless the affiants themselves take the witness stand to affirm the averments in their
affidavits, the affidavits must be excluded from the judicial proceeding, being inadmissible hearsay.   The
10

voluntary admissions of an accused made extrajudicially are not admissible in evidence against his co-
accused when the latter had not been given an opportunity to hear him testify and cross-examine him. 11

The Solicitor General, in advocating the admissibility of the sworn statements of the Malita brothers, cites
Section 30, Rule 130 of the Rules of Court which provides that "[t]he act or declaration of a conspirator
relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other than such act or declaration." The inapplicability of this
provision is clearly apparent. The confessions were made after the conspiracy had ended and after the
consummation of the crime. Hence, it cannot be said that the execution of the affidavits were acts or
declarations made during the conspiracy's existence.
177

Likewise, the manner by which the affidavits were obtained by the police render the same inadmissible in
evidence even if they were voluntarily given. The settled rule is that an uncounseled extrajudicial
confession without a valid waiver of the right to counsel — that is, in writing and in the presence of
counsel — is inadmissible in evidence.   It is undisputed that the Malita brothers gave their statements to
12

Patrolman Mara in the absence of counsel, although they signed the same in the presence of counsel the
next day. As ruled in People vs. Compil:  13

[T]he belated arrival of a CLAO (now PAO) lawyer the following day even if prior to the actual
signing of the uncounseled confession does not cure the defect (of lack of counsel) for the
investigators were already able to extract incriminatory statements from accused-appellant . .
. Thus, in People vs. De Jesus (213 SCRA 345 [1992]) we said that admissions obtained
during custodial interrogations without the benefit of counsel although later reduced to
writing and signed in the presence of counsel are still flawed under the Constitution.

With regard to Gina Quidato's testimony, the same must also be disregarded, accused-appellant having
timely objected thereto under the marital disqualification rule. As correctly observed by the court a quo, the
disqualification is between husband and wife, the law not precluding the wife from testifying when it
involves other parties or accused.   Hence, Gina Quidato could testify in the murder case against Reynaldo
14

and Eddie, which was jointly tried with accused-appellant's case. This testimony cannot, however, be used
against accused-appellant directly or through the guise of taking judicial notice of the proceedings in the
murder case without violating the marital disqualification rule. "What cannot be done directly cannot be
done indirectly" is a rule familiar even to law students.

Given the inadmissibility in evidence of Gina Quidato's testimony, as well as of Reynaldo and Eddie's
extrajudicial confessions, nothing remains on record with which to justify a judgment unfavorable to
accused-appellant. Admittedly, accused-appellant's defense, to put it mildly, is dubious. His alleged
acquiescence to the demand of the Malita brothers to accompany them to his father's house on the strength
of the latter's verbal threats, his incredulous escape from the clutches of the two, his inexplicable failure to
return home immediately, his failure to seek assistance from the authorities, the fact that Eddie stayed with
him immediately after the incident, and the nine-day lacuna between the killing and his pointing to the
Malita brothers as the culprits, all suggest a complicity more than that of an unwilling participant. Yet,
suspicion, no matter how strong, should not sway judgment, it being an accepted axiom that the
prosecution cannot rely on the weakness of the defense to gain a conviction, but must establish beyond
reasonable doubt every circumstance essential to the guilt of the accused.   This the prosecution has failed
15

to demonstrate.

WHEREFORE, the appeal is hereby GRANTED and the decision of the Regional Trial Court of Davao City in
Criminal Case No. 89-9 dated March 2, 1994, is REVERSED and SET ASIDE. Accused-appellant Bernardo
Quidato, Jr. is hereby ACQUITTED on ground of reasonable doubt. Consequently, let the accused be
immediately released from his place of confinement unless there is reason to detain him further for any
other legal or valid cause. With costs de oficio.

SO ORDERED.

Kapunan and Purisima, JJ., concur.

Narvasa, C.J., is on leave.

People v. Quidato, Jr., G.R. No. 117401, October 1, 1998

FACTS:

Quidato was charged with parricide of his father, Bernardo Quidato Sr., together with co-accused Siblings
Reynaldo and Eddie Malita (who were charged murder in a separate information).
178

They were tried jointly.

Prosecution presented as witnesses Quidato’s brother, wife and Patrolman Lucrecio.

Extrjudicial confessions by the Malita siblings were not admitted for lack of counsel assistance during custodial
investigation.

Gina Quidaro, wife of accused, testified that on the evening before the killing, her husband and the Malita
brothers were drinking tuba at their house and overheard them planning to go to her father-in-laws house to
get money from the latter.

Quidato objected to his wife’s testimony on the ground of marital disqualification rule in Section 22 or Rule
130 of the Rule of Court.

RTC judge acknowledged the applicability of the so-called rule, but allowed said testimony only against
accused appellants co-accused, Reynaldo and Eddie.

Issue: w/n the RTC correctly ruled on the applicability of the wife’s testimony?

Held: YES.

As correctly observed by the court a quo, the disqualification is between husband and wife, the law not
precluding the wife from testifying when it involves other parties or accused. Hence, Gina Quidato could
testify in the murder case against Reynaldo and Eddie, which was jointly tried with accused-appellants case.
This testimony cannot, however, be used against accused-appellant directly or through the guise of taking
judicial notice of the proceedings in the murder case without violating the marital disqualification rule. What
cannot be done directly cannot be done indirectly is a rule familiar even to law students.

Given the inadmissibility in evidence of Gina Quidatos testimony, as well as of Reynaldo and Eddies
extrajudicial confessions, nothing remains on record with which to justify a judgment unfavorable to accused-
appellant. Admittedly, accused-appellants defense, to put it mildly, is dubious. His alleged acquiescence to the
demand of the Malita brothers to accompany them to his father’s house on the strength of the latters verbal
threats, his incredulous escape from the clutches of the two, his inexplicable failure to return home
immediately, his failure to seek assistance from the authorities, the fact that Eddie stayed with him
immediately after the incident, and the nine-day lacuna between the killing and his pointing to the Malita
brothers as the culprits, all suggest a complicity more than that of an unwilling participant. Yet, suspicion, no
matter how strong, should not sway judgment, it being an accepted axiom that the prosecution cannot rely on
the weakness of the defense to gain a conviction, but must establish beyond reasonable doubt every
circumstance essential to the guilt of the accused. This the prosecution has failed to demonstrate.
179

G.R. No. 119359 December 10, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROBERT CLOUD, accused-appellant.

REGALADO, J.:p

The universal outcry and multinational campaign against child abuse can draw added impetus from this extreme case of a little boy, just barely two and a half
years old, who was beaten to death by his own father. So it was alleged in an information for parricide filed against accused-appellant Robert Cloud in the
Regional Trial Court, Branch 103, Quezon City. 1
180

The case for the prosecution is presented by the Solicitor General   by adopting the factual findings of the trial court,
2

with the pages of the stenographic notes being supplied by the People. Having painstakingly reviewed and analyzed
the evidence of record, we find that such findings merit reproduction hereunder:

At around 11:00 o'clock in the morning on August 2, 1988 while a certain Mrs. Josephine Aguilar
was at the emergency room of St. Luke's Hospital, Quezon City to have some stitches removed from
her daughter's head her attention was called by a limpid boy being carried by a man followed by an
old woman who was shouting hysterically. The boy is John Albert Cloud. She noticed that the face of
the boy was swollen and bruised and his body covered with dry blood. A nurse commented that the
little
boy — not more than three years old — must have been hit by a truck (tsn, J. Aguilar, June 21,
1993, pp. 7-10, 14-15, 33).

But the words of the old woman — the lola — of the little boy, showed the cause of the injury to be
otherwise for she was repeatedly saying in a potpourri of cries and tears: "Pinatay siya ng sariling
ama!" The old woman told the people inside the Emergency Room that the boy's
father — Robert Cloud — wouldn't allow John Albert to come with her and when the boy started to
cry and wouldn't stop crying his father began to beat the boy hard, tied his hands, and made "tusok,
tusok" in his body. The father continued beating the boy even when excrements were already
coming out from the boy's anus (tsn, J. Aguilar, June 21, 1993, pp. 12-13, 22).

The male companion of the boy said to the old woman: "Hoy, tigil ka na!" "Wag kang maingay." and
told the people at E.R.: "Sira ang ulo ng matanda, eh!" (tsn, J. Aguilar, July 12, 1993, pp. 8-9) But
the old woman wouldn't stop and continued to say: "Putang-ina ang ama niya . . . Hayop siya!"

When the doctor pronounced the boy dead the old woman knelt before him and cried like (Ix)ion
(tsn, J. Aguilar, June 21, 1993, p. 10). His baptismal certificate says that John Albert was born on
October 2, 1987 to Janet Villagracia and John Robert Cloud (Exh. "3").

The ear-piercing would probably have ended there but for the fact that Mrs. Aguilar's conscience
was bothered by what she saw and heard as narrated above and decided to do something about it.
She approached Atty. Remedios Balbin, Chairman in Quezon City of a civil liberties organization.
Atty. Balbin, after a few weeks of research found out that Robert Cloud and family left his house at
No. 69 San Isidro Street, Barangay Sto. Niño, Quezon City[;] the boy's body was brought to Rey
Funeral Homes[;] Dr. E. Cacas certified that the cause of death of John Albert Cloud is broncho
pneumonia with heart complications (Exh. D-48) [;] and that the autopsy on the cadaver was waived
by Natividad Calpito Cloud who claimed to be the boy's mother per her "Affidavit" dated August 3,
1988 (Exh. "D-47"). Atty. Balbin thereafter contacted the NBI and requested for the exhumation of
the boy's cadaver (tsn, J. Aguilar, June 21, 1994, pp. 17-21, 32, 35-37, 42; R. Balbin, March 8, 1994,
pp. 6, 17-21, 23, 25-27, 29-30, 36, 50, 54-55).

The exhumation was done on November 8, 1988 by the NBI at the Manila South Cemetery. The exhumation report
stated the following findings:

Upper incisor, right, missing.

Contusions; face, right side, 9.0 x 6.0 cm; buttocks, right and left sides, 20.0 x 12.0 cm;
knees, anterior aspect, right, 6.0 x 4.5 cm;
and left 8.0 x 5.0 cm.;

Contused-abrasion: face, left side, 14.0 x 6.0 cm;

arm, left, postero-lateral aspect,
6.0 x 4.0 cm;
hand, right, dorsal aspect, 7.0 x 5.0 cm;
thigh, right posterior aspect, extending to the lateral and anterior aspects 15.0 x 7.0 cm.

Hematoma — frontto-temporal region, left side 13.0 x 6.0 cm.

Hemorrhages, subdural and subarachnoidal, left cerebral hemisphere.

Heart chambers contain a small amount of embalmed blood.

Brain markedly congested and edematous.

Other visceral organs, congested.

Stomach, empty (Exhibits "E" and "E-l")

181

Although the crime was supposedly committed on August 2, 1988, for reasons hereinafter explained the information
dated May 10, 1990 was filed on June 5, 1990. The decision of the trial court states that the accused was arrested
only on April 15, 1993. That is why, with the proceedings that then had to be undertaken and the trial which had to
be conducted, it was only in a decision dated November 11, 1994 that judgment was ultimately handed down,
decreeing as follows:

ACCORDINGLY, judgment is hereby rendered finding herein accused ROBERT CLOUD GUILTY
beyond reasonable doubt as principal of the crime of PARRICIDE for the violent death of his son
JOHN ALBERT CLOUD and he is hereby sentenced to suffer the penalty of RECLUSION
PERPETUA and ordered to pay the heirs of the victim the sum of P50,000.00 as damages. Costs
vs. the accused.  3

That it took more than six years to obtain a verdict for the child's death is a distressing indictment of the criminal
justice system, particularly its investigative and prosecutory pillars. How the case managed to reach its logical
denouement, however, is a tribute and does honor to the other component of the system — the community
participation — which is the redeeming feature in this bizarre and repulsive case of barbarity to an innocent,
helpless victim who was just a stage out of infancy.

As stated earlier, the events that later became the subject of testimonial evidence for the prosecution unfolded
before the eyes of prosecution witness Josephine Aguilar who was then inside the emergency room of the hospital
having stitches removed from her daughter's head. Although she was a perfect stranger to the family involved, but
haunted by the sight and memory of the lifeless and battered child, she sought the help of Atty. Remedios Balbin,
chairperson of a civil liberties organization in Quezon City. It was through their joint, unrelenting and selfless efforts
that this case eventually wound up in the court a quo for judicial action.

Atty. Balbin conducted an investigative research which enabled her to coordinate with the National Bureau of
Investigation (NBI). Her efforts led to the discovery of the following facts:(1) Robert Cloud and his family left their
house at No. 69 San Isidro Street, Barangay Sto. Niño, Quezon City immediately after the death of John Albert;   (2) 4

John Albert's body was brought from the hospital to the Rey Funeral Homes;   (3) a certain Dr. E. Gacas certified
5

that the cause of the death of John Albert was broncho pneumonia with heart complications;   and (4) the autopsy of
6

the cadaver was waived by a certain Natividad Calpito Cloud who falsely claimed to be the mother of John
Albert.   Incidentally, despite her active participation in various aspects of this case, she was never called upon by
7

appellant to testify and corroborate his assertions therein.

Atty. Balbin thereafter requested for the exhumation of the body of the little boy for purposes of autopsy. The
exhumation was made on November 8, 1988, almost three months after the burial of John Albert. The exhumation
report, which has been quoted by the People in its brief and is set out in full at the start of this opinion, revealed the
grave and fatal injuries, internal and external, which caused the boy's death and could have resulted only from
violence or strong physical force. On the strength of that report of the NBI, the sworn statement of Josephine Aguilar
and the evidence gathered by Atty. Balbin, an information for parricide was eventually filed against herein appellant.

A warrant for the arrest of Robert Cloud was issued on June 11, 1990 which was returned unserved. Alias warrants
were issued on June 29, 1992 and September 22, 1992 and finally on April 15, 1993. Appellant was arrested by the
police at No. 22 Lourdes Castillo Street, Galas, Quezon City and was thereafter committed to jail. On April 26, 1993,
duly assisted by counsel, he was arraigned and he pleaded not guilty to the charge.

The prosecution built up its case on the basis of a sworn affidavit and testimony in open court of its principal
witness, Josephine Aguilar. For a clearer appreciation of what she actually witnessed and overheard inside the
emergency room of St. Luke's Hospital, we quote her testimony:

FISCAL PONFERRADA:

Q Madam witness, do you recall where were you on August 2, 1988 at around 11:00
in the morning, madam witness?

A I was in the emergency room of St. Luke's Hospital in Quezon City, sir.

x x x           x x x          x x x

Q While you were there after a couple of minutes, what happened? Do you recall any
unusual incident, madam witness?

A An old woman came with a boy full of dried blood, sir.

Q You said old lady with a little boy, what happened after that, madam witness?
182

A Well she came in and she was crying, I heard the old woman, I heard the doctor
as(k) the old lady what happened and the old lady told the doctor that it's the father
who bit (sic) him up again and the old lady put the kid on the table and I saw the kid
died, sir.

Q What happened next, what else did the old lady say, madam witness?

A The doctor told the old lady "wala na" then the old lady sitdown (sic) on the floor
crying and crying h(y)sterically, sir.

Q Did you come to know the old woman, madam witness?

A No, sir.

Q How about the boy, did you come to know the name of the boy who died, madam
witness?

A Albert Cloud, sir.

Q What happened after the boy died, madam witness?

A The lola started shouting telling everybody there how it happened, to the nurses
and to the doctors.

Q You said the lola started telling the doctor what actually happened, did you hear
these what the lola tell (sic) madam witness?

A Yes, sir.

Q Please narrate before this Honorable Court what you hear(d) as narrated by the
lola, madam witness?

A Yes, sir.

COURT:

Q What did you hear when she tells (sic) everybody?

A The father of the boy who died has burned in the skin, he was tie(d) and thrown
against the wall, punch(ed) the boy, sir.

FISCAL PONFERRADA:

Q Did you have any occasion to see whether there are marks in the hands or the
body of the boy, madam witness?

A At that time the boy was full of dried blood, sir.

Q After that?

A I see (interrupted)

Q What did you see, madam witness?

A He had dried blood here. The boy had dried blood in the forehead, sir.

COURT:

Q What else did you see?

A He has bruises, blood inside the skin, "mga pasa".

Q At that time?

A I only saw full of dried blood, sir.

183

Q Did you see the condition of the body of the boy?

A No, I only saw dried blood from head to foot, sir.

FISCAL PONFERRADA:

Q So at that time in the hospital you did not see the boy, madam witness?

A Only dried blood, sir.  8

The defense, on the other hand, argues that at the time of the commission of the alleged crime, appellant was not in
his house and that the boy, John Albert, must have fallen from the stairs leading to the second floor of the house.
The defense presented appellant and he testified that he left the house on the day in question and only learned
upon his return that his son was already dead, thus:

Q Do you know how your son died, Mr. Witness?

A I don't know, sir.

Q By the way where were you on August 2, 1988 in the morning, Mr. Witness.

A I was at home, sir.

Q Did you leave that house on that day, August 2, 1988, Mr. Witness?

A Yes, sir.

Q What time did you leave the house, Mr. Witness?

A Around 10:30, sir.

Q In the morning?

A Yes, sir.

Q Now, your son, where was he at the time you left the house, Mr. Witness?

A He was upstairs, sir.

Q Do you know what he was doing at the time you left, Mr. Witness?

A He was sleeping, sir.

Q Also, evidence already adduced in this case indicates that your son was brought to
the St. Lukes Hospital, Quezon City by an old woman with a male companion on or
about 12:00 o'clock noon on August 1, 1988 and by there (sic) your son died. Did
you know that Mr. Witness?

A No, sir.

Q Why not, Mr. Witness?

A I was not at home that night, sir.

x x x           x x x          x x x

Q Did you ever come to know on that very day that your son, John Albert Cloud,
died, Mr. Witness?

A Yes, sir.

Q How did you come to know that your son died Mr. Witness?

A My "tiyahin" told me "nadisgrasya raw po ang anak ko".

184

Q Who is this auntie, what is her name, Mr. Witness?

A Teresita Alconyes.

Q Was that the old woman together with the male person (who) brought your son to
the hospital, Mr. Witness?

A No, sir.

x x x           x x x          x x x

Q Where did this aunt of yours Ms. Alconyes tell you that your son died, Mr.
Witness?

A I was at Paco at that time, sir.

Q Is that the place where you were when you left your house at 10:00 o'clock in the
morning?

A Yes, sir.

Q By the way, what is the address of your house on August 2, 1988?

A In Quezon City, sir.

Q What specific address?

A No. 69 San Isidro St., Barangay Sto. Niño, Santol, Quezon City.

Q Did your aunt tell you how she came to know that your son died, Mr. Witness?

A No, sir.

Q When you learned that your son died from your aunt, what did you do?

A I went home immediately, sir.

Q Did you see any person in your house or did you reach your house?

A Yes, sir.

Q Whom did you meet in your house upon your return?

A None, sir.

Q So what did you do, Mr. Witness?

A I waited there, sir.

Q For whom did you wait, Mr. Witness?

A The one who brought my son to the hospital.

Q Were you able to wait for them, Mr. Witness?

A Yes, sir.

Q Who were those persons whom you waited for, Mr. Witness?

A My Lola and our houseboy, sir.

Q What did your Lola tell you upon their return, about your son, Mr. Witness?

A My Lola told me that my son is dead.

185

Q Did she tell you where your son was at that time?

A That he was at the hospital, sir.

Q Did you ask her whether she was the one who brought the child to the hospital?

A No, sir.

Q Was she the one or was she not the one who brought (him) to the hospital?

A "Sila ho."

Q Your Lola, is she your grandmother or your grandaunt?

A Grandmother, sir.

Q Mother of your mother?

A Yes, sir.

x x x           x x x          x x x

Q Did you go to the hospital, Mr. Witness, to verify?

A No, sir.

Q Why not, Mr. Witness?

A "Masama ang loob ko" that is why I did not go anymore to the hospital, sir.   9

The defense also alleged that John Albert was a sickly child from birth and was often hospitalized due to difficulty in
breathing, as shown by some medical records.   Further presented was the death certificate of John Albert Cloud
10

issued by one Dr. Gacas and dated August 6, 1988, stating that the cause of death was broncho pneumonia with
heart complications,   and the report made by Patrolman Ulep showing that he investigated the death of the child,
11

John Albert Cloud.  12

On this aspect, Dr. Alberto M. Reyes, the medical specialist at the NBI who examined the exhumed body of the little
boy, was presented as a prosecution witness. His report   indicated "hemorrhage, intracranial, severe, traumatic" as
13

the cause of death. He testified that "the upper incisor, right, was missing, contusions on the face, right side,
buttocks, knees and on the head. And the said injuries could have been caused by a hard blunt object, hitting by a
fist or a piece of wood." He did give a hypothetical concession "that it was also possible that it was the result of a fall
from a building and as result of said injuries the boy suffered internal hemorrhage which was the immediate cause
of his death." 
14

However, as to what would be the more credible cause of death, this is what he had to say:

Q In your best judgment as a physician, (h)is injury, could have been caused by any
force applied, what about the handle of a gun?

A We do not rule out that possibility.

Q Could this finding also with (sic) the result of the excessive of physical hitting (sic)?

A Yes, ma'am.

COURT:

Q Both buttocks sustained injuries according to your findings?

A Yes, right and left side.

Q If baby boy like this boy fall on the high building would sustain injury on the
buttocks, the injury on the buttocks as well as the knees?
186

A The contusion on the buttocks are very extensive. They are 20 by 20 centimeters.
So if the buttocks first (sic) is very different, if he falls it is very difficult for him and
also on his knees. And the knees are anterior portion it is highly improbable.

FISCAL RAMOS:

Q So as far as the probabilit(ies) are concerned, are you looking for a possibility that
he fell on (sic) a high place?

A All in all the fall of (sic) a high place is very remot(e).   15

To recall, the court a quo rendered its decision on November 11, 1994 or six years after the death of John Albert
Cloud, and we find its observations therein to be very perceptive and significant, to wit:

The court also considers as inculpatory, corroborative circumstances, the following which the
prosecutor elicited from the accused himself and which, in the court's opinion, do not constitute
normal, reasonable or compatible with innocent behavior of a father with respect to the horrifying
death of his son;

(a) the accused was told that his son died from a fall and he did not even bother to go to the hospital
where his son lay dead;

(b) he did not bother to see the medical records or the medical certificate when he knew already that
his son did not die of an ordinary, natural cause. And corollarily, said certificate is false and even the
alleged doctor who made (it) is a false or non-existent doctor;

(c) the accused took his entire household to Paco, Manila away from Quezon City for years. There
must have been some other reason than his alleged sorrow over John Albert's death. For, if it were
just his sadness over it, then the Quezon City house could have been rented out or a caretaker left
thereat. As it is, even Herminio Acosta left and did not return there anymore to date. Was there
cause to shudder about in the death of a
2-1/2 year old boy that the Quezon City house of accused had to be abandoned thus like a haunted
castle? Under the circumstances, the court believes that it could only be the hounding darts and
howls of the memory of what the accused did there rather than what he told the court supposedly
happened there, that can furnish such a strong reason for the sudden abandonment of the house at
69 San Isidro St., Sto. Niño (quite an irony), Quezon City; and

(d) despite the alleged unusual cause of death of his son, he allowed his wife Natividad who is not
the real mother of John Albert, to be the one to waive the autopsy on his son. We thus find a father
very much afraid to face his own baby son freshly lying cold and dead. This is another eerie but
nonetheless clear sign of circumstantial guilt. 16

The prosecution's primary evidence that it was appellant who beat up and killed the boy was the testimony of its
principal witness Josephine Aguilar who declared that she heard appellant's grandmother herself shouting that it
was appellant who killed his own son by beating him to death. The said grandmother, Rufina Alconyes, was not
presented in court, since at the time of the trial she was already dead.

The Solicitor General posits the view that the outbursts of that grandmother constituted exceptions to the hearsay
rule since they were part of the res gestae. Those inculpatory and spontaneous statements were: (1) "Pinatay siya
ng kanyang ama" (he was killed by his own father); (2) Putang ina ang ama niya . . . walang awa sa anak
niya . . . hayop siya" (His father is a son of a bitch . . . without pity for his son . . . he is an animal); and (3) Appellant
did not allow his son, John Albert, to accompany her and when the boy started to cry and would not stop, appellant
beat his son very hard, tied his hands, and continued beating him until excreta came out of his anus.  7 1

The trial court was of the opinion that what Ms. Aguilar heard or saw does not merely constitute an independently
relevant statement which it considered as an "exception to the hearsay rule, only as to the tenor rather than the
intrinsic truth or falsity of its contents."  We will clarify this. Insofar as the statements of Rufina Alconyes are
18

concerned, they are admissible as part of the res gestae, they having been caused by and did result from the
startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with
spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not
hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in
court. Her account of said statements of Alconyes are admissible under the doctrine of independently relevant
statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same
they are relevant to the issue on the cause of the death of the victim.

Against the foregoing facts which came from the lips of these two women who had no ill motives whatsoever against
appellant and the circumstantial evidence arising from his abnormal and inexplicable post-incident behavior, as well
187

as the physical evidence which will hereafter be discussed, we have merely the bare denial of appellant and the
testimony of his faithful houseboy cum driver, Herminio Acosta. Since the latter is the star witness of the defense,
we will consider his testimony in extenso.

These are the pertinent parts of his representations in the trial court:

Q Mr. Acosta, where were you on August 2, 1988?

A I was at home, sir.

Q Where was your home then?

A At Santol but don't know specific address.

Q Do you know whose house was that?

A Mr. Robert Cloud the accused.

Q How long have you been staying there at that time?

A About three years.

Q What was your function in that house as a member of the family?

A I know a lot of things, cooking, taken child in the school, driving.

Q In other words you were utility man in that house?

A Yes, sir.

x x x           x x x          x x x

Q Let us go back to August 2, 1988, who were member(s) of the household present,
in the morning and afternoon?

x x x           x x x          x x x

A Myself, Natividad and Abet and Lola the old woman.

Q What is the full name of Naty?

A Natividad, the wife of Robert Cloud.

COURT:

Q Who is this Abet?

A The one who fell in the stairs.

x x x           x x x          x x x

Q Who were inside that house, by the way what time of that day when the boy fell
from the stairs?

A It was still early maybe 9:00 or 10:00 in the morning.

Q Now let us see, you said that there were six members of the household?

A Yes, sir.

Q Where was Naty, was Naty still there when the boy fell in the stairs?

A She was there at that time.

188

Q Why?

A I did not notice that she left.

Q What about Mr. Cloud the accused here Robert Cloud, was he there when the
child fell from the stairs?

A He was not there also.

Q What about the Lola? Was she there when the boy fell?

A Yes, sir.

Q What do you mean there, when the boy fell the Lola was already there?

A No, sir.

Q Where was she?

A She left perhaps she buy (sic) something, sir.

Q Who were there in that house

A I was there, Jonald also.

Q What about the boy?

A He was upstairs in the room.

Q Now let us see at what time was that boy John Robert Cloud was upstairs?

A In the morning.

Q What was he doing there?

A I don't know because I was in the groundfloor.

x x x           x x x          x x x

Q What time were you at the groundfloor?

A Morning when I heard something "kalabog" that I went there.

Q What were doing there?

A I was preparing food and water for Jonald, the old brother.

x x x           x x x          x x x

Q While you were doing this work, do you know what happened.

A As I said I heard "kalabog" as if something fell.

Q But before that you did not know that Mr. Cloud left?

A Yes, sir.

Q What about Mr. Cloud, what time did he leave?

A I don't remember.

Q What about the old woman what time did she leave?

A I could not remember the time.

189

Q Who left ahead Mr. Cloud or the old woman?

x x x           x x x          x x x

A The Lola first the one who left then Naty then Robert Cloud.

Q Now when you said that (they) left and you heard the "Kalabog" did you know what
kalabog is that?

A Yes, sir, I went to the stairway.

Q And what did you find out?

A I saw Abet.

Q So what did you do?

A I held him, I don't know how he fell and I don't expect that he fall in the stairway.

Q Can you tell the Honorable Court the appearance of the boy if you can still
remember?

A He had blood.

Q Where?

A On the arms in the face I cannot remember the other.

Q While you were holding that boy what transpired next?

A Lola arrived.

Q Did the lola see what happened to the boy while you were holding the boy, did the
lola see the boy in your arm?

A Yes, sir.

Q Was there any remark made by an old woman while you were holding the boy?

A Yes, sir.

Q Please tell us as far as you can remember?

A She was angry with the father because according to her "pinabayaan daw ang
bata."

Q Can you represent all as you can the statement of the lola?

A She was already angry and she was telling a lot of things that is all, I don't know
what she said.

Q After that what happened?

A The baby was brought to the hospital.

x x x           x x x          x x x

COURT:

Q Who brought the boy to the hospital?

A The two of us, lola and I.

ATTY. MADAMBA:
190

Q What time?

A Pas(t) ten o'clock in the morning.

Q Do you know what happened in the hospital?

A I don't know I just left there.

Q I am calling your attention to the testimony of one Ms. Aguilar, according to her
while she was attending to her child for treatment inside the hospital she saw John
Albert Cloud and the old woman and according to her the old woman (was) hysterical
and she was stating aloud the following words or expression "Pinatay siya ng sariling
ama, pinatay siya ng sariling ama," did you hear that?

x x x           x x x          x x x

A I did not hear that because I left already.

Q There is also here a statement by, I think this is alluded to you, you said while the
old woman (was) shouting you said "Hoy tumigil ka na at huwag kang maingay?"

A Yes, your Honor because she was saying a lot of thing that is why I left already.

Q When you said he was telling a lot of thing, what do you mean?

A "Parang ano ho iyung matanda, kasi may pagkaulyanin iyun."

Q Now after that you left, where did you go?

A I went home to Santol.

Q Whom did you see there?

A Mr. Robert Cloud.

Q Did you notice what he was doing at that time?

A He was already crying.

Q Did you ask him why he was crying?

A No, sir.

Q Did he talk to you?

A He just asked me what happened to the child.

Q What did you tell him?

A I told him that the child was dead.  19

Standing out in bold relief from this orchestrated story narrated by Acosta for the first time after six years of silence
is his clearly deliberate effort to make it appear that appellant, his wife and grandmother were not in the house at the
time of the incident, thus paving the way for him to claim that he alone saw and could testify to what happened to
the victim. Yet, comparing his declarations thereon and those of appellant, they could not even agree or be specific
as to when appellant supposedly left the house and stayed away in Paco, Manila. There was not even an attempt
on their part to explain why it took more than two hours from the alleged accidental fall from the stairs to take the
boy to the hospital which was not a considerable distance away.

The second floor could not be more than four meters from the ground floor, not so highly elevated even for a straight
fall therefrom. In fact, as the trial court elicited from appellant, the stairs from which the boy allegedly fell had only
nine steps. It did not even go straight down but went four steps to the first landing then turned right where another
five steps led to the ground floor.   Evidently, if one merely fell down such stairs, that fall would be broken at the
20

landing where the stairs turned at a right angle, and even if he still continued rolling in that new direction, the
191

momentum would have been greatly reduced. That would be true even if that person did not merely slip or fall, but
was pushed or thrown, down the stairs.

And this brings us to the irrefutable physical evidence which, as medico-legal experts say, belies the adage that
dead men tell no tales. Indeed, to the trained eye, the inanimate remains of the dead give testimony of their own
and, in the present case, that is true even of the young victim who in life could not have been as articulate. We refer
to the report of the NBI after the exhumation and autopsy which we have taken pains to completely set out here.

It would be the nadir of gullibility to believe that a small boy with his nominal weight could fall down the stairs above
described with such velocity as to result in the injuries which even the experienced hospital staff initially believed
were caused by his being run over by a truck. One needs to merely look at the description of the contusions on his
face, buttocks and knees; the contused abrasions on his face, hand and thigh; the hematoma on the temporal
region of his head; the severe hemorrhages on the cerebral hemisphere of his skull; and the congestion in his brain
and visceral organs, to see that appellant and his star witness are gravely imposing upon the patience and credulity
of this Court.

That is why when the victim was brought to the hospital, Acosta never even mentioned at all that the boy merely fell
down the stairs. The normal action of any person bringing a patient to a hospital, especially a medico-legal case, is
to give information even tentatively as to how the injuries were sustained. Yet, although the grandmother was
announcing to everybody that the boy was killed through violent maltreatment by his own father, Acosta says he
merely told her to keep quiet, and he forthwith left the hospital. He never dared to tell his present cock-and-bull story
or mention the conjured accident on the stairs, especially to the medical staff whom he knew he could not delude,
and yet he has the effrontery to do so before this Court.

The circumstances which the court below considered as reactions betraying a sense and knowledge of guilt on the
part of appellant and his cohorts have already been catalogued. One of them is the fact that immediately after the
death of the victim in the hospital, appellant took his entire household to Paco, Manila, abandoned their house in
Quezon City and never came back until several years later. This is admitted by appellant   and Acosta.   In fact,
21 22

appellant admitted that, while investigations into the death of his son were going on, he left for Japan in 1990 and
returned in 1993,   only to be arrested since the investigation had by then zeroed in on his culpability. This
23

circumstance was even sought by the trial court to be clarified by Acosta, but this is what transpired:

Q Do you know or did you come to know why after the death of this boy in the house
at Santol everybody left the house and did not return anymore for a long time?

A I don't know. 24

The Court is not unaware of the caution to be observed when circumstantial evidence is to be considered as
inculpatory indicia in a criminal prosecution. That is why it has spent unusual time and effort to reflect upon all facets
of the circumstances which the lower court accepted as an unbroken chain of events, reinforced by corroboration
and yielding a conclusion of guilt, all consonant with the requisites therefor.   But, from whatever angle we take the
25

view, the catena of facts cannot but produce an inference consistent with guilt and not with innocence. All these,
even aside from the tenet that flight bespeaks guilt, a further strike against appellant in addition to the cover-up
running the gamut from falsification to false testimony.

From such ruminations, we are fully convinced that the conscience of the Court can rest easy only by doing justice
to an innocent child whose parents had heartlessly failed him. Somehow, a mystical cause may have called upon
two good Samaritans — mother with a sense of humanity and a lady lawyer with a passion for justice — to seek
redress for his untimely death. On this consoling thought, we write finis to this case.

ACCORDINGLY, the appealed judgment of the court a quo in Criminal Case No. Q-90-12660 convicting accused-
appellant Robert Cloud of parricide is hereby AFFIRMED in toto, with costs in both instances.

SO ORDERED.
192

[G.R. No. 122954. February 15, 2000.]

NORBERTO FERIA Y PACQUING, Petitioner, v. THE COURT OF APPEALS, THE DIRECTOR OF

THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL
WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL
TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF MANILA, Respondents.

DECISION

QUISUMBING, J.:

The mere loss or destruction of the records of a criminal case subsequent to conviction of the
accused will not render the judgment of conviction void, nor will it warrant the release of the convict
by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which
is as much a duty of the prosecution as of the defense.chanrobles.com : virtuallawlibrary
193

Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the
Eighth Division of the Court of Appeals, which affirmed the dismissal of the petition for habeas corpus
filed by petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995, which
denied the Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of
respondent appellate court.

Based on the available records and the admissions of the parties, the antecedents of the present
petition are as follows: chanrob1es virtual 1aw library

Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to present 1
by reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No. 60677, by
the Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United States
Peace Corps Volunteer Margaret Viviene Carmona.

Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the Manila
City Jail to the Bureau of Corrections in Muntinlupa City, 2 but the Jail Warden of the Manila City Jail
informed the Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be effected
without the submission of the requirements, namely, the Commitment Order or Mittimus, Decision,
and Information. 3 It was then discovered that the entire records of the case, including the copy of
the judgment, were missing. In response to the inquiries made by counsel of petitioner, both the
Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch
2 attested to the fact that the records of Criminal Case No. 60677 could not be found in their
respective offices. Upon further inquiries, the entire records appear to have been lost or destroyed in
the fire which occurred at the second and third floor of the Manila City Hall on November 3, 1986. 4

On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus 5 with the
Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch 2,
Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from
confinement on the ground that his continued detention without any valid judgment is illegal and
violative of his constitutional right to due process.

In its Resolution dated October 10, 1994, 6 the Second Division of this Court resolved —

". . . (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the Regional Trial
Court of Manila to conduct an immediate RAFFLE of this case among the incumbent judges thereof;
and (c) to REQUIRE [1] the Judge to whom this case is raffled to SET the case for HEARING on
Thursday, October 13, 1994 at 8:30 A.M., try and decide the same on the merits and thereafter
FURNISH this Court with a copy of his decision thereon; [2] the respondents to make a RETURN of
the Writ on or before the close of office hours on Wednesday, October 12, 1994 and APPEAR
PERSONALLY and PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date and time
of hearing to the Judge to whom this case is raffled, and [3] the Director General, Philippine National
Police, through his duly authorized representative(s) to SERVE the Writ and Petition, and make a
RETURN thereof as provided by law and, specifically, his duly authorized representative(s) to APPEAR
PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the aforesaid date and time
of hearing." chanrobles virtual lawlibrary

The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November 15,
1994, after hearing, issued an Order 7 dismissing the case on the ground that the mere loss of the
records of the case does not invalidate the judgment or commitment nor authorize the release of the
petitioner, and that the proper remedy would be reconstitution of the records of the case which
should be filed with the court which rendered the decision.

Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the
assailed Decision 8 affirming the decision of the trial court with the modification that "in the interest
of orderly administration of justice" and "under the peculiar facts of the case" petitioner may be
transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements
(Mittimus, Decision and Information) but without prejudice to the reconstitution of the original
records.

The Motion for Reconsideration of the aforesaid Order having been denied for lack of merit, 9
petitioner is now before us on certiorari, assigning the following errors of law: 10

I WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS
OF CONVICTION WERE LOST, THE PETITIONER’S CONTINUED INCARCERATION IS JUSTIFIED UNDER
194

THE LAW.

COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS’ RESOLUTION, AFFIRMING THE
DENIAL OF HEREIN APPELLANT’S PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW,
A JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR
HIS INCARCERATION.

II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/DESTROYED SHOULD BE

INITIATED BY THE GOVERNMENT AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE
PRISONER, WHOSE LIBERTY IS RESTRAINED.

Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as
required by Sections 1 and 2 of Rule 120 of the Rules of Court, 11 and that the evidence considered
by the trial court and Court of Appeals in the habeas corpus proceedings did not establish the
contents of such judgment. Petitioner further contends that our ruling in Gunabe v. Director of
Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution as of
the defense" has been modified or abandoned in the subsequent case of Ordoñez v. Director of
Prisons, 235 SCRA 152, 155 (1994), wherein we held that" [i]t is not the fault of the prisoners that
the records cannot now be found. If anyone is to be blamed, it surely cannot be the prisoners, who
were not the custodians of those records." cralaw virtua1aw library

In its Comment, 12 the Office of the Solicitor General contends that the sole inquiry in this habeas
corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains that
public respondents have more than sufficiently shown the existence of a legal ground for petitioner’s
continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the
Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not
authorized. Petitioner’s remedy, therefore, is not a petition for habeas corpus but a proceeding for
the reconstitution of judicial records. chanroblesvirtuallawlibrary

The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom. 13 It secures to a prisoner the right to have the
cause of his detention examined and determined by a court of justice, and to have the issue
ascertained as to whether he is held under lawful authority. 14 Consequently, the writ may also be
availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose
the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such
excess. 15 Petitioner’s claim is anchored on the first ground considering, as he claims, that his
continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative
of his constitutional right to due process.

Based on the records and the hearing conducted by the trial court, there is sufficient evidence on
record to establish the fact of conviction of petitioner which serves as the legal basis for his
detention. Petitioner made judicial admissions, both verbal and written, that he was charged with and
convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang
buhay" .

In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that —16

"During the trial and on manifestation and arguments made by the accused, his learned counsel and
Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears clear and indubitable
that: chanrob1es virtual 1aw library

(A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal
Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867. .
. . In Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a
decision was read to him in open Court by a personnel of the respondent Court (RTC Branch II)
sentencing him to Life Imprisonment (Habang buhay) . . ." (Emphasis supplied) chanrobles virtuallawlibrary

Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal
Case dated June 8, 1993, 17 petitioner himself stated that —

"COMES NOW, the undersigned accused in the above entitled criminal case and unto this Honorable
Court most respectfully move: chanrob1es virtual 1aw library
195

1. That in 1981 the accused was charge of (sic) Robbery with Homicide;

2. That after four years of trial, the court found the accused guilty and given a Life Sentence in a
promulgation handed down in 1985; (Emphasis supplied)

3. That after the sentence was promulgated, the Presiding Judge told the councel (sic) that accused
has the right to appeal the decision;

4. That whether the de officio counsel appealed the decision is beyond the accused comprehension
(sic) because the last time he saw the counsel was when the decision was promulgated.

5. That everytime there is change of Warden at the Manila City Jail attempts were made to get the
Commitment Order so that transfer of the accused to the Bureau of Corrections can be affected, but
all in vain;"

Petitioner’s declarations as to a relevant fact may be given in evidence against him under Section 23
of Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would declare
anything against himself, unless such declaration were true, 18 particularly with respect to such
grave matter as his conviction for the crime of Robbery with Homicide. Further, under Section 4 of
Rule 129," [a]n admission, verbal or written, made by a party in the course of the proceedings in the
same case, does not require proof. The admission may be contradicted only by a showing that it was
made through palpable mistake or that no such admission was made." Petitioner does not claim any
mistake nor does he deny making such admissions.

The records also contain a certified true copy of the Monthly Report dated January 1985 19 of then
Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of Robbery
with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official records
under Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facie evidence of facts
therein stated.chanrobles virtual lawlibrary

Public respondents likewise presented a certified true copy of People’s Journal dated January 18,
1985, page 2, 20 issued by the National Library, containing a short news article that petitioner was
convicted of the crime of Robbery with Homicide and was sentenced to "life imprisonment." However,
newspaper articles amount to "hearsay evidence, twice removed" 21 and are therefore not only
inadmissible but without any probative value at all whether objected to or not, 22 unless offered for a
purpose other than proving the truth of the matter asserted. In this case, the news article is
admissible only as evidence that such publication does exist with the tenor of the news therein
stated.

As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner
who attacks such restraint. In other words, where the return is not subject to exception, that is,
where it sets forth process which on its face shows good ground for the detention of the prisoner, it
is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent
effect of such process. 23 If the detention of the prisoner is by reason of lawful public authority, the
return is considered prima facie evidence of the validity of the restraint and the petitioner has the
burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of
Court provides: jgc:chanrobles.com.ph

"SECTION 13. When the return evidence, and when only a plea. — If it appears that the prisoner is in
custody under a warrant of commitment in pursuance of law, the return shall be considered prima
facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private
authority, the return shall be considered only as a plea of the facts therein set forth, and the party
claiming the custody must prove such facts." cralaw virtua1aw library

Public respondents having sufficiently shown good ground for the detention, petitioner’ s release from
confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which provides that
—

"SECTION 4. When writ not allowed or discharge authorized. — If it appears that the person alleged
to be restrained of his liberty is in the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction
to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a
196

person suffering imprisonment under lawful judgment." cralaw virtua1aw library

In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), Accused was convicted by the trial
court of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the
Court of Appeals, the records of the case were, for reasons undisclosed, completely destroyed or lost.
Accused then filed a petition for the issuance of the writ of habeas corpus with the Supreme Court.
The Court denied the petition, ruling thus: jgc:chanrobles.com.ph

"The petition does not make out a case. The Director of Prisons is holding the prisoner under process
issued by a competent court in pursuance of a lawful, subsisting judgment. The prisoner himself
admits the legality of his detention. The mere loss or destruction of the record of the case does not
invalidate the judgment or the commitment, or authorize the prisoner’s release."  chanrobles virtuallawlibrary

Note further that, in the present case, there is also no showing that petitioner duly appealed his
conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment
has already become final and executory. When a court has jurisdiction of the offense charged and of
the party who is so charged, its judgment, order, or decree is not subject to collateral attack by
habeas corpus. 24 Put another way, in order that a judgment may be subject to collateral attack by
habeas corpus, it must be void for lack of jurisdiction. 25 Thus, petitioner’s invocation of our ruling in
Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and ordered
the release of the prisoner on the ground that" [i]t does not appear that the prisoner has been
sentenced by any tribunal duly established by a competent authority during the enemy occupation"
and not because there were no copies of the decision and information. Here, a copy of the mittimus
is available. And, indeed, petitioner does not raise any jurisdictional issue.

The proper remedy in this case is for either petitioner or public respondents to initiate the
reconstitution of the judgment of the case under either Act No. 3110, 26 the general law governing
reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time
the records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court.
27 Judicial records are subject to reconstitution without exception, whether they refer to pending
cases or finished cases. 28 There is no sense in limiting reconstitution to pending cases; finished
cases are just as important as pending ones, as evidence of rights and obligations finally adjudicated.
29

Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the
missing records of the trial court. We reiterate, however, that "reconstitution is as much the duty of
the prosecution as of the defense." 30 Petitioner’s invocation of Ordoñez v. Director of Prisons, 235
SCRA 152 (1994), is misplaced since the grant of the petition for habeas corpus therein was
premised on the loss of records prior to the filing of Informations against the prisoners, and
therefore" [t]he government has failed to show that their continued detention is supported by a valid
conviction or by the pendency of charges against them or by any legitimate cause whatsoever." In
this case, the records were lost after petitioner, by his own admission, was already convicted by the
trial court of the offense charged. Further, the same incident which gave rise to the filing of the
Information for Robbery with Homicide also gave rise to another case for Illegal Possession of
Firearm, 31 the records of which could be of assistance in the reconstitution of the present case.

WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is
AFFIRMED. chanrobles virtuallawlibrary

SO ORDERED.

Feria vs CA, GR No. 122954, February 15, 2000; 525 SCRA 525_digested

Posted by Pius Morados on April 29, 2012

(Special Proceedings –Habeas Corpus)

Facts: After discovering that his entire criminal records, including the copy of the judgment, was lost or
destroyed, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus with the SC against the Jail
Warden of the Manila City Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City
197

Prosecutor of Manila, praying for his discharge from confinement on the ground that his continued detention
without any valid judgment is illegal and violative of his constitutional right to due process.

The RTC dismissed the case on the ground that the mere loss of the records of the case does not invalidate the
judgment or commitment nor authorize the release of the petitioner, and that the proper remedy would be
reconstitution of the records of the case which should be filed with the court which rendered the decision.

Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as required by
Sections 1 and 2 of Rule 120 of the Rules of Court, and that the evidence considered by the trial court and
Court of Appeals in the habeas corpus proceedings did not establish the contents of such judgment.

In a comment, OSG maintains that public respondents have more than sufficiently shown the existence of a
legal ground for petitioner’s continued incarceration, viz., his conviction by final judgment, and under Section
4 of Rule 102 of the Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is
not authorized.

Issue: WON there is legal basis to detain petitioner after the destruction or loss of his criminal records.

Held: Yes. The writ of habeas corpus, was devised and exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. It secures to
a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to
have the issue ascertained as to whether he is held under lawful authority. Consequently, the writ may also be
availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose the
sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such excess. Petitioner’s
claim is anchored on the first ground considering, as he claims, that his continued detention, notwithstanding
the lack of a copy of a valid judgment of conviction, is violative of his constitutional right to due process.Based
on the records and the hearing conducted by the trial court, there is sufficient evidence on record to establish
the fact of conviction of petitioner which serves as the legal basis for his detention.

As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who attacks
such restraint. In other words, where the return is not subject to exception, that is, where it sets forth process
which on its face shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege
and prove new matter that tends to invalidate the apparent effect of such process. If the detention of the
prisoner is by reason of lawful public authority, the return is considered prima facie evidence of the validity of
the restraint and the petitioner has the burden of proof to show that the restraint is illegal.

When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order,
or decree is not subject to collateral attack by habeas corpus.
198

Rule 130 Section 37 – Dying Declaration

G.R. No. 75028 November 8, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

PIOQUINTO DE JOYA y CRUZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Rodolfo P. Liwanag for accused-appellant.

FELICIANO, J.:

In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was charged before the Regional Trial Court, 3rd
Judicial Region, Branch 14, Malolos, Bulacan with the crime of robbery with homicide committed as follows:

That on or about the 31st day of January, 1978, in the municipality of Baliuag, province of Bulacan, Philippines and
within the jurisdiction of this Honorable Court, the said accused Pioquinto de Joya y Cruz, did then and there wilfully,
unlawfully and feloniously, with intent of (sic) gain and without the knowledge and consent of the owner and, by means
of violence and intimidation, take, carry and cart away two (2) rings, one (1) necklace, one (1) piece of earring, belonging
to Arnedo Valencia y Angeles and Eulalia Diamse Vda. de Salac, to their damage and prejudice in the sum of FIVE
HUNDRED FIFTY PESOS (P550.00); and that on the occasion of the said robbery and for the purpose of enabling him to
take the said properties, the accused did then and there wilfully, unlawfully and feloniously with treachery, evident
premeditation and great advantage of superior strength, with intent to kill, attack, assault and use personal violence
upon the person of Eulalia Diamse Vda. de Salac by stabbing and hitting the latter on her neck and other parts of her
body with pointed instrument causing injuries which directly caused the death of the said Eulalia Diamse Vda. de Salac.

That in the commission of the offense, the following aggravating circumstances were present (1) abuse of superior
strength; (2) committed in the dwelling of the offended party; (3) disregard of age and sex; (4) abuse of confidence.

Contrary to law. 1

At arraignment, appellant De Joya pleaded not guilty. After trial, the court a quo rendered a decision dated 16 May 1986
convicting De Joya of the crime charged. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond reasonable doubt of the crime of Robbery
with Homicide, committed with the aggravating circumstances of: abuse of superior strength, old age, disregard of sex
the victim a woman 88 years old, the crime was committed in the dwelling of the victim. The accused being 72 years old
death penalty cannot be imposed against him as provided in Article 47 of the Revised Penal Code.
199

The Court therefore, sentences the accused to LIFE IMPRISONMENT; to indemnify the heirs of the victim in the amount
of P20,000.00 and to pay damages in the amount of P550.00.

The bond of the accused is ordered cancelled and the accused to be confined immediately in the National Penitentiary
pending review of his case by the Supreme Court.

The Clerk of Court is ordered to immediately forward the record of this case to the Supreme Court for review.

SO ORDERED. 2

In this appeal, appellant raises a number of issues all of which, however, amount to one basic assertion: that the lower
court erred in concluding that appellant was guilty beyond reasonable doubt of the crime charged.

The facts have been summarized in the brief of the Solicitor General in the following manner:

The spouses Arnedo Valencia and Herminia Salac-Valencia, together with their ten (10) year old son Alvin Valencia and
Herminia Valencia's 88-year old mother, Eulalia Diamse, are residents of Balagtas St., Baliuag, Bulacan. (TSN, June 11,
1981, p. 2). Both spouses are teachers by profession.

Arnedo Valencia teaches at the Tiaong Elementary School at Barrio Tiaong, Baliuag, Bulacan whereas Herminia Valencia
teaches in an intermediate school at Baliuag, Bulacan. (TSN, March 11, 1980, p. 7).

In the afternoon of January 31, 1978, Herminia Salac-Valencia left for school to teach. Her mother Eulalia Diamse was
then [sitting] at their sofa watching the television set. (TSN, October 12, 1978, p. 3).

Her Son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in the afternoon, his classes were dismissed and
he proceeded home. (TSN, March 11, 1980, p. 8).

At around 3:00 o'clock in the afternoon of that same day, the spouses Valencia's neighbor by the name of Gloria
Capulong, together with a friend, went out of the former's house to visit a friend. While at her yard, Gloria Capulong
looked back to the direction of the Valencia's house. She noticed appellant Pioquinto de Joya standing and holding a
bicycle at the yard of the Valencia's. (TSN, June 11, 1981, pp. 2-4).

When Alvin reached home, he saw his grandmother Eulalia Diamse lying down prostrate and drenched with her own
blood. He immediately threw his bag and ran towards her. He then held her hands and asked her: "Apo, Apo, what
happened?". (TSN, March 11, 1980, p. 10).
200

. . . [Eulalia Diamse held his hand and after which said: "Si Paqui". After saying these words, she let go of Alvin's hand and
passed away. (TSN, Ibid., pp. 14 and 17).

Alvin then called for his Nana Edeng and told her to see his lola because she was drenched with her own blood. His Nana
Edeng told him to immediately see his mother Herminia Salac-Valencia to inform her of what happened. (TSN, Id).

Upon seeing her mother, Alvin told her: "Mommy, Mommy, apo is drenched in her own blood." (TSN, March 11, 1980, p.
20).

Herminia immediately ran outside the school, flagged down a tricycle and went home. Alvin followed, riding his bicycle
(TSN, Id., p. 21). When she reached their house, she found her mother lying prostrate in her own blood at their sala in
front of the television. Her mother's hands were stretched open and her feet were wide apart. Blood was oozing out of
her mother's ears. She then embraced her mother and placed her on the sofa. She asked Alvin and the tricycle driver to
call Dr. Delfin Tolentino. (TSN, October 12,1978, pp. 25-26).

Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and examined the body of Eulalia Diamse. Said doctor
declared that said Eulalia Diamse had a heart attack which caused her death. When asked by Herminia Valencia why her
mother's ears were punctured, no reply was given by said doctor. Herminia requested for a death certificate, but Dr.
Tolentino did not issue one and instead immediately left. (TSN, Ibid., pp. 27-29).

Herminia found out that the two (2) gold rings worn by her mother were missing. The right earring of her mother was
likewise missing. All of these were valued [at] P300.00 (TSN, Id., p. 15).

That same afternoon, Herminia saw the room of the groundfloor ransacked. The contents of the wardrobe closet
(aparador) were taken out. Its secret compartment/box was missing. And the lock of the aparador was destroyed. (TSN,
October 12, 1978, pp. 15-17).

When she went upstairs after putting her mother on a bed at the ground floor, she found the two (2) rooms thereat in
disarray. She then caused the rooms and things photographed by a certain Ricardo Ileto (Exhibits "A" to "A-11"; TSN,
October 12, 1978, p. 17).

Later, Herminia went to Dr. Adela Cruz and pleaded [with] said doctor to issue a death certificate so that her mother
could be embalmed. (TSN, Id., pp. 33-34).

On the same night, Herminia found a beach walk step-in (Exhibit "B") by the side of the cabinet near the door of their
room downstairs, more or less one meter from where the victim was lying prostrate. (TSN, October 12,1978, pp. 24-25).

Herminia was able to recognize the said step-in because of its color and size, as the other half of the pair she bought for
her husband Arnedo but which she gave to Socorro de Joya, the wife of herein appellant, before Christmas of 1977 when
she saw the old and wornout pair of slippers of the latter. (TSN, Ibid.).
201

Appellant Pioquinto de Joya visited the wake only once. During the second day of the four-day wake, Herminia saw
herein appellant Pioquinto de Joya enter the kitchen and peep under the cabinet of the (Valencia's) house. (TSN, Id.).

On February 3, 1978, a post-mortem examination was conducted by Dr. Romulo Madrid, a medico-legal officer of the
National Bureau of Investigation. Per examination, the cause of the death arrived by Dr. Madrid was "shock, secondary
to punctured wound neck" (Exhibit "D-1") situated at the right side of the neck, just below the right ear wherein it went
out thru and thru, opposite, almost in the same location, from one side of the neck to the opposite side. (Exhibit "D-2").

In its decision, the trial court became quite clear as to the factors which led to the judgment of conviction against
appellant. These factors, as set out in the decision of the trial court, were the following:

In the case at bar, the prosecution relied heavily on the circumstances surrounding the death of the victim as testified to
by the witnesses and proven during the trial, also the dying statement of the deceased, which are: Herminia testified
that two weeks before the incident the accused and the deceased quarreled over a bicycle which the former took from
their house without the consent of the latter; that Exhibit "B" (step-in beach walk type) which was found near the
cabinet one meter away from the body of the victim was identified by Herminia as the step-in that she gave to the wife
of the accused and which she saw accused wearing on January 29, 1978 when she visited them in their house; the
testimony of Gloria Capulong that she saw the accused in the afternoon of January 31, 1978 at around 3:00 p.m. in the
yard of Herminia standing and holding a bicycle; the accused admitted, although his wife is the sister of the husband of
Herminia he never visited the deceased during the four days that it was lying in state without any justifiable reason and
contrary to the ordinary experience of man; last but most convincing is the dying statement of the deceased when her
grandson Alvin asked her "Apo, Apo, what happened?" and she answered, "Si Paki", then she expired. When Alvin was
asked during his testimony who is this Paki, he identified the accused. The accused during his testimony never denied
that he is called Paki.

The foregoing circumstances established during the trial plus the dying statement of the deceased leads only to one fair
and reasonable conclusion, that the accused is the author of the crime.

Analyzing the above portion of the decision, the elements taken into account by the court in convicting appellant De
Joya of robbery with homicide may be listed as follows:

1. The dying statement made by the deceased victim to her grandson Alvin Valencia a 10-year old boy: "Si Paqui";

2. The quarrel, which, according to Herminia Valencia, daughter of the deceased victim, took place two weeks before the
robbery and homicide, between the appellant and the deceased over the use of a bicycle which appellant allegedly took
from the Valencia's house without the consent of the victim;

3. The rubber slipper, one of a pair, ("step-in beach walk type") which according to Herminia, she found near a cabinet in
their house one (1) meter away from the body of the victim, and which Herminia identified as one of the pair that she
had given to the wife of the accused the previous Christmas Season;
202

4. Accused was seen by one Gloria Capulong around 3:00 p.m. in the afternoon of 31 January 1978 in the yard of the
Valencias, standing and holding a bicycle and doing nothing;

5. The statement of appellant that he did not visit the deceased during the four-day wake.

We turn first to the dying statement made by the victim when the 10-year old Alvin Valencia asked his grandmother who
was sprawled on the floor of their house drenched with blood: "Apo, Apo, what happened?" The deceased victim said:
"Si Paqui". After uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of appellant
Pioquinto de Joya. It must be noted at once, however, that the words "Si Paqui" do not constitute by themselves a
sensible sentence. Those two words could have been intended to designate either (a) the subject of a sentence or (b)
the object of a verb. If they had been intended to designate the subject, we must note that no predicate was uttered by
the deceased. If they were designed to designate the object of a verb, we must note once more that no verb was used
by the deceased. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what
happened?" Alvin's question was not: "Apo, Apo, who did this to you?"

It has been held that a dying declaration to be admissible must be complete in itself. To be complete in itself does not
mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that
his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in
respect of such fact. 3 The doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's
classic work:

The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely apart of
the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of the
whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include
in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly less than that
which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not
there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the
statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. 4
(Emphasis supplied)

The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is
that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what he
did say might have been qualified by the statements which he was prevented from making. That incomplete declaration
is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations
are received. 5

It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the
deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court
simply assumed that by uttering the words "Si Paqui", the deceased had intended to name the person who had thrust
some sharp instrument through and through her neck just below her ears. But Eulalia herself did not say so and we
cannot speculate what the rest of her communication might have been had death not interrupted her. We are unable to
regard the dying statement as a dying declaration naming the appellant as the doer of the bloody deed.

The other elements taken into account by the trial court are purely circumstantial in nature. When these circumstances
are examined one by one, none of them can be said to lead clearly and necessarily to the conclusion that appellant had
203

robbed and killed the deceased Eulalia Diamse. The quarrel over the use of the bicycle which was supposed to have
taken place two weeks before Eulalia's death does not, in our view, constitute adequate proof of a motive capable of
moving a person to slay another in such a violent and gory manner. Failure to prove a credible motive where no
identification was shown at all, certainly weakens the case of the prosecution.

The testimony of Herminia Valencia about the single slipper that she found near or under the cabinet in the living room
where Eulalia Diamse was slain, can scarcely be regarded as conclusive evidence that such slipper was indeed one of the
very same pair of slippers that she had given to appellant's wife, who was also the sister of Herminia's husband. Rubber
or beach, walk slippers are made in such quantities by multiple manufacturers that there must have been dozens if not
hundreds of slippers of the same color, shape and size as the pair that Herminia gave to appellant's wife. And even if
conclusive identification of the slippers had been offered, and it is assumed that appellant (rather than his wife) had
worn those very slippers on that fatal afternoon, still the presence of that singular slipper did not clearly and directly
connect the appellant to the robbery or the slaying. At most, under that assumption, the presence of that slipper in the
house of the Valencias showed that the accused had gone to the house of the Valencias and there mislaid that slipper.
We note in this connection, that appellant himself had testified that he did enter the house of the Valencias that
afternoon, but after the killing of Eulalia Diamse had been perpetrated, and there had found many persons in the house
viewing the body.

The testimony of Gloria Capulong that she saw the accused in the afternoon of 31 January 1978 around 3:00 p.m. in the
yard of the Valencias, standing and holding a bicycle and doing nothing is, by itself, not proof of any act or circumstance
that would show that appellant had perpetrated the slaying or the robbery. The behaviour of the appellant, as testified
to by Gloria Capulong, offers no basis for supposing that appellant, himself 72 years of age, had just slain an 88-year old
woman by skewering her through the neck and had ransacked both floors of the Valencia house.

Appellant's failure to present himself to pay his respects to the deceased or her immediate family during the four-day
wake, does not give rise to any inference that appellant was the slayer of Eulalia Diamse. Appellant had explained that
he had been busily at work, sewing and carrying on his trade as a tailor. Appellant, as already noted, had dropped in the
Valencias' house in the afternoon Eulalia Diamse was killed and had viewed the body (before it was lying in state) along
with several other persons. His reluctance or inability to participate in the formal wake is not necessarily a sign of guilt.
We are unable to agree with the trial judge that such behaviour was "contrary to the ordinary experience of man"
although respect for the dead is a common cultural trait of the Filipinos.

In the Solicitor-General's brief, it is casually contended that the circumstantial evidence against appellant included: "the
attempt on the part of appellant Pioquinto de Joya through his counsel to settle the case amicably." 6 We have
examined the testimony that the Solicitor General pointed to in referring to a supposed attempt to settle the criminal
charge amicably. That testimony, given by Arnedo Valencia, son-in-law of the deceased Eulalia Diamse and brother-in-
law of appellant Pioquinto de Joya, was as follows:

Q You also testified that before the release of the accused from the municipal jail, you had a conversation with him, is
that right?

A Yes, air.

Q What was this conversation about?

204

A He called for me and took me to his counsel Atty. Aguilar and according to him if only Atty. Aguilar can talk with me,
everything will be settled.

Q Have you seen and talked to this Atty. Aguilar?

A Yes, I went with him to Manila, sir.

Q When was this?

A The time he was fetched out of jail.

Q You are referring to the municipal jail?

A Yes, sir.

Q What did you and Atty. Aguilar discuss when you finally was able to see Atty. Aguilar?

A When I went there, I was introduced to Atty. Aguilar and Atty. Aguilar asked me as to what I liked to happen.

Q What did you say?

A I said if it will be settled, well and good.

Q Anything else that transpired?

A He even told me if I might be able to convince both my wife and her sisters.

Q Did he tell you he can settle this?

A He was very certain that he can settle this, the very reason why he told me because I was very certain as to what
happened.

Q Was the accused Pioquinto de Joya present when you were discussing this with his lawyer?
205

A Yes, sir

Q He heard what his, lawyer was telling you?

A It is possible because he is only one or two meters distance away.

Q Did the accused say anything?

A None, sir. (Emphasis supplied)

We find the above testimony quite impalpable and inconclusive so far as a supposed attempt of appellant, through his
counsel, to offer a compromise on the criminal charge is concerned. We are aware of the provision of Section 24 of Rule
130 of the Rules of Court which provides that

Sec. 24. Offer to compromise not admission. An offer of compromise is not an admission that anything is due, and is not
admissible in evidence against the person making the offer. However, in criminal cases which are not allowed by law to
be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.
(Emphasis supplied)

We do not, however, feel justified in concluding from the above testimony from a member of the (extended) family of
the deceased victim that "an offer of compromise" had been made "by the accused" nor that "an implied admission of
guilt" on the part of the appellant may be reasonably inferred in the instant case. The trial court itself made no mention
of any attempt on the part of appellant to settle the criminal case amicably through the defense counsel; we must
assume that the trial court either did not believe that appellant had tried to compromise the criminal case or considered
that appellant could not fairly be deemed to have impliedly admitted that he had indeed robbed and killed Eulalia
Diamse. A much higher level of explicitness and specific detail is necessary to justify a conclusion that an accused had
impliedly admitted his guilt of a crime as serious as robbery with homicide.

The totality of the case made out against appellant De Joya thus consists of an incomplete, aborted, dying declaration
and a number of circumstances which, singly or collectively, do not necessarily give rise to a compelling inference that
appellant had indeed robbed and slain Eulalia Diamse. We consider, after prolonged scrutiny, that the sum total of the
evidence in the instant case is insufficient to induce that moral certainty of guilt which characterizes proof beyond
reasonable doubt. The conscience of the Court remains uneasy and unsettled after considering the nature and
speculative character of the evidence supporting the judgment of conviction.

The Court must, accordingly, hold as it hereby holds that appellant's guilt of the crime of robbery and homicide was not
shown beyond reasonable doubt.
206

ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby REVERSED and appellant Pioquinto de Joya is
hereby ACQUITTED on grounds of reasonable doubt.

It is so ordered.

Narvasa, CJ., Cruz, Griño-Aquino and Medialdea, JJ., concur

People v. de Joya, 203 SCRA 343 (1991)

Facts: Eulalia Deamse was fatally wounded. Her grandson, Alvin Valencia, came home and found her
wounded. He asked his grandmother "Apo, Apo, what happened?" The deceased victim said: "Si Paqui".
After uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of Pioquinto de
Joya. De Joya was charged and convicted of robbery with homicide.

Held: A dying declaration to be admissible must be complete in itself. To be complete in itself does not
mean that the declarant must recite everything that constituted the res gestae of the subject of his
statement, but that his statement of any given fact should be a full expression of all that he intended to
say as conveying his meaning in respect of such fact. The statement as offered must not be merely a part
of the whole as it was expressed by the declarant; it must be complete as far it goes. It is immaterial how
much of the whole affair of the death is related, provided the statement includes all that the declarant
wished or intended to include in it. Thus, if an interruption cuts short a statement which thus remains
clearly less than that which the dying person wished to make, the fragmentary statement is not
receivable, because the intended whole is not there, and the whole might be of a very different effect from
that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection
that he has told only a portion of what he might have been able to tell. Since the declarant was prevented
from saying all that he wished to say, what he did say might have been qualified by the statements which
he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of
truthfulness which constitutes the basis upon which dying declarations are received. 

In this case, the dying declaration of the deceased victim here was incomplete. The words "Si Paqui" do
not constitute by themselves a sensible sentence. The phrase "Si Paqui" must, moreover, be related to the
question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to
you?" The deceased was cut off by death before she could convey a complete or sensible communication
to Alvin. The trial court simply assumed that by uttering the words "Si Paqui", the deceased had intended
to name her killer. But Eulalia herself did not say so and we cannot speculate what the rest of her
communication might have been had death not interrupted her. We are unable to regard the dying
statement as a dying declaration naming the appellant as the doer of the bloody deed.

Escolin: Justices Relova and Francisco and I disagree with this decision. Under the context, what else
could have “Si Paqui” meant other than that he was responsible for the crime?

G.R. No. 101799 November 6, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PACIFICO DUNIG y RODRIGUEZ, defendant-appellant.

CRUZ, J.:

There were two witnesses who allegedly saw the killing, not to mention the victim herself, who identified her
assailant shortly before she died. Yet the Solicitor General, who is usually for sustaining the conviction by the trial
court, in unconvinced and has asked for its reversal.

Pacifico Dunig was formally charged with the murder of Marilyn Canatoy, then 14 years old, in an information filed
with the Regional Trial Court of Bulacan. The allegation was that on April 5, 1990, in San Ildefonso, Bulacan, he
repeatedly stabbed and thus killed the said girl, the attack being accompanied with treachery, evident premeditation
and abuse of superior strength.  1
207

To prove its case, the prosecution presented three witnesses, besides the doctor who testified on the cause of the
victim's death. These were Maylin Montes, her sister, Katherine Montes, and their mother, Teresita Montes.

Maylin Montes, who was ten years old at the time of the trial, said that at about 7 o'clock in the evening of April 4,
1990, she, Katherine, a certain Flory, and her Ate Marilyn went to sleep at the resthouse belonging to one Atty.
Andrade. Marilyn slept in a bamboo bed, and the rest of them slept under the bed. Maylin said that at about 3
o'clock in the morning, she saw Dunig stab Marilyn in the neck three times. The three girls ran to Andrade's house
about 8 meters away where her father and mother were staying. Marilyn did, too, and collapsed at the door.  2

Katherine Montes, thirteen years old at that time, corroborated her sister's testimony. She said she also saw Dunig
running away after she heard her Ate Marilyn screaming. She said she ran to the house ahead of Marilyn and she
heard the stricken girl say, "Nanay, nanay, sinaksak ako ni Pico."   "Pico" is Dunig's nickname.
3

Teresita Montes, the girls' mother, declared on the stand that at about 9 o'clock in the morning of April 4, 1990, she
saw Pico and her niece Marilyn quarreling. At about 3 o'clock the following morning, she was awakened when
Marilyn knocked at her door. Marilyn's neck was bleeding, and she cried to her: "Nanay, nanay, bigyan ninyo ako ng
katarungan dahil sinaksak ako ni Pico." A minute later, she died. Behind Marilyn were Maylin, Katherine and Flory.  4

Dr. Nicanor Cruz informed the court that Marilyn died of hemorrhage due to multiple stab and incised wounds in the
neck. He opined uncertainly that the victim might or might not have been able to speak or run to the house after the
stabbing. 5

Dunig's defense was alibi. He said that on the night in question, he was alone in a nipa hut in Matinbubong, San
Ildefonso, Bulacan, where he went to sleep at 9 p.m. and awoke the following morning at 6 o'clock. He swore he
was not in the resthouse where, and at the time, Marilyn was killed.  6

Judge Amado M. Calderon, disbelieving him, found him guilty as charged.   This Court, after considering the
7

evidence, holds that the conviction cannot stand.

Alibi is unquestionably a weak defense, and it is clearly so in the case at bar. Dunig has not presented a single
witness to corroborate him. There is also the admitted fact that the nipa hut where he supposedly slept was only a
kilometer away from the scene of the crime.

However, we have repeatedly stressed that a person's conviction must rest not on the weakness of his defense but
on the strength of the prosecution. The accused can rely on the constitutional presumption of his innocence. It is for
the prosecution to overcome that presumption with convincing proof that the accused is guilty; otherwise, he must
be absolved. In the case at bar, we find that the prosecution has not proved its case.

The testimonies of the two alleged eyewitnesses to the killing are not believable. While insisting that she saw Dunig
stab Marilyn, Maylin also admitted that it was pitch dark when they awoke and there was not a single light in the
resthouse or nearby. (Or from the moon either, for that matter.) Katherine said she only saw "what looked like a
shadow" and concluded it was Dunig. Assuming the sisters did wake up when Marilyn screamed, it would have
taken some time before their eyes could get accustomed to the darkness. Yet both said they immediately
recognized the accused-appellant.

If there was anything certain about their testimonies, it was their certainty that the resthouse was dark when they
allegedly saw Dunig stabbing their cousin.

Maylin agreed it was "so dark."

Atty. Ramirez:

Q This resthouse where you and Marilyn, Flory and Katherine were sleeping, there
was no inside light in that early morning of April 5, 1990?

A None, sir.

Q There was no outside light in that resthouse?

A None, sir. 8

x x x           x x x          x x x

Atty. Ramirez:

Q It was dark inside the resthouse?

208

A Yes, sir.

Q It was so dark inside that resthouse that early morning that you could not see
anyone who would enter the resthouse itself?

A Yes, sir.

Q It was so dark that you could not even see or you could not recognize anyone who
could enter the resthouse?

A Yes, sir.

COURT:

How could you see if it was dark?

Atty. Ramirez:

No more question, Your Honor.  9

Katherine demurred, saying "it was not too dark."

Q You want to impress upon us that immediately before your Ate Marilyn was
stabbed, you had seen Dunig?

A Yes, sir.

Q Are you sure of that?

A Yes, sir.

Q In what particular place did you see Dunig immediately before your Ate Marilyn
was stabbed?

A In the resthouse, sir.

Q Outside or inside the resthouse?

A Inside, sir.

Q The resthouse was unlighted at that time, was it not?

A No, sir.

Q It was pitch dark because you could not see anyone or recognize anyone?

A It was not too dark and a shadow passed by me, sir.

Q You mean to tell us that you actually saw a shadow that passed?

Fiscal:

The witness said "parang shadow."

Atty. Ramirez :

What I saw something passed looked like a shadow.

Witness:

A It was really a person, sir.  10

So much for the sisters for the hence. Now for their mother.
209

There is some confusion as to who arrived first in the house, Katherine saying it was she, Maylin and Flory who did
while Teresita Montes, her mother, said it was Marilyn. But that is not really important. What is Teresita's testimony
that Marilyn said to her a minute before the girl died: "Nanay, nanay, bigyan ninyo ako ng katarungan dahil sinaksak
ako ni Pico."

If it is true that the victim did make the statement before she died, it should qualify as a dying declaration and so can
be considered an exception to the hearsay rule. Nonetheless, it cannot be automatically accepted as a truthful
accusation and is still subject to the test of credibility.

A dying declaration is entitled to the highest credence on the theory that a person who knows he is on the verge of
death is not likely to make a false accusation. However, the declaration, albeit presumably in good faith, may still be
based on an erroneous identification of the declarant's killer.

In the case at bar, it has been established by the testimonies of the Montes sisters that the resthouse was dark, if
not, indeed, completely dark. Like the other there girls who were sleeping with her, Marilyn could not possibly have
seen the person who was attacking her. At best, she could probably only surmise it was Dunig, but that was a most
uncertain identification. A surmise is not evidence. A man's honor and liberty cannot be forfeited because the victim
supposedly pointed to him as her killer although she could not possibly have seen the person who was stabbing her
in the dark.

At that, we cannot even be certain that the dying Marilyn really made that declaration against Dunig. By
corroborating their mother's testimony, Maylin and Katherine may have instead enfeebled it because their own
credibility regarding what they said they saw in the dark resthouse is also suspect. It must also be noted that the
doctor who autopsied the victim's body was not sure if Marilyn would have been able to speak at all after she was
stabbed because of the severity and location of her wounds.   Significantly, the statement she supposedly made to
11

Teresita was strenuously long for a person who died a minute later.

It would seem that the mother and her daughters have put two and two together and come out with a sum of five.
Teresita makes much of the quarrels of Marilyn and Pico to bolster her belief that Dunig is the girl's killer. Such
quarrels, if true, may be evidence of motive but not necessarily of murder. In fact, Katherine said that the day before
Marilyn was killed, Dunig was in the resthouse and apparently in good spirits, as he was strumming his guitar and
singing.

It is noteworthy that Katherine, seeing what looked like a shadow ("parang shadow") pass by her in the dark that
morning, immediately concluded it was Dunig who had stabbed Marilyn. As for Maylin, she was sure Dunig was the
killer for the preposterous reason that he was in the resthouse in the afternoon of April 4, 1990.

Thus —

COURT:

Q You stated, Maylin, that it was Pacifico Dunig who stabbed Marilyn. And you also
said that there was no light whatsoever at that time. How did you know that it was
Pacifico Dunig who stabbed Marilyn?

A Because in the afternoon, he was already there, Your Honor.

Q Where was he?

A He was seated in the pavement, Your Honor.

Q Pavement of what?

A This is a bamboo and it was encircled with cemented seat, Your Honor.

Q Is that the only basis in saying that it was Pacifico Dunig who stabbed Marilyn?

A Yes, Your Honor.  12

The evidence of the prosecution is a slender reed. It cannot sustain a conviction. The defense is weak, but the
prosecution is even weaker, based as it is mainly on the narration of the alleged eyewitnesses who claimed to have
seen the killing, one in total darkness and another in near total darkness that enabled her to see a shadow that
passed by her. The tales are implausible. We cannot accept them. The Court has no choice but to exonerate the
accused-appellant because his guilt has not been proved beyond reasonable doubt.

The following observations in People vs. Pecardal   are appropriate:

13
210

A life has been taken and justice demands that the wrong be redressed. But the same justice that
calls for retribution cannot convict the prisoner at bar whose guilt has not been proved. Justitia est
duplex, viz., severe puniens et vere praeveniens. Even as this Court may punish, so too must it
protect. Conceivably, the conviction of the accused-appellant could add another victim in this case.

Accordingly, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and
must be released immediately. It is so ordered.

Padilla, Griño-Aquino and Bellosillo, JJ., concur.

Medialdea, J., is on leave.

G.R. No. 110129 August 12, 1997

PEOPLE OF THE PHILIPPINES plaintiff-appellee,

vs.
EDELCIANO AMACA @ "EDDIE" and "JOHN DOE" @ "OGANG," accused,

EDELCIANO AMACA @ "EDDIE," accused-appellant.

PANGANIBAN, J.:

The ante mortem statement of the victim is sufficient to identify the assailant in the case at hand. However, the
accused cannot be convicted of murder attended by treachery, because the Information charged him with murder
qualified only by evident premeditation. This legal lapse of the prosecution — for that matter, any prosecution lapse
— should benefit the appellant, because in a criminal case, the accused may be held accountable only for the crime
charged (or for the crime necessarily included therein), and every doubt must be resolved in his favor. Thus, we hold
him guilty only of homicide. Furthermore, since the heirs of the victim waived their claim through an affidavit of
desistance, no award for civil indemnity should be included in this Decision finding the accused guilty of the
homicide.

Statement of the Case

These postulate are explained in the Court's adjudication of this appeal from the Decision   dated November 19,
1

1992 of the Regional Trial Court of Bais City, Branch 45,   in Criminal Case No. 550-C convicting Accused Edelciano
2

Amaca of murder and sentencing him to reclusion perpetua.

On December 17, 1990, an Information   was filed by Bais City Prosecutor Epifanio E. Liberal, Jr. against Appellant
3

Amaca and one known only by his alias "Ogang," charging them as follows:

That on October 1, 1990 at around 7:00 o'clock in the evening, more or less, in Purok Liberty Hills,
Barangay Mabigo, Canlaon City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused mutually helping one another and with evident premeditation and at nighttime
did then and there wilfully, unlawfully and feloniously attack, assault and shot with the use of a
firearm one Wilson Vergara who, as a result thereof, suffered fatal gunshot wound as reflected in the
medical certificate issued on October 2, 1990 by the Guihulngan District Hospital which was the
immediate cause of his immediate death.

Contrary to Art. 248 of the Revised Penal Code.

A warrant for the arrest of accused-appellant was issued on January 16, 1991.   However, this was returned
4

unserved on two different occasions for the reason that the subject had already changed address and "his
whereabouts [were] unknown."   A motion for reinvestigation filed by appellant's Counsel de Oficio Marcelo Ondoy
5

was denied in an Order dated April 15, 1991 on the ground that the trial court had not yet acquired jurisdiction over
the accused who was then still at large.   Jurisdiction over the person of appellant was acquired by the said court
6

only on July 1, 1991 when he was arrested by police authorities.   Thereafter, reinvestigation was conducted but the
7

prosecutor, reiterating his prima facie findings, resolved to continue the prosecution of the accused.

Arraigned on September 25, 1991, the accused-appellant, assisted by Atty. Ondoy, pleaded not guilty to the
charge.   Trial ensued in due course. Thereafter, the trial court rendered its Decision, the decretal portion of which
8

reads:

WHEREFORE, premises considered, this Court finds accused EDELCIANO AMACA alias "EDDIE"

guilty beyond reasonable doubt of the crime of murder as penalized under Article 248 of the Revised
211

Penal Code, and hereby sentences the said accused to a penalty of RECLUSION PERPETUA,
without pronouncement as to civil liability, and damages, and to pay costs.

SO ORDERED.  9

The Facts

The trial court synthesized the facts based on the testimonies of witnesses for the prosecution and the defense, as
follows:

To prove the injuries sustained by the victim, Wilson Vergara, and his cause of death, the
prosecution presented Dr. Edgar P. Pialago, a resident physician of the Guihulngan District Hospital,
Guihulngan, Negros Oriental, who testified that on October 2, 1990, he was on duty at the aforesaid
hospital, and was able to attend to victim Wilson Vergara who had just undergone a surgical
operation conducted by another doctor, Dr. Gonzaga. The major organs of the victim, namely, the
heart, lungs and kidney, were no longer functioning normally, and thus, he was suffering from
multiple organ system failure. Furthermore, there was injury in the pancreas, causing a leak of the
pancreatic juice. Victim suffered two gunshot wounds at the back, and x-ray revealed two (2) bullets
inside the body, and there was no exit wound. The patient was admitted at 10:45 in the evening of
October 1, 1990, and died at 7:00 in the evening of the following day. He identified the death
certificate (Exh. "A"), and the data sheet of the victim and the final diagnosis. (Exh. "B") Even with
immediate medical attention, the victim could not have survived with the wounds he sustained.

Bernardo Mangubat, member of the Philippine National Police of Canlaon City, testified that as a
police investigator one of his companions in the force fetched him from his residence at about 7:00
in the evening of October 1, 1990, and informed him of a shooting incident, where the victim was at
the clinic of Dr. Cardenas, which was near his residence. Upon reaching the clinic of Dr. Cardenas,
he saw the victim already on board a Ford Fiera pick up ready for transport to the hospital. He
inquired from the victim about the incident, and the former answered he was shot by CVO Amaca
and Ogang. Upon query why he was shot, the victim said he did not know the reason why he was
shot. Upon being asked as to his condition, the victim said that he was about to die. (TSN, p. 22,
March 4, 1992) Upon being asked, the victim identified himself as Nelson (sic) Vergara. He was able
to reduce into writing the declaration of victim Vergara, and have the latter affixed (sic) his
thumbmark with the use of his own blood in the presence of Wagner Cardenas, the brother of the
City Mayor. (Exh. "C")

Interposing the defense of alibi, the accused corroborated (by) his witnesses, namely, Felix Ponting,
and Alfredo Gabucero, portrayed the following scenario: Felix Ponting and Alfredo Gabucero were
members of the CAFGU (Civilian Armed Forces Geographical Unit) and accused as member of the
Civilian Volunteer Organization (CVO) with station at Barangay Lumapao, Canlaon City. On October
1, 1990, the accused together with his companion Felix Ponting were on duty at the said station from
6:00 o'clock in the evening to 8:00 o'clock that same evening. After their duty at 8:00 o'clock, they
went to sleep at the detachment, and were relieved by Alfredo Gabutero, whose duty covered from
8:00 to 9:00 that same evening.  10

Prosecution Witnesses Segundina Vergara, mother of the victim, and her son-in-law Jose Lapera both desisted from
further prosecution of the case; the former because of the "financial help" extended by the accused to her family,
and the latter because Segundina had already "consented to the amicable settlement of the case." This
notwithstanding, the Department of Justice found the existence of a prima facie case based on the victim's ante
mortem statement.  11

The Trial Court's Ruling

The trial court deemed the victim's statement to Police Officer Mangubat, positively identifying Appellant Amaca, a
dying declaration sufficient to overcome the latter's defense of alibi. However, due to the voluntary desistance of the
victim's mother from further prosecuting the case, the court a quo declined to make a finding on the civil liability of
the appellant.

The Issue

In his brief, the appellant filed a lone assignment of error, to wit:

The trial court erred in finding accused Edelciano Amaca guilty beyond reasonable doubt of the
crime of murder on the sole basis of the alleged dying declaration of the victim to Police Officer
Bernardo Mangubat.  12

The Court's Ruling

212

The appeal is partially granted. The appellant is guilty only of homicide, not murder, and civil indemnity shall not be
awarded to the heirs of the deceased.

Dying Declaration
Sufficient to Identify Assailant

A dying declaration is worthy of belief because it is highly unthinkable for one who is aware of his impending death
to accuse, falsely or even carelessly, anyone of being responsible for his foreseeable demise. Indeed, "when a
person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful
consideration to speak the
truth."   This is the rationale for this exception to the hearsay rule under Section 37, Rule 130 of the Rules of Court.
13

The elements of such exception are: (1) the deceased made the declaration conscious of his impending death; (2)
the declarant would have been a competent witness had he survived; (3) the declaration concerns the cause and
surrounding circumstances of the declarant's death; (4) the declaration is offered in a criminal case where the
declarant's death is the subject of inquiry; and (5) the declaration is complete in itself.   All these concur in the
14

present case.

Declarant a Competent Witness

The appellant contends that had he survived, the declarant would not have been a competent witness to identify his
assailant. He emphasizes that
the victim was shot twice at the back at nighttime and that ". . . the witness/victim based on the foregoing
circumstance was not able to see the alleged assailants . . .   We are not persuaded. True, the victim, Wilson
15

Vergara, was hit at the back by two bullets. But as the prosecution clearly showed by other evidence, Wilson did not
lose consciousness upon being shot. In fact, his ante mortem statement clearly indicates that he was able to see
and recognize who shot him. In this light, appellant is assailing the credibility, not the competency, of the victim.
Competency of a witness to testify requires a minimum ability to observe, record, recollect and recount as well as an
understanding of the duty to tell the truth.   Appellant does not dispute that the victim was capable of observing and
16

recounting the occurrences around him; appellant merely questions whether the victim, under the circumstances of
this case, could have seen his assailant. In effect, appellant challenges merely the credibility of the victim's ante
mortem statement. We hold that the serious nature of the victim's injuries did not affect his credibility as a witness
since said injuries, as previously mentioned, did not cause the immediate loss of his ability to perceive and to
identify his shooter. The Court had occasion in the past to rule on a similar issue as follows:

. . . (') The question as to whether a certain act could have been done after receiving a given wound,
(') according to Wharton and Stilles (Vol. III, Medical Jurisprudence, p. 212), "is always one that must
be decided upon the merits of a particular case." They cited a case from Vibert's Precis de Med.
Leg., 4th ed., p. 286, where a man after being shot in the chest threw a lamp at his adversary. The
lamp started a fire; and to extinguish the fire, the wounded man fetched a pail of water from the
courtyard. When the fire was extinguished, the man lay down in bed and died. Vibert performed the
autopsy, and found that the left ventricle of the heart had been perforated by the revolver's bullet. It
is evident from the foregoing that Dr. Acosta's assertion that the victim of a gunshot wound would
immediately lose consciousness, after infliction of the wound, may not be true in all cases. . . . 
17

Appellant also argues that the declarant could not have seen who shot him because "the actual shooting occurred at
7:00 o'clock in the evening."   This statement is bereft of factual basis. The record shows that Police Officer
18

Mangubat was fetched from his house at 7:00 p.m. to investigate the shooting. He was informed that the victim had
already been brought to the clinic of Dr. Cardenas.   It may thus be inferred that the shooting occurred sometime
19

before the victim was found, brought to the clinic, and before Mangubat was fetched from his house. Thus, a
considerable period of time must have elapsed from the time of the actual shooting until the policeman was fetched
from his house around 7:00 p.m. That he was shot way before 7:00 p.m. does not lead to the inference that it was
pitch-black at the time of the shooting. Indeed, from the foregoing, it is reasonable to assume that the crime was
committed before nightfall and that there was sufficient daylight to enable the victim to identify his assailant. At any
rate, there are no indicia in the record that lighting conditions made it impossible for declarant to identify his
assailant. Ineluctably, the positive assertion of the declarant that he did recognize his shooter has greater
persuasive value than the baseless negative speculation of the defense that he did not.

Genuineness of the Dying Declaration

The defense attempts to cast doubt on the genuineness of the dying declaration by suggesting that since "the
relationship between CAFGU and the PNP is marred by jealousy, suspicion and general dislike for one
another,"   Police Officer Mangubat had enough motive to falsely implicate appellant who was a CAFGU member.
20

The defense also asks: "Why was the alleged dying declaration of the victim merely thumbmark (sic) when in fact he
was still coherent, conscious and very capable of writing his name at that time?"   Additionally, the defense
21

questions why Wagner Cardenas who signed the ante mortem statement as witness was not presented as such by
the prosecution.  22
213

The foregoing ulterior-motive theory is thoroughly unconvincing. Clearly, it does not destroy the genuineness of
the ante mortem statement. Police Officer Mangubat is presumed under the law to have regularly performed his
duty. There is nothing in the circumstances surrounding his investigation of the crime which shows any semblance
of irregularity or bias, much less an attempt to frame Appellant Amaca. As aptly noted by the trial court, even
appellant testified that he had no previous misunderstanding with Police Officer Mangubat and knew no reason why
the latter would falsely testify against him.   This dismal failure of the defense to show any ill motive on the part of
23

said police officer adds credence to Mangubat's testimony.  24

Moreover, that the declarant attested to his ante mortem statement through his thumbmark in his own blood is
sufficient to sustain the genuineness and veracity thereof. This manner of authentication is understandable in view
of the necessity and urgency required by the attendant extreme circumstances. It cannot be indicative of any ulterior
motive on the part of Police Officer Mangubat. We have clearly ruled that an ante mortem statement may be
authenticated through the declarant's thumbmark imprinted which his own blood, and serve as evidence in the form
of a dying declaration in a criminal case involving his death.   Verily, such declaration need not even be in writing
25

and may be proven by testimony of witnesses who heard it.

Finally, the non-presentation of Wagner Cardenas as witness during the trial is not fatal, as his testimony would
have been merely corroborative of Mangubat's. In addition, the presumption that evidence omitted by a party would
be adverse if presented does not obtain in this case, since Wagner Cardenas is also available and could have been
called to the witness stand by accused-appellant. Besides, it is the prosecutor's prerogative to choose his own
witnesses to prove the People's cause.  26

Ante Mortem Statement as Res Gestae

The ante mortem statement may also be admitted in evidence when considered as part of the res gestae, another
recognized exception to the hearsay rule provided specifically under Rule 130, Section 36 of the Rules of Court. The
requisites for the admissibility of statements as part of the res gestae are: (a) the statement is spontaneous; (b) it is
made immediately before, during or after a startling occurrence; and (c) it relates to the circumstances of such
occurrence.   These requirements are obviously fulfilled in the present case where the statement, subject of this
27

discussion, was made immediately after the shooting incident and, more important, the victim had no time to
fabricate.

An ante mortem statement may be admitted in evidence as a dying declaration and as part of the res gestae. This
dual admissibility is not redundant and has the advantage of ensuring the statement's appreciation by courts,
particularly where the absence of one or more elements in one of the said exceptions may be raised in issue. In this
manner, the identification of the culprit is assured. 28

Alibi Debunked

The defense also contests the trial court's finding that the
"alibi interposed by the accused miserably fall short of exculpation. (Decision, p. 7)"   Appellant insists that, since
29

the dying declaration was unreliable and since there was no positive identification aside from this declaration, the
defense of alibi gained strength.   There is no basis for this contention for, as previously discussed, the ante
30

mortem statement met all requirements for its admissibility either as a dying declaration or as part of the res
gestae or both.   It must be remembered that alibi is inherently weak and the facts in the case at hand show that it
31

was not at all impossible, considering the circumstances of time and place, for the accused-appellant to have been
present at the crime scene at the time of its commission.   The military detachment at Barangay Lumapao, where
32

appellant allegedly slept, is a mere seven kilometers away from Barangay Mabigo, Purok Liberty Hills where the
crime was committed. In other words, the able-bodied appellant was only an hour's walk and a short fifteen-minute
tricycle ride from the locus criminis.   As correctly argued by the trial court, "(i)t would not have been impossible for
33

the accused to be at Purok Liberty Hills, and shoot the victim, and come back to his detachment in a matter of thirty
(30) minutes, the time testified by the defense witness Gabutero as to going to and coming back from these two
places. (TSN, p. 17, July 15, 1992)"   The alibi of appellant cannot overcome, therefore, the very persuasive
34

declaration of the victim.  35

Based on the foregoing discussion, the Court's conscience rests easy with the moral certainty that indeed accused-
appellant committed the crime charged. His pretense at innocence is futile in view of the overwhelming evidence
presented against him. Even his flight — eluding the police for almost six months after the issue of the warrant for
his arrest — clearly bespeaks his
guilt. 
36

Murder or Homicide?

Finally, the defense posits that the appellant may be held liable only for homicide since treachery was not alleged in
the Information, while evident premeditation and nighttime, although duly alleged, were not satisfactorily
proven.   We agree. The Information readily reveals that the killing was qualified only by evident premeditation. The
37

trial court however found that the killing was qualified by treachery. Even assuming that this conclusion is supported
214

by the evidence on record, we cannot appreciate treachery to qualify the crime to murder for the simple reason that
this was not alleged in the Information. Treachery is an element of the crime. The Constitution requires that the
accused must be informed of the "nature and cause of the accusation against him."   Obviously, this failure to allege
38

treachery in the Information is a major lapse of the prosecution. Since every doubt must be resolved in favor of the
accused, we cannot convict him of murder through treachery under an Information that charged him with murder
qualified by evident premeditation.

Moreover, in this case, treachery and nighttime may not be considered even as generic aggravating circumstances,
because there is nothing in the testimony of the prosecution witnesses to convincingly show that the accused-
appellant consciously and purposely adopted (1) such means of attack to render the victim defenseless and (2) the
darkness of night to facilitate the commission of the crime, to prevent its discovery or even evade capture. This
conclusion is further bolstered by the simple fact that not one of the prosecution witnesses saw the commencement
of the assault or even the actual assault itself. Hence, they are not competent to testify on whether the aggravating
circumstances of treachery and nighttime attended the commission thereof. These circumstances cannot be
appreciated on the basis of mere presumptions or suppositions; they must be proven as clearly as the crime itself.  39

Appellant may therefore be held liable only for the crime of homicide defined under Article 249 of the Revised Penal
Code. Since there are no mitigating or aggravating circumstances, the penalty of reclusion temporal provided under
said article shall be imposed in its medium period . Applying the Indeterminate Sentence Law, appellant should
suffer imprisonment of prision mayor in its medium period to reclusion temporal, also in its medium period.

Non-Award of Indemnity

The trial court did not make a finding on the civil liability of accused-appellant, reasoning that it was prevented from
doing so by the "unwillingness" of the victim's mother, Segundina Vergara, to further prosecute the case against the
accused.   The trial court cited the resolution of the Department of Justice (DOJ) denying the motion for
40

reinvestigation. The DOJ held that the ante mortem statement of the victim testified to by Pfc. Mangubat
accorded prima facie validity to the case against the accused, but it noted and confirmed the desistance of the
victim's mother and her son-in-law from further prosecuting the case. The salient portions of Segundina Vergara's
affidavit of desistance quoted in said resolution reads:

That I am the complainant in a case which I filed in the Office of the City Prosecutor, Canlaon City
and docketed as Criminal Case No. 550-C of Regional Trial Court, Bais City for Murder against
Eddie Amaca as the alleged accused;

That in the evaluation of our case against him, I have found out that the death of my son Wilson
Vergara was purely accidental that could be attributed to his fault;

That due to my compassion to the poor accused who is a family man, I have decided to drop the
case against Eddie Amaca for the reason that his family financially help (sic) us in our family
problems due to the death of my late son;

That with our desire to have a mutual understanding and goodwill among ourselves, since we are
neighbors and our respective families are good friends, I have decided to drop the case against
Eddie Amaca;

That when the said case was scheduled for hearing, I will not testify anymore as the complaining
witness; 41

The Solicitor General finds nothing wrong with the trial court's reasoning and recommends that its decision be
affirmed.   We agree. The facts of this case show that the victim's mother desisted from prosecuting the case in
42

consideration of the "financial help" extended to her family by the accused-appellant. Such "financial help" when
viewed as an offer of compromise may also be deemed as additional proof to demonstrate appellant's criminal
liability.   Parenthetically, her claim that the cause of her son's death was an accident attributable to the latter, has
43

no basis. It is inconceivable that the victim's two gunshot wounds at the back were self-inflicted. Well-settled it is that
the desistance of the victim's complaining mother does not bar the People from prosecuting the criminal action, but
it does operate as a waiver of the right to pursue civil indemnity. Hence, in effectively waiving her right to institute an
action to enforce the civil liability of accused-appellant, she also waived her right to be awarded any civil indemnity
arising from the criminal prosecution.   This waiver is bolstered by the fact that neither she nor any private
44

prosecutor in her behalf appealed the trial court's refusal to include a finding of civil
liability. 
45

The records, however, do not show whether the deceased had other compulsory heirs. Such heirs, if there are any,
may file an independent civil action to recover damages for the death of Wilson Vergara.

WHEREFORE, premises considered, the questioned Decision is hereby MODIFIED. Accused-appellant Edelciano
Amaca is found GUILTY of homicide and SENTENCED to an indeterminate penalty of ten years of prision
215

mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. No civil
indemnity is awarded. No costs.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.

People v Amaca 277 SCRA 215 Digest

People vs. Amaca

GR No. 110129 August 11, 1997

Ponente: Panganiban, J.:

Offer of compromise in Criminal Cases; Res Gestae

Facts:

1. Accused Amaca and another known as “Ogang” were charged for shooting Wilson Vergara. During the trial, the
prosecution presented Dr. Edgar Pialago, a resident physician on duty when the victim was brought to the hospital after
the shooting. The doctor testified that he was able to attend to the victim who had undergone a surgical operation
conducted by another doctor. At that time, the major organs of the victim were no longer functioning normally, while
his pancreas was likewise injured due to the 2 gunshot wounds at his back. The victim was admitted at 10:45PM but
expired the following evening at 10PM. According to Dr. Pialago, even with immediate medical attention, the victim
could not survive the wounds he sustained.

2. Another witness testified, PO Mangubat, a police officer , who interviewed the victim (Wilson Vergara) right after
the shooting. Mangubat testified that he saw the victim already on board a Ford Fiera pick-up ready for transport to the
hospital. He inquired from the victim about the incident, and the former answered he was shot by CVO Amaca and
Ogang. Upon query why he was shot, the victim said he did not know the reason why he was shot. Upon being asked as
to his condition, the victim said that he was about to die. He was able to reduce into writing the declaration of the
victim and made latter affixed his thumb mark with the use of his own blood in the presence of Wagner Cardenas, the
brother of the City Mayor.

3. Segundina Vergara, mother of the victim, and her son-in-law Jose Lapera both desisted from further prosecution of
the case. the former because of the "financial help" extended by the accused to her family, and the latter because
Segundina had already "consented to the amicable settlement of the case." Despite this, the Department of Justice
found the existence of a prima facie case based on the victim's ante mortem statement.

4. The lower court convicted Amaca on the basis of the victim's ante mortem statement to Police Officer Mangubat
positively identifying accused. The dying declaration was deemed sufficient to overcome the accused’s defense of alibi.
However, due to the voluntary desistance of the victim's mother from further prosecuting the case, the court a quo
declined to make a finding on the civil liability of the appellant.
216

Issue: 1) Whether or not offer of compromise is admissible against the accused

YES. The "financial help" when viewed as an offer of compromise may be deemed as additional proof to demonstrate
appellant's criminal liability. The victim's mother desisted from prosecuting the case in consideration of the "financial
help" extended to her family by the accused-appellant.

It is a well-settled rule that that the desistance of the victim's complaining mother does not bar the People from
prosecuting the criminal action, but it does operate as a waiver of the right to pursue civil indemnity. Hence, in
effectively waiving her right to institute an action to enforce the civil liability of accused-appellant, she also waived her
right to be awarded any civil indemnity arising from the criminal prosecution. This waiver is bolstered by the fact that
neither she nor any private prosecutor in her behalf appealed the trial court's refusal to include a finding of civil liability.
But the heirs, if there are any may file an independent civil action to recover damages for the death of Wilson Vergara.

Issue (2): Whether or not the dying declaration of victim should be admitted

YES. The victim’s dying declaration is admissible.

A dying declaration is worthy of belief because it is highly unthinkable for one who is aware of his impending death to
accuse, falsely or even carelessly, anyone of being responsible for his foreseeable demise. Indeed, "when a person is at
the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to
speak the

truth." This is the rationale for this exception to the hearsay rule under Section 37, Rule 130 of the Rules of Court. The
elements of such exception are: (1) the deceased made the declaration conscious of his impending death; (2) the
declarant would have been a competent witness had he survived; (3) the declaration concerns the cause and
surrounding circumstances of the declarant's death; (4) the declaration is offered in a criminal case where the
declarant's death is the subject of inquiry; and (5) the declaration is complete in itself. All these concur in the present
case.

Finally, Police Officer Mangubat is presumed under the law to have regularly performed his duty. There is nothing in the
circumstances surrounding his investigation of the crime which shows any semblance of irregularity or bias, much less an
attempt to frame Amaca. Even the accused testified that he had no previous misunderstanding with Police Officer
Mangubat and knew no reason why the latter would falsely testify against him.

Declarant is a competent witness

The serious nature of the victim's injuries did not affect his credibility as a witness since said injuries, as previously
mentioned, did not cause the immediate loss of his ability to perceive and to identify his shooter.
217

Homicide only not murder

Appellant may be held liable only for homicide since treachery was not alleged in the Information, while evident
premeditation and night time, although duly alleged, were not satisfactorily proven. The Information readily reveals that
the killing was qualified only by evident premeditation. Treachery was not alleged in the information. It is necessary to
qualify the crime to murder. Treachery is an element of the crime. The Constitution requires that the accused must be
informed of the "nature and cause of the accusation against him."The failure to allege treachery in the Information is a
major lapse of the prosecution.

Moreover, treachery and night time may not be considered even as generic aggravating circumstances, because there is
nothing in the testimony of the prosecution witnesses to convincingly show that the accused-appellant consciously and
purposely adopted (1) such means of attack to render the victim defenseless and (2) the darkness of night to facilitate
the commission of the crime, to prevent its discovery or even evade capture.

G.R. No. 109617 August 11, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELIPE SION @ "JUNIOR," JOHNNY JUGUILON, EDONG SION, FELIX SION @ "ELLET," and FEDERICO
DISU @ MIGUEL," accused.

FELIPE SION @ "JUNIOR" and FEDERICO DISU @ "MIGUEL," accused-appellants.

DAVIDE, JR., J.:

In its decision  in Criminal Case No. D-10796 dated 20 January 1993, but promulgated on 8 February 1993, Branch
1

44 (Dagupan City) of the Regional Trial Court of the First Judicial Region decreed as follows:

WHEREFORE, the Court finds accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu guilty
beyond reasonable doubt as principals of the crime of Murder pursuant to Article 248 of the Revised Penal
Code, and in view of the attendance of the aggravating circumstance of cruelty which is not offset by any
mitigating circumstance, the two accused are hereby sentenced to suffer the penalty of Reclusion Perpetua,
and to indemnify jointly the heirs of the victim the sum of P50,000.00 and to pay the costs of the
proceedings.

Accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu are ordered to pay jointly the heirs of
the victim the sum of P11,910.00 as actual damages.

SO ORDERED.

Felipe Sion alias "Junior," whose full name is Felipe Rodriguez Sion, Jr.  (hereafter appellant Sion), and Federico
2

Disu alias "Miguel" (hereafter appellant Disu), seasonably appealed therefrom to this Court  in view of the penalty
3

imposed. 4

The case against appellants commenced with the filing of a criminal complaint for Murder  on 19 November 1991 in
5

Criminal Case No. 2141 (SP-91) before the Fourth Municipal Circuit Trial Court of San Fabian-San Jacinto in the
Province of Pangasinan. Charged with appellants therein were Johnny Juguilon, Edong Sion, Felix Sion alias "Ellet,"
and "four (4) other John Does." After appropriate preliminary examination, Judge Sergio Garcia of said court issued
a warrant for the arrest of the accused with no bail fixed for their temporary liberty.  However, the warrant was
6

served only on appellant Disu, while the rest then remained at large. Upon appellant Disu's motion for bail, to which
Asst. Provincial Prosecutor Restituto Dumlao, Jr., recommended that bail be fixed at P40,000.00 for said accused
only, the court fixed said accused's bail at such amount; and upon filing and approval of the bail bond, appellant
Disu was ordered released.  Subsequently, one Atty. Fernando Cabrera filed, for the rest of the accused, a motion to
7

reduce the bail from P40,000.00 to

P20,000.00.  As Provincial Prosecutor Dumlao agreed to a reduction of P10,000.00, the court granted the motion
8

and fixed bail at P30,000.00. None of them, however, filed a bail bond.
218

For failure of the accused to submit the required counter-affidavits, the Municipal Circuit Trial Court, finding probable
cause against all the accused for the crime of murder on the basis of the evidence for the prosecution, ordered the
transmittal of the record of the case, including the bail bond of accused Federico Disu, to the Office of the Provincial
Prosecutor of Pangasinan for appropriate action. 9

On 21 January 1992, an Information   was filed with the Regional Trial Court (RTC), First Judicial Region, in
10

Dagupan City, Pangasinan, against appellants Sion and Disu and Johnny Juguilon, Edong Sion, Felix
Sion alias "Ellet," and four (4) unidentified persons (designated as John, Peter, Richard and Paul Doe), accusing
them of the crime of murder committed as follows:

That on or about October 16, 1991 in the evening at Brgy. Binday, municipality of San Fabian, province of
Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
armed with stones and a bladed weapon conspiring, confederating and mutually helping one another with
intent to kill with treachery and evident premeditation did, then and there wilfully, unlawfully and feloniously
hurl with stones, attack and stab Fernando Abaoag inflicting upon him the following injuries:

— stab wound 1 1/2 inches in width, 9 inches in depth between 10-11 ICS,
mid axillary area slanting upwards hitting the left lobe of the lung

— stab wound right lateral side of the neck 1 1/2, inch in depth

— stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area, left

— contusion superimposed abrasion left eyebrow

which caused his instant death, to the damage and prejudice of his heirs.

CONTRARY to Art. 248, Revised Penal Code.

The information was docketed as Criminal Case No. D-10796 and assigned to Branch 44 thereof.

On 2 June 1992, accused Sion was arrested.   Then on 10 June 1992, the RTC annulled and voided the bail earlier
11

granted to appellant Disu by the MCTC Judge Sergio Garcia for luck of proper hearing, denied the motion for bail
filed by appellant Sion, and ordered their detention in jail. 12

Since only appellants Sion and Disu were arrested, the case proceeded against them only. Upon arraignment, both
pleaded not guilty to the charge and waived pre-trial. 13

The prosecution's witnesses were Cesar and Felicitas Abaoag, the brother and the wife of the victim, respectively;
Dr. Leopoldo Manalo, San Fabian Municipal Health Officer; Rosendo Imuslan, barangay captain of Barangay
Binday; and SPO1 Ricardo Abrio. On the other hand, the defense presented as its witness appellant Disu; appellant
Sion; Corazon Sion, wife of appellant Sion; and Dr. Leopoldo Manalo.

The evidence for the prosecution as established by the testimonies of its witnesses is partly summarized by the
Office of the Solicitor General in the Brief for the Appellee, as follows:

On or about 7:00 o'clock in the evening of October 16, 1991, Cesar Abaoag was at the barangay road in
front of his house situated in Binday, San Fabian, Pangasinan. He was with his elder brother Carlos Abaoag
and Ricardo Manuel (p. 6, TSN, August 20, 1992) when all of a sudden, Ronnie Manuel arrived coming from
the west complaining that he was being chased by Felipe Sion and Johnny Juguilon (p. 7, TSN, id.). On that
same occasion, Fernando Abaoag also arrived at the scene. He said to Ronnie, "why Ronnie, you are
making trouble again." The latter answered, "I am not making trouble uncle because while I was inside the
house of Eling Alcantara, Felipe Sion and Johnny Juguilon were trying to stab me. (p. 8, TSN, id.). Seconds
later, Felipe Sion and Johnny Juguilon appeared and started throwing stones. Fernando Abaoag told them
to stop throwing stones but before they desisted and left, one of them uttered "even you Andong, you are
interfering, you will also have your day, vulva of your mother, you Abaoag[s]" (pp. 9-10, id.) Apparently, the
utterance was directed against Fernando Abaoag whose nickname is Andong.

Subsequently thereafter, at about 9:00 o'clock on that same evening, Cesar Abaoag while inside his house
lying down on his bed heard the sound of stone throwing at the nearby house of his brother Fernando. He
went out to see who were throwing stones (14, TSN, id.). When already near the house of Lolly Galdones,
Cesar Abaoag saw his brother Fernando already outside his house. He also saw Johnny Juguilon, one of
the members of the group of stone throwers, hurl a big stone against Fernando. Upon being hit on the left
eyebrow, Fernando turned his back towards Felix Sion, Edong Sion and Miguel Disu who were also
throwing stones towards his direction. On the other hand, appellant Felipe Sion, who was near the victim,
219

with a very sharp double bladed dagger, stabbed Fernando, first on the left side just below the armpit, then
on the left waistline and finally on the right side of the neck below the jaw (pp. 18-19, TSN, id.).

Cesar tried to extend help to his brother but Miguel Disu hurled a stone on him which landed on his right
side below the armpit. When he heard Felipe Sion shouting to his companions saying, "we will also kill
Cesar," Cesar desisted in helping brother (pp. 22-23, TSN, id.). Instead, he ran to his brother's house and
informed Felicitas, the wife, about the helpless condition of Fernando (pp. 22-23, TSN, id.). Upon being
informed, Felicitas accompanied by Carlos Abaoag, went to the place of the incident. The assailants were
no longer there. She only saw her husband lying prostate on the ground very weak in the state of dying.
When she inquired what happened, Fernando answered "naalaak" which in English means "I was hit" (pp. 4-
5, TSN, July 27, 1992). Fernando told his wife that his assailants were Felipe Sion, Miguel Disu, Edong
Sion, Johnny Juguilon and Felix Sion (p. 6, TSN, id.)

The victim was rushed to St. Blaise Hospital in San Fabian but he was pronounced dead on arrival (pp. 24-
25, TSN, August 20, 1992).

Dr. Leopoldo Manalo, a Municipal Health Officer of San Fabian, Pangasinan conducted post
mortem examination (Exh. A) on the body of the victim. The result of his findings showed that Fernando
Abaoag sustained the following injuries, to wit:

1) stab wound 1 1/2 inches in width, 9 inches in depth between 10-11, ICS, mid axillary area slanting
upwards hitting the left lobe of the lung

2) stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 inch in depth

3) stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area, left

4) contusion superimposed abrasion left eyebrow. 14

Dr. Manalo further testified that the stab wounds were caused by a sharp-pointed instrument, possibly a dagger,
with the first wound hitting the lower lobe of the left lung causing severe bleeding and its eventual collapse. He
determined the cause of death to be hemorrhagic shock secondary to multiple stab wounds. 15

Barangay Captain Imuslan testified that he and Kagawad Fernando Gatchalian, on the night of the incident, found a
small bolo and a bloodied double-bladed weapon (dagger) near the scene of the crime.  Cesar Abaoag recognized
16

this weapon as the one used by appellant Sion in stabbing the

victim.  On her part, Felicitas Abaoag declared that she spent more than P11,000.00 for the wake and burial of her
17

husband whose death saddened her, she being left alone to take care of their children. 18

In his defense, appellant Sion, brother and cousin of accused Edong  Sion and Felix Sion alias "Ellet," respectively,
19

admitted that on the night in question, he participated in a stone-throwing incident and "free-for-all rumble" between
his group (the Sions and Johnny Juguilon) on one hand, and the Abaoags and Manuels, on the other. However, he
professed his innocence, claiming that it was his brother Edong Sion and Johnny Juguilon who stabbed the
victim.  His version of the incident was summarized by the trial court, thus:
20

On October 16, 1991 at about 7:00 p.m., he, together with Johnny Juguilon went to the house of Eling
Alcantara as he wanted to talk with his son, his friend. Ronnie Manuel was already there when they arrived.
While at the place, Johnny Juguilon and Ronnie Manuel came out and started fighting with each other.
Ronnie and Manuel ran and proceeded to the place of his cousin. He was pacifying Johnny Juguilon and
Ronnie Manuel but Johnny Juguilon threw stones at Ronnie Manuel. At this point, Fernando Abaoag
intervened in the quarrel saying, "vulva of your mother Johnny, you are too much, you will also have your
day." Johnny Juguilon answered "vulva of your mother Andoy, do not interfere because you are not our
enemy." After the verbal exchange, he took Johnny Juguilon to their (Sion's) house . . . . At about 9:00 p.m.,
that same evening, they stoned their house, its sides and the stairs. He and Idong and Johnny Juguilon
looked for Cesar Abaoag, Ronnie Manuel, Ricky Manuel, Andong Abaoag and two (2) other companions.
They were at the place of Marta Soriano. After that, they still threw stones towards them. There was a free
for all rumble between Ronnie Manuel, Ricky Manuel, the Abaoags and Idong Sion, and Johnny Juguilon,
Ellet Sion and himself, in front of the house of Loly Galdones. He denied the testimony of Cesar Abaoag that
he stabbed Fernando Abaoag three times and before he was stabbed Johnny Juguilon stoned him
(Fernando Abaoag). It was Idong Sion and Johnny Juguilon who stabbed Fernando Abaoag. After Fernando
Abaoag was stabbed, they ran away. His group also ran away. He went home and rushed towards Johnny
Juguilon because he was stabbed. He brought Juguilon to the St. Blaise Clinic and Hospital. He did not
report the incident to Barangay Captain Rosendo Imuslan. On October 17, 1:00 p.m., he presented himself
to Kagawad Lagman who brought him to the Police Station . . . . 21

In his defense, appellant Disu offered denial and alibi. He declared that he had no participation in the killing of
Fernando Abaoag, and during the whole night of 16 October 1991, while the quarrel, stoning and stabbing incidents
220

in question were taking place, he was resting and sleeping in the house of his employer, Felicidad Gatchalian, after
driving the latter's jeepney the entire day. However, before proceeding home from work that afternoon, he went to
the store of Oping Juguilon to buy cigarettes and dropped by the house of appellant Sion where he stayed for about
five minutes. He only learned about the killing the following morning when he was told that he was one of the
suspects. He was arrested about a month after the incident. 22

On rebuttal, Cesar Abaoag refuted the testimony of appellant Sion. Cesar asserted that neither his brothers, the
Manuels nor himself threw stones at Sion's house; there was no free-for-all fight between the Sions and the
Abaoags; Johnny Juguilon and Edong Sion merely threw stones at, but did not stab, Fernando Abaoag; and it was
only appellant Sion who stabbed Fernando Abaoag. 23

After the conclusion of trial, the court granted appellants' motion to file a memorandum within fifteen days. Despite
the extension given, appellants' counsel did not file the memorandum. Thus, in its order of 11 December 1992, the
trial court declared the case submitted for decision. 24

On 8 February 1993, the trial court promulgated its decision,  the dispositive portion quoted in the introductory
25

paragraph of this ponencia.

As to the culpability of appellants Sion and Disu, the trial court found:

The defense of accused Federico Disu alias Miguel Disu and Felipe Rodriguez Sion, Jr. deserve scant
consideration. Cesar Abaoag narrated in detail how his brother Fernando Abaoag was stoned by accused
Johnny Juguilon, Federico Disu and Felix Sion and how accused Felipe Sion stabbed Fernando Abaoag
three times. Cesar Abaoag saw Johnny Juguilon throw stone hitting the left eyebrow of Fernando Abaoag,
and when his brother (Fernando Abaoag) turned left, accused Federico Disu alias Miguel Disu, Idong Sion
and Felix Sion simultaneously threw stones toward him (Fernando Abaoag). Then, at a distance of two (2)
meters, Cesar Abaoag saw accused Felipe Sion stab Fernando Abaoag three times, hitting the left side
below the armpit, then on the left waistline and the right side of the neck below the jaw of the deceased with
the use of a sharp double bladed dagger.

Cesar Abaoag could not be mistaken in the identification because he was two meters away when he saw
the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the place of the
incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag identified the dagger
(Exhibit D).

The narrations of Cesar Abaoag are bolstered by the testimony of Dr. Leopoldo Manalo, the doctor who
conducted the postmortem examination on the cadaver of Fernando Abaoag. Dr. Manalo stated that "stab
wound 1 1/2 inches in width, 9 inches in depth between 10-11 ICS, mid-axillary area slanting upwards hitting
the left lobe of the lung" is located below the left armpit. The second stab wound, "stab wound right lateral
side of the neck 1 1/2 inches in width, 1 1/2 in depth," is located at the right side of the nec[k] at the back.
The doctor stated that the wounds were caused possibly by a dagger.

Finally, it is well to quote the statement uttered by Fernando Abaoag in the presence of Felicitas Abaoag, to
wit: "naalaak, which means, I was hit, take note of this because I cannot survive these injuries of mine".
Fernando Abaoag told Felicitas Abaoag, Felipe Sion, Miguel Disu, Idong Sion, Johnny Juguilon and Felix
Sion stabbed him. (2-12 tsn July 27, 1992). This is a dying declaration because it was made under a
consciousness of impending death (Section 37, Rule 130, Rules of Court).  26

The trial court likewise found that conspiracy was duly established by the prosecution, thus:

As stated in the decision, accused Johnny Juguilon threw stone, hitting the left eyebrow of Fernando
Abaoag, and Edong Sion, Felix Sion and Federico (Miguel) Disu simultaneously threw stones upon the
deceased, while accused Felipe Sion alias "Junior" stabbed him (victim) three times, resulting in the latter's
death. 27

It then appreciated against appellants (a) the qualifying circumstance of treachery because the "attack was so
sudden that the victim had no time to defend himself" and (b) the generic aggravating circumstance of cruelty
because "there were three stab wounds" and the first wound — which "caused severe bleeding and collapse of the
lung" and the death of Fernando Abaoag — "was deliberately augmented by inflicting the other wounds which are
unnecessary for its commission."  It did not, however, appreciate evident premeditation for lack of "substantial"
28

evidence;  nor give the benefit of voluntary surrender in favor of appellant Sion since his surrender was merely
29

"forced by circumstances," as he "presented himself to Kagawad Lagman because he was suspected as one of the
persons who stabbed the victim." 30

Appellants, through counsel, seasonably filed their Notice of Appeal. 31

221

In their eight-page Appellant's Brief, filed by counsel de oficio Atty. Iris L. Bonifacio,  appellants plead for their
32

acquittal, contending that the trial court erred: (1) in convicting them of murder; (2) in taking into account the
aggravating circumstance of cruelty; (3) in ruling that conspiracy was established; (4) in not appreciating the
presence of voluntary surrender; and (5) in disregarding the defense of appellant Sion that it was Edong Sion and
Johnny Juguilon who were responsible for the death of Fernando Abaoag.

In support of their first assigned error, appellants attack the identification made of them by prosecution witnesses.
They claim that if witness Cesar Abaoag actually saw appellant Sion stab the victim, then Cesar should have
immediately informed Felicitas Abaoag, the victim's wife, of this fact. Cesar's failure was then unusual and
unnatural. Then, too, Felicitas Abaoag's testimony on her husband's alleged dying declaration was "not specific" as
far as the assailant's identities were concerned because the victim merely said "naalaak" ("I was hit"), without
identifying appellant Sion as the one who stabbed him; and, her claim that her husband identified all the five (5)
accused as the ones who "stabbed" him was "an impossibility." Moreover, the prosecution witnesses were limited to
relatives of the victims; "other vital witnesses" — such as Marta Soriano, Loly Galdones, or Eling Alcantara —
should have been presented to corroborate the "biased" testimonies of Cesar and Felicitas Abaoag.

Appellants further contend that: (1) there was no treachery since the stabbing of the victim was not "sudden"; (2)
cruelty was not proven because "there is no clear testimony" that the first stab wound was fatal and the second and
third wounds were "unnecessary"; (3) conspiracy cannot be deduced from the mere fact that all the accused threw
stones at the victim before the stabbing; (4) appellant Sion voluntarily surrendered even before the police started
investigating the case when he was not yet a suspect; and (5) appellant Sion could not have testified that it was
Edong Sion and Johnny Juguilon who stabbed the victim if such were not true, considering that the former is his
brother and the latter his barriomate; and (6) appellant Sion bore no grudge against the victim and did not escape.

On the other hand, the Office of the Solicitor General, in its Brief for the Appellee, supports the trial court's findings
and conclusions, except as to the appreciation of cruelty, which it concedes to be erroneous.

Our careful review of the record of the evidence adduced by the parties convinces us that prosecution witness
Cesar Abaoag positively identified appellants as being present during the incident in question and saw appellant
Sion stab the victim thrice. As correctly found by the trial court:

Cesar Abaoag could not be mistaken in the identification because he was two meters away when he saw
the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the place of the
incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag identified the dagger
(Exhibit D).

Cesar Abaoag also saw the rest of the accused, including appellant Disu, throwing stones at the victim. He was
definite, however, that it was only accused Johnny Juguilon who was able to hit the victim at the left eyebrow. The
three stab wounds inflicted by appellant Sion and the injury at the left eyebrow caused by the stone thrown by
Juguilon jibed with the post mortem findings of Dr. Manalo as he described the injury on the left eyebrow as
"contusion superimposed abrasion left eyebrow."  If Cesar had any ulterior motive to testify against appellant Disu,
33

he could have declared that it was Disu, and not Juguilon, who hit the victim with a stone. Cesar then honestly
narrated what he observed.

That Cesar did not at once inform Felicitas Abaoag that it was appellant Sion who stabbed her husband, was not
proof, as appellants suggest, that Cesar was absent from the crime when it was committed. Cesar's presence was
admitted by appellant Sion himself on direct examination, thus:

Q Did you see Cesar Abaoag on that occasion anywhere near Fernando Abaoag when you
said he was stabbed by Johnny Juguilon and Idong Sion?

A Yes, sir. 34

Furthermore, Cesar satisfactorily explained his failure to forthwith inform Felicitas of this fact. At that time, Cesar
himself was running away from the accused who had hit him with a stone. His pressing concern then was to get
someone to help his wounded brother; besides, he was scared of accused Felix Sion, uncle of appellant Sion, who
was a "notorious" character in their neighborhood.  It is settled that delay in divulging the name of the perpetrator of
35

a crime, if sufficiently explained, does not impair the credibility of the witness nor destroy its probative value.  In any
36

event, in his sworn statement  which was submitted on 22 October 1991 before Judge Sergio Garcia, he narrated
37

what he had witnessed and mentioned appellants Sion and Disu as among the perpetrators of the crime.

The identifications of appellants and their co-accused were further bolstered by the declaration made by the victim
to his wife, Felicitas Abaoag. The trial court correctly characterized this as a "dying declaration,"  having been made
38

under the consciousness of impending death. The victim was already weak his wife saw him and he knew that he
would not survive the injuries he sustained; he even died a few minutes later while on the way to the
hospital.  When Felicitas saw her husband, he told her what had happened to him, who caused his injuries and that
39

he did not expect to live, thus:

222

Q What happened next after that when you met your husband?

A Immediately asked him what happened to him.

Q And what was the answer of Fernando Abaoag?

A He said, "naalaak," which means, I was hit.

COURT:

Q Did you ask him why he said "naalaak"?

A He said he was stabbed and he was injured.

Q What do you mean by word "naalaak"?

A I was hit.

COURT:

Proceed.

PROSECUTOR DUMLAO:

Q Do you know the reason why he was hit?

A What I understand is that in the course of his pacifying the trouble between his nephew
and the rest, he was stabbed, sir.

Q Aside from the statement of your husband Fernando Abaoag that he was hit, what else did
he say, if you know?

A He said, take note of this because I know I cannot survive with these injuries of mine.

COURT:

Q What else did he tell you aside from that?

A He said, remember that in case I cannot survive with the injuries that I sustained, the men
who stabbed me are Felipe Sion, Miguel Disu, Idong Sion, Johnny Juguilon and Felix Sion,
sir.   (emphasis supplied)
40

We find these statements given by the victim to his wife to have met the requisites of a dying declaration under
Section 37 of Rule 130 of the Rules of Court, viz: (a) death is imminent and the declarant was conscious of that fact;
(b) the preliminary facts which bring the declaration within its scope must be made to appear; (c) the declaration
relates to the facts or circumstances pertaining to the fatal injury or death; and (d) the declarant would have been
competent to testify had he survived.  Dying declarations are admissible in evidence as an exception to the hearsay
41

rule because of necessity and trustworthiness. Necessity, because the declarant's death renders impossible his
taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime;
and trustworthiness, for it is "made in extremity, when the party is at the point of death and every hope of this world
is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to
speak the truth.  We find no ulterior motive on the part of Felicitas to fabricate the declarations of her husband.
42

We likewise find to be without basis appellants' claim that all the prosecution witnesses were biased due to their
relation to the victim's family. Plainly, witnesses Imuslan (the barangay captain) and Dr. Manalo were not related to
the victim, while the relationship of witnesses Cesar Abaoag and Felicitas Abaoag to the victim, as brother and wife,
respectively, neither disqualified them as witnesses nor rendered their testimony unworthy of belief. It is not to be
lightly supposed that relatives of the deceased would callously violate their conscience to avenge the death of a
dear one by blaming it on persons whom they believe to be innocent thereof.  A witness' relationship to a victim, far
43

from rendering his testimony biased, would even render the same more credible as it would be unnatural for a
relative who is interested in vindicating the crime to accuse somebody other than the real culprit.
44

Neither was the failure of the prosecution to present other witnesses, such as those mentioned by the appellants,
fatal to the cause of the People. It is well-settled that the decision as whom to present as witnesses for the
prosecution is addressed to the sound discretion of the prosecutor handling the case and the non-presentation of
223

certain witnesses by the prosecution is not a plausible defense.  The prosecution is not obliged to present all
45

possible witnesses, especially if their testimony will only serve to corroborate that of another eyewitness' testimony,
in which case the former may every well be dispensed with considering that the testimony of a single witness, if
credible and positive to prove the guilt of the accused beyond reasonable doubt, would suffice. 46

The trial court correctly rejected appellant Sion's defense that it was not he who stabbed the victim, but his brother
Edong Sion and Johnny Juguilon, both of whom fled after the incident. Constituting a mere denial of Cesar Abaoag's
positive testimony that it was appellant Sion who stabbed the victim, such must fail in light of the settled rule of
evidence that positive testimony is stronger that negative testimony.  Moreover, the claim was made rather late in
47

the day, casting serious doubt as to its veracity. From the time that appellant Sion presented himself to Kagawad
Lagman and the police authorities on 17 October 1991, and during his subsequent incarceration, he never told
anyone nor made any statement that he was not one who stabbed the victim; he did not even so inform his close
relatives, not even his wife who visited him in jail.  Also, during the preliminary investigation, when he had the
48

opportunity to submit counter-affidavits and other evidence to refute the charges, he did not care to dispute the
statements of Felicitas and Cesar Abaoag identifying him and detailing his participation in the crime.  He raised this 49

claim for the first time only during his testimony in court almost one (1) year after the stabbing incident and his initial
surrender, and notably, only after the hope of apprehending Idong Sion and Johnny Juguilon, together with the other
accused, already seemed remote. Such failure to immediately disclose the information as soon as he was
implicated in the crime and his prolonged silence on a vital matter hardly inspire belief, being unnatural and
inconsistent with ordinary habits of men and common experience.

That appellant Sion did not flee, unlike his brother Edong and Johnny Juguilon, neither proved his innocence. Non-
flight — unlike flight of an accused which validly serves as a badge of guilt — is simply inaction which may be due to
several factors; hence, it should not be construed as an indication of innocence. 50

Appellant Sion's claim of lack of ill-feeling or grudge against Fernando Abaoag was belied and contradicted by his
admission in court that just before the stabbing of the victim, he and his co-accused hurled stones at and fought with
the Abaoags, including Fernando, whom he blamed for allegedly stoning his house.   It is also belied by his
51

actuation and utterance made earlier in the evening of 16 October 1991 when Fernando Abaoag interfered in the
quarrel between appellant Sion and Fernando's nephew, Ronnie Manuel, which prompted appellant Sion and
Johnny Juguilon to curse and warn Fernando, thus: "even you Andong [Fernando Abaoag] you are interfering, you
are siding with your nephew Ronnie Manuel, you have also your day . . . . you Abaoags."  Appellant Sion also
52

admitted that he "had an ill-feeling towards" Ronnie Manuel, the victim's nephew, because "he was making trouble"
inside his jeepney "5 days before the incident." 53

In light of the positive identification of appellants, appellant Disu's alibi must fail.

It is settled that alibi is a weak defense for it is easy to concoct and fabricate; it cannot prevail over and is worthless
in the face of the positive identification by credible witnesses that an accused perpetrated the crime.  We are unable 54

to discern any plausible reason, and appellant Disu does not offer any, why he should be falsely implicated by
Cesar Abaoag and mentioned in the victim's dying declaration as one of the victim' assailants, if appellant Disu was
not actually present during the incident and had no participation in the commission of the crime. As to his motive or
lack thereof, appellant Disu claims that he had no misunderstanding with Fernando Abaoag or his family.  However, 55

Felipe Sion, Jr., disclosed that appellant Disu was close to the Sion clan, which explains why appellant Disu
sympathized with and joined the Sions and Juguilon in assaulting the victim: Federico Disu was Sion Jr.'s jeepney
conductor for five (5) months, the latter teaching the former how to drive for three (3) months; and when Disu
became a driver himself, they had the same route and saw each other every day at the poblacion.  Disu even 56

admitted that on 16 October 1991, after 5:00 p.m., he "dropped by" the house of Felipe Sion, which he often did
before.57

We now rule on the presence or absence of conspiracy. There is conspiracy when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it.  Direct proof of a previous agreement to
58

commit a crime is not necessary; it may be deduced from the mode and manner in which the offense was
perpetrated, or inferred from acts of the accused themselves when such point to a joint purpose design, concerted
action and community of interest.  Once conspiracy is established, the act of one is the act of all.
59 60

In this case, appellants and the other accused were already at the barangay road of Binday, near the houses of
Lolly Galdones and Marta Soriano, when Fernando Abaoag, who was looking for the persons who just stoned his
house several times, and Cesar Abaoag, arrived. Immediately, Johnny Juguilon threw a stone at Fernando hitting
him on the left eyebrow; then, Edong, and Felix Sion and appellant Disu, "simultaneously" threw stones, also at
Fernando. As Fernando turned away from his assailants, appellant Sion "rushed" and stabbed the victim three (3)
times, even as the latter raised his arms saying, "I will not fight back." When Cesar Abaoag tried to help his brother
Fernando, appellant Disu threw and hit Cesar with a stone. Appellant Sion then commanded his companions to also
kill Cesar, prompting the latter to run away. Then the assailants fled, leaving behind a small bolo and a dagger. The
confluence of their acts indubitably manifested a community of interest and unity of purpose and design to take
Fernando Abaoag's life.
224

We also find to be unsupported by evidence appellant's claim, through the testimony of appellant Sion, that the fatal
stabbing of Fernando Abaoag was a result of a "free-for-all rumble," thereby possibly tempering their liability to that
of causing death in a tumultuous affray under Article 251 of the Revised Penal Code, which carries a penalty lower
than that for homicide.  In this case, it was ascertained beyond doubt that appellant Sion inflicted the fatal stab
61

wounds; hence, this claim must be rejected.

Having resolved appellants' liability for Fernando Abaoag's death, we now rule on the circumstances attendant to
the commission of the crime.

In convicting appellants of murder, the trial court considered the qualifying circumstance of treachery, and
disregarded the qualifying circumstance of evident premeditation, which was likewise alleged in the information. We
agree as to the latter as the prosecution failed to prove the essential elements of evident premeditation, viz: (a) the
time when appellants determined to commit the crime; (b) an act manifestly indicating that they clung to their
determination; and (c) a sufficient lapse of time between such determination and execution to allow them to reflect
upon the consequences of their act. 62

We disagree, however, with the trial court's finding as regards the qualifying circumstance of treachery. Under the
law, there is treachery when the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly or specifically to ensure its execution, without risk to
himself arising from the defense which the offended party might make.  We find no clear and convincing evidence of
63

treachery. Cesar Abaoag's testimony as to how his brother was attacked lacks sufficient detail showing conclusively
that the mode and manner of the assault rendered the victim entirely defenseless. He merely testified that when he
and his brother proceeded west of the barangay road of Binday, he saw Johnny Juguilon stone his brother and hit
him on the left eyebrow. Fernando Abaoag then turned to the left with his back towards Felix Sion, Edong Sion,
Miguel Disu and the four (4) other unidentified companions, who then "simultaneously" threw stones at Fernando.
"Seconds later," Cesar saw appellant Sion holding a very sharp double bladed dagger and stab his brother three (3)
times; Fernando Abaoag, when stabbed, "was just standing and said 'I will not fight.'"  They were six (6) meters
64

away from Johnny Juguilon when the latter first hurled a stone at Fernando which signaled the other accused to the
same. 65

Considering therefore the distance between the assailants and the victim when the attack commenced, and the fact
the three were two (2) waves of stoning which preceded the stabbing of the victim, these should have sufficiently
forewarned him of the greater danger which loomed and prompted him to escape. Moreover, in light of the absence
of clear details showing conclusively that the stabbing was inflicted from behind or the victim was entirely helpless
when stabbed, we are not prepared to conclude that the attack was "so sudden and unexpected" as to render the
victim entirely defenseless. Treachery cannot qualify the killing to murder when the victim was forewarned of the
attack by the assailant, or when the attack was frontal, or the attack was not so sudden as to have caught the
deceased completely unaware.  Furthermore, the evidence does not disclose that the means of execution were
66

deliberately or consciously adopted by appellants.

Absent then of any qualifying circumstance, the crime committed was homicide as defined and penalized under
Article 249 of the Revised Penal Code.

The trial court likewise erred in appreciating against appellants the generic aggravating circumstance of
cruelty,  based solely on the fact that the victim was stabbed thrice, with the first stab wound hitting the lower left
67

lung causing severe bleeding and its collapse. In fact, appellee concedes this error of the trial court. Cruelty cannot
be appreciated in absence of any showing that appellants, for their pleasure and satisfaction, caused the victim to
suffer slowly and painfully and inflicted on him unnecessary physical and moral pain; and, the mere fact that wounds
in excess of what was indispensably necessary to cause death were found on the body of the victim does not
necessarily imply that such wounds were inflicted with cruelty and with the intention of deliberately intensifying the
victim's suffering.  In the instant case, the evidence only shows that the three (3) stab wounds were delivered in
68

succession, nothing more.

We agree with appellants that appellant Sion is entitled to the benefit of the mitigating circumstance of voluntary
surrender, which requires that "the offender voluntarily surrendered himself to a person in authority."  Its requisites
69

are: (a) the offender had not been actually arrested; (b) the offender surrendered himself to a person in authority or
to the latter's agent; and (c) the surrender was voluntary.  For a surrender to be voluntary, it must be spontaneous
70

and show the intent of the accused to submit himself unconditionally to the authorities, either: (1) because he
acknowledges his guilt; or (2) because he wishes to save them the trouble and expense incidental to his search and
capture. 71

As shown by the records, in the afternoon of 17 October 1991, appellant Sion "presented" himself to Kagawad
Modesto Lagman who, in turn, "escorted and surrendered" him to the police in the poblacion.  His admission that he
72

surrendered because he was already suspected as one of the perpetrators of the crime does not make his
surrender "forced by circumstances" as ruled by the trial court. His arrest at that time was neither imminent nor
inevitable. At the time of his surrender, no warrant of arrest against him had yet been issued, the same having been
issued only on 19 November 1991.  In fact, he was released from custody after a few days, and was ordered
73
225

committed to jail only sometime in June 1992, after his motion for bail was denied by the trial court on 10 June 1992
and was thus taken into custody.  This subsequent fact should not diminish nor erase the favorable effect of Felipe
74

Sion Jr.'s voluntary surrender on 17 October 1991. As has been held, whatever the accused's reason for
surrendering — either the fear of reprisal from victim's relatives or, in this case, his knowledge that he was already a
suspect — "does not gainsay the spontaneity of the surrender, nor alter the fact that by giving himself up, he saved
the State the time and trouble of searching for him until arrested." 75

We disagree with Appellee's submission that there was no voluntary surrender because appellant Sion surrender to
a mere barangay "Kagawad" or Sangguniang Barangay member, and not to the police authorities, implying that the
former is not a person in authority.  This ignores Section 388 of the Local Government Code of 1991 which
76

expressly provides, in part, that "[f]or purposes of the Revised Penal Code, the punong barangay, sangguniang
barangay members, and members of the lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdictions . . . ."  This law expands the definition of a person in authority under the Revised Penal
77

Code, wherein among the barangay officials, only the barangay captain or chairman, now called Punong Barangay,
is expressly considered a person in authority, as provided in Article 152 thereof. Thus, in addition to the Punong
Barangay, the members of the Sangguniang Barangay, or Kagawads, and members of the Lupong Tagapayapa are
now considered not merely as agents of, but as persons, in authority. 78

WHEREFORE, the challenged decision of Branch 44 (Dagupan City) of the Regional Trial Court of the First Judicial
Region in Criminal Case No. D-10796 is MODIFIED. As modified, appellants FELIFE SION, alias "JUNIOR" or
FELIFE RODRIGUEZ, JR., and FEDERICO DISU, alias "MIGUEL," are hereby declared GUILTY beyond
reasonable doubt, as principals, of the crime of HOMICIDE as defined and penalized in Article 249 of the Revised
Penal Code, with the former entitled to the mitigating circumstance of voluntary surrender, and applying the
Indeterminate Sentence Law, they are sentenced, respectively, to suffer an indeterminate penalty ranging from eight
(8) years of prison mayor minimum, as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal as maximum, and an indeterminate penalty ranging from ten (10) years and one (1) day of prision
mayor maximum, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal minimum as maximum, with all the accessory penalties therefor, and subject to the provision of Article 29
of the Revised Penal Code. Except as so modified, the rest of the challenged judgment stands.

Costs against accused-appellants.

SO ORDERED
226

1. Rule 130 Section 38 – Declaration Against Interest

[G.R. No. 113685. June 19, 1997]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. THEODORE BERNAL, JOHN DOE and PETER DOE, Accused-
Appellants.
227

DECISION

ROMERO, J.:

Accused-appellant Theodore Bernal, together with two other persons whose identities and whereabouts are still
unknown, were charged with the crime of kidnapping in Criminal Case No. 26658-92 of the Regional Trial Court of Davao
City, Branch 10, under an information1 dated July 13, 1992, which reads as follows:

That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, armed with hand guns, conspiring, confederating and cooperating together and helping
one another, and by means of force, violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and
kidnapped one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends at Bolton Isla, this City and
was brought, handcuffed and carried away using a PU then fled together with Bienvenido Openda, Jr., thereby depriving
the said Bienvenido Openda, Jr. of his liberty against his will.

CONTRARY TO LAW.

A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four
witnesses.2 On the other hand, Theodore Bernal testified for his defense.

The material facts and events as found by the court a quo are:

It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in
a drinking spree, they invited Bernal, who was passing by, to join them.

After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter,
two men arrived, approached Openda, Jr., and asked the latter if he was Payat.3 When he said yes, one of them
suddenly pulled out a handgun while the other handcuffed him and told him not to run because they were policemen
and because he had an atraso or a score to settle with them. They then hastily took him away. Racasa immediately went
to the house of Openda, Jr. and informed the latters mother of the abduction.

The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda,
Jr. had an illicit affair with Bernals wife Naty and this was the motive behind the formers kidnapping. Until now, Openda,
Jr. is still missing.
228

On the other hand, the defense asserts that Openda, Jr. was a drug-pusher arrested by the police on August 5, 1991, and
hence, was never kidnapped.4chanroblesvirtuallawlibrary

On December 10, 1993, the court a quo rendered judgment5 finding Bernal guilty beyond reasonable doubt of the crime
of kidnapping for the abduction and disappearance of Bienvenido Openda, Jr. under Article 267 of the Revised Penal
Code and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of
P50,000.00 for her mental anguish and moral suffering.6chanroblesvirtuallawlibrary

Bernal assails the lower court for giving weight and credence to the prosecution witnesses allegedly illusory testimonies
and for convicting him when his guilt was not proved beyond reasonable doubt.

We find no compelling reason to overturn the decision of the lower court.

The Court notes that up to this day, neither the victim nor his body has been found. This, however, does not preclude
the Court from ruling on the merits of the case. In kidnapping, what is important is to determine and prove the fact of
seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor.
Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victims bodies.

Article 267 of the Revised Penal Code provides thus:

ART. 267. - Kidnapping and serious illegal detention. -

Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer
the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him
shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from
the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of
the offense.
229

For the charge of kidnapping to prosper, the deprivation of the victims liberty, which is the essential element of the
offense, must be duly proved. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown
individuals as shown by their concerted acts evidentiary of a unity of thought and community of purpose.7 Proof of
conspiracy is perhaps most frequently made by evidence of a chain of circumstances only.8 The circumstances present in
this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr.

The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with his two companions,
abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood friend and neighbor of the victim,
testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his two companions and overheard him
dispatching one of them to Tarsings Store to check if a certain person was still there. This person later turned out to be
Openda, Jr. He added that after the latters presence was confirmed, the three men left the billiard hall. Minutes later,
Openda, Jr., already handcuffed, passed by the billiard hall with Bernals companions.

Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who knew both Bernal and the
victim, the former being his neighbor and compadre. He narrated that he and the victim were drinking at Tarsings Store
on that fateful day when Bernal passed by and had a drink with them. After a few minutes, Bernal decided to leave, after
which, two men came to the store and asked for Payat. When Openda, Jr. confirmed that he was indeed Payat, he was
handcuffed and taken away by the unidentified men.

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda,
Jr. confided to him that he and Bernals wife Naty were having an affair. One time, Naty even gave Openda, Jr. money
which they used to pay for a motel room. He advised Naty not to do it again because she (was) a married woman.9
Undoubtedly, his wifes infidelity was ample reason for Bernal to contemplate revenge.

Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough
circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive
may be sufficient to support a conviction.10 Openda, Jr.s revelation to Enriquez regarding his illicit relationship with
Bernals wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:

Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarants
own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be
true, may be received in evidence against himself or his successors-in-interest and against third persons.

With the deletion of the phrase pecuniary or moral interest from the present provision, it is safe to assume that
declaration against interest has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or
even penal.11chanroblesvirtuallawlibrary

A statement may be admissible when it complies with the following requisites, to wit: (1) that the declarant is dead or
unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said
declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had
no motive to falsify and believed such declaration to be true.12chanroblesvirtuallawlibrary

Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez,
definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence13
because no sane person will be presumed to tell a falsehood to his own detriment.14chanroblesvirtuallawlibrary

In his brief, Bernal highlights supposed inconsistencies in Sagarinos testimony. He alleges that the latter could not have
seen the actual handcuffing because Tarsings Store could not be seen from the billiard hall. Sagarinos testimony shows
that after Bernal and two others left the billiard hall, the latter came back with Openda, Jr., already handcuffed.

"Q The three of them together?

A Yes, sir.

Q And what about you, where did you stay?

A I just stayed in the billiard hall.

230

Q While you stay (sic) in the billiard hall, after a while, what did you see next?

A The two came back.

Q Who were these two whom you said who (sic) came back?

A The companions of Bernal.

Q And what did these two men do?

A They apprehended Jun-jun Openda.15chanroblesvirtuallawlibrary

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The lower court correctly
rejected this argument by holding that:

But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or Tarcing store. On the
contrary, he says that he had not known who the person was that Bernal referred to when he requested one of this two
companions to go see if that person was still there at the store, and that he came to know that he was Openda, Jr. only
after he saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified companions of Bernal
with him, on their way out to the main road.16chanroblesvirtuallawlibrary

If one had a direct view of Tarsings Store from the billiard hall, Bernal would not have requested his companion to check
if Openda, Jr. were still there drinking with Racasa. Another discrepancy pointed out by Bernal arose from the
testimonies of Racasa and Sagarino. Racasa, on cross-examination, stated:

"Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct?

A Yes, sir, because I was still in the store.17chanroblesvirtuallawlibrary

On the other hand, Sagarino averred that:

"Q When Theodore Bernal left the place, how long (sic) were you able to see him again?

A Quite a time, sir, because when they left, his two companions came back and proceeded to Tarcing Store and arrested
Jun-jun Openda. When these two men brought out Jun-jun Openda, fifteen minutes later, Bernal came.

Q Do you know where this Bernal from? (sic)

A He was coming from outside.

Q He has with him his son?

A He was with nobody, sir.

Q Are you sure of that?

A Yes, sir.

Q He was alone?

A Yes, sir.18chanroblesvirtuallawlibrary

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be irreconcilable.
Considering the proximity of the store from the billiard hall, there is a possibility that when Racasa saw Bernal with his
son at the store, the latter could have already brought home his son before proceeding alone to the billiard hall where
he was seen by Sagarino.19chanroblesvirtuallawlibrary

Bernal would like the Court to dismiss Sagarinos testimony by imputing revenge as his motive for testifying. He alleges
that on July 29, 1991, or six days before the alleged kidnapping, five policemen arrived at Kasilak, Bucana on board a
patrol car asking for Openda, Jr., Sagarino, Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they
231

were residents of the place and staying at the billiard hall and mahjong house. The policemen departed and went to the
places he mentioned.

"Q - Minutes later do you know what happened?

"A - They came back.

"Q - What did you do after they came back?

"A - I asked these police officers if they found these (sic) persons they were looking (for)?

"Q - What was their answer?

"A - They answred in the negative.

"Q - Since the answer is in the negative, what did you do?

"A - I asked the police officers why they were looking for these persons.(?)

"Q - What was the answer of the policemen?

"A - The police officer said that those people were wanted by them because accordingly (sic) they were marijuana
pushers.20chanroblesvirtuallawlibrary

Bernals position is that no abduction or kidnapping ever took place but that an arrest was made by pursuing policemen.
This contention is quite improbable, if not highly preposterous.

The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive against Bernal. If the
latters allegations were true, then Sagarino should have been arrested by the police at the time he gave his testimony in
court. No such arrest was, however, made.

The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino sufficient to convict
Bernal. The court said that Sagarinos forthright answers to the questions of the prosecutor and defense counsel clearly
establish the participation of Bernal in the abduction or kidnapping of Openda, Jr. Evidence, to be believed, must not
only proceed from the mouth of a credible witness, but must be credible in itself.21 This Court once again finds occasion
to reiterate the established rule that the findings of fact of a trial court carry great weight and are entitled to respect on
appeal, absent any strong and cogent reason to the contrary, since it is in a better position to decide the question of
credibility of witnesses.22chanroblesvirtuallawlibrary

We note that after a lapse of a considerable length of time, the victim has yet to resurface. Considering the
circumstances, it is safe to assume that Openda, Jr. is already dead.

Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this Court the penalty of
seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua, as maximum. The maximum penalty
must be determined in accordance with rules and provisions of the Revised Penal Code. With respect to the minimum
penalty, however, " it is left entirely within the discretion of the court to fix it anywhere within the range of the penalty
next lower without reference to the periods in to which it may be subdivided."23 Consistent with this ruling, this court
imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua, as maximum.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSEDand the appealed decision dated November 18,
1993, is AFFIRMED in toto.

Costs against accused-appellant Theodore Bernal.

SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

PEOPLE v. THEODORE BERNAL, GR No. 113685, 1997-06-19

232

Facts:
Theodore Bernal, together with two other persons whose identities and whereabouts are still unknown,
were charged with the crime of kidnapping... one Bienvenido Openda, Jr.
A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution
presented four witnesse
On the other hand, Theodore Bernal testified for his defense.
around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree,
they invited Bernal, who was passing by, to join them.
After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his
child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was "Payat."[3]
When he said yes, one of them suddenly pulled out a... handgun while the other handcuffed him and told
him "not to run because they were policemen" and because he had an "atraso" or a score to settle with
them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and
informed the latter's mother of... the abduction.
theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that
Openda, Jr. had an illicit affair with Bernal's wife Naty and this was the motive behind the former's
kidnapping. Until now, Openda, Jr. is still missing.
defense asserts that Openda, Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence,
was never kidnapped... court a quo rendered judgment[5] finding Bernal "guilty... crime of kidnapping for
the abduction and disappearance of Bienvenido Openda, Jr... important is the testimony of Roberto
Racasa
He narrated that he and the victim were drinking at "Tarsing's Store" on that fateful day when Bernal
passed by... and had a drink with them. After a few minutes, Bernal decided to leave, after which, two men
came to the store and asked for "Payat." When Openda, Jr. confirmed that he was indeed "Payat," he was
handcuffed and taken away by the unidentified men
Salito Enriquez, a tailor and a friend of Openda, Jr., testified
Openda, Jr. confided to him that he and Bernal's wife Naty were having an affair. One time, Naty even
gave Openda, Jr. money which they used to pay for a motel... room. He advised Naty "not to do it again
because she (was) a married woman.[9] Undoubtedly, his wife's infidelity was ample reason for Bernal to
contemplate revenge.
Issues:
Bernal assails the lower court for giving weight and credence to the prosecution witnesses' allegedly
illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt.
Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in
evidence
Ruling:
We find no compelling reason to overturn the decision of the lower court.
In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals "as
shown by their concerted... acts evidentiary of a unity of thought and community of purpose."[7] Proof of
conspiracy is perhaps most frequently made by evidence of a chain of circumstances only.[8] The
circumstances present in this case sufficiently indicate the... participation of Bernal in the disappearance
of Openda, Jr.
Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in
evidence
Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to
Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is
admissible in evidence[13] because no... sane person will be presumed to tell a falsehood to his own
detriment.
Principles:
Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled
with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused
233

was the malefactor, motive may be sufficient to support a... conviction... pursuant to Section 38, Rule 130
of the Revised Rules on Evidence, viz.:
"Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to testify,
against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so
far contrary to declarant's own interest,... that a reasonable man in his position would not have made the
declaration unless he believed it to be true, may be received in evidence against himself or his
successors-in-interest and against third persons."
With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to
assume that "declaration against interest" has been expanded to include all kinds of interest, that is,
pecuniary, proprietary, moral or even penal
A statement may be admissible when it complies with the following requisites, to wit: "(1) that the
declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3)
that at the time he made said declaration the declarant was aware... that the same was contrary to his
aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be
true."

Concept of self-serving evidence:

[G.R. No. L-21724. April 27, 1967.]

NATIONAL DEVELOPMENT COMPANY, Petitioner, v. WORKMEN’S COMPENSATION

COMMISSION, and GERTRUDES LUCAS VDA. DE RAYMUNDO, Respondents.

Government Corporate Counsel Tomas P. Matic, Jr. for Petitioner.

J.R. Romero for Respondents.

SYLLABUS

1. EVIDENCE; SELF-SERVING TESTIMONY ADMISSIBLE. — While a party’s interest may to some

extent affect his credibility, his interest alone is not a ground for disregarding his testimony. The
argument that the testimony of an interested party is self-serving and therefore is inadmissible in
evidence misses the essential nature of self-serving evidence and the ground for its exclusion. Self-
serving evidence is evidence made by a party out of court at one time; it does not include a party’s
testimony as a witness in court. It is excluded on the same ground as any hearsay evidence, that is
the lack of opportunity for cross-examination by the adverse party, and on the consideration that its
admission would open the door to fraud and fabrication of evidence. On the other hand, a party’s
testimony in court is sworn and affords the other party the opportunity for cross-examination.

2. ID.; ID.; WORKMEN’S COMPENSATION LAW; EXCEPTIONS TO HEARSAY RULE. — Under Section
49 of the Workmen’s Compensation Act, the Commissioner may receive as evidence and use as proof
the following matters in addition to the sworn testimony at open hearing: 1. Reports of attending
examining physician. 2. Reports of investigators appointed by the Commissioner. 3. Reports of the
employer, including copies of time sheets, book of accounts or other records. 4. Hospital records in
relation to the case.

3. ID.; ID.; ID.; PRESUMPTIONS UNDER SECTION 44. — There is a presumption created by Section
44 that Raymundo’s illness was aggravated by the nature of his employment and that Dr. Vito Cruz’
affidavit that he treated Raymundo for tuberculosis is correct. This presumption is intended to
reverse the burden of proof and make it the duty of petitioner, as employer, to establish by
substantial evidence, that the illness was not in fact aggravated by the nature of the job.

4. ID.; ID.; ID.; SECTION 8 CONSTRUED. — Section 8 provides for compensation or illness
contracted or injury received by the employees as provided in Section 2 hereof. The phrase "illness
*** aggravated by *** the nature of such employment" as ground for compensation was inserted in
Section 2 of the Act by Republic Act No. 772 on June 20, 1952, While a corresponding change should
have been made in Section 8, it is nevertheless clear that the omission was a mere oversight. After
all Section 8 governs only the amount of compensation while Section 2 provides the grounds for
234

compensation. Section 8 therefore must be deemed to cover also cases in which the illness was not
contracted but merely aggravated by the nature of employee’s job.

5. ID.; ID.; ID.; ID.; DELAY IN FILING CLAIM; WHEN EXCUSED. — There are several reasons why
petitioner cannot set up the defense of prescription. First, petitioner failed to controvert the claim,
which means that it cannot now be heard to say that the claim was not filed on time. Second, it paid
gratuity to Raymundo under a policy of retiring employees suffering from tuberculosis. Under this
circumstance the delay in filing of the claim is excused. Third, petitioner has shown no damage as a
result of the delay in the filing of this case, another circumstance which, under Section 27, excuses
delay in filing claims.

DECISION

REGALA, J.:

On April 27, 1960, respondent Gertrudes Lucas Vda. de Raymundo filed a claim for workmen’s
compensation for the death of her husband, Luis Raymundo, on January 23, 1954. In a complaint
before Regional Office No. 3 of the Department of Labor, she averred that her husband was
employed at the National Development Co., petitioner in this case, for more than 12 years, his last
designation being machine tender in the Finishing Department; that as machine tender, Luis
Raymundo’s work consisted of lifting heavy loads, pushing a wagon loaded with dyed and wet cloth
and mixing chemicals for use in dyeing and printing textiles and that because of strenuous work done
mostly at night and because of exposure to sudden changes in temperature, her husband began to
lose weight, complained of backaches and chest pains and later spat blood. On account of poor
health, Luis Raymundo retired from the service of petitioner on May 6, 1953; eight months after (on
January 23, 1954), he died of pulmonary tuberculosis.

In due time, petitioner filed its answer denying liability. It alleged that Luis Raymundo never
contracted tuberculosis while in its employ and that at any rate "tuberculosis is not an occupational
disease incident and/or peculiar to the work of the claimant (sic)." It further averred that the claim
was barred by prescription, the complaint having been filed beyond the three-month period provided
in Section 24 of the Workmen’s Compensation Act, Act No. 3428.

Hearings were held after which a decision was rendered ordering petitioner to pay to respondent the
sums of P4,000 as death compensation and P200 as reimbursement for burial expenses. In addition,
a fee of P41 was assessed against petitioner.

On review, this decision was affirmed by the Workmen’s Compensation Commission. 1 Subsequent
attempt to have the award reconsidered proved unsuccessful as the Commission en banc found
nothing to warrant a modification, much less a reversal, of its decision. 2 Petitioner appealed to this
Court.

The issues in this case are: (1) whether the evidence presented by respondent is admissible to
support an award in her favor; (2) whether death benefits could be recovered where as here the
illness which caused the death of an employee was not contracted while in the employment of
petitioner but was merely aggravated by the nature of such employment; and (3) whether
respondent’s claim could still be presented despite the lapse of more than three months from the
date of the death of Raymundo.

In affirming the award made in favor of respondent, the Commission said: jgc:chanrobles.com.ph

"That the deceased contracted pulmonary tuberculosis while in the employ of the respondent (now
petitioner) can fairly be inferred from the evidence. Furthermore, the work that he performed, which
involved heavy lifting cannot be considered light by any standard. As a matter of fact, it would not be
an exaggeration to say that such kind of work may be considered as strenuous and taxing for a man
of his advanced age any weak physical condition. Inasmuch as he died of pulmonary tuberculosis,
barely eight months after he was retired from the service, the inescapable conclusion is that the
nature of his work must have had an adverse effect on his illness which shortly led to his death." cralaw virtua1aw library

In reaching this conclusion, the Commission relied partly on the testimony of respondent and on the
following:chanrob1es virtual 1aw library
235

Exhibit "E" — Death certificate which states that Luis Raymundo died on January 23, 1954 of
pulmonary tuberculosis.

Exhibit "F" — Affidavit of Dr. Crisanto S. Vito Cruz in which he states that he treated Luis Raymundo
for pulmonary tuberculosis from December, 1952 to January 22, 1954.

Exhibit "G" — Petitioner’s letter, dated May 6, 1953, advising Luis Raymundo of the termination of his
employment.

Petitioner contends, however, that both respondent’s testimony as well as Exhibits "E," "F" and "G"
should have been excluded, because the first is self-serving while the second are hearsays. Petitioner
adds that while the death certificate (Exh. "E") is admissible to prove the fact and date of death, it is
not competent to prove the cause thereof.

Section 49 of the Workmen’s Compensation Act provides in part: jgc:chanrobles.com.ph

". . . all parties in interest shall have the right to be present at any hearing in person or by counsel or
by any other agent or representative to present such testimony as may be pertinent to the
controversy before the Commissioner and to cross-examine the witnesses against them. The
Commissioner may receive as evidence and use as proof of any fact in dispute the following matters,
in addition to the sworn testimony at open hearing: jgc:chanrobles.com.ph

"1. Reports of attending examining physician.

"2. Reports of investigators appointed by the Commissioner.

"3. Reports of the employer, including copies of time sheets, book of accounts or other records.

"4. Hospital records in relation to the case." cralaw virtua1aw library

In addition, section 44 establishes certain presumptions: jgc:chanrobles.com.ph

"In any proceeding for the enforcement of the claim for compensation under this Act, it shall be
presumed in the absence of substantial evidence to the contrary —

"1. That the claim comes within the provisions of this Act;

"2. That sufficient notice thereof was given;

"3. That the injury was not occasioned by the wilful intention of the injured employee to bring about
the injury or death of himself or another; and

"4. That the injury did not result solely from intoxication of the injured employee while on duty; and

"5. That the contents of verified medical and surgical reports introduced in evidence by claimants for
compensation are correct. (As added by sec. 24, Republic Act No. 772)." cralaw virtua1aw library

It would be easy to dismiss petitioner’s contention by citing these provisions of the Act, for after all
there are precedents for doing so, 3 but we believe that it is here necessary to set forth the reasons
and the policy considerations which underline these statutory enactments in order to explain their
meaning.

The right of a party to be present and give evidence as provided in section 49 would be meaningless
if it did not include the right to testify in his own behalf. Indeed, the Rules of Court enjoins that
"neither parties nor other persons interested in the outcome of a case shall be excluded." 4 For while
a party’s interest may to some extent affect his credibility, 5 his interest alone is not a ground for
disregarding his testimony. 6 The argument that the testimony of an interested party is self-serving
and therefore is inadmissible in evidence misses the essential nature of self-serving evidence and the
ground for its exclusion. Self-serving evidence is evidence made by a party out of court at one time;
it does not include a party’s testimony as a witness in court. It is excluded on the same ground as
any hearsay evidence, that is the lack of opportunity for cross-examination by the adverse party, and
on the consideration that its admission would open the door to fraud and to fabrication of testimony.
7 On the other hand, a party’s testimony in court is sworn and affords the other party the
opportunity for cross-examination.
236

Nor is there merit in the claim that Exhibits "E," "F" and "G" were erroneously admitted in evidence.
While they may be hearsay by common law rules of evidence, they are nevertheless admissible
under section 49 of the Act. Section 49 is patterned after similar legislation in the United States,
especially New York, where the widespread adoption of Workmen’s Compensation statutes was
accompanied by a demand for a more simple and summary method of procedure and proof than
those given by the common law. As noted in a leading article: 8

"Legislatures heeded the deep sense of injustice felt by workers that the burden of proof rested
always on them and that probative evidence was often kept out because it was hearsay. A growing
distrust of our court system had thus grown up among working men and it was essential to the
successful operation of the acts that workmen feel they were treated fairly which at the same time
duly protecting the interests of industry and the community’s interest in economy." cralaw virtua1aw library

Indeed, enactments of the type of section 49 were precisely aimed at the hearsay rule, for the
rejection of hearsay evidence, often of strong probative value, was one of the grievances of working
people against the procedure of the old employer’s liability laws. 9

Not that hearsay evidence is adequate to support an award for compensation, 10 but that as aptly
observed: 11

" [A] compensation board which wants to avoid reversal on admissibility-of-evidence grounds can
best do so by admitting everything and excluding nothing. It can be presumed to apply the
appropriate discount to various kinds of hearsay, but it cannot be presumed to have reached a right
result if some important piece of evidence which have swayed the result has been erroneously
excluded on technical grounds." cralaw virtua1aw library

Here, aside from the evidence objected to, there is some other substantial evidence supporting the
award. Aside from respondent’s testimony, there is in the record the testimony of Bienvenido Dizon,
a former co-employee of Luis Raymundo. There is likewise evidence of the payment of gratuity on
account of his illness.

In addition, there is a presumption created by section 44 that Raymundo’s illness was aggravated by
the nature of his employment and that Dr. Vito Cruz’ affidavit that he treated Raymundo for
tuberculosis is correct. This presumption is intended to reverse the burden of proof and make it the
duty of petitioner, as employer, to establish by substantial evidence, that the illness was not in fact
aggravated by the nature of the job. 12 Petitioner has failed to overcome the evidence and
presumptions in favor of Respondent. It has chosen merely to rest its case on the statement of its
medical officer that the deceased employee never met an accident while in its employment.

Still it is claimed that the award of death benefits in this case is erroneous because section 8 of the
Act allows such benefits only "If the disease contracted or injury received by the employee as
provided in section two hereof causes his death within two years from the date of such injury or
sickness" and the point is made that here the illness was not contracted but was merely aggravated
by the nature of Raymundo’s work. The phrase "illness . . . aggravated by . . . the nature of such
employment" as ground for compensation was inserted in section 2 of the Act by Republic Act No.
772 on June 20, 1952. While a corresponding change should have been made in section 8, it is
nevertheless clear that the omission was a mere oversight. After a]l, section 8 governs only the
amount of compensation while section 2 provides the grounds for compensation. Section 8 therefore
must be deemed to cover also cases in which the illness was not contracted but merely aggravated
by the nature of employee’s job.

Finally, it is argued that respondent’s claim is barred because more than three months had elapsed
from the date (January 23, 1954) Raymundo died to the date (April 27, 1960) the claim was filed. 13

There are several reasons why petitioner cannot set up this defense. First, petitioner failed to
controvert the claim, 14 which means that it cannot now be heard to say that the claim was not filed
on time. 15 Second, it paid gratuity to Raymundo under a policy of retiring employees suffering from
tuberculosis. Under this circumstance the delay in the filing of the claim is excused. 16 Third,
petitioner has shown no damage as a result of the delay in the filing of this case, another
circumstance which, under section 27, excuses delay in filing claims. 17

Wherefore, the decision of May 29, 1963 and the resolution of August 5, 1963 of the Workmen’s
Compensation Commission are hereby affirmed, without costs.
237

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.

NATIONAL DEVELOPMENT COMPANY vs. WORKMEN’S COMPENSATION

COMMISSION G.R. No. L-21724, 27 April 1967
FACTS:

A widow filed a claim for workmen’s compensation for the death of Raymundo, her husband. She clai
med that his husband died of tuberculosis which was contracted while in the emloy of NDC. Accordin
g to WCC, there is inescapable conclusion is that the nature of Raymundo’s work, which involved heav
y lifting, must have had an adverse effect on his illness which shortly led to his death. Petitioner conte
nded, however, that the widow’s testimony was self-serving and therefore inadmissible.

ISSUE: Whether or not the widow’s testimony was self-serving.

RULING:

No. Self-serving evidence is evidence made by a party out of court at one time; it does not include a pa
rty’s testimony as a witness in court. It is excluded on the same ground as any hearsay evidence, that i
s the lack of opportunity for cross-examination by the adverse party, and on the consideration that its 
admission would open the door to fraud and to fabrication of testimony. On the other hand, a party’s t
estimony in court is sworn and affords the other party the opportunity for cross-examination.

1. Rule 130 section 42- Part of the Res Gestae

[G.R. No. 110129. August 12, 1997.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDELCIANO AMACA @ "EDDIE" and

"JOHN DOE" @ "OGANG," accused, EDELCIANO AMACA @ "EDDIE," Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Public Attorney’s Office for Accused-Appellant.

SYNOPSIS

Accused-appellant Edelciano Amaca was convicted of murder and sentenced to reclusion perpetua.
The trial court deemed the victim’s statement to a police officer positively identifying Amaca as the
killer a dying declaration sufficient to overcome Amaca’s defense of alibi.

Amaca, in his appeal to this Court, alleged that the trial court erred in convicting him of murder on
the sole basis of the dying declaration of the victim.

The appeal is partially granted. He is guilty only of homicide, not murder, and civil indemnity shall
not be awarded to the heirs of the deceased.

A dying declaration is worthy of belief because it is highly unthinkable for one who is aware of his
impending death to accuse falsely anyone of being responsible for his death.

The appellant emphasizes that the victim was shot twice at the back at nighttime and that the victim
was not able to see the assailants. We are not persuaded. While the victim was hit at the back by
two bullets, the prosecution clearly showed by other evidence that the victim did not lose
consciousness upon being shot. His ante mortem statement clearly indicates that he was able to see
238

and recognize who shot him. Appellant is assailing the credibility, not the competency, of the victim.
We hold that the serious nature of the victim’s injuries did not affect his credibility as a witness since
said injuries did not cause the immediate loss of his ability to perceive and to identify his shooter.

That the declarant attested to his ante mortem statement through his thumbmark in his own blood is
sufficient to sustain the genuineness thereof. This manner of authentication is understandable in view
of the urgency required by the extreme circumstances. We have ruled that an ante mortem
statement may be authenticated through the declarant’s thumbmark imprinted with his own blood,
and serve as evidence in the form of a dying declaration in a criminal case involving his death.

Finally, the appellant may be held liable only for homicide since treachery was not alleged in the
Information. The Information reveals that the killing was qualified only by evident premeditation.
This is true even if treachery is found to be supported by evidence. Furthermore, since the heirs of
the victim waived their claim through an affidavit of desistance, no award for civil indemnity should
be made. Well-settled it is that the desistance of the victim’s complaining mother does not bar the
People from prosecuting the criminal action, but it does operate as a waiver of the right to pursue
civil indemnity.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; TESTIMONIAL EVIDENCE; EXCEPTION TO THE HEARSAY RULE;

DYING DECLARATION; RATIONALE; ELEMENTS. — A dying declaration is worthy of belief because it
is highly unthinkable for one who is aware of his impending death to accuse, falsely or even
carelessly, anyone of being responsible for his foreseeable demise. Indeed, "when a person is at the
point of death, every motive for falsehood is silenced and the mind is induced by the most powerful
consideration to speak the truth." This is the rationale for this exception to the hearsay rule under
Section 37, Rule 130 of the Rules of Court. The elements of such exception are: (1) the deceased
made the declaration conscious of his impending death; (2) the declarant would have been a
competent witness had he survived, (3) the declaration concerns the cause and surrounding
circumstances of the declarant’s death; (4) the declaration is offered in a criminal case where the
declarant’s deathly is the subject of inquiry; and (5) the declaration is complete in itself. All these
concur in the present case.

2. ID.; ID.; ID.; ID.; ID.; COMPETENCY OF THE DECLARANT; THE SERIOUS NATURE OF THE
VICTIMS INJURIES DID NOT AFFECT HIS CREDIBILITY AS A WITNESS SINCE SAID INJURIES DID
NOT CAUSE THE IMMEDIATE LOSS OF HIS ABILITY TO PERCEIVE AND TO IDENTIFY THE SHOOTER.
— The appellant contends that had he survived the declarant would not have been a competent
witness to identify his assailant. He emphasizes that the victim was shot twice at the back at
nighttime and that." . . the witness/victim based on the foregoing circumstance was not able to see
the alleged assailants . . ." We are not persuaded. True, the victim, Wilson Vergara, was hit at the
back by two bullets. But as the prosecution clearly showed by other evidence, Wilson did not lose
consciousness upon being shot. In fact, his ante mortem statement clearly indicates that he was able
to see and recognize who shot him. In this light, appellant is assailing the credibility, not the
competency, of the victim. Competency of a witness to testify requires a minimum ability to observe,
record, recollect and recount as well as an understanding of the duty to tell the truth. Appellant does
not dispute that the victim was capable of observing and recounting the occurrences around him;
appellant merely questions whether the victim, under the circumstances of this case, could have seen
his assailant. In effect, appellant challenges merely the credibility of the victim’s ante mortem
statement. We hold that the serious nature of the victim’s injuries did not affect his credibility as a
witness since said injuries, as previously mentioned, did not cause the immediate loss of his ability to
perceive and to identify his shooter.

3. ID.; ID.; ID.; ID.; ID.; THE FACT THAT THE DECLARANT ATTESTED TO HIS ANTE MORTEM
STATEMENT THROUGH HIS THUMBMARK IN HIS OWN BLOOD IS SUFFICIENT TO SUSTAIN THE
GENUINENESS AND VERACITY THEREOF. — There is nothing in the circumstances surrounding Police
Officer Mangubat’s investigation of the crime which shows any semblance of irregularity or bias,
much less an attempt to frame Appellant Amaca. As aptly noted by the trial court, even appellant
testified that he had no previous misunderstanding with Police Officer Mangubat and knew no reason
why the latter would falsely testify against him. This dismal failure of the defense to show any ill
motive on the part of said police officer adds credence to Mangubat’ s testimony. Moreover, that the
declarant attested to his ante mortem statement through his thumbmark in his own blood is
sufficient to sustain the genuineness and veracity thereof. This manner of authentication is
understandable in view of the necessity and urgency required by the attendant extreme
239

circumstances. It cannot be indicative of any ulterior motive on the part of Police Officer Mangubat.
We have clearly ruled that an ante Mortem statement may be authenticated through the declarant’s
thumbmark imprinted with his own blood, and serve as evidence in the form of a dying declaration in
a criminal case involving his death. Verily, such declaration need not even be in writing and may be
proven by testimony of witnesses who heard it.

4. ID.; ID.; ID.; ID.; THE ANTE MORTEM STATEMENT OF THE VICTIM MAY ALSO BE ADMITTED AS
PART OF THE RES GESTAE; THE DUAL ADMISSIBILITY IS NOT REDUNDANT AND HAS THE
ADVANTAGE OF ENSURING THE STATEMENT’S APPRECIATION BY COURTS PARTICULARLY WHERE
THE ABSENCE OF ONE OR MORE ELEMENTS IN ONE OF THE SAID EXCEPTIONS MAY BE RAISED IN
ISSUE. — The defense also contests the trial court’s finding that the "alibi interposed by the accused
miserably fall short of exculpation. (Decision, p. 7)" Appellant insists that, since the dying declaration
was unreliable and since there was no positive identification aside from this declaration, the defense
of alibi gained strength. There is no basis for this contention for, as previously discussed, the ante
mortem statement met all requirements for its admissibility either as a dying declaration or as part of
the res gestae or both. It must be remembered that alibi is inherently weak and the facts in the case
at hand show that it was not all impossible, considering the circumstances of time and place, for the
accused appellant to have been present at the crime scene at the time of its commission. The
military detachment at Barangay Lumapao, where appellant allegedly slept, is a mere seven
kilometers away from Barangay Mabigo, Purok Liberty Hills where the crime was committed. In other
words, the able-bodied appellant was only an hour’s walk and a short fifteen-minute tricycle ride
from the locus criminis. As correctly argued by the trial court," (i)t would not have been impossible
for the accused to be at Purok Liberty Hills, and shoot the victim, and come back to his detachment
in a matter of thirty (30) minutes, the time testified by the defense witness Gabutero as to going to
and coming back from these two places. The alibi of appellant cannot overcome, therefore, the very
persuasive declaration of the victim.

5. CRIMINAL LAW; DEFENSES IN CRIMINAL CASES; ALIBI; THE ALIBI OF THE ACCUSED-APPELLANT
CANNOT OVERCOME THE VERY PERSUASIVE DYING DECLARATION OF THE VICTIM. — The ante
mortem statement may also be admitted in evidence when considered as part of the res gestae,
another recognized exception to the hearsay rule provided specifically under Rule 130, Section 36 of
the Rules of Court. The requisites for the admissibility of statements as part of the res gestae are:
(a) the statement is spontaneous; (b) it is made immediately before, during or after a startling
occurrence; and (c) it relates to the circumstances of such occurrence. These requirements are
obviously fulfilled in the present case where the statement, subject of this discussion, was made
immediately after the shooting incident and, more important, the victim had no time to fabricate. An
ante mortem statement may be admitted in evidence as a dying declaration and as part of the res
gestae. This dual admissibility is not redundant and has the advantage of ensuring the statement’s
appreciation by courts, particularly where the absence of one or more elements in one of the said
exceptions may be raised in issue. In this manner, the identification of the culprit is assured.

6. ID.; MURDER; QUALIFYING CIRCUMSTANCES; ACCUSED-APPELLANT CANNOT BE CONVICTED OF

MURDER THROUGH TREACHERY UNDER AN INFORMATION THAT CHARGED HIM WITH MURDER
THROUGH EVIDENT PREMEDITATION. — The information readily reveals that the killing was qualified
only by evident premeditation. The trial court however found that the killing was qualified by
treachery. Even assuming that this conclusion is supported by the evidence on record, we cannot
appreciate treachery to qualify the crime to murder for the simple reason that this was not alleged in
the Information. Treachery is an element of the crime. The Constitution requires that the accused
must be informed of the nature and cause of the accusation against him." Obviously this failure to
allege treachery in the Information is a major lapse of the prosecution. Since every doubt must be
resolved in favor of the accused, we cannot convict him of murder through treachery under an
Information that charged him with murder qualified by evident premeditation.

7. ID.; ID.; ID.; TREACHERY AND NIGHTTIME; MAY NOT BE CONSIDERED EVEN AS A GENERIC
AGGRAVATING CIRCUMSTANCE IN CASE AT BAR; REASONS. — In this case, treachery and nighttime
may not be considered even as generic aggravating circumstances, because there is nothing in the
testimony of the prosecution witnesses to convincingly show that the accused-appellant consciously
and purposely adopted (1) such means of attack to render the victim defenseless and (2) the
darkness of night to facilitate the commission of the crime, to prevent its discovery or even evade
capture. This conclusion is further bolstered by the simple fact that not one of the prosecution
witnesses saw the commencement of the assault or even the actual assault itself. Hence, they are
not competent to testify on whether the aggravating circumstances of treachery and nighttime
attended the commission thereof. These circumstances cannot be appreciated on the basis of mere
presumptions or suppositions; they must be proven as clearly as the crime itself.
240

8. ID.; ID.; PENALTY TO BE IMPOSED. — Appellant may therefore be held liable only for the crime of
homicide defied under Article 249 of the Revised Penal Code. Since there are no mitigating or
aggravating circumstances, the penalty of reclusion temporal provided under said article shall be
imposed in its medium period. Applying the Indeterminate Sentence Law, appellant should suffer
imprisonment of prision mayor in its medium period to reclusion temporal, also in its medium period.

9. ID.; ID.; CIVIL LIABILITY; IN EFFECTIVELY WAIVING HER RIGHT TO INSTITUTE AN ACTION TO
ENFORCE THE CIVIL LIABILITY OF THE ACCUSED-APPELLANT, THE VICTIM’S MOTHER ALSO WAIVED
HER RIGHT TO BE AWARDED CIVIL INDEMNITY ARISING FROM THE CRIMINAL PROSECUTION. —
The facts of this case show that the victim’s mother desisted from prosecuting the case in
consideration of the "financial help" extended to her family by the Accused-Appellant. Such "financial
help" when viewed as an offer of compromise may also be deemed an additional proof to
demonstrate appellant’s criminal liability. Parenthetically, her claim that the cause of her son’s death
was an accident attributable to the latter, has no basis. It is inconceivable that the victim’s two
gunshot wounds at the back were self-inflicted. Well-settled it is that the desistance of the victim’s
complaining mother does not bar the People from prosecuting the criminal action, but it does operate
as a waiver of the right to pursue civil indemnity. Hence, in effectively waiving her right to institute
an action to enforce the civil liability of accused-appellant, she also waived her right to be awarded
any civil indemnity arising from the criminal prosecution. This waiver is bolstered by the fact that
neither she nor any private prosecutor in her behalf-appealed the trial court’s refusal to include a
finding of civil liability.

DECISION

PANGANIBAN, J.:

The ante mortem statement of the victim is sufficient to identify the assailant in the case at hand.
However, the accused cannot be convicted of murder attended by treachery, because the Information
charged him with murder qualified only by evident premeditation. This legal lapse of the prosecution
— for that matter, any prosecution lapse — should benefit the appellant, because in a criminal case,
the accused may be held accountable only for the crime charged (or for the crime necessarily
included therein), and every doubt must be resolved in his favor. Thus, we hold him guilty only of
homicide. Furthermore, since the heirs of the victim waived their claim through an affidavit of
desistance, no award for civil indemnity should be included in this Decision finding the accused guilty
of the homicide.chanroblesvirtual|awlibrary

Statement of the Case

These postulates are explained in the Court’s adjudication of this appeal from the Decision 1 dated
November 19, 1992 of the Regional Trial Court of Bais City, Branch 45, 2 in Criminal Case No. 550-C
convicting Accused Edelciano Amaca of murder and sentencing him to reclusion perpetua.

On December 17, 1990, an Information 3 was filed by Bais City Prosecutor Epifanio E. Liberal, Jr.
against Appellant Amaca and one known only by his alias "Ogang," charging them as follows: jgc:chanrobles.com.ph

"That on October 1, 1990 at around 7:00 o’clock in the evening, more or less, in Purok Liberty Hills,
Barangay Mabigo, Canlaon City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused mutually helping one another and with evident premeditation and at nighttime
did then and there willfully, unlawfully and feloniously attack, assault and shot with the use of a
firearm one Wilson Vergara who, as a result thereof, suffered fatal gunshot wound as reflected in the
medical certificate issued on October 2, 1990 by the Guihulngan District Hospital which was the
immediate cause of his immediate death.

Contrary to Art. 248 of the Revised Penal Code." cralaw virtua1aw library

A warrant for the arrest of accused-appellant was issued on January 16, 1991. 4 However, this was
returned unserved on two different occasions for the reason that the subject had already changed
address and "his whereabouts [were] unknown." 5 A motion for reinvestigation filed by appellant’s
Counsel de oficio Marcelo Ondoy was denied in an Order dated April 15, 1991 on the ground that the
trial court had not yet acquired jurisdiction over the accused who was then still at large. 6 Jurisdiction
over the person of appellant was acquired by the said court only on July 1, 1991 when he was
arrested by police authorities. 7 Thereafter, reinvestigation was conducted but the prosecutor,
241

reiterating his prima facie findings, resolved to continue the prosecution of the accused.

Arraigned on September 25, 1991, the accused-appellant, assisted by Atty. Ondoy, pleaded not
guilty to the charge. 8 Trial ensued in due course. Thereafter, the trial court rendered its Decision,
the decretal portion of which reads: jgc:chanrobles.com.ph

"WHEREFORE, premises considered, this Court finds accused EDELCIANO AMACA alias ‘EDDIE’ guilty
beyond reasonable doubt of the crime of murder as penalized under Article 248 of the Revised Penal
Code, and hereby sentences the said accused to a penalty of RECLUSION PERPETUA, without
pronouncement as to civil liability, and damages, and to pay costs.

SO ORDERED." 9

The Facts

The trial court synthesized the facts based on the testimonies of witnesses for the prosecution and
the defense, as follows: jgc:chanrobles.com.ph

"To prove the injuries sustained by the victim, Wilson Vergara, and his cause of death, the
prosecution presented Dr. Edgar P. Pialago, a resident physician of the Guihulngan District Hospital,
Guihulngan, Negros Oriental, who testified that on October 2, 1990, he was on duty at the aforesaid
hospital, and was able to attend to victim Wilson Vergara who had just undergone a surgical
operation conducted by another doctor, Dr. Gonzaga. The major organs of the victim, namely, the
heart, lungs and kidney, were no longer functioning normally, and thus, he was suffering from
multiple organ system failure. Furthermore, there was injury in the pancreas, causing a leak of the
pancreatic juice. Victim suffered two gunshot wounds at the back, and x-ray revealed two (2) bullets
inside the body, and there was no exit wound. The patient was admitted at 10:45 in the evening of
October 1, 1990, and died at 7:00 in the evening of the following day. He identified the death
certificate (Exh.’A’), and the data sheet of the victim and the final diagnosis. (Exh.’B’) Even with
immediate medical attention, the victim could not have survived with the wounds he sustained.

Bernardo Mangubat, member of the Philippine National Police of Canlaon City, testified that as a
police investigator one of his companions in the force fetched him from his residence at about 7:00 in
the evening of October 1, 1990, and informed him of a shooting incident, where the victim was at the
clinic of Dr. Cardenas, which was near his residence. Upon reaching the clinic of Dr. Cardenas, he
saw the victim already on board a Ford Fiera pick up ready for transport to the hospital. He inquired
from the victim about the incident, and the former answered he was shot by CVO Amaca and Ogang.
Upon query why he was shot, the victim said he did not know the reason why he was shot. Upon
being asked as to his condition, the victim said that he was about to die. (TSN, p. 22, March 4, 1992)
Upon being asked, the victim identified himself as Nelson (sic) Vergara. He was able to reduce into
writing the declaration of victim Vergara, and have the latter affixed (sic) his thumbmark with the
use of his own blood in the presence of Wagner Cardenas, the brother of the City Mayor. (Exh.’C’)

Interposing the defense of alibi, the accused corroborated (by) his witnesses, namely, Felix Ponting,
and Alfredo Gabucero, portrayed the following scenario: Felix Ponting and Alfredo Gabucero were
members of the CAFGU (Civilian Armed Forces Geographical Unit) and accused as member of the
Civilian Volunteer Organization (CVO) with station at Barangay Lumapao, Canlaon City. On October
1, 1990, the accused together with his companion Felix Ponting were on duty at the said station from
6:00 o’clock in the evening to 8:00 o’clock that same evening. After their duty at 8:00 o’clock, they
went to sleep at the detachment, and were relieved by Alfredo Gabutero, whose duty covered from
8:00 to 9:00 that same evening." 10

Prosecution Witnesses Segundina Vergara, mother of the victim, and her son-in-law Jose Lapera both
desisted from further prosecution of the case; the former because of the "financial help" extended by
the accused to her family, and the latter because Segundina had already "consented to the amicable
settlement of the case." This notwithstanding, the Department of Justice found the existence of a
prima facie case based on the victim’s ante mortem statement. 11

The Trial Court’s Ruling

The trial court deemed the victim’s statement to Police Officer Mangubat, positively identifying
Appellant Amaca, a dying declaration sufficient to overcome the latter’s defense of alibi. However,
due to the voluntary desistance of the victim’s mother from further prosecuting the case, the court a
quo declined to make a finding on the civil liability of the Appellant.
242

The Issue

In his brief, the appellant filed a lone assignment of error, to wit: jgc:chanrobles.com.ph

"The trial court erred in finding accused Edelciano Amaca guilty beyond reasonable doubt of the
crime of murder on the sole basis of the alleged dying declaration of the victim to Police Officer
Bernardo Mangubat." 12

The Court’s Ruling

The appeal is partially granted. The appellant is guilty only of homicide, not murder, and civil
indemnity shall not be awarded to the heirs of the deceased.

Dying Declaration Sufficient to Identify Assailant

A dying declaration is worthy of belief because it is highly unthinkable for one who is aware of his
impending death to accuse, falsely or even carelessly, anyone of being responsible for his foreseeable
demise. Indeed, "when a person is at the point of death, every motive for falsehood is silenced and
the mind is induced by the most powerful consideration to speak the truth." 13 This is the rationale
for this exception to the hearsay rule under Section 37, Rule 130 of the Rules of Court. The elements
of such exception are: (1) the deceased made the declaration conscious of his impending death; (2)
the declarant would have been a competent witness had he survived; (3) the declaration concerns
the cause and surrounding circumstances of the declarant’s death; (4) the declaration is offered in a
criminal case where the declarant’s death is the subject of inquiry; and (5) the declaration is
complete in itself. 14 All these concur in the present case.

Declarant a Competent Witness

The appellant contends that had he survived, the declarant would not have been a competent
witness to identify his assailant. He emphasizes that the victim was shot twice at the back at
nighttime and that." . . the witness/victim based on the foregoing circumstance was not able to see
the alleged assailants . . ." 15 We are not persuaded. True, the victim, Wilson Vergara, was hit at the
back by two bullets. But as the prosecution clearly showed by other evidence, Wilson did not lose
consciousness upon being shot. In fact, his ante mortem statement clearly indicates that he was able
to see and recognize who shot him. In this light, appellant is assailing the credibility, not the
competency, of the victim. Competency of a witness to testify requires a minimum ability to observe,
record, recollect and recount as well as an understanding of the duty to tell the truth. 16 Appellant
does not dispute that the victim was capable of observing and recounting the occurrences around
him; appellant merely questions whether the victim, under the circumstances of this case, could have
seen his assailant. In effect, appellant challenges merely the credibility of the victim’s ante mortem
statement. We hold that the serious nature of the victim’s injuries did not affect his credibility as
witness since said injuries, as previously mentioned, did not cause the immediate loss of his ability to
perceive and to identify his shooter. The Court had occasion in the past to rule on a similar issue as
follows:jgc:chanrobles.com.ph

". . . (’)The question as to whether a certain act could have been done after receiving a given wound,
(’) according to Wharton and Stilles (Vol. III, Medical Jurisprudence, p. 212), ‘is always one that must
be decided upon the merits of a particular case.’ They cited a case from Vibert’s Precis de Med. Leg.,
4th ed., p. 286, where a man after being shot in the chest threw a lamp at his adversary. The lamp
started a fire; and to extinguish the fire, the wounded man fetched a pail of water from the
courtyard. When the fire was extinguished, the man lay down in bed and died. Vibert performed the
autopsy, and found that the left ventricle of the heart had been perforated by the revolver’s bullet. It
is evident from the foregoing that Dr. Acosta’s assertion that the victim of a gunshot wound would
immediately lose consciousness, after infliction of the wound, may not be true in all cases. . . ." 17

Appellant also argues that the declarant could not have seen who shot him because "the actual
shooting occurred at 7:00 o’clock in the evening." 18 This statement is bereft of factual basis. The
record shows that Police Officer Mangubat was fetched from his house at 7:00 p.m. to investigate the
shooting. He was informed that the victim had already been brought to the clinic of Dr. Cardenas. 19
It may thus be inferred that the shooting occurred sometime before the victim was found, brought to
the clinic, and before Mangubat was fetched from his house. Thus, a considerable period of time
must have elapsed from the time of the actual shooting until the policeman was fetched from his
house around 7:00 p.m. That he was shot way before 7:00 p.m. does not lead to the inference that it
243

was pitch-black at the time of the shooting. Indeed, from the foregoing, it is reasonable to assume
that the crime was committed before nightfall and that there was sufficient daylight to enable the
victim to identify his assailant. At any rate, there are no indicia in the record that lighting conditions
made it impossible for declarant to identify his assailant. Ineluctably, the positive assertion of the
declarant that he did recognize his shooter has greater persuasive value than the baseless negative
speculation of the defense that he did not. chanroblesvirtuallawlibrary:red

Genuineness of the Dying Declaration

The defense attempts to cast doubt on the genuineness of the dying declaration by suggesting that
since "the relationship between CAFGU and the PNP is marred by jealousy, suspicion and general
dislike for one another," 20 Police Officer Mangubat had enough motive to falsely implicate appellant
who was a CAFGU member. The defense also asks: "Why was the alleged dying declaration of the
victim merely thumbmark (sic) when in fact he was still coherent, conscious and very capable of
writing his name at that time?" 21 Additionally, the defense questions why Wagner Cardenas who
signed the ante mortem statement as witness was not presented as such by the prosecution. 22

The foregoing ulterior-motive theory is thoroughly unconvincing. Clearly, it does not destroy the
genuineness of the ante mortem statement. Police Officer Mangubat is presumed under the law to
have regularly performed his duty. There is nothing in the circumstances surrounding his
investigation of the crime which shows any semblance of irregularity or bias, much less an attempt to
frame Appellant Amaca. As aptly noted by the trial court, even appellant testified that he had no
previous misunderstanding with Police Officer Mangubat and knew no reason why the latter would
falsely testify against him. 23 This dismal failure of the defense to show any ill motive on the part of
said police officer adds credence to Mangubat’s testimony. 24

Moreover, that the declarant attested to his ante mortem statement through his thumbmark in his
own blood is sufficient to sustain the genuineness and veracity thereof. This manner of authentication
is understandable in view of the necessity and urgency required by the attendant extreme
circumstances. It cannot be indicative of any ulterior motive on the part of Police Officer Mangubat.
We have clearly ruled that an ante mortem statement may be authenticated through the declarant’s
thumbmark imprinted with his own blood, and serve as evidence in the form of a dying declaration in
a criminal case involving his death. 25 Verily, such declaration need not even be in writing and may
be proven by testimony of witnesses who heard it.

Finally, the non-presentation of Wagner Cardenas as witness during the trial is not fatal, as his
testimony would have been merely corroborative of Mangubat’s. In addition, the presumption that
evidence omitted by a party would be adverse if presented does not obtain in this case, since Wagner
Cardenas is also available and could have been called to the witness stand by Accused-Appellant.
Besides, it is the prosecutor’s prerogative to choose his own witnesses to prove the People’s cause.
26

Ante Mortem Statement as Res Gestae

The ante mortem statement may also be admitted in evidence when considered as part of the res
gestae, another recognized exception to the hearsay rule provided specifically under Rule 130,
Section 36 of the Rules of Court. The requisites for the admissibility of statements as part of the res
gestae are: (a) the statement is spontaneous; (b) it is made immediately before, during or after a
startling occurrence; and (c) it relates to the circumstances of such occurrence. 27 These
requirements are obviously fulfilled in the present case where the statement, subject of this
discussion, was made immediately after the shooting incident and, more important, the victim had no
time to fabricate.

An ante mortem statement may be admitted in evidence as a dying declaration and as part of the res
gestae. This dual admissibility is not redundant and has the advantage of ensuring the statement’s
appreciation by courts, particularly where the absence of one or more elements in one of the said
exceptions may be raised in issue. In this manner, the identification of the culprit is assured. 28

Alibi Debunked

The defense also contests the trial court’s finding that the "alibi interposed by the accused miserably
fall short of exculpation. (Decision, p. 7)" 29 Appellant insists that, since the dying declaration was
unreliable and since there was no positive identification aside from this declaration, the defense of
alibi gained strength. 30 There is no basis for this contention for, as previously discussed, the ante
mortem statement met all requirements for its admissibility either as a dying declaration or as part of
244

the res gestae or both. 31 It must be remembered that alibi is inherently weak and the facts in the
case at hand show that it was not at all impossible, considering the circumstances of time and place,
for the accused-appellant to have been present at the crime scene at the time of its commission. 32
The military detachment at Barangay Lumapao, where appellant allegedly slept, is a mere seven
kilometers away from Barangay Mabigo, Purok Liberty Hills where the crime was committed. In other
words, the able-bodied appellant was only an hour’s walk and a short fifteen-minute tricycle ride
from the locus criminis. 33 As correctly argued by the trial court," (i)t would not have been
impossible for the accused to be at Purok Liberty Hills, and shoot the victim, and come back to his
detachment in a matter of thirty (30) minutes, the time testified by the defense witness Gabutero as
to going to and coming back from these two places. (TSN, p. 17, July 15, 1992)" 34 The alibi of
appellant cannot overcome, therefore, the very persuasive declaration of the victim. 35

Based on the foregoing discussion, the Court’s conscience rests easy with the moral certainty that
indeed accused-appellant committed the crime charged. His pretense at innocence is futile in view of
the overwhelming evidence presented against him. Even his flight — eluding the police for almost six
months after the issue of the warrant for his arrest — clearly bespeaks his guilt. 36

Murder or Homicide?

Finally, the defense posits that the appellant may be held liable only for homicide since treachery was
not alleged in the Information, while evident premeditation and nighttime, although duly alleged,
were not satisfactorily proven. 37 We agree. The Information readily reveals that the killing was
qualified only by evident premeditation. The trial court however found that the killing was qualified
by treachery. Even assuming that this conclusion is supported by the evidence on record, we cannot
appreciate treachery to qualify the crime to murder for the simple reason that this was not alleged in
the Information. Treachery is an element of the crime. The Constitution requires that the accused
must be informed of the "nature and cause of the accusation against him." 38 Obviously, this failure
to allege treachery in the Information is a major lapse of the prosecution. Since every doubt must be
resolved in favor of the accused, we cannot convict him of murder through treachery under an
Information that charged him with murder qualified by evident premeditation.

Moreover, in this case, treachery and nighttime may not be considered even as generic aggravating
circumstances, because there is nothing in the testimony of the prosecution witnesses to convincingly
show that the accused-appellant consciously and purposely adopted (1) such means of attack to
render the victim defenseless and (2) the darkness of night to facilitate the commission of the crime,
to prevent its discovery or even evade capture. This conclusion is further bolstered by the simply fact
that not one of the prosecution witnesses saw the commencement of the assault or even the actual
assault itself. Hence, they are not competent to testify on whether the aggravating circumstances of
treachery and nighttime attended the commission thereof. These circumstances cannot be
appreciated on the basis of mere presumptions or suppositions, they must be proven as clearly as
the crime itself. 39

Appellant may therefore be held liable only for the crime of homicide defined under Article 249 of the
Revised Penal Code. Since there are no mitigating or aggravating circumstances, the penalty of
reclusion temporal provided under said article shall be imposed in its medium period. Applying the
Indeterminate Sentence Law, appellant should suffer imprisonment of prision mayor in its medium
period to reclusion temporal, also in its medium period.

Non-Award of Indemnity

The trial court did not make a finding on the civil liability of accused-appellant, reasoning that it was
prevented from doing so by the "unwillingness" of the victim’s mother, Segundina Vergara, to further
prosecute the case against the accused. 40 The trial court cited the resolution of the Department of
Justice (DOJ) denying the motion for reinvestigation. The DOJ held that the ante mortem statement
of the victim testified to by Pfc. Mangubat accorded prima facie validity to the case against the
accused, but it noted and confirmed the desistance of the victim’s mother and her son-in-law from
further prosecuting the case. The salient portions of Segundina Vergara’s affidavit of desistance
quoted in said resolution reads:jgc:chanrobles.com.ph

"That I am the complainant in a case which I filed in the Office of the City Prosecutor, Canlaon City
and docketed as Criminal Case No. 550-C of Regional Trial Court, Bais City for Murder against Eddie
Amaca as the alleged accused;

That in the evaluation of our case against him, I have found out that the death of my son Wilson
Vergara was purely accidental that could be attributed to his fault;
 245

That due to my compassion to the poor accused who is a family man, I have decided to drop the case
against Eddie Amaca for the reason that his family financially help (sic) us in our family problems due
to the death of my late son;

That with our desire to have a mutual understanding and goodwill among ourselves, since we are
neighbors and our respective families are good friends, I have decided to drop the case against Eddie
Amaca;

That when the said case was scheduled for hearing, I will not testify anymore as the complaining
witness;" 41

The Solicitor General finds nothing wrong with the trial court’s reasoning and recommends that its
decision be affirmed. 42 We agree. The facts of this case show that the victim’s mother desisted from
prosecuting the case in consideration of the "financial help" extended to her family by the Accused-
Appellant. Such "financial help" when viewed as an offer of compromise may also be deemed as
additional proof to demonstrate appellant’s criminal liability. 43 Parenthetically, her claim that the
cause of her son’s death was an accident attributable to the latter, has no basis. It is inconceivable
that the victim’s two gunshot wounds at the back were self-inflicted. Well-settled it is that the
desistance of the victim’s complaining mother does not bar the People from prosecuting the criminal
action, but it does operate as a waiver of the right to pursue civil indemnity. Hence, in effectively
waiving her right to institute an action to enforce the civil liability of accused-appellant, she also
waived her right to be awarded any civil indemnity arising from the criminal prosecution. 44 This
waiver is bolstered by the fact that neither she nor any private prosecutor in her behalf appealed the
trial court’s refusal to include a finding of civil liability. 45

The records, however, do not show whether the deceased had other compulsory heirs. Such heirs, if
there are any, may file an independent civil action to recover damages for the death of Wilson
Vergara. chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the questioned Decision is hereby MODIFIED. Accused-appellant

Edelciano Amaca is found GUILTY of homicide and SENTENCED to an indeterminate penalty of ten
years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum. No civil indemnity is awarded. No costs.

SO ORDERED.

Dec 8, 2012

People v Amaca 277 SCRA 215 Digest

People vs. Amaca

GR No. 110129 August 11, 1997

Ponente: Panganiban, J.:

Offer of compromise in Criminal Cases; Res Gestae

 Facts:

1.    Accused Amaca and another known as “Ogang” were charged for shooting Wilson Vergara. During the trial, the
prosecution presented Dr. Edgar Pialago, a resident physician on duty when the victim was brought to the hospital
after the shooting. The doctor testified that he was able to attend to the victim who had undergone a surgical
operation conducted by another doctor. At that time, the major organs of the victim were no longer functioning
normally, while his pancreas was likewise injured due to the 2 gunshot wounds at his back. The victim was admitted
at 10:45PM but expired the following evening at 10PM. According to Dr. Pialago, even with immediate medical
attention, the victim could not survive the wounds he sustained.
 246

2.     Another witness testified, PO Mangubat,  a police officer , who interviewed the victim (Wilson Vergara) right after
the shooting. Mangubat  testified that he saw the victim already on board a Ford Fiera pick-up ready for transport to
the hospital. He inquired from the victim about the incident, and the former answered he was shot by CVO Amaca
and Ogang. Upon query why he was shot, the victim said he did not know the reason why he was shot. Upon being
asked as to his condition, the victim said that he was about to die.  He was able to reduce into writing the declaration
of the victim and made latter affixed his thumb mark with the use of his own blood in the presence of Wagner
Cardenas, the brother of the City Mayor. 

3.       Segundina Vergara, mother of the victim, and her son-in-law Jose Lapera both desisted from further prosecution of
the case. the former because of the "financial help" extended by the accused to her family, and the latter because
Segundina had already "consented to the amicable settlement of the case." Despite this, the Department of Justice
found the existence of a prima facie case based on the victim's ante mortem statement.

4.       The lower court convicted Amaca on the basis of the victim's ante mortem statement to Police Officer Mangubat
positively identifying accused. The dying declaration was deemed sufficient to overcome the accused’s  defense of
alibi. However, due to the voluntary desistance of the victim's mother from further prosecuting the case, the court a
quo declined to make a finding on the civil liability of the appellant.

Issue:  1) Whether or not offer of compromise is admissible against the accused

YES. The "financial help" when viewed as an offer of compromise may be deemed as additional proof to
demonstrate appellant's criminal liability. The victim's mother desisted from prosecuting the case in consideration of
the "financial help" extended to her family by the accused-appellant. 

It is a well-settled rule that that the desistance of the victim's complaining mother does not bar the People from
prosecuting the criminal action, but it does operate as a waiver of the right to pursue civil indemnity. Hence, in
effectively waiving her right to institute an action to enforce the civil liability of accused-appellant, she also waived
her right to be awarded any civil indemnity arising from the criminal prosecution.  This waiver is bolstered by the fact
that neither she nor any private prosecutor in her behalf appealed the trial court's refusal to include a finding of civil
liability. But the heirs, if there are any may file an independent civil action to recover damages for the death of
Wilson Vergara.

Issue (2): Whether or not  the dying declaration of victim should be admitted

YES.  The victim’s dying declaration is admissible.

A dying declaration is worthy of belief because it is highly unthinkable for one who is aware of his impending death
to accuse, falsely or even carelessly, anyone of being responsible for his foreseeable demise. Indeed, "when a
person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful
consideration to speak the

truth." This is the rationale for this exception to the hearsay rule under Section 37, Rule 130 of the Rules of Court.
The elements of such exception are: (1) the deceased made the declaration conscious of his impending death; (2)
the declarant would have been a competent witness had he survived; (3) the declaration concerns the cause and
surrounding circumstances of the declarant's death; (4) the declaration is offered in a criminal case where the
247

declarant's death is the subject of inquiry; and (5) the declaration is complete in itself. All these concur in the present
case.

Finally, Police Officer Mangubat is presumed under the law to have regularly performed his duty. There is nothing in
the circumstances surrounding his investigation of the crime which shows any semblance of irregularity or bias,
much less an attempt to frame Amaca. Even the accused testified that he had no previous misunderstanding with
Police Officer Mangubat and knew no reason why the latter would falsely testify against him.

Declarant is a competent witness

The serious nature of the victim's injuries did not affect his credibility as a witness since said injuries, as previously
mentioned, did not cause the immediate loss of his ability to perceive and to identify his shooter. 

Homicide only not murder

Appellant may be held liable only for homicide since treachery was not alleged in the Information, while evident
premeditation and night time, although duly alleged, were not satisfactorily proven. The Information readily reveals
that the killing was qualified only by evident premeditation. Treachery was not alleged in the information. It is
necessary to qualify the crime to murder. Treachery is an element of the crime. The Constitution requires that the
accused must be informed of the "nature and cause of the accusation against him."The failure to allege treachery in
the Information is a major lapse of the prosecution.

Moreover, treachery and night time may not be considered even as generic aggravating circumstances, because
there is nothing in the testimony of the prosecution witnesses to convincingly show that the accused-appellant
consciously and purposely adopted (1) such means of attack to render the victim defenseless and (2) the darkness
of night to facilitate the commission of the crime, to prevent its discovery or even evade capture. 

G.R. No. 89823             June 19, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUTROPIO TIOZON y ACID, accused-appellant.

The Solicitor General for plaintiff-appellee.

Lorenzo G. Parungao for accused-appellant.

DAVIDE, JR., J.:

In an information filed by the Asst. City Prosecutor of Caloocan City on 27 February 1989 with Branch 131 of the
Regional Trial Court (Caloocan City) of the National Capital Judicial Region, accused-appellant was charged for
violation of Presidential Decree 1866, as amended, committed as follows:

That on or about the 24th day of February 1989 in Kalookan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, without any lawful motive or purpose, did then and there
wilfully, unlawfully and feloniously have in his possession, custody and control one .38 cal. revolver, marked
Squires Bingham with SN 180169 with three live ammunitions without authority of law, which firearm was
used with treachery and evident premeditation in shooting one Leonardo Bolima y Mesia, which caused
death.1

Accused-appellant pleaded not guilty when arraigned on 15 March 1989.  Pre-trial was conducted and thereafter the
2

trial court received the evidence for the parties.

248

In a decision promulgated on 30 June 1989,  the court a quo found accused-appellant guilty and sentenced him as
3

follows:

WHEREFORE, in view of all the foregoing, the court finds the accused EUTROPIO TIOZON y ACID guilty
beyond reasonable doubt of the crime of P.D. 1866 and Murder qualified by treachery and hereby sentences
him to suffer life imprisonment; to indemnify the heirs of the deceased Leonardo Bolima the sum of
P30,000.00; to reimburse the heirs of the victim the sum of P50,000.00 as reasonable expenses for the
wake and burial expenses and to pay the costs.

According to the trial court, were it not for its abolition, "the death penalty, the sentence imposable under 2nd pa.,
Section 1 of P.D. 1866, as amended", should have been imposed.

On 5 July 1989 Accused-appellant filed a motion to reconsider the decision  which, however, was denied by the
4

court in its order of 16 August 1989.  On 17 August accused-appellant filed a Notice of Appeal.  Hence, the case is
5 6

now before Us.

The facts as found by the court a quo are as follows:

That at around 11:00 o'clock in the evening of February 24, 1989, while she and her husband were sleeping
inside their house, they were awakened by the loud knocks on their door; Her husband opened the door and
they saw that the person who was knocking was their "Pareng Troping", accused herein; her husband
invited the accused, who appeared to be very drunk, to come inside their house; once inside their house,
accused sat down and the two (accused and victim) exchanged pleasantries; she even saw the accused
showing a gun to her husband and the latter even toyed with it; she got irritated by her husband's playing
with the gun, so she took a few steps away from the two, however, when she looked back to the place
where her husband and the accused was, she found out that the two had already left; five minutes later
and/or after she had heard two successive gunshots, she heard accused knocking at their door and at the
same time informing her that he accidentally shoot (sic) her husband, "Mare, mare, nabaril ko si Pare, hindi
ko sinasadya" she got scared by the appearance of the accused who was full of bloodstains so she pushed
him away from her; she immediately went to her sister-in-law Marilyn Bolima and both of them proceeded to
the house of the accused; thereat, they saw the victim lying with his face up; she took her husband's pulse
and when she still felt some warmth on his body, she sought help that her husband be brought to the
hospital; accused extended his help by helping them in carrying the victim towards the main road, however,
after a few steps, he changed his mind and put down the victim; accused reasoned out that the victim was
already dead; she pushed the accused and even without the latter's help, they were able to reach the main
road; afterwhich, some of her neighbors arrived bringing with them lights; thereafter, Kalookan policemen
arrived and so she caused the arrest of the accused; she spent about P100,000.00 in connection with burial
and wake of her husband.

Pat. Orlando Valencia of the Kalookan Police Force on the witness stand testified that on February 24, 1989
in line with his duty as policemen, a shooting incident was reported to him; he responded to the said report
by proceeding to the crime scene, thereat, he saw the lifeless body of the victim as well as the accused
whose clothing was full of bloodstains; the cadaver of the victim was referred to the Philippine Constabulary
Crime Laboratory (PCCL) while the person of the accused was turned over to the Homicide Section of the
Kalookan City Police Station; the day after, at around 10:00 o'clock in the evening and upon instruction of
Pfc. Alilam he together with some Kalookan policemen accompanied the accused in retrieving the firearm
(Exh. "F") whom the accused threw at the grassy area particularly at the back of the latter's house; aside
from the firearm they also recovered two (2) spent bullets (Exh. G-6 and G-7) and three live ammunitions
(Exh. G-12, G-13 and G-14).

NBI Ballistician Ernie Magtibay testified that he has been a ballistician of the NBI since 1984; that pertinent
to this case, he happened to examine a caliber .38 Squires Bingham with serial number 180169 (Exh. "F");
that as per his findings the evidence shells (Exhs. G-6 and G-7) were fired from the gun, subject matter of
this case.

Forensic chemist from the NBI Edwin Purificando testified that the paraffin test he conducted on the dorsal
aspect of the left and light hands, that is, from the wristbones to the fingertips, of the deceased, gave
negative result on the presence of nitrates (Exh. "I"). Likewise, the paraffin test he conducted on the dorsal
aspects of the left hand and right hand of the accused yielded negative results on the presence of nitrates
(Exh. "J").

On the other hand, the version of the defense as testified to by the accused is as follows:

That at about 11:30 in the evening of February 24, 1989 accused on his way home, after coming from his
work, passed by the house of his Pareng Nardo, the victim herein; while passing infront of the said house,
his Pareng Nardo called him up; when he was about to enter the door of the house of the victim, the latter,
from the back of the door, poked a gun at him; he grabbed the gun from his Pareng Nardo and at that
249

instance, Rosalina Bolima emerging from her room, saw him holding the gun; he returned the gun to his
Pareng Nardo and the latter tucked it in his waistline; he was served with a beer and after he and the victim
consumed about two bottles of beer, they went out to buy some more; after they were able to buy some
more bottles of beer, victim carried the same and left ahead of the accused; accused was left behind to
answer the call of nature; while in the act of urinating, he heard two successive gunshots; he followed the
victim and he saw the latter already sprawled on the ground; he inquired from his Pareng Nardo as to what
had happened to him, "Pareng Nardo, ano ang nangyari sa iyo? and the victim's replied (sic) was "Pare,
binaril ako", he further inquired as to who shot him but the victim who was gasping for breath could no
longer talk; thereafter, he saw a gun near the body of his Pareng Nardo; moved by his desire to bring the
said gun to the wife of the victim, he picked the same, but after he got hold of the gun, he suddenly realized
that the policemen might see him holding it, so he threw the very same gun to the grassy area; he then ran
towards the house of the victim and he informed the wife of the latter that his Pareng Nardo was shot to
death; he returned to the place where he left the body of the victim but the body of the latter was no longer
there; he later found out that townspeople carried the body of the victim towards the main road; when the
policemen arrived he was ordered to go with them at the Kalookan Police Headquarters; when he was
asked by the policemen as to who shoot (sic) the victim, his answer was, he did not see the actual shooting
incident; never did he declare nor utter before her Mareng Lina or before any police authorities that he
accidentally shoot (sic) the victim. However, he admitted that it was him who accompanied the policemen in
retrieving the fatal gun at the grassy area at the back of his house.

In holding the accused-appellant guilty as above-stated, the court a quo relied on circumstantial evidence because
the prosecution failed to present an eyewitness who could give an account as to the actual shooting incident. It
considered the following circumstances which it deemed sufficient to convict the accused-appellant pursuant to Rule
133, Section 5, of the Revised Rules of Court:

The following are among the circumstances which points to the culpability of the accused.

1) That the widow of the victim saw the accused holding a gun immediately before shooting incident
happened;

2) That accused was the last person seen in the company of the victim immediately before the latter
was shot to death;

3) That it was the accused who purposely went to the house of the victim on that fatal evening; The
testimony of the accused that he was merely passing in front of the house of the victim when the
latter who was standing at the window of his house called him up is less credible than the testimony
of the widow of the victim, that they were already aslept (sic) inside their house when or the
aforesaid time accused knocked at their door.

4) That it was the accused who guided the policemen as to the place where the fatal gun was
recovered. Here the Court believes that the gun was purposely hid at the grassy area at the back
portion of accused's house. The story of the accused that he picked the gun for the purpose of
bringing it to the widow of the victim but for fear that the policemen might see him holding the gun,
he then decided to throw it to the place where it was recovered, was too flimsy to merit belief. Firstly,
what is his reason for bringing it to the widow of the victim when he surely knew fully well that it will
be the policemen who will investigate the case. Secondly, he knew for a fact, that the said gun could
lead as to the identity of the assailant of the victim, why then he threw it at the grassy area when he
could easily leave the same to the place where he picked it up.

5) The testimony of the wife that after hearing two successive gunshots, accused went back to her
house and informed there (sic) that he accidentally shot her husband deserves merit, Besides, the
Court sees no reason for the wife to concoct such story that would point to the accused as the culprit
specially so that had not the accused became (sic) the prime suspect in this case, he would be the
best person to be used as a prosecution witness, with more reason that from the evidence
presented, it appears that the widow of the victim harbours no ill-feeling towards the accused
otherwise, she would have prevented accused accused's entry in her house on that fatal evening.

6) The testimony of the wife that accused, immediately after the shooting incident took place
admitted to her having accidentally shoot (sic) the victim is admissible evidence against the accused
declarant since this is covered by the rule on res gestae or one of an exception to the hearsay rule.

Part of the res gestae — Statement made by a person while a startling occurrence is taking
place or immediately prior tor (sic) subsequent thereto with respect to the circumstance
thereof, may be given in evidence as a part of res gestae . . . (Sec. 36, Rule 130, Revised
Rules of Court, as amended).
250

7) The testimony of the accused that he does not own the gun and that it is but (sic) the accused
(sic) who owns the same and in fact the latter even tucked it in his waistline immediately before the
shooting incident happened is improbable, for, how come then that the assailant was able to drew
(sic) the gun from the waistline of the victim and fired (sic) the same towards the back portion of the
victim's body. Is it not that the natural reaction of a person was to face the person who suddenly and
without permission drew something from one's waistline. (sic)

While there is no eyewitness who testified to having seen accused shoot (sic) the victim, yet all the foregoing
circumstances meet the criteria set by Sec. 5, Rule 133 of the Revised Rules of Court, as amended, and
therefore points (sic) to the accused as the person who unlawfully owns the fatal gun as well as the same
person who shoot (sic) to death the victim. "Circumstantial (sic) evidence is admissible in the absence of an
eyewitness to the commission of the crime" (People vs. Albofera, 152 SCRA 125 [1983]).

The Court does not give credence to the denial of the accused that he was not the one who shoot (sic) the
victim as he was some distance away from the victim answering the call of nature when the victim was
killed. Instead, the Court gives credence to the testimony of the widow that it was the accused whom he saw
in possession of the gun, that it was the accused who was the last person seen in the company of the victim
shortly before the latter died and it was the same accused who lead (sic) the policemen in retrieving the fatal
gun.

Admittedly, as per findings of the NBI Forensic Chemist, the accused's right and left hand yielded negative
result to the test of nitrates. However, the same witness testified that even when a person fired gun, it does
not necessarily follows (sic) that his hand would be positive to the test of nitrates, as there are still several
factors which affects the presence or absence of nitrates in the hands of a person.

x x x           x x x          x x x

Although the fact of death of the victim (Exh. "E") is undisputed, still the presence of the qualifying
circumstance of treachery and evident premeditation being alleged in the Information, must be proven like
the crime itself.

To properly appreciate evident premeditation it is necessary to establish with proof, as clear as the evidence
of the crime itself (1) the time when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit had clung to his determination; and (3) a sufficient lapse of time to reflect upon the
consequence of his act (People vs. Lorenzo, 132 SCRA 17 (1984); People vs. Obengue, 147 SCRA 1987).
Although alleged in the Information, the record of this case is bereft of any indication that evident
premeditation attended the killing of the victim.

However, the qualifying circumstance of treachery is appreciated in this case since its presence could be
established by the position/location of the wound of the victim, that is at the back portion of his torso which
necessarily imply that he was treacherously shot by his assailant. 7

Accused-appellant assigns only one error in this appeal:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME
OF ILLEGAL POSSESSION WITH MURDER AS DEFINED UNDER SECTION 1 OF P.D. 1866. THE
CIRCUMSTANTIAL EVIDENCES RELIED UPON BY THE TRIAL COURT IN ITS JUDGMENT OF
CONVICTION ARE INSUFFICIENT
TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF ACCUSED-APPELLANT. 8

and prays that the decision appealed from be reversed and another be entered acquitting him.

In support of the assigned error accused-appellant submits that:

(a) Contrary to the conclusion of the trial court, he was not the one holding the gun immediately before the shooting
incident, for as admitted by the victim's wife, her husband also "toyed or played with the gun; 9

(b) The testimony of the victim's wife that he was the last person seen in the company of the victim is unrealiable
because she was left in the house when the victim and accused-appellant went out to the store which is about 145
to 150 meters away;

(c) That the accused-appellant pointed the place where the gun allegedly used in the killing was recovered, should
not create the unfavorable inference that he purposely hid the gun and should not be taken against him, for knowing
the reputation of police authorities, what he did was dictated by the instinct of self-preservation rather than guilt;
251

(d) The testimony of the wife of the victim that after hearing two successive gunshots accused-appellant went back
to her house and informed her that he accidentally shot her husband, should not have been considered by the trial
court as part of the res gestae; and

(e) The "raciocination" of the trial court regarding the improbability of the testimony of accused-appellant that he
does not own the gun but that it was the deceased who owned it which the latter tucked in his waistline before the
shooting incident is baseless as the records show that the deceased was walking ahead of the accused-appellant
who was left behind to answer a call of nature; therefore, it is not highly improbable that some other person whom
the deceased might have met in the street could have taken the gun from the waistline and shot him with it. It would
not also be highly improbable that a person from whose waistline a gun was grabbed could not face his assailant
especially when he is carrying something with his both hands, like the deceased who was carrying one case of Gold
Eagle beer when he was shot at. Moreover, accused-appellant was found negative for nitrates when a paraffin test
was conducted on him by a forensic chemist of the NBI. 10

The People, in its Brief filed by the Solicitor General on 18 April 1990, disagrees with the accused-appellant,
maintains that the prosecution was able to establish his guilt beyond reasonable doubt, and prays that subject
decision be affirmed in toto. It stresses that accused-appellant himself admitted and confirmed that he and the victim
went out together to buy some more bottles of beer; he was with the victim after they bought the beer, and they
separated only when he had the urge to urinate seconds before the incident. The widow did not testify that she saw
what happened in the street; what she testified was that the accused and the victim went out together and five
minutes later she heard two shots. There was, therefore, nothing improbable about her testimony.

Appellee likewise contends that the conclusion of the trial court on the hiding of the gun was based on the evidence
on record; the accused himself testified that he threw the gun on a grassy area. It further argues that the conclusion
of the court on the improbability of appellant's testimony concerning the ownership of the gun is not baseless; on the
contrary, it is the theory of the appellant that it is probable that another person may have grabbed the gun from the
victim that is highly improbable. Since appellant was behind the victim he could have seen a third person grabbing
the gun. He did not testify that he saw one. The negative result of the paraffin test cannot be singled out to absolve
the accused-appellant from liability.
11

No Reply-Brief was filed.

We are now called upon to determine whether, on the basis of the evidence adduced, the judgment appealed from
should be affirmed or the accused-appellant be acquitted.

We shall first focus our attention on the law under which accused-appellant is indicted.

Section 1 of P.D. No. 1866 imposes the penalty of reclusion temporal in its maximum period to reclusion
perpetua "upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part
of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition." It goes further by providing that "if homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be imposed."

It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a
circumstance which increases the penalty. It does not, however, follow that the homicide or murder is absorbed in
the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in the
Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale for the
qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms and
to stop the "upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed
and manufactured firearms, . . . " In fine then, the killing of a person with the use of an unlicensed firearm may give
rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248
(Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as a bar to the other;
or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is punished by a special
law while the second, homicide or murder, is punished by the Revised Penal Code.

In People vs. Domiguez,  We held:

12

It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or
identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of
law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal
or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased
elsewise, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one
of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if
each crime involves some important act which is not an essential element of the other. 13

In People vs. Bacolod, supra., from the act of firing a shot from a sub-machine gun which caused public panic
among the people present and physical injuries to one, informations for physical injuries through reckless
252

imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and
he sought to dismiss the second on the ground of double jeopardy. We ruled:

The protection against double jeopardy is only for the same offense. A simple act may be an offense against
two different provisions of law and if one provision requires proof of an additional fact which the other does
not, an acquittal or conviction under one does not bar prosecution under the other.

Since the informations were for separate offense –– the first against a person and the second against public peace
and order — one cannot be pleaded as a bar to the other under the rule on double jeopardy.

However, to justify the imposition of the increased penalty under Section 1 of P.D. No. 1866 because of the resulting
crime of homicide or murder, the prosecution must allege in the information and prove by the quantum of evidence
required for conviction violation of said section and, more specifically, the use of an unlicensed firearm and the
commission of homicide or murder. In this regard, the information in this case is sufficient in form and substance. It
alleges illegal possession of a firearm and of murder, The latter is covered by the clause "which firearm was used
with treachery and evident premeditation in shooting one Leonardo Bolima y Mesia, which caused his death.

We agree with the findings and conclusion of the court a quo that more than one circumstantial evidence were duly
proved and that these circumstances point, beyond reasonable doubt, to the accused-appellant as the one who shot
and killed the deceased Leonardo Bolima y Mesia. For circumstantial evidence to be sufficient to convict an
accused, it is necessary that the following requisites must be satisfied: (a) there must be more than one
circumstance, (b) the facts from which the inferences are derived are proven, and (c) the combination of all the
circumstances is such as to produce a conviction beyond a reasonable doubt.  Or, as jurisprudentially formulated, a
14

judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute
"an unbroken chain which leads to one fair and reasonable conclusion which points to the defendant, to the
exclusion of all others, as the guilty person,  i.e., the circumstances proved must be consistent with each other,
15

consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other
hypothesis except that of guilty.16

The first to the sixth circumstances mentioned by the trial court were duly established and constitute an unbroken
chain which leads to one fair and reasonable conclusion that the accused-appellant, and no other else, shot and
killed the victim. We do not, however, agree with the additional observation of the trial court, in respect to the sixth
circumstance, that the statement made by the accused-appellant to the wife of the victim immediately after the
shooting incident that he accidentally shot the victim is covered by the rule on res gestae. This is a misapplication of
the rule in the instant case. Statements as part of the res gestae are among the exceptions to the hearsay rule. The
rule is that a witness "can testify only to those facts which he knows of or his own knowledge; that is, which are
derived from his own perceptions.  Accordingly, a testimony of a witness as to what he heard other persons say
17

about the facts in dispute cannot be admitted because it is hearsay evidence. There are, however, exceptions to this
rule. One of them is statements as part of the res gestae under Section 36 of Rule 130 of the Revised Rules of
Court. The exceptions assume that the testimony offered is in fact hearsay; but it is to be admitted in evidence.
Under the aforesaid Section 36, statements may be deemed as part of the res gestae if they are made by a person
while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof. Statements accompanying an equivocal act material to the issue and giving it a legal
significance may also be received as part of the res gestae.

In the instant case, however, the questioned testimony of the wife of the victim is not hearsay. She testified on what
the accused-appellant told her, not what any other party, who cannot be cross-examined, told her. The accused-
appellant's statement was an "oral confession", not a part of res gestae, which he can easily deny if it were not true,
which he did in this case.

In People vs. Tulagan, 143 SCRA 107,116-117, We declared that a statement allegedly made by one of the
accused to Natalia Macaraeg that "we killed him" (referring to himself and his co-accused) and which Natalia
repeated in her testimony in open court was merely an "oral confession" and not part of the res gestae.

Moreover, even assuming that the testimony of the wife of the victim on the alleged statement of the accused-
appellant is hearsay, the latter is barred from questioning its admission due to his failure to object thereto at the time
the testimony was given. The transcript of the stenographic notes of the testimony of Rosalina Magat vda. de
Bolima, wife of the victim, clearly shows the absence of an objection, thus:

Atty. Villano:

You said when you turned your back after taking a few steps and when you turned your back, they were no
longer there, will you please tell what happened after that?

A And that was when they left it was 11:30 and when he came back 11:35 he was already knocking
(referring to the person of the accused) telling me while he was knocking: "Mare, mare nabaril ko si pare,
hindi ko sinasadya."
253

Q By the way Mrs. Witness, who is that "pare" you are telling us?

A Troping, sir (as the witness pointed to).

Q The same Troping here, is your "kumpare"?

A Yes, sir.

(TSN, April 18,1989, p. 13).

The seventh circumstance mentioned by the court below is haphazardly formulated. Something is wrong with the
opening clause reading:

The testimony of the accused that he does not own the gun and that it is but the accused who owns the
same and in fact the latter even tucked it.

The words but the accused should have been the deceased.

Two more basic issues are left for determination, to wit: whether the prosecution has established beyond
reasonable doubt that the accused is liable for illegal possession of firearms and whether the killing was attended by
the qualifying circumstances of treachery and evident premeditation as alleged in the information.

Our painstaking review of the records and the evidence fails to disclose that the prosecution presented any
evidence to prove that the accused-appellant was not authorized to possess the firearm alleged in the information.
And, contrary to the finding of the trial court, there was no sufficient evidence to prove the presence of treachery.

It must be stated, however, that had illegal possession of firearms been duly proven as alleged, it would not have
mattered whether the killing was simple homicide or murder since Section 1 of P.D. No. 1866 expressly provides
that:

x x x           x x x          x x x

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.

which penalty, however, had been automatically reduced to reclusion perpetua in view of the abolition of the death
penalty.18

The issue concerning the failure of the prosecution to prove that he had no authority to possess the firearm has not
been raised in this appeal. Interestingly, accused-appellant raised it in his motion to reconsider the decision of the
trial court.  In its resolution denying the motion, the trial court admitted, in effect, that the prosecution did not offer
19

any evidence to prove that the accused-appellant had no license to possess or carry the firearm in question; it
however, threw the burden on the accused-appellant to prove that he has that authority. Thus, it ruled:

Where accused relies as a matter of defense on an exception in a statute which is not in the enacting clause
by which the offense is described and forbidden, he has the burden of proving that he is within the
exception.

Where the subject matter of a negative averment in the information, or a fact relied upon by defendant as a
justification or excuse, relates to him personally or otherwise lie peculiarly within his knowledge, the general
rule is that the burden of proof of such averment or fact is on him (16 C.J. sec. 998, p. 530). An illustrative
case of this rule may be found in prosecution for exercising a trade or profession, or doing other acts,
without a license. In such cases, it would greatly inconvenience the prosecution to prove that the defendant
had no license, whereas the defendant could easily prove that he did have one.

In cases of illegal possession of firearms, the burden of proof as to the negative averments in the
information to the effect that the accused possesses the firearms without the corresponding license is on the
defense. It is the accused who is called upon to prove that he possesses the license. In other words, the fact
relied upon by the accused as a justification or excuse being one that is related to him personally or
otherwise within his peculiar knowledge, "the general rule is that the burden of proof as to such averment or
fact is on the accused" (Francisco, Handbook on Evidence, pp. 379-380, 1984 Ed., citing cases). 20

Section 1 of P.D. No. 1866 reads:

SECTION 1. Unlawful Manufacture, Sale Acquisition, Disposition or Possession of Firearms or Ammunition

or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty
254

of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition
or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.

x x x           x x x          x x x

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside
his residence without legal authority therefor.

Undoubtedly, there is unlawful possession under the foregoing section if one does not have the license to possess
the firearm. Even if he has the license, he cannot carry the firearm outside his residence without legal authority
therefor. It follows then that the lack or absence of a license is an essential ingredient of the offense which the
prosecution must allege and prove. Every element of the crime must be alleged and proved. 21

In People vs. Pajenado, L-27680-81, 27 February 1970,  We said:

22

It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to
support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the
issuance to him of a license to possess the firearm, but we are of the considered opinion that under the
provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of
proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution
must be proven if "it is an essential ingredient of the offense charged", the burden of proof was with the
prosecution in to case to prove that the firearm used by appellant in committing the offense charged was not
properly licensed.

It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal
possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court
(now G.R. No. 27681) specifically alleged that he had no "license or permit to possess" the .45 caliber pistol
mentioned therein. Thus it seems clear that it was the prosecution's duty not merely to allege that negative
fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the
accused was charged with "having criminally inscribed himself as a voter knowing that he had none of the
qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a
voter was an essential element of the crime charged and should be proved by the prosecution. In another
case (People vs. Quebral, 68 Phil. 564) where the accused was charged with illegal practice of medicine
because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from
whom he received monetary compensation, without having previously obtained the proper certificate of
registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code,
this Court held that if the subject of the negative averment like, for instance, the act of voting without the
qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the
burden of proving the same, although in view of the difficulty of proving a negative allegation, the
prosecution, under such circumstance, need only establish a prima facie case from the best evidence
obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even
a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief
Justice Moran upholds this view as follows:

The mere fact that the adverse party has the control of the better means of proof of the fact alleged,
should not relieve the party making the averment of the burden of proving it. This is so, because a
party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he
could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an
act or carrying on a business, such as, the sale of liquor without a license. How could the
prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly,
although proof of the existence or non-existence of such license can, with more facility, be adduced
by the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to
prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly
within the control or knowledge of the accused prima facie evidence thereof on the part of the
prosecution shall suffice to cast the onus upon him. (6 Moran, Comments on the Rules of Court,
1963 edition, p. 8).

There being no proof that accused-appellant had no license to possess the firearm in question, he could not be
convicted for illegal possession of a firearm. The trial court then committed an error in holding the accused-appellant
guilty thereof. However, as above-stated, the accused-appellant did not touch this issue in his Brief. Be that as it
may, the rule is well-settled that an appeal in a criminal case opens the whole case for review and this includes the
review of the penalty, indemnity and the damages involved. 23
255

In People vs. Borbano, 76 Phil. 702, 708, We ruled:

. . . In a criminal case, an appeal to the Supreme Court throws the whole case open for review, and it
becomes the duty of the Court to correct such errors as may be found in the judgment appealed
from, whether they are made the subjects of assignments of error or not. (People vs. Ofindo, 47 Phil. 1).

Accordingly, it is proper for this Court to consider in favor of the accused-appellant the absence of proof of illegal
possession of a firearm. But, may accused-appellant be convicted for murder under the information for which he
was tried? The answer is in the affirmative since, as We stated earlier, the information sufficiently alleges the
commission of murder; hence, a conviction for murder, if warranted by the facts, can be had under the
information.  If murder is not proved by reason of the absence of any qualifying circumstance, conviction for the
24

lesser crime of homicide is also proper. 25

We are also unable to agree with the trial court that the qualifying circumstance of treachery was duly established.

There is treachery when the offender commits any of the crimes against persons employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising
from the defense which the offended party might make, which means that no opportunity was given to the latter to
do so.  It cannot be presumed; it must be proved by clear and convincing evidence or as conclusively as the killing
26

itself.  For, as held in U.S. vs. Perdon  where no particulars are known as to the manner in which the aggression
27 28

was made or how the act which resulted in the death of the victim began and developed, it can in no way be
established from mere suppositions, drawn from circumstances prior to the very moment of the aggression, that an
accused perpetrated the killing with treachery.  Accordingly, treachery cannot be considered where the lone witness
29

did not see the commencement of the assault. 30

In People vs. Manalo, supra, We ruled:

The fact that the fatal wounds were found at the back of the deceased does not, by itself, compel a finding of
treachery. Such a finding must be based on some positive proof and not merely an inference drawn more or
less logically from hypothetical facts. This Court has ruled that the suddenness of an attack is not, of itself,
enough to constitute treachery when the method of the killing does not positively show that the assailant
thereby knowingly intended to ensure the accomplishment of his purpose without risk to himself from any
defense which the victim might put up. In other words, to sustain a finding of treachery, the means, method
or form of attack must be shown to have been deliberately adopted by the appellant. (citing People vs.
Carsano, 95 SCRA 146; People vs. Cabiling, 74 SCRA 185; People vs. Satone, 74 SCRA 106; People vs.
Bongo, 55 SCRA 547).

In People vs. Ablao, 183 SCRA 65, 669, We said:

There being no direct evidence on how the shooting was committed, treachery cannot be appreciated.

In the instant case, no witness who could have seen how the deceased was shot was presented.  Absent the1âwphi1

quantum of evidence required to prove it, treachery cannot be considered against the accused-appellant.

Accordingly, accused-appellant could only be liable for HOMICIDE, which is punished by RECLUSION TEMPORAL.
It shall be imposed in its medium period, whose duration is from 14 years, 8 months and 1 day to 17 years and 4
months, since neither aggravating nor mitigating circumstances had been proved. 31

The Indeterminate Sentence Law benefits the accused-appellant. Applying it in this case, he may be sentenced to
suffer an indeterminate penalty of eight years and one day of prision mayor, as minimum, to fourteen years, eight
months and one day of reclusion temporal as maximum.

The civil indemnity imposed by the trial court should be increased from P30,000.00 to P50,000.00 conformably with
our ruling in People vs. Sison, G.R. No. 86455, 14 September 1990 and in People vs. Sazon, G.R. No. 89684, 18
September 1990.

WHEREFORE, judgment is hereby rendered MODIFYING the subject decision of the trial court, and as Modified,
FINDING the accused-appellant EUTROPIO TIOZON Y ACID guilty beyond all reasonable doubt of the crime of
HOMICIDE, as defined and penalized under Article 249 of the Revised Penal Code, for the killing of Leonardo
Bolima, and applying the Indeterminate Sentence Law, he is hereby SENTENCED to suffer an indeterminate
penalty of imprisonment ranging from EIGHT YEARS AND ONE DAY of prision mayor, as Minimum, to FOURTEEN
YEARS, EIGHT MONTHS AND ONE DAY of reclusion temporal as Maximum, with the accessory penalties therefor,
to INDEMNIFY the heirs of Leonardo Bolima in the sum of FIFTY THOUSAND PESOS (P50,000.00), without
subsidiary imprisonment in case of insolvency, and to REIMBURSE said heirs in the sum of FIFTY THOUSAND
PESOS (P50,000.00) as reasonable expenses for the wake and burial of Leonardo Bolima.

Accused-appellant shall be given full credit for the period of his preventive imprisonment.
256

Costs against accused-appellant.

SO ORDERED.

Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

[G.R. No. L-13288. June 30, 1960.]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, v. JOSE NARANJA, defendant
and Appellant.

José Vid. F. Espinosa for Appellant.

Assistant Solicitor General Esmeraldo Umali and Solicitor Emerito M. Salva for Appellee.

SYLLABUS

1. EVIDENCE; CREDIBILITY OF WITNESSES; WHEN TESTIMONY NOT DEEMED SELF-SERVING. — The

widow of the deceased displayed courage in admitting having had illicit relations with the accused
257

and thereby dishonoring and humiliating herself, to bring out the truth that the accused confessed to
her his plan to kill her husband, and, after the latter’s death, the fact that he killed him. Her
testimony is, therefore, credible, and cannot be said to be self-serving, because she gained no
beneficial interest by it.

2. ID.; RULE OF RES GESTAE. — There are other declarations which are admitted as original
evidence, being distinguished from hearsay by their connection with the principal fact under
investigation. The affairs of men consist of a complication of circumstances so intimately interwoven
as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and
in its turn becomes the prolific parent of others, and each, during the existence, has its inseparable
attributes and its kindred facts, materially affecting its character, and essential to be known for a
right understanding of its nature. These surrounding circumstances, constituting part of the res
gestae, may always be shown to the jury along with the principal fact and their admissibility is
determined by the judge according to the degree of their relation to the fact, and in the exercise of
his sound discretion; it being extremely difficult, if not impossible to bring this class of cases within
the limits of a more particular description. (Comments on the Rules of Court, Moran, 1957 Ed., Vol.
III, pp. 348-349)

DECISION

PARAS, J.:

The accused was charged with and convicted of murder under the following information filed in the
Court of First Instance of Pangasinan: jgc:chanrobles.com.ph

"That on or about the 28th day of December, 1956, at night, in barrio Caraol-Malimpin, municipality
of Dasol, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with treachery and evident premeditation, with intent to kill and armed with a
blunt instrument, did, then and there, willfully, unlawfully and feloniously assault, attack, and beat to
death one MAMERTO SIGNEY, alias Berto, with the use of the said blunt instrument." cralaw virtua1aw library

The accused has appealed, contending that the alleged crime has not been established, particularly
because there is no evidence (1) as to the kind of blunt instrument that killed the deceased; (2) as to
the position of the assailant when he allegedly killed the deceased; (3) as to the possession of a
blunt instrument by the accused on the night of the crime, and (4) as to the cause of the death of
the victim. The accused considers the testimony of Maria Diaz, wife of the deceased mainly relied
upon by the trial court, as weak, uncorroborated, self-serving, unnatural and not direct.

According to Maria Diaz, it appears that in the afternoon of December 28, 1956, while she was
pounding rice in her yard, the accused arrived and was thereupon told by her to stop coming to her
house because her husband (the deceased) knew that she and the accused had been carrying on
illicit relations; that the accused had asked her to leave her husband and, as she refused, he
indicated that he would seek means to separate her from her husband; that before leaving in that
afternoon of December 28, 1956, the accused told her to wait for him in the evening; that, when she
inquired about his purpose, the accused answered that he would kill his compadre (the deceased)
who was then harvesting palay in the farm; that in the evening of December 28, 1956, as the dogs
were barking, her husband went out of the house and proceeded to the place where there were
stocks of palay; that, becoming impatient for her husband’s return, she went to the kitchen where
she saw the accused at the stairs; that the accused confessed to her that he had killed her husband
whose dead body she ought to take and bury; that cautioning her not to tip anyone, the accused
informed that her husband lay dead at the creek east of the house; that she awakened her mother
and children and told them about the occurrence; that, upon advice of her mother, she requested her
neighbors, Santiago Balderas and one surname Baraan, to help her bring her husband’s body to the
house.

Maria Diaz displayed courage in admitting having had illicit relations with the accused and thereby
dishonoring and humiliating herself, obviously to bring out the truth and let justice prevail. Her
testimony is not self-serving because she has not gained any beneficial interest. There is no point in
the allegation that she was jealous as the accused had taken for himself another woman. The
accused already had a common-law wife before the crime was committed; and if Maria Diaz was in
fact jealous, she would have wanted to eliminate the other woman, not the accused.
258

As regards the contention that the elements of the crime have not been shown, suffice it to say that
the confession of the accused to Maria Diaz is strong evidence falling under the res gestae rule.

"SEC. 33, Part of the res gestae. Statements made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be
given in evidence as a part of the res gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance may be received as a part of the res gestae."
(Rule 123, Rules of Court.)

Quoting Professor Greenleaf, Chief Justice Moran, in his Comments on the Rules of Court, 1957 Ed.,
Vol. III, pp. 348-349, explains the res gestae rule as follows:
jgc:chanrobles.com.ph

"There are other declarations which are admitted as original evidence, being distinguished from
hearsay by their connection with the principal fact under investigation. The affairs of men consist of a
complication of circumstances so intimately interwoven as to be hardly separable from each other.
Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of
others, and each, during the existence, has its inseparable attributes and its kindred facts, materially
affecting its character, and essential to be known for a right understanding of its nature. These
surrounding circumstances, constituting parts of the res gestae, may always be shown to the jury
along with the principal fact and their admissibility is determined by the judge according to the
degree of their relation to that fact, and in the exercise of his sound discretion: it being extremely
difficult, if not impossible to bring this class of cases within the limits of a more particular
description."
cralaw virtua1aw library

Maria Diaz made reference to what the accused intended to do with the deceased; and the
implementation of his evil design is borne out by the actual and physical facts of the case. The
testimony of Santiago Balderas to the effect that, when Maria Diaz came to his house for help, she
told him that her husband was dead and could be found at a certain place, amply proves the fact of
the crime as confessed by the accused. The presence of the bluish black spot at the nape of the
deceased, Mamerto Signey, and the opinion of Dr. Valera that a blow delivered right on the medulla
oblongata could have caused instantaneous death, confirm the admission of the accused to Maria
Diaz.

The defense of alibi is miserably weak. The testimony of defense witness Bisquera is incredible. While
she could recall the events of December 28, 1956, the date of the crime, she could remember
nothing about other days, not even Christmas. Moreover it is not impossible, much less improbable,
that even if the accused was with his common-law wife and others harvesting at the ricefield of
Regino Naranja, he still could have gone in the afternoon to the house of Maria Diaz and killed the
latter’s husband in the evening, considering that Maria’s place was only about one kilometer away.

Wherefore, the decision appealed from is affirmed with costs against the accused. So ordered.

Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepción, Reyes, J. B. L., Barrera and
Gutiérrez David, JJ., concur.
259

G.R. No. 136303               July 18, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTHONY MELCHOR PALMONES, ANTHONY BALTAZAR PALMONES, accused-appellants.

DECISION

GONZAGA-REYES, J.:

This is an appeal by accused-appellants Anthony Melchor Palmones and Anthony Baltazar Palmones from the
decision of Branch 17 of the Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, convicting them of
1 

the crime of murder 2

The information dated June 4, 1997 charging accused-appellants of the crime of murder reads as follows:
3 
260

"That in the evening of April 27, 1997 at Barangay Magsaysay, Municipality of Kidapawan, Province of Cotabato,
Philippines, the above-named accused, with intent to kill, armed with a gun, did then and there, willfully, conspiring,
confederating and mutually helping one another, unlawfully, feloniously and with treachery, attack, assault, and shot
the person of SPO2 ASIM MAMANSAL, thereby hitting and inflicting upon the latter gunshot wounds on the vital
parts of his body which is the cause of the death thereafter.

CONTRARY TO LAW."

Both accused were arraigned on July 15, 1997 and both pleaded not guilty to the charge against them. Thereafter,
trial on the merits commenced.

The prosecution first presented Sonny Boy Redovan, a 28 year-old farmer who was the nephew of the victim. He
testified that at around 10:00 in the evening of April 27, 1997, his mother and elder brother informed him that
something had happened to his uncle SP02 Asim Mamansal. They then rushed to the Kidapawan Doctor’s Hospital
and proceeded to the emergency room. Upon seeing his uncle, the witness went near him and asked him what had
happened to him. His uncle answered that he had been waylaid. The witness then asked the victim who the
perpetrators were and the victim answered that it was "Juany and Tony Palmones" which were the nicknames of the
two accused-appellants. He claimed that while he was talking with his uncle, there were attendants, nurses, and
4 

other bystanders whom he did not know present inside the emergency room. A few minutes after he talked with the
victim, a certain Dr. Aguayo arrived and examined the wounds of his uncle. About and hour later, he saw Police
Inspector Alexander Tagum arrive and he heard him ask his uncle who had shot him. The witness then heard his
uncle positively answer the policeman that his assailants were Juany and Tony Palmones. 5

On cross-examination, he testified that he was able to talk with his uncle for about one hour and that the most
important part of their conversation was the identification of his uncle’s assailants. He stated that it did not occur to
6 

his mind to immediately report to the police what his uncle had told him as his mind was troubled at that time. It was
only after the burial of his uncle on April 28, 1997 that he told Insp. Tagum that it was Tony and Juany Palmores
who had shot his uncle. 7

The prosecution next presented Dr. Hazel Mark Aguayo who testified that he was the surgeon-on-duty on the day
that SP02 Mamansal was shot. He stated that before he operated on the victim, he interviewed Mamansal and one
of the questions he asked is whether the victim had known who had shot him. He claimed that Mamansal told him
that he did not know who had shot him. He did not pursue this line of questioning further as he was told by a
8 

companion of the victim that the area where the victim was shot was dark. He testified that he operated on the
9 

victim at around 12:00 in the evening. He operated for around four (4) hours but the victim developed cardio
respiratory arrest at around 8:30 the following morning and thereafter, the victim died in the ward. 10

On cross-examination, he stated that it was Sonny Boy Redovan who was with SP02 Mamansal at the time that he
was interviewing the victim and that it was Redovan who told him that the assailant could not be identified because
the area where the shooting happened was dark. He likewise claimed that before he arrived at the hospital, a
11 

certain Dr. Caridad Jalipa was already attending to the victim and that she told him that the victim remained silent
when she asked him about the person who shot him. 12

The third witness for the prosecution was Police Inspector Alexander Camilon-Tagum. He testified that on the night
of April 27, 1997, he was at the Kidapawan, Cotabato Police Outpost. After receiving a radio report, he proceeded to
Brgy. Magsaysay, Kidapawan where he discovered that one of his men, SP02 Mamansal, was shot. After 13 

conducting an initial investigation of the crime scene, he sent his men towards different directions to look for
suspects. He then proceeded to the hospital together with another witness, Alice Villamor. On the way to the
hospital, Alice Villamor pointed to a passing motorcycle and told him that it was the motorcycle the assailants were
riding. He chased the motorcycle but he was not able to catch up with them as his car ran out of gas. He was able
14 

to borrow a motorcycle and he proceeded to chase the other motorcycle again. While riding on the borrowed
motorcycle, a certain PO3 Aniceta called him on the radio and told him that the assailants were Juany and Tony
Palmones. He and his men proceeded to the residence of the suspects where the brother of the accused-
15 

appellants, Triny Palmones, met them. He asked Triny Palmones where his brothers were and the latter responded
that he didn’t know. He then asked Triny Palmones whether his brothers owned a motorcycle and the latter admitted
that they owned a Kawasaki motorcycle which matched the description of the motorcycle he had been chasing. He 16 

then told his men to continue pursuing the assailants and after exhausting all efforts, he proceeded to the
Kidapawan Doctor’s Hospital. He confronted the victim in the emergency room and asked him about his assailants.
The victim answered that it was Juany and Tony Palmones. At that time, he claimed that Dr. Aguayo and two other
17 

medical ladies were inside the room.

On cross-examination, he testified that he was able to speak with Alice Villamor about the incident but that she told
him that she was not able to identify the assailant even though she was right beside the victim because of
darkness. He admitted that when he went to the hospital, he was already entertaining the idea that the suspects
18 

were Juany and Tony Palmones because of the radio call he received earlier. He likewise admitted that the only
question which he asked the victim was "who shot you?" and that he was not able to reduce his findings to writing. 19
261

The next witness for the prosecution was Mila Arimao Mamansal, the wife of the victim, who testified mainly on the
expenses she incurred because of the death of her husband. She also stated that she was able to talk with witness
Sonny Boy Redovan at the hospital but the latter did not tell her anything about the alleged assailants of her
husband. It was only on April 29, 1997 that she heard Redovan tell the Chief of Police of Kidapawan that Juany and
Tony Palmones were the ones who had shot her husband. 20

The prosecution next presented Asmyra Mamansal, the daughter of the victim. She testified that on the night of the
incident, she was at her aunt’s house where she was informed about the shooting of her father. She immediately
proceeded to the hospital where she saw her father lying on a bed calling her name. Her father then told her to take
down the name Alice Villamor whom she knew as the name of her father’s mistress. She was able to talk with her
21 

father for about thirty minutes.

On cross-examination, she testified that in the course of her conversation with her father, her father did not tell her
the reason why he mentioned the name of Alice Villamor nor did he tell her about the persons who had shot him. 22

The other two witnesses of the prosecution identified the death certificate of SPO2 Mamansal and the extract of the
23 

police blotter where the shooting incident was recorded.

24 

For their part, accused-appellants presented ten (10) witnesses to support their case.

The first witness, Alex Siago, a barangay kagawad, testified that he was one of the first persons to go to the victim
after the latter was shot. He stated that a certain Patricio Fuertes and Samuel Angelio then brought the victim to the
25 

Kidapawan Doctor’s Hospital. Thereafter, another kagawad, a certain Gregorio Lonzaga called up the police to
report the incident. A few minutes later, Inspector Tagum arrived and proceeded to make an investigation of the
26 

incident. He also claimed that he was the one who lent Insp. Tagum his motorcycle when the latter gave chase to
another motorcycle bearing two passengers. Considering that he was only five (5) meters away from the motorcycle
27 

when it passed by, he was able to see the faces of the passengers and he was certain that they were not the two
accused-appellants. 28

The next witness, Patricio Fuertes, testified that he was person who brought the victim to the hospital. At the 29 

hospital, he saw three policemen, whom he did not recognize, talking with the victim. He was about a meter away
from the bed of the victim when he heard a policeman, ask Mamansal whether he had recognized who had shot
him. He then heard the victim reply that he did not recognize his assailants. He likewise told the court that while he
30 

was bringing the victim to the hospital, he was not able to talk with Mamansal and neither did the victim identify his
assailants.31

The next witness for the defense was Alicia Villamor, the alleged girlfriend of the victim and his companion at the
time he was shot. She testified that in the evening of April 27, 1997, she was in her store together with the victim. At
around 10:00 p.m., she closed shop and went home together with Mamansal and her two helpers. While they were
32 

already near her house in Magsaysay, someone suddenly shot Mamansal. She was just at the side of Mamansal
when the shooting happened but she claimed that she was not able to identify the assailants as it was dark. Patricio 33 

Fuertes then brought the victim to the hospital but she did not accompany him as her clothes were stained with
blood. After changing her clothes, a group of policemen arrived at the crime scene. After conferring with the
policemen, she then rode with Insp. Tagum in going to the hospital. On the way, Insp. Tagum tried to halt a passing
34 

motorcycle. When the passengers of the motorcycle kept on going, Insp. Tagum fired warning shots and gave chase
but the car they were riding in ran out of gas. He then saw Alex Siago provide Tagum with a motorcycle and again
the latter gave chase. She claimed that she was not able to see the persons riding the motorcycle as it was moving
35 

quite fast. When she finally arrived at the hospital, she saw that Insp. Tagum was already there. She was then able
to talk with the victim who told her that he did not see the person who had shot him. 36

The next witness, Rommel Arambala, a 27 year old neighbor of Alive Villamor, corroborated the testimonies the
three previous witnesses.

The defense also called the two accused-appellants to support their defense of alibi.

Accused-appellant Anthony Melchor Palmones testified that at the time of the incident, he was in his house in
Kisulan, Sultan Kudarat, having a drinking session with friends. He estimated that Kisulan, Sultan Kudarat was at
least two hours away from the scene of the crime. Their group started drinking at around 8:00 in the evening and
37 

they only finished drinking at around 11:00 p.m. By 11:30, their group had already dispersed. He admitted knowing
38 

the victim as a policeman in Kidapawan but he denied having a quarrel or a grudge against him. 39

The testimony of accused-appellant Anthony Melchor Palmones was corroborated by witnesses SPO1 Ramil
Bahian and Jolito Silva.

For his part, accused-appellant Anthony Baltazar Palmones claimed that at the time of the shooting of Mamansal,
he was at his house in Datu Piang St., Kidapawan, Cotabato, having a drink with a few friends. He stated that on the
day of the incident, at around 5:00 p.m. of April 27, 1997, he was resting inside his home as he had just come from
262

work. While in his house, Rodolfo Barrientos arrived to borrow some money from him. After giving him the money,
40 

the accused asked Rodolfo Barrientos to stay for dinner and to have some drinks. While they were drinking "tuba,"
Jerry Barrientos arrived and joined them. They only stopped drinking at around 11:00 p.m. The accused likewise
41 

testified that he only knew the victim’s surname and that he did not have any quarrel with or grudge against the
victim in the past.42

On cross-examination, he denied that he drove a motorcycle to work. He admitted however, that during the drinking
spree, he went out of his house to buy "tuba" from a nearby store. On re-direct, he stated that the store was only 10
43 

to 15 meters away from his home and that he was only gone for 2 to 5 minutes. 44

Accused-appellant Anthony Baltazar Palmones’s testimony was corroborated by Rodolfo Barrientos and Jerry
Barrientos who both claimed that they were drinking with accused-appellant at the latter’s home at the time of the
incident.

On May 8, 1998, the trial court rendered its questioned decision finding accused-appellants guilty of the crime of
murder. The dispositive portion of the decision reads, as follows:

"WHEREFORE, prescinding (sic) from the foregoing facts and considerations, the Court finds both accused Anthony
Melchor Palmones and Anthony Baltazar Palmones guilty beyond reasonable doubt, as principal of the crime of
Murder, hereby sentenced (sic) both accused each to suffer the penalty of Reclusion Perpetua and to indemnify the
heirs of Asim Mamansal, the sum of P50,000.00 and to pay the costs."

Accused-appellants filed a Motion for Reconsideration of this decision but the trial court, in an Order dated 26
45 

October 1998 , denied the same for lack of merit. Hence, this appeal where accused-appellants raise the following
46 

assignment of errors:

I.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED NOTWITHSTANDING THE FAILURE OF THE
PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

II.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANTS BASED ON THE WEAKNESS OF
THEIR DEFENSE.

III.

THE FACTS, AS ESTABLISHED BY ALL THE EVIDENCE PRESENTED DO NOT SUPPORT THE LOWER
COURT’S FINDING OF GUILT.

IV.

THE COURT A QUO COMMITTED A PALPABLE ERROR AND HAD DEMONSTRATED CLEAR BIAS AND
PREJUDICE IN FAVOR OF THE PROSECUTION AND AGAINST THE ACCUSED.

V.

THE COURT A QUO ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF SONNY BOY
REDOVAN AND INSPECTOR ALEXANDER TAGUM.

VI.

THE COURT A QUO ERRED IN FINDING THAT THE VICTIM, ASIM MAMANSAL WAS ABLE TO IDENTIFY HIS
ASSAILANTS BEFORE HE DIED.

VII.

THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL
AS AN EXCEPTION TO THE HEARSAY RULE.

VIII.

THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL
AS PART OF THE RES GESTAE RULE.
263

The Office of the Solicitor General ("OSG"), for its part, filed a Manifestation in Lieu of Brief where it recommended
47 

that the accused-appellants be acquitted of the crime charged against them. In this Manifestation, the OSG
reasoned that the identity of the assailants was not sufficiently established by the evidence of the prosecution and
that the trial court erred in admitting the alleged dying declaration of the victim as an exception to the hearsay rule.

From the records of the case, the conviction of the two accused-appellants was based largely on the alleged dying
declaration of the victim made to two witnesses of the prosecution and the apparent weakness of their defense of
alibi. It behooves us therefore to determine the admissibility of the alleged oral dying declaration of the deceased
Asim Mamanal as testified to by prosecution witnesses Sonny Boy Redovan and Police Investigator Alexander
Tagum.

As a rule, a dying declaration is hearsay, and is inadmissible as evidence. This is pursuant to Rule 130, section 30
48 

of the Rules of Court which states:

Sec. 30. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to
those facts which he knows of his own knowledge; that is, which are derived from his own perception, except as
otherwise provided in these rules.

There are several exceptions however to the rule of inadmissibility of hearsay evidence, the first one of which is the
admissibility of dying declarations given under the circumstances specified in Section 31, Rule 130 of the Rules of
Court, to wit:

Sec. 31. Dying declaration. – The declaration of a dying person, made under a consciousness of an impending
death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death

As such, the requirements for the admissibility of an ante mortem statement are: (a) it must concern the crime and
the surrounding circumstances of the declarant’s death; (b) at the time it was made, the declarant was under a
consciousness of impending death; (c) the declarant was competent as a witness; and (d) the declaration was
offered in a criminal case for murder, murder or parricide win which the decedent was the victim. 49

As testified to by prosecution witness Sonny Boy Redovan, the supposed dying declaration of the victim was made
as follows:

PROS. DE GUZMAN:

Q: Did you reach the Kidapawan Doctor’s Hospital, Inc.?

A: Yes, sir.

Q: What did you discover?

A: Upon arrival, I immediately proceeded to the emergency room.

Q: What did you do in the emergency room?

A: I saw my uncle there lying.

Q: Are you referring to SPO2 Asim Mamansal?

A: Yes, sir.

Q: What did you do after that?

A: Upon seeing his condition I went near him and whispered "Ano ba ang nangyari sa yo?" meaning "What
happened to you?"

Q: What was the answer, if any?

A: His answer (sic) that he was waylaid.

Q: What else did he tell you?

A: I was worried after saying those words, I asked him who are the perpetrators.
264

Q: What was the answer?

A: And he said "It’s Juany and Tony Palmones."

Q: When those words uttered to you (sic) where there other persons inside the room?

A: Attendants, nurses, "ususero," I do not know the others. 50

In a similar vein, Police Investigator Alexander Tagum likewise testified that the victim named the two accused as
his assailants prior to the victim’s death. Thus:

Q: What did you do at the Kidapawan Doctor’s Hospital?

A: I immediately went to the room wherein SPO1 Mamansal was lying.

Q: What did you do while you were inside the room where SPO1 Mamansal was lying?

A: I immediately confronted him sir and immediately asked the question: Who shot you?

Q: What was the answer?

A: SPO1 Mamansal answered sir, it is Juany and Tony Palmones.

XXX

Q: Can you remember who were your companions (sic) inside the room where SPO2 Mamansal was lying?

A: I noticed two (2) ladies medical orderly (sic) and Dr. Aguayo. 51

In cases where an alleged dying declaration is sought to be admitted, it must be proven that that the declaration was
made "under a consciousness of impending death" which means simply that the declarant is fully aware that he is
dying or going to die from his wounds or injuries soon or imminently, or shall have a complete conviction that death
is at hand, or there must be "a settled hopeless expectation." 52

In the instant case, it was not established by the prosecution that the statements of the declarant concerning the
cause and surrounding circumstances of his death were made under the consciousness of impending death. No
proof to this effect was ever presented by the prosecution. It was not shown whether Sonny Boy Redovan or
Inspector Alexander Tagum ever asked the victim whether he believed that he was going to die out of his injuries or
any other similar question. Sonny Boy Redovan claimed that he was able to talk with the victim for around an hour
but the only thing he revealed of their conversation was the alleged identification of the victim of his two
assailants. For his part, Inspector Tagum admitted that the only question he asked of the victim was if the victim
53 

knew who had shot him. 54

While it is true that the law does not require that the declarant explicitly state his perception that he has given up the
hope of life , the circumstances surrounding his declaration must justify the conclusion that he was conscious of his
55 

impending death. In the instant case, it was not proven that the victim was ever aware of the seriousness of his
56 

condition. As testified to by Dr. Mark Aguayo, the vital signs of the victim, prior to his operation, were quite
stable. Moreover, from the time the victim was brought to the hospital at 10:30 p.m. until his operation at 12:00
57 

midnight, he was still able to talk intelligently with at least four (4) other persons on various matters. The fact that his
vital signs were strong and that he still had strength to converse with these four (4) witnesses belie the conclusion
that the victim was under the consciousness of death by reason of the gravity of his wounds.

Neither may the alleged statements attributed to the victim be admissible as part of the res gestae. Res
gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a
crime immediately before, during, or immediately after the commission of a crime, when the circumstances are such
that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion
and there was no opportunity for the declarant to deliberate and to fabricate a false statement. 58

In order to admit statements as evidence part of the res gestae, the element of spontaneity is critical.  The following
1âwphi1

factors have generally been considered in determining whether statements offered in evidence as part of the res
gestae have been made spontaneously: (1) the time that lapsed between the occurrence of the act or transaction
and the making of the statement; (2) the place where the statement was made; (3) the condition of the declarant
when he made the statement; (4) the presence or absence of intervening events between the occurrence and the
statement relative thereto; and (5) the nature and circumstances of the statement itself. 59
265

Tested against these factors to test the spontaneity of the statements attributed to the victim, we rule that these
statements fail to qualify as part of the res gestae. When Mamansal allegedly uttered the statements attributed to
him, an appreciable amount of time had already elapsed from the time that he was shot as the victim was shot at
around 10:00 p.m. but he only uttered the statements attributed to him about 30 minutes to an hour later. Moreover,
he allegedly made these statements not at the scene of the crime but at the hospital where he was brought for
treatment. Likewise, the trip from the scene of the crime to the hospital constituted an intervening event that could
have afforded the victim opportunity for deliberation. These circumstances, taken together, indubitably show that the
statements allegedly uttered by Mamansal lack the requisite spontaneity in order for these to be admitted as part of
the res gestae.

Finally, after a thorough reading of the testimonies presented by both sides, it is even doubtful that the victim ever
uttered these alleged ante mortem statements in the first place. We note that the testimonies of Sonny Boy
Redovan and Investigator Alexander Tagum are contradicted not only by the witnesses for the defense but also by
the prosecution’s own witnesses.

Dr. Mark Aguayo, the doctor who performed the operation on the victim and who is an impartial and disinterested
witness, categorically stated that the victim told him that he did not recognize those who had shot him. He likewise
60 

testified that witness Sonny Boy Redovan told him in the emergency room that the victim was not able to recognize
his assailants because of darkness. Similarly, the wife and the daughter of Asim Mamansal, who were also able to
61 

talk with the victim prior to his death, likewise denied that the victim ever told them the identity of his assailants. We
fail to see why the victim should choose to tell some people the identity of his assailants and deny his knowledge of
the same to others.

With respect to the witnesses for the defense, Alex Siago and Patricio Fuertes, who were both present at the site of
the shooting immediately after the incident, testified that they did not hear the victim identify his assailants. Patricio
Fuertes even stated that at the hospital, he heard Mamansal tell the police officers present that he did not recognize
those who had shot him. Most importantly, Alice Villamor, who was the lover of the victim and who was with him
during the shooting, categorically stated that it was not possible to recognize the assailants as the area where the
shooting happened was dark. Moreover, she was able to talk with Mamansal at the hospital where he told her that
he did not see the persons who had shot him. This testimony of Villamor is quite significant and we fail to see why
the trial court failed to consider the same in its decision. Alice Villamor, as the lover of the victim, had no motive to
lie for the defense and had all the reason to speak the truth in order to seek justice for the death of her lover.

As previously stated, the trial court based its judgment of conviction on the alleged ante mortem statements of the
victim and the apparent weakness of the defense put up by the two accused-appellants. As it now stands however,
the weakness of the alibi of the two accused-appellants cannot be held against them in view of the absence of a
clear and positive identification of them as the perpetrators of the crime. And while their alibi may not have been
proven so satisfactorily as to leave no room for doubt, such an infirmity can not strengthen the weakness of the
prosecution’s evidence, the reason being that in a criminal prosecution, the State must rely on the strength of its
own evidence and not on the weakness of the defense. 62

WHEREFORE, premises considered, the judgment dated 8 May 1998 of Branch 17 of the Regional Trial Court of
Kidapawan, Cotabato is hereby REVERSED and SET ASIDE. Accused-appellants Anthony Melchor Palmones and
Anthony Baltazar Palmones are ACQUITTED and ordered RELEASED from confinement unless they are being held
for some other legal grounds.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

G.R. No. 119005 December 2, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SABAS RAQUEL, VALERIANO RAQUEL and AMADO PONCE, accused.

SABAS RAQUEL and VALERIANO RAQUEL, accused-appellants.

REGALADO, J.:p
266

The court a quo found herein accused-appellants Sabas Raquel and Valeriano Raquel, as well as accused
Amado Ponce, guilty of the crime of robbery with homicide and sentenced them to suffer the penalty
of reclusion perpetua, to pay the heirs of Agapito Gambalan, Jr. the sum of P50,000.00 as indemnity for his
death, and the amount of P1,500.00 representing the value of the stolen revolver.   The Raquel brothers now
1

plead for their absolution in this appellate review.

In an information dated August 27, 1986, the aforementioned accused were indicted for robbery with
homicide before the Regional Trial Court of Kabacan, Cotabato, Branch 16,   allegedly committed on July 4,
2

1986 in Barangay Osias of the Municipality of Kabacan.

Upon arraignment thereafter, all the accused pleaded not guilty. While trial was in progress, however, and
before he could give his testimony, accused Amado Ponce escaped from jail.  3

The factual antecedents of the case for the People, as borne out by the evidence of record and with page
references to the transcripts of the court hearings, are summarized by the Solicitor General in the appellee's
brief:

At midnight of July 4, 1986, tragedy visited the peaceful lives of spouses Juliet and Agapito
Gambalan, Jr. Thinking of a neighbor in need, Agapito attended to the person knocking at the
backdoor of their kitchen. Much to his surprise, heavily armed men emerged at the door, declared a
hold-up and fired their guns at him. (pp. 4-6, TSN, January 25, 1988)

Juliet went out of their room after hearing gunshots and saw her husband's lifeless (sic) while a man
took her husband's gun and left hurriedly. (p. 7, ibid.)

She shouted for help at their window and saw a man fall beside their water pump while two (2) other
men ran away. (p. 9, ibid.)

George Jovillano responded to Juliet's plea for help. He reported the incident to the police. The
police came and found one of the perpetrators of the crime wounded and lying at about 8 meters
from the victim's house. He was identified as Amado Ponce. (pp. 5-7, TSN, October 21, 1987; pp. 8-
9, TSN, March 21, 1988)

Amado Ponce was first treated at a clinic before he was brought to the police station. (p. 27, ibid.)

Amado Ponce revealed to P/Sgt. Andal S. Pangato that appellants Sabas and Valeriano Raquel
were the perpetrators of the crime and that they may be found in their residence. However, the
police failed to find them there since appellants fled immediately after the shooting incident. (pp. 12-
14, ibid.)

Appellants were later on apprehended on different occasions. (pp. 5-6, TSN, April 2, 1991)  4

Upon the other hand, appellants relied on alibi as their defense, on the bases of facts which are presented in
their brief in this wise:

Accused Valeriano Raquel testified that on July 2, 1986, with the permission of his parents he left
Paatan, Kabacan, Cotabato and went to Tunggol Pagalungan, Maguindanao. He stayed in the
house of his sister-in-law, the wife of his deceased brother. Together with Boy Madriaga and
Corazon Corpuz, he harvested palay on July 3 and 4. On July 5, while he was still asle(ep), police
authorities accompanied by his father arrested him and brought him to the municipal jail of Kabacan,
Cotabato. He already heard the name of accused Amado Ponce, to be an owner of a parcel of land
in Paatan.

On cross-examination, he admitted that their house and that of Gambalan are located in the same
Barangay. Before July 4, he entertained no grudge against victim Agapito Gambalan. (TSN, April 2,
1991, pp. 2-20).

Antonio Raquel, 64 years old, testified that on July 2, 1986 he was at home when his son Valeriano
Raquel told him that he was going to Tungol, Pagalungan, Maguindanao to harvest palay. On (the)
same date, his other son, Sabas Raquel, also asked his permission to leave since the latter, a
soldier, was going to his place of assignment at Pagadian. On July 5, 1986, several policemen came
over to his house, looking for his two (2) sons. He gave them pictures of his sons and even
accompanied them to Tungol where they arrested his son Valeriano. (TSN, April 3, 1991, pp. 3-26).

T/Sgt. Natalio Zafra, of the 102 Brigade, Aurora, Zamboanga, testified that on July 4, 1986, he was
assigned in the 2nd Infantry Battalion, First Infantry Division, Maria Cristina, Iligan City. Sabas
267

Raquel was under his division then, and was on duty on July 4, 1986. (TSN, Nov. 6, 1992, pp. 2-
20). 5

On August 10, 1993, the trial court, as stated at the outset, rendered judgment finding all of the accused
guilty beyond reasonable doubt of the crime charged and sentenced them accordingly.  6

Not satisfied therewith, herein appellants filed a notice of appeal wherein they manifested that they were
appealing the decision to the Court of Appeals.   The lower court ordered the transmittal of the records of the
7

case to the Court of Appeals.   In view of the penalty imposed, the Court of Appeals properly forwarded the
8

same to us. 9

Before us, the defense submits a lone assignment of error, i.e., that the trial court erred in convicting
accused Sabas Raquel and Valeriano Raquel of the crime charged, despite absence of evidence positively
implicating them as the perpetrators of the crime.

We find such submission to be meritorious. A careful review and objective appraisal of the evidence
convinces us that the prosecution failed to establish beyond reasonable doubt the real identities of the
perpetrators of, much less the participation of herein appellants in, the crime charged.

The lone eyewitness, Juliet Gambalan, was not able to identify the assailants of her husband. In her
testimony on direct examination in court she declared as follows:

Q: You said you shouted right after the incident and pip (sic) at the window, did you
see any when you pip (sic) at the window?

A; Yes, sir.

Q: What did you see if you were able to see anything?

A: I saw a person who fel(l) down beside the water pump and I saw again two (2)
persons who were running away, sir.

Q: Were you able to identify this persons who fel(l) down near the jetmatic pump and
two (2) persons running away?

x x x           x x x          x x x

Q: Now, you said somebody fel(l) down near the jetmatic pump, who is this person?

A: I do not know sir. I have known that he was Amado Ponce when the Police
arrived.   (emphasis ours.)
10

On cross-examination she further testified:

Q: For the first time when you shouted for help, where were you?

A: I was at the Veranda sir and I started shouting while going to our room.

Q: In fact you have no way (of) identifying that one person who was mask(ed) and
got the gun of your husband because he was mask(ed), is that not right?

A: Yes, sir.

Q: In fact, you saw only this one person got inside to your house and got this gun?

A: Yes, sir.

Q: And this Amado Ponce cannot be the person who have got this gun inside?

FISCAL DIZON:

Already answered.

She was not able to identify, your Honor.

268

Q: You only saw this Amado Ponce when (h)e was presented to you by the police, is
that right?

A: Yes, sir.  11

x x x           x x x          x x x

Q: You testified in direct testimony you pip (sic) in jalousie after you shouted for help
and you saw two (2) person(s) running, is that right?

A: Yes, sir.

Q: Now, you saw these persons running on the road, is that not right?

A: I saw them running sir going around.

Q: These two (2) persons were running going around?

A: They were running towards the road.

ATTY. DIVINO:

Going to the road.

Q: And you cannot identify these two (2) persons running towards the road?

A: No, sir.   (Emphases supplied.)

12

Even the corroborating witness, George Jovillano, in his testimony made no mention of who shot Agapito
Gambalan. In fact, in his sworn statement executed in the Investigation Section of the Kabacan Police
Station on July 5, 1986, he declared that:

19Q: By the way, when you saw three persons passing about 5 meters away from
where you were then drinking, what have you noticed about them, if you ever noticed
any?

A: I noticed that one of the men ha(d) long firearm which was partly covered by a
maong jacket. The other one wore a hat locally known as "kipis" meaning a hat made
of cloth with leaves protruding above the forehead and seemed to be holding
something which I failed to recognize. The other one wore a shortpant with a
somewhat white T-shirt with markings and there was a white T-shirt covering his
head and a part of his face as he was head-down during that time.

20Q: Did you recognized any of these men?

A: No. Because they walked fast.   (Emphasis supplied.)

13

A thorough review of the records of this case readily revealed that the identification of herein appellants as
the culprits was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as
his co-perpetrators of the crime. As earlier stated, the said accused escaped from jail before he could testify
in court and he has been at large since then.

The extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter,
unless these are repeated in open court. If the accused never had the opportunity to cross-examine his co-
accused on the latter's extrajudicial statements, it is elementary that the same are hearsay as against said
accused.   That is exactly the situation, and the disadvantaged plight of appellants, in the case at bar.
14

Extreme caution should be exercised by the courts in dealing with the confession of an accused which
implicates his co-accused. A distinction, obviously, should be made between extrajudicial and judicial
confessions. The former deprives the other accused of the opportunity to cross-examine the confessant,
while in the latter his confession is thrown wide open for cross-examination and rebuttal.  15

The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another. An extrajudicial confession is binding only upon the confessant and is not admissible
against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience,
269

a man's own acts are binding upon himself, and are evidence against him. So are his conduct and
declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be
bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of
strangers, neither ought their acts or conduct be used as evidence against him.  16

Although the above-stated rule admits of certain jurisprudential exceptions,  7 those exceptions do not
1

however apply to the present case.

Firstly, except for that extrajudicial statement of accused Amado Ponce, there exists no evidence
whatsoever linking appellants to the crime. In fact, the testimony of police Sgt. Andal S. Pangato that
appellant Sabas Raquel was wounded and went to the clinic of Dr. Anulao for treatment using the name
Dante Clemente,   was negated by Dr. Anulao himself who testified that he treated no person by the name
18

of Danny Clemente.  19

Secondly, this extrajudicial statement, ironically relied upon as prosecution evidence, was made in violation
of the constitutional rights of accused Amado Ponce. This was unwittingly admitted in the testimony of the
same Sgt. Andal S. Pangato who was the chief of the intelligence and investigation section of their police
station:

Q: During the investigation did you inform him (of) his constitutional right while on the
process of investigation?

A: No sir, because my purpose was only to get the information from him . . . And after
that I checked the information that he gave.

Q: Of course, you know very well that the accused should be assisted by counsel?

A: What I know is if when a person is under investigation you have in mind to

investigate as to against (sic) him, and you have to inform his constitutional right but
if the purpose is to interrogate him to acquire information which will lead to the
identity of the other accused we do not need to inform him.

Q: Don't you know that under the case of PP vs. Galit; the accused should be
(re)presented by counsel that is the ruling of the Supreme Court?

A: I do not know if it is actually the same as this case.

Q: But it is a fact that you did not even inform him (of) his right?

A: No sir.

Q: At the time when you asked him he has no counsel.

A: No counsel, Sir. 20

Extrajudicial statements made during custodial investigation without the assistance of counsel are
inadmissible and cannot be considered in the adjudication of the case. While the right to counsel may be
waived, such waiver must be made with the assistance of counsel.   These rights, both constitutional and
21

statutory in source and foundation, were never observed.

A conviction in a criminal case must rest on nothing less than a moral certainty of guilt.   Without the positive
22

identification of appellants, the evidence of the prosecution is not sufficient to overcome the presumption of
innocence guaranteed by the Bill of Rights to them.   While admittedly the alibi of appellants may be
23

assailable, the evidence of the prosecution is probatively low in substance and evidentiarily barred in part.
The prosecution cannot use the weakness of the defense to enhance its case; it must rely on the strength of
its own evidence. In fact, alibi need not be inquired into where the prosecution's evidence is weak.  24

It would not even have been necessary to stress that every reasonable doubt in criminal cases must be
resolved in favor of the accused. The requirement of proof beyond reasonable doubt calls for moral certainty
of guilt. In the instant case, the test of moral certainty was neither met nor were the standards therefor
fulfilled.

WHEREFORE, on reasonable doubt, the appealed judgment is REVERSED and accused-appellants Sabas
Raquel and Valeriano Raquel are hereby ACQUITTED of the offense charged, with costs de oficio.

SO ORDERED.
270

Romero, Puno, Mendoza and Torres, Jr., JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs SABAS RAQUEL, VALERIANO RAQUEL and AMADO
PONCE, accused, SABAS RAQUEL and VALERIANO RAQUEL, accused-appellants G.R. No. 119005
December 2, 1996

FACTS: Spouses Juliet and Agapito was awakened by a person knocking at the backdoor of their kitchen.
When he opened the door, heavily armed men emerged, declared a hold-up and fired their guns at him. Juliet
went out of their room and saw her husband lifeless. Then a man took her husband’s gun and left hurriedly. As
she shouted for help, she saw a man fall beside their water pump while two (2) other men ran away. She did
not saw their faces. The police came and found one of the perpetrators wounded and lying at about 8 meters
from the victim’s house. He was identified as Amado Ponce. Ponce revealed that Sabas and Raquel were the
perpetrators of the crime. During the arraignment, all the accused pleaded not guilty. However before Ponce
could give his testimony at the trial he escaped. ISSUE: Whether the admission made by Ponce is admissible
against Sabas and Raquel RULING: NO. The extra-judicial statements of Ponce implicating a co-accused may
not be utilized against Sabas and Raquel, unless these are repeated in open court. Since the appellants never
had the opportunity to cross-examine Ponce on the latter’s extra-judicial statements, it is elementary that the
same are hearsay as against the two accused. According to the res inter alios acta rule, an extra-judicial
confession is binding only upon the declarant and is not admissible against his co-accused, unless such extra-
judicial confession is repeated in open court and the accused had the opportunity to cross-examine the other
co-accused.

IV. Rule 130 (Secs. 26-35; Secs. 48- 51), Rules of Court

a. Admissions;
b. Offer of Compromise
c. Confessions;
a. Distinguished from admission
d. Res Inter Alios Acta Rule;
a. Eceptions
e. Similar Acts;
f. Opinion;
g. Character Evidence;

1. Rule 130, Section 26 – Admissions of a Party

G.R. No. 110290 January 25, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAÑO, MANUEL "JUN" ABENOJA, JR., and FREDDIE
"BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN, accused-appellant.

DAVIDE, JR., J.:

In five separate informations filed on 22 May 1987 with the Regional Trial Court (RTC), Branch 3, Baguio City, the
accused were charged with murder in Criminal Cases Nos. 4647-R and 4648-R, with frustrated murder in Criminal
Case No. 4649-R, and with attempted murder in Criminal Cases Nos. 4650-R and 4651-R. The crimes were
allegedly committed on 6 September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon Bayquen and
Anna Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen, and Danny Ancheta.
271

The informations in the murder cases charged that the accused acted in conspiracy and alleged the presence of the
qualifying circumstance of treachery and the ordinary aggravating circumstances of evident premeditation and
price.1

Only the appellant and Wilfredo Quiaño were arrested. However, before Quiaño could be arraigned, he escaped on
12 July 1987 while under the custody of the Philippine Constabulary/PNP Regional Command I at Camp Dangwa,
La Trinidad, Benguet.  The cases, which were consolidated and jointly tried, proceeded only against the appellant.
2

After the appellant pleaded not guilty at his arraignment on 4 September 1987, trial on the merits was held on
various dates from 11 May 1988 until 10 January 1990.

On 30 May 1990, the trial court promulgated its decision  in the consolidated cases acquitting the appellant in
3

Criminal Case No. 4649-R (frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R (attempted murder) for
insufficiency of evidence but convicting him in the two murder cases, Criminal Cases Nos. 4647-R and 4648-R, with
treachery as the qualifying circumstance.  It also ruled that the aggravating circumstances of evident premeditation
4

and price had been duly established. It then sentenced the appellant as follows:

Upon these premises, the accused Jaime Agustin is found GUILTY of two (2) counts of murder, the
prosecution having proven his guilt beyond reasonable doubt. In each of the criminal cases
aforesaid, he should be sentenced to the maximum penalty of Death, there being two aggravating
circumstances. However, since the death penalty is not imposable at this time, the accused is
sentenced to Reclusion Perpetua. He is further ordered to indemnify the heirs of the victims; Anna
Theresa Francisco the sum of sixty Three Thousand Pesos (P63,000.00) as actual damages
(Exhibits "F," "I" and "G"); and Dr. Napoleon Bayquen, the sum of Thirty Thousand Pesos
(P30,000.00). With costs against the accused, Jaime Agustin.

SO ORDERED. 5

The version of the prosecution is based on the testimonies of (1) Isidoro Magpantay, a member of the Baguio City
Police Force, who identified the initial report (Exhibit "A"); (2) Christie Napeñas, a stenographic reporter in the Office
of the City Fiscal of Baguio City, who took down the stenographic notes of City Fiscal Erdolfo Balajadia's
investigations of accused Wilfredo Quiaño (Exhibit "D") on 30 January 1987 and of the appellant on 10 February
1987, and who identified her stenographic notes containing the statement of the appellant (Exhibit "B") and the
transcript of said stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in Criminal Case No. 4650-R,
who testified on how they were shot; (5) Eulogio Francisco, the father of Anna Theresa Francisco, who identified her
death certificate (Exhibit "I") and testified on the list of expenses (Exhibit "G"); (6) Rogelio Mumar, a supervising
ballistics expert, who declared that the fourteen shell recovered from the scene of the crime were not fired from any
of the three armalite rifles submitted to him; (7) Atty. Reynaldo Cajucom, who testified that he was the lawyer who
assisted the appellant and accused Wilfredo Quiaño while they were being investigated by City Fiscal Balajadia; and
(8) Lilian San Luis Bayquen, wife of Dr. Napoleon Bayquen and mother of Dominic Bayquen, who testified on what
she did after Dominic informed her by telephone about the shooting incident.

The evidence for the prosecution established the following facts. At past 7:30 p.m. of 6 September 1986 in Baguio
City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa
Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their Brasilia to the
doctor's residence at Trancoville at 21-D Malvar Street, Baguio City, from his driving the car. While they were
cruising along Malvar Street and nearing the Baptist church, a man came out from the right side of a car parked
about two meters to the church. The man approached the Brasilia, aimed his armalite rifle through its window, and
fired at the passengers. The Brasilia swerved and hit a fence. The gunman immediately returned to the parked car
which then sped away.

All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was blown
off. Dominic was bale to get out of the Brasilia to run to the Alabanza store where she telephoned her mother and
told her what had happened. Later, she and her mother brought her father and Anthony to the hospital.  Danny
6

Ancheta went home and was then brought to the Notre Dame Hospital for treatment.  Anna Theresa Francisco was
7

brought to the funeral parlor.  The police later arrived at the crime scene and conducted an investigation. they
8

recovered some empty shells of an armalite rifle. 9

On 30 January 1987, accused Wilfredo "Sonny" Quiaño, an alleged former military agent or "asset" who had been
picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio City Fiscal
Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and Anna Theresa
Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who
engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite, and a certain "Jimmy."
During the investigation, Wilfredo Quiaño was assisted by Atty. Reynaldo Cajucom, a representative of the
Integrated bar of the Philippines (IBP). Ms. Christie Napeñas, a stenographic notes of the proceedings during the
investigation.   Thereafter, she transcribed the notes and the transcription became the sworn statement of Wilfredo
10

Quiaño which he signed, with the assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia.  11
272

In the morning of 10 February 1987, "Jimmy," who turned out to be appellant Jaime Agustin, was picked up in Sto.
Tomas, Pangasinan, by military personnel and brought to Baguio city. At 4:00 p.m. of that date, he was taken to the
office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime. Atty. Reynaldo
Cajucom assisted the appellant during the investigation. Ms. Christie Napeñas took down stenographic notes of the
proceedings during the investigation. The stenographic notes consisted of 22 pages (Exhibit "B"), each of which was
signed afterwards by the appellant and Atty. Cajucom. Ms. Napeñas subsequently transcribed these notes which
the prosecution marked as Exhibit "C." The appellant narrated therein his knowledge of the shooting of Dr. Bayquen
and revealed the identities of his cohorts in the crime. In a confrontation two days later, he identified Quiaño as
"Sony," the triggerman.

The defense presented the appellant and his wife, Elizabeth Agustin. The appellant, who is a farmer and whose
highest educational attainment was grad four, impugned the validity of his extrajudicial statement. he alleged that in
the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his return he
was met by two armed men who took him to their car where two other companions, armed with armalites, were
waiting. They then brought him out of Pangasinan. He later learned that they were on their way to Baguio City.

Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he
was made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three times
near the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the shooting, which
he finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City.

While he was giving his statement at the fical's office, the armed men stayed with him and their presence deterred
him from telling the investigating fiscal that he was being threatened. He further declared that although he was given
a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle who is a lawyer, Atty. Oliver
Tabin, and that Atty. Cajucom interviewed him from only two minutes in English and Tagalog but not in Ilocano, the
dialect he understands. Then later, at Camp Dangwa to where he was taken, he told his wife to get in touch and talk
with Atty. Tabin. Finally, he asserted that he was promised by his captors that he would be discharged as a state
witness if he cooperates, but the plan did not push through because his co-accused, Quiaño, escaped.  12

Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February 1987 to
buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later when she finally
learned that he was detained at Camp Dangwa.  13

The trial court admitted the appellant's extrajudicial statement and gave scant consideration to his claim of force,
intimidation, and other irregularities because of the following reasons: (a) the presence of material improbabilities in
his tale of when and how he was allegedly taken at gunpoint from his hometown in Pangasinan; (b) it was
improbable that he was made to kneel thrice at gunpoint along Kennon Road considering the vehicles which were
passing along that road; (c) it was unbelievable that when he was in the Fiscal's Office he asked for his uncle, Atty.
Tabin if he could not go home for a period of one month; (d) no less than the city Fiscal of Baguio City interrogated
him and yet he did not tell the fiscal that he was being forced to give a statement; (e) the fiscal even provided him
with a lawyer who conferred with him and apprised him of his rights; (f) he signed each and every page of the
stenographic notes of his statement and this was witnessed by no less than the City Fiscal of Baguio and the lawyer
who assisted him; and (g) he disclosed in his statement that he voluntarily gave it because of his ill feeling against
his co-accused who did not give him any money.

The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the crime,"
and that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in on the plan,"
and even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a statement only when he
was not given the money." Since the proof of corpus delicti required in Section 3, Rule 133 of the Rules of Court
was established by the prosecution's evidence, it found his conviction for murder inevitable.

The appellant filed a notice of appeal. In this brief, he imputes upon the trial court the commission of this lone error:

THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONSIDERING ACCUSED-

APPELLANT'S EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM.  14

The appellant insists that his extrajudicial confession was taken in violation of his rights under Section 11, Article III
of the constitution. He argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own choice
but was foisted upon him by the city Fiscal. Worse, the said lawyer is a law partner of the private prosecutor, Atty.
Arthur Galace, and conferred with him in English and Tagalog although he understood only Ilocano. Moreover,
when Atty. Cajucom briefly conferred with him and when the city Fiscal interrogated him, his military escorts were
present.

He stresses that the lawyer "who assists the suspect under custodial interrogation should be of the latter's choice,
not one foisted on him by the police investigator or other parties,"   and that where there are serious doubts on the
15

voluntariness of the extrajudicial confession, the doubts must be resolved in favor of the accused.   He then
16
273

concludes that his extrajudicial confession is inadmissible and his conviction cannot stand, there being no other
evidence linking him to the crimes charged.

In its brief,   the appellee, reiterating the reasons of the trial court in upholding the validity of the confession, prays
17

for the affirmance of the appealed decision.

After a careful study of the records of Criminal Cases Nos. 4647-R and 4648-R and a painstaking evaluation of the
evidence, we find this appeal to be impressed with merit. Indeed, the extrajudicial admission — not extrajudicial
confession — of the appellant, which is the only evidence of the prosecution linking him to the commission of the
crime charged, is wholly inadmissible because it was taken in violation of Section 12, Article III of the Constitution.
We also see in these cases a blatant disregard of the appellant's right under Section 2 of Article III when he was
unlawfully arrested.

Before we go any further, it should be pointed out that, contrary to the pronouncement of the trial court and the
characterization given by the appellant himself, the assailed extrajudicial statement is not extrajudicial confession. It
is only an extrajudicial admission. We take this opportunity to once more distinguish one from the other. Sections 26
and 33, rule 30 of the Rules of
Court   clearly show such a distinction.
18

In a confession, there is an acknowledgment of guilt of the accused or of the criminal intent to commit the offense
with which he is charged.   Wharton   defines a confession as follows:
19 20

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the
crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent
to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words,
and admission is something less than a confession, and is but an acknowledgment of some fact or
circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish
the ultimate fact of guilt.

We have examined the assailed extrajudicial statement of the appellant, and we are satisfied that nothing therein
indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances which in
themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate fact of guilt.
Nevertheless, when what is involved is the issue of admissibly in evidence under Section 12, Article III of the
Constitution, the distinction is irrelevant because Paragraph 3 thereof expressly refers to both confession and
admission. Thus:

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

The first two paragraphs of Section 12 read:

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

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.

These first and second paragraphs are taken from Section 20, Article IV (Bill of Rights) of the 1973 Constitution
which read:

Sec. 20. No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to counsel,
and to be informed of such right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence.

The first two paragraphs of Section 12, Article III of the present Constitution have broadened the aforesaid Section
20 in these respects: (1) the right to counsel means not just any counsel, but a "competent and independent
counsel, preferably of his own choice"; (2) the right to remain silent and to counsel can only be waived in writing and
in the presence of counsel; and (3) the rule on inadmissibility expressly includes admissions, not just confessions.

In Morales vs. Enrile,   this Court, applying Section 20, Article IV of the 1973 Constitution, laid down the duties of an
21

investigator during custodial investigation and ruled that the waiver of the right to counsel would not be valid unless
made with the assistance of counsel:
274

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be
used against him. The person arrested shall have the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means — by telephone if possible — or by
letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the court upon
petition either of the detainee himself or by anyone on his behalf. The right to counsel may be
waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down, whether exculpatory of inculpatory, in whole
or in part, shall be inadmissible in evidence.

We reiterated the above ruling in People vs. Galit,   People vs. Lumayok,   People vs. Albofera,   People vs.
22 23 24

Marquez,   People vs. Penillos,   and People vs. Basay,   among other cases.
25 26 27

The right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful
information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."   It is
28

not enough for the investigator to merely repeat to the person under investigation the provisions of Section 20,
Article IV of the 1973 Constitution or Section 12, Article III of the present Constitution; the former must also explain
the effects of such provision in practical terms, e.g., what the person under investigation may or may not do, and in
language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of
the investigator to explain, and contemplates effective communication which results in the subject understanding
what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will
necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the
person undergoing the investigation.

In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be
asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will
be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him
and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the
assistance of counsel. That counsel must be a lawyer.  29

The waiver of the right to counsel must be voluntary, knowing, and intelligent.   Consequently, even if the
30

confession of an accused speaks the truth, if it was made without the assistance off counsel, it is inadmissible in
evidence regardless of the absence of coercion or even if it had been voluntarily given.  31

The extrajudicial admission of the appellant,   contained in twenty-two pages of yellow pad, does, indeed, appear to
32

be signed by him and Atty. Reynaldo Cajucom. what we find in these yellow pads are stenographic notes. these
were transcribed by the stenographer who took down the stenographic notes, but for reasons not explained in the
records, the transcript of the notes (Exhibit "C"), which consists of twelve pages,   was not signed by the appellant
33

since it does not indicate any jurat. On the other hand, the same stenographic reporter, who took down the
stenographic notes when accused Wilfredo Quiaño was being investigated by City Fiscal Balajadia, transcribed the
notes, and the transcription   was subscribed and sworn to by the accused before City Fiscal Balajadia and also
34

signed by Atty. Cajucom, who represented the accused in the investigation.

Since we cannot even reads or decipher the stenographic notes in the yellow pads, we cannot expect the appellant,
who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to rely solely on
the transcript and presume its accuracy. A perusal of the transcript convinces us that the appellant was not given a
fair deal and was deprived of his rights under Section 12(1), Article III of the Constitution. Firstly, he was not fully
and properly informed of his rights. The transcript (Exhibit "C") shows the following preliminary questions of the City
Fiscal and the answers of the appellant:

01. QUESTION — Mr. Jaime Agustin, I am informing you that

you are under investigation in connection
with the death of Dr. Nap Bayquen of which
you are one of the principal suspects. I am
informing you of your constitutional rights
before you give any statement. First, you
have the right to remain silent meaning, you
may give a statement or you may not give
any statement. If you will not give a
statement, you will not be forced to do so,
do you understand this right?

ANSWER — I understand, sir.

275

02. Q — If you will give a statement, you have the

right to be assisted by a lawyer of your own
choice, if you cannot afford to secure the
services of a lawyer the government will
provide a lawyer for you, do you understand
this right?

A — I understand, sir.

03. Q — Now, do you want to be assisted by a

lawyer?

A — Yes, sir.

04. Q — I am now informing you that a lawyer in the

person of Atty. Reynaldo Cajucom is now
present in this investigation room, do you
wish to avail of his assistance in connection
with this investigation?

A — I want, sir.

05. Q — I am also informing you that whatever you

say in this investigation can be used as
evidence in your favor and it can also be
used as evidence against you in any criminal
or civil case, do you understand that?

A — Yes, sir, I understand.

06. Q — After informing you of your constitutional

rights, are you now willing to give a
statement?

A — Yes, sir, I agree.

Investigator — Atty. Reynaldo Cajucom, the witness or

respondent Jaime Agustin has chosen you to
give him assistance in this investigation, are
you willing to assist him?

Answer — I am willing, fiscal, to assist the witness.

Investigator — Have you appraised [sic] him of his

constitutional rights?

Answer — Yes, fiscal.

Investigator — Do you know after examining him whether

or not he is giving a free and voluntary
statement of his own volition without any
intimidation or force exerted on him?

A — As stated by him, fiscal, he is willing to give

a free and voluntary statement in relation to
what really happened.

It is at once observed that the appellant was not explicitly told of his right to have
a competent and independent counsel of his choice, specifically asked if he had in mind any such counsel and, if
so, whether he could afford to hire his services, and, if he could not, whether he would agree to be assisted by one
to be provided for him. He was not categorically informed that he could waive his rights to remain silent and to
counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his right to
remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in the transcript and no
other independent evidence was offered to prove its existence.
276

Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as
his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City fiscal at the time the
appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere
coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by
the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but
whether it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as
shown in the above-quoted portion of Exhibit "C," the city fiscal immediately suggested the availability of Atty.
Cajucom without first distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether
he could hire such counsel; and if he could not, whether he would simply exercise his right to remain silent and to
counsel. In short, after the appellant said that he wanted to be assisted by counsel, the City fiscal, through
suggestive language, immediately informed him that Atty. Cajucom was ready to assist him.

While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may
reject the counsel chosen for him by the investigator and ask for another one,   the circumstances obtaining in the
35

custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he
was not even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the
other hand, the city Fiscal clearly suggested the availability of Atty. Cajucom. then too, present at that time were
Capt. Antonio Ayat and Sgt. Roberto Rambac, military officers of RUC I, who brought him to the City Fiscal's Office
for investigation in the afternoon of the day when he was unlawfully arrested in Sto. Tomas, Pangasinan. Along
Kennon road, on the way to Baguio City, he was coerced and threatened with death if he would not admit knowing
"Jun" and "Sonny" and hi participation in the crime. This testimony was unrebutted by the prosecution. The
presence of the military officers and the continuing fear that if he did not cooperate, something would happen to him,
was like a Damocles sword which vitiated his free will.

Why it was the City Fiscal who had to conduct the custodial investigation is beyond us. Nothing in the records shows
that at that time the criminal cases against the culprits had already been filed with the City Fiscal's Office for
preliminary investigation and had, therefore, ceased to be a police matter. If they had been so filed, then the City
Fiscal should have followed the usual course of procedure in preliminary investigations. It appears, however, from
the informations in Criminal Cases Nos. 4647-R and 46648-R that it was Assistant City Fiscal Octavio M. Banta who
conducted the preliminary investigation and who prepared, signed, and certified the informations. city Fiscal
Balajadia merely approved them and administered the jurat in the certification. the conclusion then is inevitable that
he did not conduct the preliminary investigation.

Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom, we
doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt because he
is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the
appellant and that no injustice be committed to him,   and, moreover, he generally has in his favor the presumption
36

of regularity in the performance of his duties,   there are special circumstances in these cases which convince us
37

that he was unable to assist the appellant in a satisfactory manner. For one, he admitted on cross-examination that
at that time, and even until the time he took the witness stand, he was an associate of the private prosecutor, Atty.
Arthur Galace, in these and the companion cases. Thus:

Q Mr. Witness, at the time you assisted the accused you belonged to the office of
Atty. Galace, you were an associate at the time when you assisted the accused?

A I was represented [sic] then as IBP Legal Aid.

Q The question is not answered, we are only requesting him if he was an associate
of Atty. Galace up to the present?

A Yes.  38

Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former
informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a fourth
grader and a farmer, could only understand Ilocano. Thus:

ATTY. TABIN:

So in other words when you appraised [sic] him of his constitutional rights using
English Language and Tagalog Dialect you did not have any Ilocano dialect
Interpreter. . . .

xxx xxx xxx

WITNESS:

As far as I can remember, I explained it in Tagalog and English.  39

277

And when asked whether he was sure if the appellant understood him, Atty. Cajucom merely answered:

A At least I put everything as far as I could give to him to appraise [sic] him of his
constitutional rights. 
40

Then too, even if he were fully understood by the appellant, we are not satisfied that his explanations were
adequate. On direct examination, he gave the following answers:

Q — Did you explain the constitutional rights of the accused to

caution him of the consequences of his statement?

A — I explained to him that he has the right to remain silent, to

confront in person the witnesses against him and that he has
the right to choose a counsel to assist him in the hearing of
the case which was being investigated then.

Q — And what was his reply regarding the consequences of this

statement?

A — He told me that he is willing to give a truthful statement and

in order to shed light. 41

It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused;
rather, Atty. Cajucom made the appellant believe that he was only a witness. Thus:

Q [by the prosecutor]

— But, nevertheless, you gave the precautionary measure

entitled to any witness?

A — Yes, sir.

Q — Why do you say that it was given voluntarily?

A — Before presenting him to the investigation we were given

time to talk personally without any other people and that
was the time that I explained to him all his rights and
consequences pertaining to him as witness to this case.  42

On cross-examination, Atty. Cajucom also declared:

ATTY. TABIN:

That is why I am requesting him how he explained in that language, Your Honor.

WITNESS:

I told him that this is a grave case which he would be giving some narrations as a
witness and his involvement would mean the most grievous offense and if found
guilty will bring him for some years in jail and I told him that I could help him if he will
be presenting the truth and narrate is the truth. This is in combination, English and
Tagalog, and most of the time, I made it in Tagalog.   43

Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability
to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and
Tagalog.

Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on 10
February 1987 by military men in Pangasinan without a warrant for his arrest.   Since the crimes with which the
44

appellant was charged were allegedly committed on 6 September 1986 or more than five months earlier, no arrest
without a warrant could have been legally and validly effected. a warrantless arrest should comply with the
conditions prescribed in Section 5, rule 113 of the Rules of Court. Said section provides:

Sec. 5. Arrest without warrant when lawful. — A peace officer or a private person may, without a
warrant, arrest a person:
278

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

None of these exceptional circumstances were present at the time the appellant was arrested on 10 February 1987.
The prosecution did not even insinuate that the crimes were committed in the presence of the arresting officers (for
otherwise they could have arrested the appellant on 6 September 1986 yet) or that the appellant was a prisoner who
had escaped from his place of detention; or that the crimes had just been committed for they were in fact committed
more than five months earlier. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were
then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures
for the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the
conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards
stacked against him.

Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was
obtained in violation of Section 12 (1), Article III of the Constitution. since it is the only evidence which links him to
the crimes of which he was convicted, he must then be acquitted.

His acquittal must not write finis to these murder cases. These crimes must be solved and the triggerman and the
mastermind apprehended. We see in these cases the failure of the Government to exert the necessary efforts to
bring the guilty parties to the bar of justice. Until now, the accused, who were implicated by the triggerman as having
ordered for a price the murder of Dr. Bayquen, remain at large and the records do not show any diligent effort to
effect their arrest. The triggerman escaped while in the custody of the PC/INP at Camp Dangwa. The City
Prosecutor's Office of Baguio City should then use all the resources at its command, in coordination with the law-
enforcement agencies of the Government, such as the National Bureau of Investigation and the Philippine National
Police, to immediately arrest the other accused.

WHEREFORE, judgment is hereby rendered REVERSING the challenged judgment of the Regional Trial Court,
branch 3, Baguio City, in Criminal Case No. 4647-R and Criminal Case No. 4648-R, and ACQUITTING appellant
JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby ORDERED unless for some other
lawful cause his continued detention is warranted.

Costs de oficio.

SO ORDERED.

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

PEOPLE VS. AGUSTIN [240 SCRA 541; G.R. NO. 110290; 25 JAN 1995]
Tuesday, February 10, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: Dr. Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna
Theresa; his daughter, Dominic; and Danny, a family friend, were on their way aboard their
Brasilia to the doctor's residence at Malvar Street, Baguio City. While they were cruising
along Malvar Street and nearing the Baptist church, a man came out from the right side of
a car parked about two meters to the church. The man approached the Brasilia, aimed his
armalite rifle through its window, and fired at the passengers. The Brasilia swerved and hit a
fence. The gunman immediately returned to the parked car which then sped away. All those
in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dominic was bale to
get out of the Brasilia to run to the Alabanza store where she telephoned her mother. Later,
279

she and her mother brought her father and Anthony to the hospital. Danny went home and
was then brought to the Hospital for treatment.

Accused Quiaño, an alleged former military agent who had been picked up by the police
authorities, confessed during the investigation conducted by Baguio City Fiscal Erdolfo
Balajadia in his office that he was the triggerman. He implicated Abenoja, Jr., who engaged
him to kill Dr. Bayquen for a fee, Cartel, who provided the armalite, and a certain "Jimmy."
During the investigation, Wilfredo Quiaño was assisted by Atty. Reynaldo Cajucom.
Stenographic notes of the proceedings during the investigation as transcribed with the
sworn statement of Quiaño was signed, with the assistance of Atty. Cajucom, and swore to
before City Fiscal Balajadia. The following day, Agustin was apprehended, and was
investigated and was afforded the privileges like that of Quijano. Agustin’s defense interpose
that he was forced to admit involvement at gunpoint in the Kennon Road. He further
declared that although he was given a lawyer, Cajucom (a law partner of the private
prosecutor), he nevertheless, asked for his uncle Atty. Oliver Tabin, and that Atty. Cajucom
interviewed him from only two minutes in English and Tagalog but not in Ilocano, the dialect
he understands. The promise that he would be discharged as a witness did not push through
since Quijano escaped. However the RTC convicted him, since conspiracy was established.
Hence the appeal.

Issue: Whether or Not accused-appellant’s extrajudicial statements admissible as

evidence.

Held: No. Extrajudicial statement is not extrajudicial confession. In a confession, there is

an acknowledgment of guilt of the accused, while an admission is a statement direct or
implied of facts pertinent to the issue. The rule on inadmissibility, however expressly
includes admissions, not just confessions.The extrajudicial admission of the appellant,
contained in twenty-two pages appear to be signed by him and Atty. Cajucom but for
reasons not explained in the records, the transcript of the notes which consists of twelve
pages was not signed by the appellant. Since the court cannot even read or decipher the
stenographic notes it cannot be expected that appellant, who is a farmer and who reached
only the fourth grade, to read or decipher its contents. The appellant, therefore was
deprived of his rights under Section 12(1), Article III of the Constitution. Firstly, he was not
fully and properly informed of his rights. The appellant was not explicitly told of his right to
have a competent and independent counsel of his choice, specifically asked if he had in mind
any such counsel and, if so, whether he could afford to hire his services, and, if he could
not, whether he would agree to be assisted by one to be provided for him. He was not
categorically informed that he could waive his rights to remain silent and to counsel and that
this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his
right to remain silent by agreeing to be investigated. Yet, no written waiver of such right
appears in the transcript and no other independent evidence was offered to prove its
280

existence. In short, after the appellant said that he wanted to be assisted by counsel, the

City fiscal, through suggestive language, immediately informed him that Atty. Cajucom was
ready to assist him. Moreso said counsel is not independent since he is an associate of the
private prosecutor.

G.R. No. 113779-80 February 23, 1995

ALVIN TUASON y OCHOA, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:

The first duty of the prosecution is not to prove the crime but to prove the identity of the criminal. For even if the
commission of the crime can be established, without proof of identity of the criminal beyond reasonable doubt there
can be no conviction. In the case at bench, the identification of the petitioner cannot rest on an assured conscience.
We rule that petitioner is entitled to a mandatory acquittal.

Petitioner Alvin Tuason y Ochoa, John Doe, Peter Doe, and Richard Doe were charged before the Regional Trial
Court of Quezon City  with Robbery  (Article 294, paragraph 5 of the Revised penal Code) and Carnapping  (republic
1 2 3

Act No. 6539).

Of the four (4) accused, only petitioner was apprehended. The other three (3) are still at-large.

Upon arraignment, petitioner pleaded not guilty to both charges and was tried.

We come to the facts.

Complainant CIPRIANA F. TORRES is a public school teacher of Kaligayahan Elementary School, Novaliches. Her
work requires her to leave her maid, JOVINA MADARAOG TORRES, alone in her house at Block 45, Lot 28, Lagro
Subdivision, Novaliches, Quezon City. Her husband is in Australia while her children go to school.

The incident transpired at around 8:45 in the morning of July 19, 1988. Somebody knocked at the gate of the Torres
residence pretending to buy ice. As the maid Madaraog handed the ice to the buyer, one of the robbers jumped over
the fence, poked a gun at her, covered her mouth, and opened the gate of their house.  The ice buyer and his
4

companions barged in. Numbering four (4), they pushed her inside Torres' house and demanded the keys to the car
and the safety vault.  She told them she did not know where the keys were hidden.  They tied up her hands and
5 6

dragged her to the second floor of the house. Petitioner was allegedly left downstairs as their lookout.
7

On order of the accused, Madaraog sat on Torres' bed, her body facing the bedroom door with her back on the
vault. They also gagged her mouth and ransacked Torres' room. One of the accused stumbled upon a box
containing keys. They used the keys to open drawers and in the process found the car key. Petitioner was then
summoned upstairs and given the car key. He tried it on the car and succeeded in starting its engine.

In twenty (20) minutes, accused were able to loot the vault and other valuable items in the house. They then tied
Madaraog's hands and feet to the bed's headboard and escaped using Torres' car.

Still gripped with fear, Madaraog loosened her ties with her fingers, hopped to the stairs and cried for help.  Her
8

neighbor Semia Quintal responded and untied her. They also sought the help of Angelina Garcia, another neighbor.
It was Garcia who informed Torres that her house was burglarized.

Torres reported the robbery to the police authorities at Fairview, Quezon City and the National Bureau of
Investigation (NBI). On July 25, 1988, Madaraog and Quintal described the physical features of the four (4) robbers
before the NBI cartographer. One of those drawn by the artist was a person with a large mole between his
eyebrows.  On August 30, 1988, petitioner was arrested by the NBI agents. The next day, at the NBI headquarters,
9

he was pointed to by Madaraog and the other prosecution witnesses as one of the perpetrators of the crimes at
bench.

SEMIA QUINTAL   averred that she saw petitioner allegedly among the three (3) men whiling away their time in
10

front of Alabang's store some time before the crimes were committed. Quintal is a neighboring maid.
281

MARY BARBIETO   likewise declared that she saw petitioner allegedly with several companions standing-by at
11

Torres' house that morning of July 19, 1988. She is a teacher and lives within the block where the crimes were
committed.

Petitioner ALVIN TUASON,   on the other hand, anchored his defense on alibi and insufficient identification by the
12

prosecution. he has lived within the neighborhood of the Torres family since 1978. He averred that on July 19, 1988,
he was mixing dough and rushing cake orders from 7:00 o'clock in the morning till 1:00 o'clock in the afternoon at
his sisters' TipTop bakeshop in Antipolo Street, Tondo, Manila. It takes him two (2) hours to commute daily from
Lagro, Novaliches to Tondo.

He was arrested more than one (1) month after the robbery. On August 30, 1988 at about 8:00 o'clock in the
evening, he was in their house watching a basketball game on T.V. and went out to buy a cigarette. On his way
back, a person accosted him and asked his name. After he identified himself,   a gun was poked at his right side, a
13

shot was fired upward, and five (5) men swooped on him without any warrant of arrest. He asked them if he could
wear t-shirt as he was naked from waist up. They refused. They turned out to be NBI agents of one of whom a
certain Atty. Harwin who lived in Lagro, Novaliches. He was shoved into the car and brought to the NBI
headquarters.   He was surprised when an NBI agent, whose identity was unknown to him, pointed to him as one of
14

the suspects in the robbery in the presence of Madaraog and the other prosecution witnesses.

Petitioner's sister ANGELI TUASON,   part-owner of TipTop Bakeshop corroborated his story. She testified that on
15

July 17, 1988 she asked her sister Mary Ann to remind petitioner to work early on July 19, 1988 since Mondays,
Tuesdays, and Wednesdays are busy days as she caters to schools.

The trial court in a Joint Decision convicted petitioner of the crimes charged and sentenced him as follows:

xxx xxx xxx

In Q-88-396 (carnapping) or an indeterminate term of SEVENTEEN (17) YEARS and FOUR (4)
MONTHS as minimum and TWENTY (20) YEARS as maximum; and in Q-88-397 (robbery) for a
term of ONE (1) YEAR, SEVEN (7) MONTHS and ELEVEN (11) DAYS as minimum and TWO (2)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS as maximum.

On the civil aspect, the court hereby orders Alvin Tuason y Ochoa as follows:

1. In Q-88-396 (carnapping) to return to Mrs. Cipriana Torres and her husband the carnapped
Toyota Corona Sedan, Model 1980 with Plate No. NPZ 159 or to pay its value of P180,000.00 which
the court finds to be the reasonable value of the said car; and

2. In Q-88-397 (robbery) to return to Mrs. Cipriana Torres and her husband the stolen items
mentioned in the information filed in said case and hereinabove stated or pay the corresponding
values thereon or a total of P280,550.00 which the court finds to be the reasonable values.

The civil liability is joint and solidary with the co-conspirators of accused Alvin Tuason.

In case of appeal, the bail bonds are fixed at TWO HUNDRED EIGHTY THOUSAND PESOS
(P280,000.00) fro criminal case No. Q-88-396 and ONE HUNDRED THOUSAND PESOS
(P100,000.00) for criminal case No. Q-88-397.

Costs against the accused.

SO ORDERED. 16

Petitioner appealed to respondent Court of Appeals. On December 16, 1993, the Eleventh Division of the appellate
court gave no credence to
the exculpatory allegations of petitioner and affirmed in toto the assailed Decisions.  On February 4, 1994,
17

petitioner's Motion for Reconsideration was denied for lack of merit. 18

In this petition for certiorari, petitioner contends that respondent appellate court erred:

A.

[I]N WRONGLY APPLYING TO THE CASE AT BAR THE PRINCIPLE THAT FINDINGS OF TRIAL
COURTS ARE GENERALLY NOT DISTURBED ON APPEAL, PARTICULARLY CONSIDERING
THAT THE FINDINGS OF THE TRIAL COURT IN THIS CASE ARE BASED ON CERTAIN
REFUTABLE REASONS EXPRESSLY STATED IN ITS DECISION.
282

B.

[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE CONCEPT AND
ATTENDING INFIRMITY OF "SELF-SERVING EVIDENCE."

C.

[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE CONCEPT AND
ATTENDING INFIRMITY OF "NEGATIVE EVIDENCE."

D.

[F]OR IGNORING OR DISREGARDING THE GLARING AND FATAL INFIRMITIES OF THE

TESTIMONIES OF PROSECUTION WITNESSES, SPECIALLY AS IDENTIFICATION, AS WELL AS
TO THE PALPABLE IMPROBABILITY OF HEREIN PETITIONER HAVING BEEN A SUPPOSED
PARTICIPANT IN THE OFFENSES CHARGED, THE ERROR BEING TANTAMOUNT TO GROSS
MISAPPREHENSION OF THE RECORD.

E.

[I]N AFFIRMING THE CLEARLY REVERSIBLE DECISION OF THE TRIAL COURT.

We reverse.

Time and again, this Court has held that evidence to be believed, must proceed not only from the mouth of a
credible witness but the same must be credible in itself.   The trial court and respondent appellate court relied
19

mainly on the testimony of prosecution witness Madaraog that from her vantage position near the door of the
bedroom she clearly saw how petitioner allegedly participated in the robbery. After a careful review of the evidence,
we find that the identification of petitioner made by Madaraog and Quintal is open to doubt and cannot serve as a
basis for conviction of petitioner.

Firstly, it must be emphasized that of the four (4) prosecution witnesses, only the maid Madaraog actually saw
petitioner in the act of committing the crimes at bench. Witnesses Quintal and Barbieto testified they only saw
petitioner at the vicinity of the crimes before they happened. There is, however, a serious doubt whether Madaraog
and Quintal have correctly identified petitioner. At the NBI headquarters, Madaraog described petitioner as 5'3" tall
and with a big mole between his eyebrows.  While Quintal also described petitioner as 5'3" and with a black mole
20

between his eyebrows.   On the basis of their description, the NBI cartographer made a drawing of petitioner
21

showing a dominant mole between his eyes.   As it turned out, petitioner has no mole but only a scar between his
22

eyes. Moreover, he is 5'8 1/2" and not 5'3" tall. There is a big difference between a mole and a scar. A scar is a
mark left in the skin by a new connective tissue that replaces tissue injured.   On the other hand, a mole is a small
23

often pigmented spot or protuberance on the skin.   If indeed Madaraog and Quintal had a good look at petitioner
24

during the robbery, they could not have erroneously described petitioner. Worthy to note, petitioner was not wearing
any mask in the occasion. Madaraog's attempt to explain her erroneous description does not at all convince, viz.:

x x x           x x x          x x x

Q We come now to the third person "iyong namang isa ay mga 28 o 29 ang edad,
mga 5'2" o 5'3" ang taas, payat, medyo kulot ang buhok at maiksi at mayroong
malaking bilog na nunal sa pagitan ng kilay sa noo. Mahaba at malantik ang
pilikmata," who is that?

Interpreter: Witness referring to Exhibit "J-3."

Q Madam witness where is that round mole that appears in the two eyebrows of the
person?

A It is probably the cartographer that made a mistake.

Q I am referring to you now Exhibit "J". I call your attention to that black rounded

figure at the middle of the bridge of the nose between the two eyebrows, what was
that represent?

A A mole, sir.  25

x x x           x x x          x x x
283

Q Among the four drawings prepared by the cartographer section of the NBI, you will
agree ith me Madam Witness that it is only on Exhibit "J" when that rounded mole
appear?

A No sir, it is the third one. 26

x x x           x x x          x x x

Q You did not call the attention of the NBI that the third one whom you just identified
as Exhibit "J-3" did not bear that rounded mole as mentioned by you, did you?

A I did not remember.

Q Why did you not remember having called the attention of the NBI to that deficiency
in the drawing?

A I was not able to call the attention of the NBI (sic) because there were four of us
who made the description. 27

Secondly, the trial court and the respondent appellate court unduly minimized the importance of this glaring
discrepancy in the identification of the petitioner. The trial court resorted to wild guesswork. It ruled:

xxx xxx xxx

[T]he court has observed that Alvin has a prominent scar in between his two (2) eyebrows. It is not
within the realm of improbability that Alvin covered up that scar with a black coloring to make it
appear that he has a "nunal" which was therefore the one described by Jovina and, which reinforces
her testimony that she had a good eye view of Alvin from the start of the robbery to its conclusion. 28

This is a grave error. The trial court cannot convict petitioner on the basis of a deduction that is irrational
because it is not derived from an established fact. The records do not show any fact from which the trial
court can logically deduce the conclusion that petitioner covered up his scar with black coloring to make it
appear as a mole. Such an illogical reasoning cannot constitute evidence of guilt beyond reasonable doubt.
This palpable error was perpetrated by respondent appellate court when it relied on the theory that this "fact"
should not be disturbed on appeal because the trial court had a better opportunity to observe the behavior of
the prosecution witnesses during the hearing. This is a misapplication of the rule in calibrating the credibility
of witnesses. The subject finding of the trial court was not based on the demeanor of any witnesses which it
had a better opportunity to observe. Rather, it was a mere surmise, an illogical one at that. By no means can
it be categorized as a fact properly established by evidence.

And thirdly, corroborating witness Barbieto has serious lapses in her testimony that diluted her credibility, thus:

x x x           x x x          x x x

Q I am showing to you Exhibit "M" and please point to this Honorable Court that
portion where the accused (Alvin Tuason) allegedly asked from you the price of that
plastic pack of ice.

A I did not state it in my statement.

Q Why did you say a moment ago that you place it there (Sinumpaang Salaysay)?

A But that is the truth, sir.

Q I am not asking you the truth or falsehood . . . I am only asking you why you said a
moment ago that the portion of your testimony now is incorporated in Exhibit "M".

A [B]ecause they asked the price of the ice.  29

x x x           x x x          x x x

Q After reading Exhibit "M", did you or did you not call the attention of the
investigator that some of your narrations were not incorporated therein?

A No, I did not because he did not ask me.

284

Q [Y]ou did not come forward to volunteer that some portions of your narration were
not incorporated therein?

A [T]he investigator knew it.

Q You mean to tell the Honorable Court that after reading Exhibit "M", the NBI
investigator knew that there were some lapses or omissions in your statement?

A It's up to the investigator.  30

Barbieto is a school teacher and the kind of excuses she proffered does not enhance her credibility. However, she
and Quintal merely testified they saw petitioner within the vicinity where the crimes were committed. By itself, this
circumstance cannot lead to the conclusion that petitioner truly committed the crimes at bench. Petitioner, we note,
lives in the same vicinity as the victim. To use his words, he lives some six (6) posts from the house of Torres. His
presence in the said vicinity is thus not unnatural.

The doubtful identification of petitioner was not at all cured by the process followed by the NBI agents when
petitioner was pointed to by Madaraog and the other prosecution witnesses in their headquarters. Madaraog's
identification of petitioner from a line-up at the NBI was not spontaneous and independent. An NBI agent improperly
suggested to them petitioner's person. Petitioner thus testified:

x x x           x x x          x x x

Q Mr. Witness (Alvin Tuason) do you know of any reason why these two witnesses in
the persons of Jovina Madaraog Torres and Mary Barbieto would be testifying in the
manner that they did against you?

A At the NBI, I saw them with the NBI agent. After the agent pointed at me, later on
they also pointed at me. 31

On cross-examination, he declared:

x x x           x x x          x x x

Q Do you know the reason why they testified and pointed to you as one of the
robbers of July 19, 1988?

A Because when I was at the NBI, the NBI agent pointed at me.

Q Did you see them at the NBI when they pointed at you?

A They were outside a room where there was a glass window.

Q So you can see those persons outside the room?

A Yes, sir.

Q When they pointed you and identified you where there other person with you when
you were lined up during that time?

A In the second line I was in the line-up.

Q When was the first time they pointed you as one of the suspects?

A In the Office of the Chief Unit there, to the third floor of the NBI building. 
32

This damaging testimony of the petitioner was not rebutted by the prosecution. The NBI agent present
during the identification of petitioner was not presented to belie petitioner's testimony. Consequently, the
identification of the petitioner in the NBI headquarters is seriously flawed. According to writer Wall, the mode
of identification other than an identification parade is a show-up, the presentation of a single suspect to a
witness for purposes of identification. Together with its aggravated forms, it constitutes the most grossly
suggestive identification procedure now or ever used by the police. 33

The respondent appellate court, however, dismissed this claim of petitioner as self-serving. Again, the ruling
misconstrues the meaning of self-serving evidence. Self-serving evidence is not to be literally taken as evidence
285

that serves one's selfish interest. Under our law of evidence, self-serving evidence is one made by a party out of
court at one time; it does not include a party's testimony as a witness in court. It is excluded on the same ground as
any hearsay evidence, that is the lack of opportunity for cross-examination by the adverse party, and on the
consideration that its admission would open the door to fraud and to fabrication of testimony. On the other hand, a
party's testimony in court is sworn and affords the other party the opportunity for cross-examination.  Clearly,
34

petitioner's testimony in court on how he was identified by the prosecution witnesses in the NBI headquarters is not
self-serving.

Petitioner's main defense is alibi. He professed that on July 19, 1988 he was mixing dough at TipTop Bakeshop
from 7:00 o'clock in the morning till 1:00 o'clock in the afternoon. With the usual traffic jam, it takes him two (2) hours
to commute from Lagro to Tondo. It was thus physically impossible for him to be at the locus criminis. He said he
learned about the robbery thru his neighbor three (3) days thereafter. He did not flee. He was arrested by the NBI
agents more than one (1) month after the crimes were perpetrated.

Angeli Tuason's corroborative testimony established that her brother had an eye examination on July 17, 1988   and 35

she reminded him to work early on July 19, 1988 which he did.

Judges should not at once look with disfavor at the defense of alibi. Alibi should be considered in light of all the
evidence on record for it can tilt the scales of justice in favor of the accused.   In People vs. Omega,  we held:
36 37

Although alibi is known to be the weakest of all defenses for it is easy to concoct and difficult to
disprove, nevertheless, where the evidence for the prosecution is weak and betrays lack of
concreteness on the question of whether or not the accused committed the crime charged, the
defense of alibi assumes importance.

The case at bench reminds us of the warning that judges seem disposed more readily to credit the veracity and
reliability of eyewitnesses than any amount of contrary evidence by or on behalf of the accused , whether by way of
alibi, insufficient identification, or other testimony.   They are unmindful that in some cases the emotional balance of
38

the eyewitness is disturbed by her experience that her powers of perception becomes distorted and her
identification is frequently more untrustworthy. Into the identification, enter other motives, not necessarily stimulated
originally by the accused
personally — the desire to requite a crime, to find a scapegoat, or to support, consciously or unconsciously, an
identification already made by another. 39

IN VIEW THEREOF, the Decision of December 16, 1993 is REVERSED and SET ASIDE and petitioner Alvin
Tuason is ACQUITTED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado and Mendoza, JJ., concur.

286

G.R. No. 127553 November 28, 1997

EDDIE MANUEL, ROMEO BANA, ROGELIO PAGTAMA, JR. and JOEL REA, petitioners,
vs.
N.C. CONSTRUCTION SUPPLY, JOHNNY LIM, ANITA SY and NATIONAL LABOR RELATIONS COMMISSION
(SECOND DIVISION), respondents.

PUNO, J.:

This special civil action for certiorari seeks to review the decision of the National Labor Relations Commission
(NLRC) dated June 27, 1996 in NLRC-NCR-00-07-04925-95 entitled Eddie Manuel, Romeo Bana, Rogelio
Pagtama, Jr. and Joel Rea v. N.C. Construction Supply, Johnny Lim and Anita Sy. 1

Petitioners Eddie Manuel, Romeo Bana, Rogelio Pagtama, Jr. and Joel Rea were employed as drivers at N.C.
Construction Supply owned by private respondents Johnny Lim (a.k.a. Lao Ching Eng) and Anita Sy.

On June 3, 1995, the security guards of respondent company caught Aurelio Guevara, a company driver, and Jay
Calso, his helper ("pahinante"), taking out from the company premises two rolls of electrical wire worth P500.00
without authority. Calso was brought to the Pasig Police station for questioning. During the investigation, Calso
named seven other employees who were allegedly involved in a series of thefts at respondent company, among
them petitioners Manuel, Bana, Pagtama, Jr. and Rea.  2

On June 5, 1995, petitioners received separate notices from respondent company informing them that they were
positively identified by their co-worker, Jay Calso, as perpetrators of the series of thefts committed at respondent
company. They were thus invited to the Pasig police station for investigation regarding their alleged involvement in
the offense.

Atty. Ramon Reyes, private respondents' counsel conducted in their behalf an investigation regarding petitioners'
involvement in the theft. Atty. Reyes interrogated the petitioners on their alleged participation in the series of thefts
committed at respondent company. Petitioners initially denied the charge. However, after being positively identified
by Jay Calso, petitioners admitted their guilt and offered to resign in exchange for the withdrawal of any criminal
charge against them.  Petitioners Bana and Rea filed separate resignation letters while petitioners Manuel and
3

Pagtama, Jr. tendered their resignations orally. Petitioner Bana's resignation letter   reads:
4
287

Hnyo 6,
1995

Dear Bong,

Sa ganitong sitwasyon nagpapasalamat rin ako na humantong sa ganito para hindi na tumagal ang
masama naming gawain. Piro lubos rin ako nagpapasalamat sa iyong pagpapatawad sa akin, at ang
masasabi ko lang na I'm very, very sorry na lang. Kasi alam mo naman na kapos na kapos talaga
ako. Kaya alam mo halos hindi na nga ako nag-a-absent dahil sa sahod ko lang kapos pa sa
pamilya ko. Kaya sana sa pag-resign ko sana mabigyan mo man lang ako nang kaunti para
makapamasahi man lang pau-wi sa Mindanao kasama ang mga anak ko. Yon lang. . .

alang,

Boy

Petitioner Rea's resignation letter,   on the other hand, states:

5

Hunyo
6,

Boss,

Dahil sa hindi maganda ang aking naging performance sa inyo sa loob ng NC Construction Supply
sa nakakahiya na aking nasangkutan magreresign na ho ako, magsisimula Hunyo 6, 1995. Siguro
naman Boss alam naman ninyo ang totoo nakikisama lang ako sa mga dati ninyong tauhan dahil
kailangan ko talaga ng trabaho kahit labag man sa aking kalooban ang gumawa ng hindi maganda.

Boss, kahit paano sana maintindihan mo ako, tatanggalin nyo na ho ako sana bigyan nyo na lang
ako ng kahit pamasahe namin pauwing probinsya para makapagbagong buhay na ako.

Salamat po.

Sumas
ainyo,

Joel
Rea

Atty. Reyes accepted petitioners' resignation effective June 5, 1995.

On July 17, 1995, petitioners filed a complaint against private respondents for illegal dismissal. Petitioners alleged
that they were not informed of the charge against them nor were they given an opportunity to dispute the same.
They also alleged that their admission made at the Pasig police station regarding their involvement in the theft as
well as their resignation were not voluntary but were obtained by private respondents' lawyer by means of threat and
intimidation.

Labor Arbiter Manuel R. Caday ruled in favor of petitioners and found their dismissal to be illegal. He held that
private respondents failed to show a just cause for the termination of petitioners' services. He declared that
petitioners' admission regarding their involvement in the theft was inadmissible in evidence as it was taken without
the assistance of counsel, in violation of Section 12 Article III of the 1987 Constitution.   He also held that petitioners
6

were not afforded due process before their services were terminated. Hence, Labor Arbiter Caday ordered private
respondents to reinstate petitioners to their former position without loss of seniority rights and to pay them full
backwages. He also ordered private respondents to pay petitioners their service incentive leave benefits plus
attorney's fees. 
7

On appeal, the NLRC reversed the decision of the Labor Arbiter. It ruled that petitioners were dismissed for a just
cause. It held that petitioners failed to adduce competent evidence to show a vitiation of their admission regarding
their participation in the theft. It further stated that such admission may be admitted in evidence because Section 12
Article III of the 1987 Constitution applies only to criminal proceedings but not to administrative proceedings. The
NLRC, however, agreed with the Labor Arbiter that petitioners were denied due process. Hence, it ordered private
respondents to pay petitioners the amount of P1,000.00 as indemnity. The dispositive portion of the decision reads:

WHEREFORE, premises duly considered, the decision appealed from is hereby reversed and set
aside. A new one is hereby entered ordering respondents to pay to the complainants the amount of
P1,000.00 each as and for indemnity for failure of the respondents to observe due process.
288

SO ORDERED.  8

Petitioners filed the instant petition on the following grounds:

1. The National Labor Relations Commission committed grave abuse of discretion in

declaring the dismissal legal;

2. The National Labor Relations Commission committed grave abuse of discretion in

declaring that the admission of petitioners is admissible in evidence despite the fact
that it was obtained in a hostile environment and without the presence or assistance
of counsel;

3. The National Labor Relations Commission committed grave abuse of discretion in

finding that respondents N.C. Construction Supply et al. are right in withdrawing their
trust and confidence with petitioners without any valid and legal basis.  9

We affirm the decision of the NLRC.

An employer has a right to terminate the services of an employee subject to both substantive and procedural
limitations. This means that (1) the dismissal must be for a just or authorized cause provided in the Labor
Code,   and (2) the employee must be accorded due process before his employment is terminated. The validity of
10

the dismissal hinges on the employer's compliance with these two requirements.  11

In the case at bar, petitioners who were employed as drivers at respondent company were found guilty of stealing
company property consisting of electrical wire, welding rod, G.I. sheet, steel bar and plywood. Article 282 of the
Labor Code authorizes an employer to terminate the services of an employee for loss of trust and confidence,
provided that the loss of confidence arises from particular proven facts. The law does not require proof beyond
reasonable doubt of the employee's misconduct. Substantial evidence is sufficient.   Substantial evidence has been
12

defined as such relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.  13

Petitioners' culpability in the instant case was sufficiently proved by private respondents. Jay Calso, an employee of
respondent company who has personal knowledge about the series of thefts that has been going on at respondent
company, positively identified petitioners as among the perpetrators of the theft. Petitioners have not shown any ill
motive on the part of Calso to implicate them in the offense, unless it was true. In addition, petitioners admitted their
participation in the theft during an investigation conducted by private respondents' lawyer.

We are not convinced by petitioners' allegation that such admission was obtained by means of threat or intimidation
as such allegation is couched in general terms and is unsupported by evidence.

We also reject petitioners' argument that said admission is inadmissible as evidence against them under Section 12
Article III of the 1987 Constitution. The right to counsel under Section 12 of the Bill of Rights is meant to protect a
suspect in a criminal case under custodial investigation. Custodial investigation is the stage where the police
investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect
who had been taken into custody by the police to carry out a process of interrogation that lends itself to elicit
incriminating statements. It is when questions are initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way. The right to counsel
attaches only upon the start of such investigation.   Therefore, the exclusionary rule under paragraph (3) Section 12
14

of the Bill of Rights applies only to admission made in a criminal investigation but not to those made in an
administrative investigation.

In the case at bar, the admission was made by petitioners during the course of the investigation conducted by
private respondents' counsel to determine whether there is sufficient ground to terminate their employment.
Petitioners were not under custodial investigation as they were not yet accused by the police of committing a crime.
The investigation was merely an administrative investigation conducted by the employer, not a criminal
investigation. The questions were propounded by the employer's lawyer, not by police officers. The fact that the
investigation was conducted at the police station did not necessarily put petitioners under custodial investigation as
the venue of the investigation was merely incidental. Hence, the admissions made by petitioners during such
investigation may be used as evidence to justify their dismissal.

Private respondents, however, failed to observe due process in terminating the employment of petitioners. Due
process demands that the employer should furnish the worker whose employment is sought to be terminated a
written notice containing a statement of the cause(s) for termination and afford him ample opportunity to be heard
and to defend himself with the assistance of a representative if he so desires. Specifically, the employer must
furnish the worker with two written notices before termination of employment can be legally effected: (1) notice
which apprises the employee of the particular acts or omissions for which his dismissal is sought, and (2) the
subsequent notice which informs the employee of the employer's decision to dismiss him.   There is no showing in
15

this case that private respondents furnished petitioners which such notices. Private respondents, through their
289

counsel, Atty. Reyes, immediately terminated petitioners' services upon conclusion of the investigation. Private
respondents must therefore indemnify petitioners for failure to observe due process before dismissing them from
work.

IN VIEW WHEREOF, the petition is DISMISSED. The assailed decision is hereby AFFIRMED. No costs.

SO ORDERED.

Regalado and Martinez, JJ., concur.

Mendoza, J., is on leave.

Eddie Manuel, Romeo Bana, Rogelio Pagtama, Jr. and Joel Rea vs. N.C. Construction Supply, Johnny Lim, Anita Sy and
National Labor Relations Commission (Second Division)

G.R. No. 127553, November 28, 1997

FACTS: Petitioners were employed as drivers at. N.C. Construction Supply owned by private respondents. Another
company driver and his helper was found stealing company property consisting of electrical wire, welding rod, G.I. sheet,
steel bar and plywood. The helper identified petitioners as among the perpetrators of the theft.

The petitioners received separate notices informing them that they were positively identified by their co-worker and
were thus invited to Pasig Police Station for investigation. Petitioners admitted their guilt and offered to resign in
exchange for the withdrawal of any criminal charge against them. The resignation was accepted by the counsel of the
respondents.

ISSUES:

1. Whether or not petitioners were illegally dismissed because they were not informed of the charge against them nor
were they given an opportunity to dispute the same.

2. Whether or not the employer observed due process in terminating the employment of the petitioners.

3. Whether or not the petitioner’s admission is inadmissible as evidence against them as they were not assisted by
counsel during the conduct of investigation at the police station.

RULING:

1. Petitioners were dismissed for a just cause. They were found guilty of stealing company property and it was proved
during an investigation conducted by respondents’ lawyer. An employer is authorized to terminate the services of an
employee for loss of trust and confidence, provided that the loss of confidence arises from particular proven facts. The
law does not require proof beyond reasonable doubt of the employee’s misconduct. Substantial evidence is sufficient.
Substantial evidence has been defined as such relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.

2. Employers failed to observe due process in terminating the employment of petitioners. Due process requires that the
employer should furnish the worker whose employment is sought to be terminated a written notice containing a
statement of the cause(s) for termination and afford him ample opportunity to be heard and to defend himself with the
assistance of a representative if he so desires. Specifically, the employer must furnish the worker with two written
notices before termination of employment can be legally effected: (1) notice which apprises the employee of the
particular acts or omissions for which his dismissal is sought, and (2) the subsequent notice which informs the employee
of the employer’s decision to dismiss him.
290

3. The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under
custodial investigation. Custodial investigation is the stage where the police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a particular suspect who had been taken into custody by the police to
carry out a process of interrogation that lends itself to elicit incriminating statements. It is when questions are initiated
by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in
any significant way. The right to counsel attaches only upon the start of such investigation. Therefore, the exclusionary
rule under paragraph (3) Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but
not to those made in an administrative investigation. In this case, petitioners were not under custodial investigation as
they were not yet accused by the police of committing a crime. The investigation was merely an administrative
investigation conducted by the employer, not a criminal investigation. The questions were propounded by the
employer’s lawyer, not by police officers. The fact that the investigation was conducted at the police station did not
necessarily put petitioners under custodial investigation as the venue of the investigation was merely incidental. Hence,
the admissions made by petitioners during such investigation may be used as evidence to justify their dismissal.

NOTES:

An employer has a right to terminate the services of an employee subject to both substantive and procedural
limitations. This means that (1) the dismissal must be for a just or authorized cause provided in the Labor Code, and (2)
the employee must be accorded due process before his employment is terminated.

G.R. No. 119220 September 20, 1996

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NILO SOLAYAO, accused-appellant.

ROMERO, J.:

Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16,
with the crime of illegal possession of firearm and ammunition   defined and penalized under Presidential
1

Decree No. 1866.

The lone prosecution witness, SPO3 Jose Niño, narrated that at about 9:00 o'clock in the evening of July 9,
1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan,
Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer
to verify reports on the presence of armed persons roaming around the barangays of Caibiran.  2

From Barangay Caulangohan, the team of Police Officer Niño proceeded to Barangay Onion where they met
the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they
observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform
or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled.  3

Police Officer Niño told accused-appellant not to run away and introduced himself as "PC," after which he
seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long
homemade firearm locally know as "latong." When he asked accused-appellant who issued him a license to
carry said firearm or whether he was connected with the military or any intelligence group, the latter
answered that he had no permission to possess the same. Thereupon, SPO3 Niño confiscated the firearm
and turned him over to the custody of the policemen of Caibiran who subsequently investigated him and
charged him with illegal possession of firearm.  4

Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was
only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut
leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves
since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed
to him after the others had been used up.   Accused-appellant's claim was corroborated by one Pedro
5

Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun
wrapped in coconut leaves.  6
291

On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under
Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging
from reclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one
aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term of reclusion
perpetua with the accessory penalties provided by law.   It found that accused-appellant did not contest the
7

fact that SPO3 Niño confiscated the firearm from him and that he had no permit or license to possess the
same. It hardly found credible accused-appellant's submission that he was in possession of the firearm only
by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes
Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did not know his
companions.  8

Accused-appellant comes to this Court on appeal and assigns the following errors:

I. The trial court erred in admitting in evidence the homemade firearm.

II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of
the maximum penalty against the accused-appellant.  9

This court, in the case of People v. Lualhati  ruled that in crimes involving illegal possession of firearm, the
10

prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and
(b) the fact that the accused who owned or possessed it does not have the corresponding license or permit
to possess the same.

In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm
in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on
his person violated his constitutional right to be secure in his person and effects against unreasonable
searches and seizures. Not only was the search made without a warrant but it did not fall under any of the
circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which
provides, inter alia:

A peace officer or a private person may, without a warrant, arrest a person when in his presence, the
person to be arrested has committed, is actually committing, or is attempting to commit an offense.

Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence
for being "the fruit of the poisonous
tree."   As such, the prosecution's case must necessarily fail and the accused-appellant acquitted.
11

Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al.   where this Court
12

declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident to a lawful
arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a
lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then
an arrest effected based on evidence produced by the search, both such search and arrest would be
unlawful, for being contrary to law."

Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardy tenable.
He and his companions' drunken actuations aroused the suspicion of SPO3 Niño's group, as well as the fact
that he himself was attired in a camouflage uniform or a jungle suit   and that upon espying the peace
13

officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence
mission to verify reports that armed persons were roaming around the barangays of Caibiran.  14

The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals   where this
15

Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he
attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal
possession of firearm and ammunitions. They just suspended that he was hiding something in the buri bag.
They did not know what its contents were. The said circumstances did not justify an arrest without a
warrant."

This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the
suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable
cause to conduct a search even before an arrest could be made.

In the present case, after SPO3 Niño told accused-appellant not to run away, the former identified himself as
a government agents.   The peace officers did not know that he had committed, or was actually committing,
16

the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men
roaming in the barangays surrounding Caibiran, their attention was understandably drawn to the group that
had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which
accused-appellant was carrying hid a firearm.
292

As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected
without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his
companions filed upon seeing the government agents. Under the circumstances, the government agents
could not possibly have procured a search warrant first.

Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures.
Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence.

As to the question of whether or not the prosecution was able to prove the second element, that is, the
absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the
Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the
necessary permit or license to possess the subject firearm.  17

Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution.
The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal
possession of firearm, and every ingredient or essential element of an offense must be shown by the
prosecution by proof beyond reasonable doubt.  18

In People v. Tiozon,   this Court said:

19

It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked
to support the view that it is incumbent upon a person charged with illegal possession of a firearm to
prove the issuance to him of a license to possess the firearm, but we are of the considered opinion
that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal
cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact
alleged by the prosecution must be proven if "it is an essential ingredient of the offense charged,"
the burden of proof was with the prosecution in this case to prove that the firearm used by appellant
in committing the offense charged was not properly licensed.

It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of
illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of
the lower court (now G.R. No. 27681) specifically alleged that he had no "license or permit to
possess" the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's
duty not merely to allege that negative fact but to prove it. This view is supported by similar
adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with "having criminally
inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It
was there held that the negative fact of lack of qualification to be a voter was an essential element of
the crime charged and should be proved by the prosecution. In another case (People vs. Quebral.
68 Phil. 564) where the accused was charged with illegal practice of medicine because he had
diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he
received monetary compensation, without having previously obtained the proper certificate of
registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative
Code, this Court held that if the subject of the negative averment like, for instance, the act of voting
without the qualifications provided by law is an essential ingredient of the offense charged, the
prosecution has the burden of proving the same, although in view of the difficulty of proving a
negative allegation, the prosecution, under such circumstance, need only establish a prima
facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor
General agree that there was not even a prima facie case upon which to hold appellant guilty of the
illegal possession of a firearm. Former Chief Justice Moral upholds this view as follows:

The mere fact that the adverse party has the control of the better means of proof of the fact alleged,
should not relieve the party making the averment of the burden of proving it. This is so, because a
party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he
could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an
act or carrying on a business, such as, the sale of liquor without a license. How could the
prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly,
although proof of the existence or non-existence of such license can, with more facility, be adduced
by the defendant, it is nevertheless, encumber upon the party alleging the want of the license to
prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly
within the control or knowledge of the accused prima facie evidence thereof on the part of the
prosecution shall suffice to cast the onus upon him." (6 Moran, Comments on the Rules of Court,
1963 edition, p. 8).

Finally, the precedents cited above have been crystallized as the present governing case law on this
question. As this Court summed up the doctrine in People v. Macagaling:  20
293

We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to
prove all the ingredients of the offense as alleged against the accused in an information, which
allegations must perforce include any negative element provided by the law to integrate that offense.
We have reiterated quite recently the fundamental mandate that since the prosecution must allege
all the elements of the offense charged, then it must prove by the requisite quantum of evidence all
the elements it has thus alleged.

In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant
admitted before Police Officer Niño at the time that he was accosted that he did not have any authority or
license to carry the subject firearm when he was asked if he had one.   In other words, the prosecution
21

relied on accused-appellant's admission to prove the second element.

Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of
firearm which is that accused-appellant does not have the corresponding license? Corollary to the above
question is whether an admission by the accused-appellant can take the place of any evidentiary means
establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an
essential ingredient of the crime charged.

This Court answers both questions in the negative. By its very nature, an "admission is the mere
acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate the
speaker, but not sufficient of itself to establish his guilt."   In other words, it is a "statement by defendant of
22

fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove
guilt, but which is, of itself, insufficient to authorize conviction."   From the above principles, this Court can
23

infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of
the crime charged.

Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of
the Revised Rules of Court which states:

An admission, verbal or written, made by a party in the course of the trial or other proceedings in the
same case does not require proof.

Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable
doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It
merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a
license.

This Court agrees with the argument of the Solicitor General that "while the prosecution was able to
establish the fact that the subject firearm was seized by the police from the possession of appellant, without
the latter being able to present any license or permit to possess the same, such fact alone is not conclusive
proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the
prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and
convincing evidence, like a certification from the government agency concerned."  24

Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the
establishment of a negative, and the means of proving the fact are equally within the control of each party,
then the burden of proof is upon the party averring the negative."  25

In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that
accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of
firearm.

In view of the foregoing, this Court sees no need to discuss the second assigned error.

WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant
Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless
there are other legal grounds for his continued detention, with cost de oficio.

SO ORDERED.
294

people v. Solayao G.R. No. 119220 September 20, 1996 262 SCRA 255 (1996)

Facts: SPO3 Jose Niño, narrated that at about 9:00 o’clock in the evening of July 9, 1992, with CAFGU members, they
were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence
of armed persons roaming around the barangays. The team of Police Officer Niño proceeded to Barangay Onion where
they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they
observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle
suit. Accused-appellant’s companions, upon seeing the government agents, fled. Police Officer Niño told accused-
appellant not to run away and introduced himself as “PC,” after which he seized the dried coconut leaves which the
latter was carrying and found wrapped in it a 49-inch long homemade firearm locally know as “latong.” When he asked
accused-appellant who issued him a license to carry said firearm or whether he was connected with the military or any
intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Niño
confiscated the firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated
him and charged him with illegal possession of firearm. The trial court found accused-appellant guilty of illegal
possession of firearm. Hence the Appeal.

Issue: Whether the court erred in admitting the confiscated firearm as evidence against the accused with no valid search
and arrest warrant

Held: The court ruled that the search and seizure brought about by the suspicious conduct of the accused himself can be
likened to a “stop and frisk” situation. There was probable cause to conduct a search even before an arrest could be
made. In the present case, after SPO3 Niño told accused-appellant not to run away, the former identified himself as a
government agents. The peace officers did not know that he had committed, or was actually committing, the offense of
illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the barangays
surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They
could not have known that the object wrapped in coconut leaves which accused-appellant was carrying hid a firearm.
The case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There
was justifiable cause to “stop and frisk” accused-appellant when his companions filed upon seeing the government
agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus,
there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error
on the part of the trial court when it admitted the homemade firearm as evidence.

G.R. No. 128046             March 7, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAMON CHUA UY, accused-appellant.

DAVIDE, JR., C.J.:

Ramon Chua Uy (hereafter RAMON) appeals from the decision of the Regional Trial Court of Malabon, Branch 170,
1 

Metro Manila, in Criminal Cases No. 16199-MN and No. 16200-MN, which decreed him guilty of violating Sections
15 and 16 of Article III, R.A. No. 6425, as amended, for the illegal sale of 5.8564 grams of methamphetamine
2 

hydrochloride or "shabu," and possession of 401 grams of the same drug, respectively.

RAMON was arrested in the evening of 11 September 1995 by the elements of the Anti-Narcotics Unit of the
Philippine National Police in Malabon, Metro-Manila, in the course of a buy-bust operation and a follow-up search of
3 

his residence, and was subsequently charged in three cases, namely, Criminal Case No. 16199-MN, Criminal Case
No. 16200-MN and Criminal Case No. 16201-MN.

The accusatory portion of the Information in Criminal Case No. 16199-MN alleges:
4 
295

That on or about the 11th day of September 1995 in the Municipality of Malabon, Metro-Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused being a private person and
without authority of law, did then and there willfully, unlawfully and feloniously sell and deliver for and in
consideration of the amount of P5,000.00 to SPO1 Alberto Nepomuceno, Jr. who acted as poseur buyer
white crystalline substance contained in a sealed plastic bag with markings with net weight of 5.8564 grams
which substance when subjected to chemistry examination gave positive results for Methamphetamine
Hydrochloride otherwise known as "Shabu" which is a regulated drug.

CONTRARY TO LAW.

The accusatory portion of the Information in Criminal Case No. 16200-MN charges:
5 

That on or about the 11th day of September 1995 in the Municipality of Malabon, Metro-Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused being a private person and
without authority of law, did then and there willfully, unlawfully and feloniously have in his possession,
custody and control white crystalline substance separately contained in five (5) sealed plastic bags all with
markings with total net weight 401 grams which substance when subjected to chemistry examination gave
positive results for Methamphetamine Hydrochloride otherwise known as 'shabu' which is a regulated drug.

CONTRARY TO LAW.

In Criminal Case No. 16201-MN, RAMON was charged with the illegal possession of "traces" of shabu found on
three (3) plastic scoops and other drug paraphernalia which were seized from his supposed residence in a follow-up
search.

No bail was recommended. When arraigned, RAMON pleaded not guilty in each case. During the pre-trial, the
6 

parties agreed on a joint trial and to dispense with the testimony of Forensic Chemist Loreto F. Bravo. They also
7 

agreed on the marking of the exhibits for the prosecution.

At the trial, the prosecution presented as witnesses SPO1 Alberto G. Nepomuceno, Jr., who acted as the poseur-
buyer, and SPO4 Eddie Regalado, another member of the buy-bust team, as rebuttal witness. The defense
presented RAMON and Maritess Puno.

The trial court summarized the prosecution's evidence, thus:

The evidence on record shows that at around 5:00 o'clock in the afternoon of September 11, 1995, a female
confidential informant personally informed the members of the Anti-Narcotics Unit of the Malabon Police
Station, which was then holding office at Barangay Concepcion, Malabon, Metro-Manila, that accused
Ramon Chua Uy "alias Chekwa" had asked her to look for a buyer of shabu at a price of P1,000.00 per
gram. Acting on the given information, the members of the unit subsequently planned a buy-bust operation
against the accused.

SPO4 Eddie Regalado instructed the confidential informant to consum[m]ate a deal with the accused by
telling him that a prospective buyer is willing to purchase five (5) grams of the illicit drug to be delivered in
front of the Justice Hall of Malabon located along Sanciangco Street, Barangay Catmon. At 6:30 p.m., the
confidential informant called up and informed the police officers that accused Chua Uy already agreed on
the transaction as well as to the place of delivery. P/Insp. Ricardo Aquino, Chief of the Narcotics Unit, at
once formed the buy-bust team composed of SPO4 Federico Ortiz and PO1 Joel Borda. After securing five
(5) P1,000.00-peso bills to be used in the operation from P/Inp. Aquino, SPO4 Regalado have (sic) them
photocopied, after which, [he] affixed his signatures (sic) on each of the xerox copies although the serial
number of the bills were previously recorded. 1âwphi1.nêt

The group then proceeded to Barangay Catmon at about 7:00 p.m., with SPO1 Nepomuceno designated to
act as the poseur buyer. When they reached the place, SPO1 Nepomuceno first went to a store near the
tennis court while the rest of the team positioned themselves in strategic locations. At 8:20 of the same
evening, SPO1 Nepomuceno saw a white Toyota car came to a stop. Their confidential informant
immediately stepped out of the car and approached SPO1 Nepomuceno and ordered him to board the
vehicle. Once inside, SPO1 Nepomuceno caught sight of the driver and the other male companion of
accused Chua Uy through the back seat where he and the accused together with the confidential informant
were seated. After a few minutes conversation, accused Chua Uy opened up his brown attaché case and
ensuingly handed over to SPO1 Nepomuceno five (5) grams of 'shabu' placed in a transparent plastic
packet. In exchange for the substance, SPO1 Nepomuceno delivered the five (5) P1,000-peso bills which
accused Chua Uy put in his right front pocket. SPO1 Nepomuceno then simply opened the rear right door of
the car and lighted a cigarette as pre-arranged signal. SPO4 Regalado and PO3 Ortiz consequently closed
in on the vehicle. Thereupon, SPO1 Nepomuceno introduced himself and informed the accused of his
constitutional rights before placing him under arrest. He later turned over to SPO1 Regalado the five (5)
grams of 'shabu' (Exh. "E"- Crim. Case No. 16199-MN). Thereafter, SPO4 Regalado and PO3 Ortiz seized
296

the brown attaché case from accused Chua Uy which yielded five (5) more plastic packets of "shabu,"
(Exhs. "D" to "D-4" — Crim. Case No. 16200-MN), along with several drug paraphernalia. SPO4 Regalado
likewise recovered the buy-bust money from the accused after the consumated (sic) transaction, (Exhs. "K"
to "K-4"). The one packet of suspected "shabu" which was the subject of the sale including the five (5)
packets of the same substance, taken from the brown attaché case, bearing the respective initials of SPO4
Regalado and SPO1 Nepomuceno were brought to the NBI Forensic Division. Laboratory examination of the
pieces of evidence shows positive result for methamphetamine hydrochloride, a regulated drug (Exh. "C").

The team brought accused Chua Uy to their office where he was referred to SPO2 Vicente Mandac for
proper investigation. In the course thereof, it was learned that there were still undetermined quantity of
shabu left at the residence of the accused at No. 402 Gen. Vicente St., San Rafael Village, Navotas, Metro
Manila. Forthwith, SPO4 Regalado applied on the following day for a search warrant before this Court to
lawfully search the said premises of the accused for methamphetamine hydrochloride (Exh. "I"). During the
search and in the presence of Bgy. Kagawad George So and Rodolfo Salvador including Maritess Puno, the
alleged owner of the house and live-in partner of accused Chua Uy, the team was able to confiscate
assorted articles intended for the repacking of the regulated drug (Exh. "I-1"). SPO1 Nepomuceno identified
them as follows: one (1) white plastic scoop; one (1) blue plastic scoop; one (1) tangerine plastic scoop; one
(1) Selecta ice cream cup; and one (1) white plastic container (Exhs. "G," "G-1," "G-2," "H" and "H-1"). All
the items were marked by SPO1 Nepomuceno with his initials "AGN." Along with the aforesaid articles were
three (3) pieces of plastic scoops and two (2) plastic glasses (sic) with traces of "shabu." Laboratory
examination made on them gave positive result for the presence of methamphetamine hydrochloride, a
regulated drug (Exhibit "F"- Crim. Case No. 16200-MN). These antecedent facts which lead to the filing of
the present cases against accused Chua Uy are embodied in the sworn affidavit of SPO1 Nepomuceno
marked and offered in evidence as Exh. "J."

SPO4 Eddie Regalado corroborated the testimony of SPO Nepomuceno, claiming that he was positioned
fifteen (15) to twenty (20) meters away when he saw SPO1 Nepomuceno entered the white Toyota car at
the time of the operation. He further went to say that a caliber 9mm pistol was also recovered from accused
Chua Uy but considering that up to now they have not received any certification from the Firearms and
Explosives Unit, showing whether accused is authorized to carry firearm, no case has yet been filed against
the latter. Further, SPO4 Regalado said that accused Chua Uy has admitted to him that he is just a
neophyte in the illegal trade.8

RAMON's version of the incident is also faithfully summarized by the trial court, thus:

Accused Chua Uy claimed his innocence by insisting that the quantity of the illicit drug allegedly seized from
him were merely "planted" by the police officers.

He stated that he has been in the business of manufacturing t-shirts and selling them in different places for
almost fifteen (15) years already. That on the date of the incident at issue, it took him up to 7:30 to 8:30 in
the evening to return home because he had made deliveries and had collected bigger amount of money. On
board his L300 delivery van together with his driver and while they were about to enter the house, he saw a
white Toyota Corolla car parked in front of the gate. A man, whom he identified as a certain Arnold, alighted
from the car and approached them. Arnold was offering the said car for sale to him at a cheaper price but he
declined the offer inasmuch as he already owns a van. Due to the persistence of Arnold, he agreed to test
drive the vehicle bringing along with him his attache case containing the day's collection. With Arnold on the
wheel, they traversed the interior alley of Dela Cruz then came out at M.H. del Pilar and proceeded to J.
Alex Compound before turning to Gov. Pascual Ave., on their way back to his house. At the junction of
Justice Hall Street and Gov. Pascual Ave., somebody blocked their car. Arnold lowered his side window and
inquired what was it all about. Although he did not quite understand the conversation, he overheard that it
was a "police bakal." When Arnold informed him that they will have to go along with the man to the police
headquarters, two other men boarded their car while an owner jeep followed them from behind.

Reaching the headquarters, Arnold and the two men went inside while he was left behind inside the car.
Soon after, one of the two returned to him and insisted in getting his attache case. He refused at first to
surrender the same but had to give up on account of the persistence exerted on him. Ten minutes later, a
man ordered him to go inside the headquarters and likewise asked him why there was "shabu" in his attache
case. He denied owning the "shabu" and tried to look for Arnold who was no longer around. He even
inquired how his attache case was opened considering that the key was still with him. Finally, he was
dragged inside the headquarters where he saw his attache case already thrown wide. He again reiterated
his earlier query and tried to look for his money but instead he was informed about the "shabu" found inside
his attache case which he, nonetheless, denied ownership. The man who earlier stopped them and those
inside the headquarters, who were forcing him to admit ownership of the "shabu" told him that they were
policemen. Furthermore, he recalls that aside from some documents, list of collections, checks, check
booklets and 9 mm pistol, his attache case contained P132,000.00 which he was able to collect from
different persons. Only a bundle consisting of P20.00 peso bills was left while the rest of his money
comprising of bundles of P10, P20, P100, P500 and P1,000 peso bills were already missing. 9
297

Maritess Puno, the other defense witness, testified on the events which transpired during the follow-up search by
the police of RAMON's suspected house at No. 402 Gen. Vicente Street, San Rafael Village, Navotas, and on the
fact that she knew RAMON.  10

On rebuttal, SPO4 Regalado reiterated that the five (5) transparent plastic bags of "shabu" were indeed found inside
RAMON's confiscated attache case and that they recovered therefrom only P20-peso bills amounting to P2,200 and
not P1,000-peso bills as RAMON claims.  11

In its decision,  dated 10 December 1996, the trial court found credible the testimonies of the witnesses for the
12 

prosecution and its evidence to have established beyond reasonable doubt the culpability of RAMON in Criminal
Cases Nos. 16199-MN and 16200-MN. It acquitted him in Criminal Case No. 16201-MN. It then decreed:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. In Criminal Case No. 16199-MN, the Court finds accused RAMON CHUA UY guilty beyond
reasonable doubt of [v]iolation of Section 15, Article III of Republic Act No. 6425, amended by
Republic Act No. 7659, and hereby sentences him to suffer an indeterminate penalty of six (6)
months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correctional as
maximum plus the cost of the suit;

2. In Criminal Case No. 16200-MN, [t]he Court finds accused RAMON CHUA UY guilty beyond
reasonable doubt of [v]iolation of Section 16, Article III of Republic Act No. 6425, as amended by
Republic Act 7659, and considering that the quantity of methamphetamine hydrochloride is more
than 200 grams, there being no mitigating or aggravating circumstance, hereby sentences him to
suffer imprisonment of reclusion perpetua and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00), plus the cost of the suit; and

3. In Criminal Case No. 16201-MN, accused RAMON CHUA UY is hereby ACQUITTED for lack of
sufficient evidence.

The trial court gave credence to the prosecution's story of a legitimate buy-bust operation; declared that poseur-
buyer SPO1 Nepomuceno creditably testified as to how the sale took place inside the white Toyota car of RAMON
and that his testimony "was amply corroborated" by SPO4 Regalado. It held that RAMON's entrapment and arrest
were not effected in a haphazard way with the police undertaking "the rigors of planning" the buy-bust operation.
The presumption that they regularly performed their duty was not rebutted by proof of any ulterior motive. It
concluded that the prosecution has proved with certainty all the elements necessary for the crime of illegal sale of
methamphetamine hydrochloride, and since RAMON was caught in flagrante delicto selling a regulated drug, his
warrantless arrest was valid and the seizure of five (5) more packets of shabu weighing 401 grams (Exhibits "D" to
"D-4") from the confiscated attache case of RAMON was justified and legal in light of the prevailing rule that an
officer making an arrest may take from the person arrested any property found upon his person in order to find and
seize things connected with the crime. The trial court also cited the confirmation by the NBI's Forensic Division
Chemist, Loreto F. Bravo, that the packets of shabu bought and seized from RAMON, was tested positive for
methamphetamine hydrochloride, a regulated drug (Exhibit "C").

The trial court was not convinced of RAMON's claim of innocence and frame up. It doubted his tale that when
arrested, he was just test-driving the car of a certain Arnold, and that he was carrying P132,000 in various
denominations inside his attache case which the police did not account for. It also dismissed as trivialities RAMON's
attack on the existence and preparation of the buy-bust money and lack of prior surveillance, since a police report
listing the names of the donors of the money used by the police to finance its anti-drug operation, the marking of the
buy-bust money itself, and prior surveillance are not indispensable to the conduct of a buy-bust operation, as long
as the sale of the dangerous drugs is adequately proven.

Unsatisfied, RAMON appealed from the decision. In view of the penalty of reclusion perpetua imposed in Criminal
Case No. 16200-MN, the appeal is now before us.

In his Appellant's Brief, RAMON submits that the trial court erred (1) in giving credence to the testimony of the
prosecution witnesses and in disregarding the evidence for the defense; and (2) in finding him guilty beyond
reasonable doubt of the crimes of drug pushing and drug possession. He assails the credibility of the testimony of
the prosecution witnesses on the buy-bust operation, contending that the price of P1,000 for a gram of shabu is "so
exorbitant"  as to be in credible and claims that the police officers only made it to appear that the price was exactly
13 

P1,000 per gram because there were P1,000-peso bills among the P132,000 which they got from his attache case.
He insists that he is a legitimate garments businessman who need not resort to selling illicit drugs to make money; in
fact, he was carrying his day's collection amounting to P132,000 when accosted by the police in the evening of 11
September 1995. Thus, the female confidential agent/police informer should have testified in court to prove her
claims against him.
298

Finally RAMON submits that without the testimony of NBI Forensic Chemist, the prosecution's case "falls to pieces."
Bravo's testimony cannot be waived since only he could say whether the substance allegedly seized is indeed
shabu, and also determine its actual weight upon which depends the penalty to be imposed. Thus, whatever he said
in his report is hearsay and hearsay evidence, whether objected to or not, has no probative value. He insists that at
the pretrial he did not waive the testimony of the chemist but only "stipulated on the markings of the prosecution's
evidence."

In the Appellee's Brief, the Office of the Solicitor General (OSG), urges us to affirm RAMON's conviction. It agrees
with the trial court's assessment of the credibility of the witnesses for the prosecution. The price of shabu at P1,000
per gram is not incredible. It was the price quoted by the informant, prompting the buy-bust team to prepare five (5)
P1,000-peso bills which they actually paid to RAMON but later recovered. The Tranca and Ong cases  cited by 14 

RAMON cannot be relied upon because the price of shabu or any illegal drugs for that matter is determined by the
law of supply and demand, not by law or jurisprudence. Besides, the amount of shabu sold to the poseur buyer in
Tranca for P100 was only 0.06 gram; while in Ong, the price of P650 per kilo of shabu involved transactions done
way back in March, 1993. It is then neither impossible nor improbable for the street price of shabu to reach P1,000
per gram in 1995 when the illegal sale was committed in this case since the price of illegal drugs are not fixed, but
determined by its availability on the street and the demand of users. Secondly, RAMON's avowal that he is a
legitimate garments businessman who need not earn money the illegal way is purely self-serving, since the
members of the Malabon Police Anti-Narcotics Unit caught him in the act of selling shabu to a member of the buy-
bust team and further carried 401 grams more of shabu inside his attache case. Finally, the police informer need not
be presented to establish the buy-bust since it was not she but the police who caught RAMON in the act of selling
and possession of shabu. Her presentation is neither essential nor indispensable for RAMON's conviction, since her
testimony would be merely corroborative and cumulative.  15

On the non-presentation of Loreto Bravo, the NBI forensic chemist, the OSG argues that Bravo's finding that the
drugs seized from RAMON were indeed the regulated methampethamine hydrochloride or shabu, is not hearsay.
Bravo did not testify anymore because the parties agreed during the pre-trial to dispense with his testimony.
RAMON never objected to the order. Neither did he move to reconsider it. The facts thus stipulated and
incorporated in the pre-trial order bound him.  Moreover, at the trial RAMON never raised the question of the non-
16 

presentation of the forensic chemist; what his counsel objected to was with respect to the presentation and
identification of the shabu wherein defense objected to the irregular act of showing the confiscated drug to SPO1
Nepomuceno without laying the basis therefor.  The defense counsel did not also object to the direct examination of
17 

SPO4 Regalado concerning the whereabouts and identification of the subject shabu.

We find no merit in this appeal.

A buy-bust operation is a form of entrapment whereby ways and means are resorted for the purpose of trapping and
capturing lawbreakers in the execution of their criminal plan; it is a procedure or operation sanctioned by law and
which has consistently proved itself to be an effective method of apprehending drug peddlers, and unless there is a
clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were
not properly performing their duty, their testimony on the operation deserved full faith and credit.  As has been
18 

repeatedly held, credence shall be given to the narration of the incident by the prosecution witnesses especially
when they are police officers who are presumed to have performed their duties in a regular manner, unless there be
evidence to the contrary; moreover in the absence of proof of motive to falsely impute such a serious crime against
appellant, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on
the credibility of witnesses, shall prevail over appellant's self-serving and uncorroborated claim of having been
framed.  19

We, of course, are aware that in some instances law enforcers resort to the practice of planting evidence to extract
information or even to harass civilians.  But the defense of frame-up in drug cases requires strong and convincing
20 

evidence because of the presumption that the law enforcement agencies acted in the regular performance of their
official duties.  Moreover, the defense of denial or frame-up, like alibi, has been viewed by the court with disfavor for
21 

it can just as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of
the Dangerous Drugs Act.  22

In the cases at bar, our review of the testimonies of the prosecution witnesses yields no basis to overturn the trial
court's findings on their credibility. As correctly noted by the trial court, there is no evidence of any improper motive
on the part of the police officers who conducted the buy-bust operation. RAMON has not even tried to suggest any
ulterior motive.

We are convinced that in the evening of 11 September 1995, an honest- to- goodness entrapment operation against
RAMON was conducted by the team composed of the local Anti-Narcotics Unit's Chief himself, Police Inspector
Ricardo Aquino, OIC, SPO4 Eddie Regalado, PO Alberto G. Nepomuceno, PO3 Federico Ortiz and PO1 Joel
Borda.  Nepomuceno, the poseur-buyer had not seen RAMON before, although he had previous background
23 

information about RAMON. Nepomuceno conducted surveillance on RAMON.  24

299

The price of P1,000 per gram of shabu paid by the "poseur-buyer" Nepomuceno to RAMON cannot be considered
"so exhorbitant" as to render the account of the buy-bust improbable. In fact, in a buy-bust operation conducted by
the policemen in Sampaloc, Manila on 5 July 1995, or more than a month earlier, P500 only fetched 0.395 gram of
shabu,  which meant that the selling price then was already more than P1,000 for a full gram of shabu.
25 

As to the buy-bust money, Nepomuceno categorically stated that after receiving the information from their informant,
Police Inspector Ricardo Aquino, Chief of the Anti-Narcotic Unit, formed a team to conduct a buy-bust operation
"and prepared marked money worth P5,000 in P1,000 denomination and instructed [him] to act as poseur buyer in
the operation." They photocopied (xeroxed) them and "got the serial numbers." After the operation, they submitted
them to the prosecutor's office.  Nepomuceno underwent grueling cross-examination by defense counsel  but he
26  27 

never wavered on his testimony on the conduct of the buy-bust operation. On cross-examination, Nepomuceno
revealed that the source of their buy-bust money is Mayor Amado S. Vicencio.  28

The failure to present the informer did not diminish the integrity of the testimony of the witnesses for the prosecution.
Informers are almost always never presented in court because of the need to preserve their invaluable service to
the police.  Their testimony or identity may be dispensed with since his or her narration would be merely
29 

corroborative, as in this case, when the poseur- buyer himself testified on the sale of the illegal drug. 30

On the other hand, RAMON only offered an unsubstantiated tale of frame-up. He did not even present his own
driver named "Lolong" to corroborate his tale.

As against the positive testimonies of the prosecution witnesses that they caught RAMON in a buy-bust operation,
supported by other evidence such as the packets of shabu sold by and seized from him, RAMON's negative
testimony must necessarily fail. An affirmative testimony is far stronger than a negative testimony, especially when it
comes from the mouth of credible witness.  31

Since RAMON was caught in flagrante selling shabu, the trial court correctly ruled that his warrantless arrest and
the seizure of his attache case containing more shabu was also valid and lawful.  Besides, RAMON never raised,
32 

on constitutional grounds, the issue of inadmissibility of the evidence thus obtained.

We now address RAMON's contention that since the NBI Forensic Chemist did not testify, his findings that the
specimens submitted to him were indeed shabu and weighed so much, are hearsay and leave the evidence of the
prosecution insufficient to convict. RAMON's premise is that at the pre-trial he did not waive the Forensic Chemist's
testimony but only "stipulated on the markings of the prosecution's evidence." Indeed, the records disclose that
during the pre-trial, conducted immediately after the arraignment on 21 November 1995, RAMON, duly represented
by counsel de parte Atty. Gerardo Alberto,  and the prosecution stipulated on the markings of the prosecution's
33 

exhibits, and agreed to dispense with the testimony of Forensic Chemist Loreto F. Bravo. Thereafter the trial court
issued a Joint Order, which embodies its ruling granting the motion of the trial prosecutor for the joint trial of the two
cases and the withdrawal of the motion for reinvestigation by RAMON's counsel; RAMON's plea of not guilty in each
case; and the proceedings at the pre-trial. As to the latter, the Joint Order states:

During the pre-trial, prosecution and defense agreed to stipulate on the markings of the following
prosecution's exhibits, thereby dispensing will the testimony of Forensic chemist Loreto E. Bravo, to wit:

Exhibit "A" — Letter request;

Exhibit "B" — Preliminary report;

Exhibit "B-1" — Signature of forensic Chemist;

Exhibit "C" — Final Report for Chemical cases Nos. 16199 and 16200;

Exhibit "C-1" — Signature of Forensic Chemist in said Report;

The five (5) plastic bags with markings containing methamphetamine hydrochloride with a total weight of 401
grams will be marked as follows:

Exhibit "D" — Plastic bag with letter A;

Exhibit "D-1" — Plastic bag with letter B;

Exhibit "D-2" — Plastic bag with letter C;

Exhibit "D-3" — Plastic bag with letter D;

Exhibit "D-4" — Plastic bag with letter E;

300

Exhibit "E" — One (1) plastic sachet with methamphetamine hydrochloride with a total weight of
5.8564 grams;

Exhibit "F" — Another Final report for Criminal Case No. 16201;

Exhibit "F-1" — Signature of Chemist in said report;

The three (3) pieces of plastic scoop and two (2) plastic containers with markings containing residue of
methamphetamine hydrochloride will be marked as follows:

Exhibit "G" — Plastic scoop color white;

Exhibit "G-1" — Plastic scoop color blue;

Exhibit "G-2" — Plastic scoop color tangerine;

Exhibit "H" — Selecta ice cream plastic cup;

Exhibit "H-1" — White plastic container;

By agreement of the prosecution and defense, set the presentation of evidence for the prosecution on
January 8, 9, 11 and 15, 1996; whereas evidence for the defense will be on January 18, 22 and 25, 1996, all
at 1:30 o'clock in the afternoon. 
34

It may at once be noted that neither RAMON nor his counsel made express admission that the contents of the
plastic bags to "be marked" as Exhibits "D," "D-1," "D-2," "D-3," "D-4," and "E" contain methamphetamine
hydrochloride. That RAMON agreed to dispense with the testimony of Forensic Chemist Bravo may not be
considered an admission of the findings of Bravo on the contents of the plastic bag. Strictly, from the tenor of the
aforequoted portion of the Joint Order, it is clear that RAMON and his counsel merely agreed to the marking of the
exhibits, and the clause "thereby dispensing with the testimony of forensic Chemist Loreto E. Bravo" must be
understood in that context.

Even granting for the sake of argument that RAMON admitted during the pre-trial that Exhibits "D" to "D-4,"
inclusive, and Exhibit "E" contained methamphetamine hydrochloride, the admission cannot be used in evidence
against him because the Joint Order was not signed by RAMON and his counsel. Section 4 of Rule 118 of the Rules
of Court expressly provides:

Sec. 40. Pre-trial agreements must be signed. No agreement or admission made or entered during the pre-
trial conference shall be used in evidence against the accused unless reduced to writing and signed and his
counsel. 35

Put in another way, to bind the accused the pre-trial order must be signed not only by him but his counsel as well.
The purpose of this requirement is to further safeguard the rights of the accused against improvident or
unauthorized agreements or admissions which his counsel may have entered into without his knowledge, as he may
have waived his presence at the pre-trial conference;  eliminate any doubt on the conformity of the accused to the
36 

facts agreed upon.  37

Nevertheless, RAMON cannot take advantage of the absence of his and his counsel's signatures on the pre-trial
order. When the prosecution formally offered in evidence what it had marked in evidence during the pre-trial,
RAMON did not object to the admission of Bravo's Preliminary Report (Exh. "B"), Final Report (Exh. "C"), another
Final Report (Exh. "F"), and of the plastic bags (Exhibits "D" to "D-4" inclusive, and "E").

When asked to comment on the exhibits formally offered, RAMON's counsel merely stated:

ATTY. DOMINGO:

No objection to these exhibits Your Honor only insofar as to form part of the testimony of the witness/es who
testified and identified said exhibits and only insofar or in accordance with the stipulations the prosecution and the
defense had entered into during the pre-trial stage of the proceedings.  38

In its offer of the exhibits, the prosecution explicitly described what the foregoing exhibits was and the purposes for
which they were offered, thus:

FISCAL ALIPOSA:

We are now offering in evidence the following:

301

Exhibit "A", is the letter-request;

Exhibit "B", the preliminary report;

Exhibit "B-1", signature of the forensic chemist;

Exhibit "C", final report of Crim. Case Nos. 16199-MN and 16200-MN;

Exhibit "C-1", the signature of forensic chemist;

These exhibits are being offered to establish the fact that after the apprehension of the accused, the
necessary request was prepared and findings in the preliminary and final reports are both positive
for shabu or methamphetamine hydrochloride.

Exhibits "D", "D-1", "D-2", "D-3", and "D-4", are plastic packs of shabu found inside the attache case opened
while inside the vehicle of the accused together with the prosecution witness in the course of the buy-bust
operation;

Exhibit "E" is the 5.84 grams of shabu which was the subject of the buy-bust operation;

Exhibit "F" and "F-1", final report and signature of the forensic chemist in Crim. Case No. 16201-MN,
showing the specimen examined to be positive for shabu;

x x x           x x x          x x x

We likewise offered these exhibits as part of the testimony of the witness or witnesses who testified thereon
Your Honor.  39

In addition to the foregoing admission by RAMON of the prosecution's exhibits, he likewise never raised in issue
before the trial court the non-presentation of Forensic Chemist Bravo. RAMON cannot now raise it for the first time
on appeal. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to
reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the
question for the first time on appeal.  The familiar rule in this jurisdiction is that the inadmissibility of certain
40 

documents upon the ground of hearsay if not urged before the court below cannot, for the first time, be raised on
appeal.  In U.S. v. Choa Tong  where the defense counsel did not object to the form or substance of a laboratory
41  42 

report that the specimen submitted was opium, the Court ruled that "[t]he objection should have been made at the
time the said analysis was presented."

In People v. Dela Cruz,  the Court rejected the appellant's contention that the biology report of the NBI forensic
43 

chemist was inadmissible for being hearsay because the forensic chemist was not presented in court, and held,
noting that the report was not objected to as such in his comments or objections to the prosecution's formal Offer of
Evidence, that "[e]very objections to the admissibility of evidence shall be made at the time such evidence is offered,
or as soon thereafter as the ground for objection shall have become apparent, otherwise the objection shall be
considered waived.

Finally, as to the reports of Forensic Chemist Bravo, it must be stressed that as an NBI Forensic Chemist, Bravo is a
public officer, and his report carries the presumption of regularity in the performance of his function and duty.
Besides, by virtue of Section 44, Rule 130, entries in official records made in the performance of office duty, as in
the case of the reports of Bravo, are prima facie evidence of the facts therein stated. We are also aware that "the
test conducted for the presence of 'shabu' (infrared test) is a relatively simple test which can be performed by an
average or regular chemistry graduate" and where "there is no evidence. . . to show that the positive results for the
presence of methamphetamine hydrochloride ('shabu') are erroneous. . . coupled with the undisputed presumption
that official duty has been regularly performed, said results" may "adequately establish" that the specimens
submitted were indeed shabu.  44 
1âwphi1

In sum, in Criminal Case No. 16199-MN we are convinced that the prosecution's evidence more than proved
beyond reasonable doubt all the elements necessary in every prosecution for the illegal sale of shabu, to wit: (1)
identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the
payment therefor.  The delivery of the contraband to the poseur-buyer and the receipt of the marked money
45 

successfully consummated the "buy-bust" transaction between the entrapping officers and the accused.  What is
46 

material in a prosecution for illegal sale of prohibited drugs is the proof that the transaction or sale actually took
place, coupled with the presentation in court of the corpus delicti.  47

There is also no doubt that the charge of illegal possession of shabu in Criminal Case No. 16200-MN was proven
beyond reasonable doubt since RAMON knowingly carried with him more than 400 grams of shabu without legal
302

authority at the time he was caught during the buy-bust operation. The penalty imposed, namely, reclusion
perpetua and fine of P500,000 is in order pursuant to People v. Simon.  48

WHEREFORE, the appealed decision of the Regional Trial Court of Malabon, Branch 170, in Criminal Case No.
16199-MN and Criminal Case No. 16200-MN, is hereby affirmed in toto.

Costs de oficio.

SO ORDERED. 1âwphi1.nêt

G.R. No. 124832           February 1, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANTE CEPEDA y SAPOTALO, accused-appellant.

YNARES-SANTIAGO, J.:

For acceding to a request to massage the stomach of a neighbor's wife who was purportedly suffering abdominal
pains, Conchita Mahomoc got raped instead. Charged for the crime was the neighbor, Dante Cepeda y Sapotalo in
an Information alleging —

That on or about the 2nd day of April 1994, in Barangay Buhang, Magallanes, Agusan Norte, Philippines,
and within the jurisdiction of this Honorable Court, said accused, armed with a knife by, means of force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of Conchita
Mahomoc, against her will.

CONTRARY TO LAW.1

Upon arraignment, accused assisted by counsel pleaded not guilty to the crime charged. 2 The case proceeded to
trial after which the court a quo rendered judgment,3 the dispositive portion of which reads:
303

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court hereby finds accused DANTE CEPEDA y
SAPOTALO GUILTY beyond reasonable doubt of the crime of rape and accordingly sentences him to suffer
the penalty of RECLUSION PERPETUA. He shall serve his sentence entirely at the Davao Prison and Penal
Farm, Panabo, Davao del Norte. In addition, the accused is ordered to pay the offended party moral
damages in the sum of P50,000.00.4 The accused is entitled to the full benefits of his preventive
imprisonment if he agrees to abide by the same disciplinary rules imposed upon convicted prisoners,
conformably with Article 29 (as amended) of the Revised Penal Code. Accused is also ordered to pay the
costs.

IT IS SO ORDERED.5

Dissatisfied, accused interposed this appeal ascribing a lone assignment of error which asserts that —

THE TRIAL COURT COMMITTED GRAVE ERROR IN FINDING THE ACCUSED-APPELLANT GULTY OF
RAPE BEYOND REASONABLE DOUBT.

The trial court summed the versions of both prosecution and defense thus:

On April 4, 1994, Conchita Mahomoc went to the PNP Station of Magallanes to complain that she was raped
by Dante Cepeda. On April 5, 1994, she signed her Complaint and swore to it before MCTC Clerk of Court
Gad B. Curaza. She claims that a about 3:00 o'clock in the afternoon of April 2, 1994, Dante Cepeda went to
her house at Buhang, Magallanes, Agusan del Norte, and asked her to [go to] his house to massage (hilot)
his wife who was suffering from stomach ache. Regina Carba, her neighbor, was in her house and she
asked her to go with her. Cepeda was at his kitchen door when they reached his house. He told Gina to
leave as his wife, who was Muslim, would get angry if there were many people in their home. He insisted on
this many times so that Gina had to leave. Cepeda led the complainant to his bedroom. At the door,
Conchita peeped inside and saw a figure covered by a blanket whom she presumed was Cepeda's wife. At
that instance, accused immediately placed his left arm around her shoulders and pointed a knife at the pit of
her stomach saying: "Just keep quiet, do not make any noise, otherwise I will kill you." She elbowed him,
stooped and shouted "Help!" three times but Cepeda covered her mouth then carried her to the room by her
armpits. Shaking herself, free from, his grasp, she hit her left shin at the edge of the floor of the bedroom.
Inside the room, he threatened her with a knife and ordered her to remove her panty and lie on the bed.
Afraid she did as ordered and the accused also removed his pants and brief. He placed himself on top of
her, spread her legs with his legs, inserted his penis inside her vagina and had sexual intercourse with her at
the same time embracing and kissing her. After he was through, she ran towards the kitchen with Cepeda
chasing her.

Regina Carba confirmed this narration of the complainant on the aspect that at [a]bout 3:00 o'clock in the
afternoon of April 2, 1994, she was at Conchita's house to discuss the gift they would give their neighbor
who was getting married. Cepeda arrived and asked Conchita to give his wife a massage as she was having
stomach pains. Conchita had been a masseuse since 1979. On complainant's requests, she accompanied
her to Cepeda's house. Upon arrival, the accused told her to leave as his Muslim wife gets angry when there
are plenty of people in their house. Both she and Conchita protested but Cepeda insisted on it several
forcing her to leave the house of the accused.

Veronica Delmiguiz declared that at about 3:00 o'clock in the afternoon of April 2, 1994, she hear a shout for
help from the house of Cepeda. She looked and saw that the windows were closed. She did not give it a
second though thinking that it was a family trouble as she has heard Cepeda and his wife quarrel on
previous occasions. Helen Antolijao co-executed an affidavit with Veronica Delminguiz on April 5, 1994 but
was not any more presented by the prosecution as her testimony would only corroborate that of Delminguiz.

xxx     xxx     xxx

This charge is refuted by the accused claiming that he and Conchita are lovers. He came to know her as he
passes by her house in going to his place of work. He began working with EMCO in the month of February
1994. The complainant has gone to their house, four times in February 1994, first to sell Herway cosmetics,
the second time to sell "chorizo", the third time to sell fish arid the fourth time to sell clothing materials. He
was present in their house only on the first occasion that complainant had gone there. He knew of the other
occasions because his wife told him. The fifth time the complainant went to their house on March 6, he
courted her by saying: "Sing, I knew that you like me and I like you." Then they had sexual intercourse. The
next time Conchita came to see him and had sexual intercourse with him was on March 13, then March 17,
March 29 and March 27 when on this date, she asked him to leave his wife to elope with her as she would
also leave her husband. He rejected this proposal because he loved his wife and Conchita had three
daughters. Conchita, according to him, was displeased because he would not elope with her. On April 2,
1994, Conchita again came to his house and while they were petting, somebody outside his house said:
"You there, what are you doing?" At this Conchita left his house and went home. At about 10:00 o'clock that
evening he was arrested.
304

The accused's wife, Dory Cepeda, testified that indeed the complainant has gone to their house four times in
the month of February and on these occasions her husband was at home. Her husband started working with
EMCO in the month of March while she began working as a baby sitter also in the month of March, 1994.

On the basis of the foregoing factual summation, the trial court rendered against accused Dante Cepeda as stated
at the outset.

Insisting on his innocence; accused-appellant claims in his defense that he and private complainant were carrying
on an adulterous love affair. According to him, his request to private complainant that the latter massage his
allegedly ill wife "is a pre-arranged lie between the accused-appellant and private complainant in order to mislead
Regina Carba" the truth being that accused-appellant "purposely went to the house of private complainant to invite
her to his house, their place of rendezvous for their passionate affair." 6 He asserts that the charge if rape was "a
contrivance or an afterthought rather than a truthful plaint for redress of an actual wrong" 7 because private
complainant "feeling guilty of such an adulterous affair and out of fear that Regina might have suspected something
between her and the accused-appellant, thought of accusing her paramour of rape in anticipation of the possible
retribution by her husband should he later on discover their relationship." 8

Guided by the three (3) principles in the review of rape cases, namely, that —

1.] An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person
accused, though innocent to disprove;

2.] In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the
testimony of the complainant is scrutinized with extreme caution; and

3.] The evidence of the prosecution stands or fall on its own merits and can not be allowed to draw strength
from weakness of the defense. 9

We find the appeal bereft of merit.

Accused-appellant's allegation of an illicit amorous relationship is too shopworn to deserve serious consideration
and is totally unworthy of credence. A circumspect scrutiny of the record discloses that the "illicit love affair" angle
appears as a fabrication by accused-appellant. As an affirmative defense, the alleged "love affair" need convincing
proof.10 Having admitted to having had carnal knowledge of the complainant several times, 11 accused-appellant
bears the burden of proving his defense by substantial evidence. 12 The record shows that other than his elf-serving
assertions, there is no evidence to support the claim that accused-appellant and private complainant were in love.

It must be noted that accused-appellant and private complainant are both married and are living together with their
respective spouses.13 In this case, other than accused-appellant's self-serving testimony, no other evidence like love
letters, mementos or pictures were presented to prove his alleged amorous relationship with private complainant.
Neither was there any corroborative testimony supporting this pretended illicit affair. If accused-appellant were really
the paramour of private complainant, she would not have gone to the extent of bringing this criminal action which
inevitably exposed her to humiliation of recounting in public the violation of her womanhood. Moreover, she would
not have implicated a person, who is allegedly her lover, as the perpetrator of an abominable crime and thereby lay
open their illicit relationship to public shame and ridicule not to mention the ire of a cuckolded husband and the
withering contempt of her children were it not the truth. 14

Evidence to be believed must not only come from a credible source but must also be credible in itself such as one
that the common experience and observation of mankind can approve as probable under the circumstances. 15 The
Court has taken judicial cognizance of the fact that in rural areas in this country, women by custom and tradition act
with circumspection and prudence, and that great caution is observed so that their reputation remains
untainted.16 Such circumspection must have prompted the victim to request Regina Carba to accompany her on the
errand of mercy to accused-appellant's house. Unfortunately, Carba was shooed away by accused-appellant on the
pretext that his wife who was a Muslim was averse to having too many people in their house.

Even assuming ex gratia argumenti that appellant and private complainant were indeed sweethearts as he claims,
this fact alone will not extricate him from his predicament. The mere assertion. of a "love relationship" would not
necessarily rule out the use of force to consummate the crime. 17 It must be stressed that in rape cases, the
gravemen of the offense is sexual intercourse with a woman against her will or without her consent.18 Thus,
granting arguendo that the accused and the victim were really lovers this Court has reiterated time and again that
"[A] sweetheart cannot be forced to have sex against her will. Definitely, a man cannot demand sexual gratification
from a fiancee, worse, employ violence upon her on the pretext of love. Love is not a license for lust." 19

Succinctly stated, in rape the prosecution must rule out the victim's consent to the sexual act. 20 In the case at bar,
the testimony of private complainant was clear: she did not consent to penile invasion. 21 Assuming for argument's
sake that accused-appellant and private complainant were sweethearts, rape was nevertheless committed because
accused-appellant had sex with the victim by force and against her will. 22
305

Indeed, unless deeply wronged and aggrieved, private complainant would not have instituted this case at all. That
the victim had been married to her husband for seventeen (17) years and is a mother of four (4) children whose
ages at the time ranged from seventeen (17), sixteen (16), fourteen (14) and ten (10), 23 rendered her exposure to
public trial of rape all the more embarrassing and painful.

As aptly pointed out in People v. Mendoza,24 a married woman with a husband and three (3) daughters would not
publicly admit that she had been criminally abused unless that was the truth. Similarly, it defies reason in this case
why a mother of four (4) would concoct a story of defloration, allow the examination of her private parts 25 and
publicly disclose that she has been sexually abused if her motive were other than to fight for her honor and bring to
justice the person who defiled her.26 Thus not surprisingly when she was queried as to how much would she claim
for her defilement in terms of moral damages, she emphatically declared as follows:

Q: If you were to ask for moral damages from the court, how much would you claim for moral damages?

A: I do not need payment, it is justice that I ask.27

She, likewise, flatly denied the existence of an illicit affair with the accused-appellant in face of the not too subtle
insinuations of defense counsel to this effect on cross-examination, viz:

Q I will ask you a candid question, Mrs. Marohomoc. Is it not a fact that at one time you gifted Dante Cepeda
with a Herway lotion?

A No, sir.

Q So you will also deny that you gifted him with Mark cigarettes.

A Oh no!28

In a prosecution for rape, the evaluation of evidence presented during trial ultimately revolves around the credibility
of the complaining witness.29 When a woman says she has been raped, she says in effect all that is necessary to
show that she has been raped and her testimony alone is sufficient if it satisfies the exacting standard of credibility
needed to convict the accused.30

In scrutinizing the credibility of witnesses, case law has established the following doctrinal guidelines: first, the
appellate tribunal will not disturb the findings of the lower court unless there is a showing that it had overlooked,
misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the
result of the case; second, the findings of the trial court pertaining to the credibility of witnesses are entitled to great
respect and even finality since it had the opportunity to examine their demeanor as they testified on the witness
stand; and third, a witness who testified in a categorical, straightforward, spontaneous and frank manner and
remained consistent on cross-examination is a credible witness. 31

Applying these guidelines, we find no reason to disturb the following findings and conclusion of the trial court:

From the evidence of both the prosecution and the defense, the Court could make out this deduction: from
the accused's heart sprang this evil desire and he contrived a plan to rape the complainant. He made up a
story about his wife being in pain and shaped a mat covered with a blanket thus making it appear that his
wife was in bed. He closed all the windows of his house so no one could see what happened inside. What
the did not expect though was the presence of Regina Carba in the house of the complainant so that he
again had to make up another tale about his wife being a Muslim to get rid of Carba. Without any "illicit
relationship" having been established between the accused and the complainant before April 2, 1994, what
is the basis for the sexual intercourse on that day? The complainant says "rape" and the Court agrees. The
Court just cannot believe that a mother of four would demand from a man who became her neighbor for only
about one and a half months to elope with her. There is no evidence that her relationship with her husband
was on the rocks. Rather, as soon as her husband arrive from work, she reported to him the abuse she
suffered from the hands of the accused and a commotion ensued because of the husband's anger. From the
accused's own mouth, he had been convicted once for possession of "indian pana" and had been
transferring from one place to another, without a permanent home, while the complainant has established
her home in Magallanes and is secure therein together with her family. A Filipina woman, especially a
mother of three daughters, would not bring herself, her family and her husband to embarrassment, to public
scrutiny and being the talk of the community unless what she had testified that she was raped is true. 32 If, in
the remote possibility, complainant had voluntarily consisted not have sex with him, her most natural
reaction would have been to conceal it or keep silent as this would bring disgrace to her honor and
reputation, as well as to her family.33

The conscience of the Court will be very much at ease with a finding that the accused is guilty. It could not
decree an acquittal based on lies for falsehood is the anathema of justice. There can be no justice based on
lies.
306

To restate what had been said earlier, it is highly inconceivable vis-a-vis the prevailing facts of the case for the
victim to conjure a tale of ravishment and, in the process, subject herself and her family to the disgrace, social
humiliation and trauma attendant to a prosecution for rape as well as the stigma of a lifetime of shame incident
thereto.34 Furthermore, the conduct of the victim, immediately following the alleged assault is of utmost importance
so as to establish the truth or falsity of the charges of rape. 35 In this case, we find the private complainant's prompt
report of her defilement to her husband as well as the authorities as convincing indications that she has been truly
wronged. A complainant's act in immediately reporting the commission of rape has been considered by this Court as
a factor strengthening her credibility.36

With regard to the civil liability, however, the trial court's award of damages should be modified. Under controlling
case law, an award of Fifty Thousand Pesos (P50,000.00) as civil indemnity is mandatory upon the finding of the
fact of rape.37 This is exclusive of the award of moral damages of Fifty Thousand Pesos (P50,000.00) without need
of further proof.38 The victim's injury is now recognized as inherently concomitant with and necessarily proceeds
from the appalling crime of rape which per se warrants an award for moral damages.39

WHEREFORE, with the sole MODIFICATION that accused-appellant Dante y Sapotalo pay complainant the amount
of Fifty Thousand Pesos (P50,000.00) as civil indemnity consistent with controlling case law, aside from the award
of Fifty Thousand Pesos (P50,000.00) as moral damages, the decision of the trial court in Criminal Case No. 6246
finding accused Dante Cepeda y Sapotalo guilty beyond reasonable doubt of the crime of rape is hereby
AFFIRMED in all other respects. 1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

1. Rule 130 Section 27 – Offer of Compromise Not Admissible

[G.R. No. 97957. March 5, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALBERTO LASE, alias "BERT", Accused-

Appellant.

The Solicitor General for Plaintiff-Appellee.

Ruben A. Songco for Accused-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL COURT; RULE
AND EXCEPTION. — The issue of the credibility of witnesses, is a matter appropriately addressed to
the trial court because it is in a better position to decide the matter, having heard the witnesses and
observed their deportment and manner of testifying during the trial. Thus, the said court’s findings
on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed
on appeal absent any clear showing that it overlooked, misunderstood or misapplied some facts or
circumstances of weight or substance which could have affected the result of the case.

2. ID.; ID.; ID.; NOT AFFECTED BY FAILURE TO IMMEDIATELY REPORT THE CRIME TO THE
AUTHORITIES; CASE AT BAR. — The failure of prosecution witness Dominico Pangantihon to
immediately report the incident certainly did not detract from his credibility. While it was his duty as
a barangay official to have assumed the responsibility of reporting the incident, come to the succor of
the victim or even run after and arrest the assailant, it is a sad reality that not all in our society,
including many of our public officials, are imbued with the highest sense of civic duty which is
necessarily expected of leaders in the community. Such indifference or apathy should not, however,
cast any shadow of doubt on or impair the credibility of a person who fails to report a crime or
immediately come forward to testify. The initial reluctance of witnesses in this country to volunteer
information about a criminal case or their unwillingness to be involved in or dragged into criminal
investigations is common. Delay in itself is, therefore, not enough. It would, of course, be entirely
different if it clearly appears to the trial court that the witness himself is not credible for the rule is
settled that evidence, to be believed, must not only proceed from a credible witness but must also be
credible in itself. Respect should not likewise be accorded to such testimony if there is proof that the
said witness is influenced by improper or ulterior motives in so volunteering to testify for the victim
307

sometime after the occurrence of the incident.

3. ID.; ID.; ID.; STANDS IN THE ABSENCE OF IMPROPER MOTIVE TO FALSELY TESTIFY AGAINST
THE ACCUSED. — The trial court, after observing the demeanor and deportment of said witness,
together with the variations in his expressions while on the witness stand — which are badges of
truthfulness — concluded that both he and his testimony are credible. Accused-appellant presents no
factual bases or strong arguments to convince Us that the trial court erred in that regard. Nor has he
shown any improper motive which could have impelled Dominico to testify against him or implicate
him in the commission of the crime. The absence of evidence as to an improper motive strongly
tends to sustain the conclusion that none existed, and that the testimony is worthy of full faith and
credit. For indeed, if an accused had nothing to do with the crime, it would be against the natural
order of events and of human nature and against the presumption of good faith for a prosecution
witness falsely testify against the accused.

4. ID.; ID.; ID.; NOT AFFECTED BY MINOR INCONSISTENCIES. — The alleged contradictions or
inconsistencies in the testimony of Cpl. Mitra relate to minor, if not inconsequential, matters. The rule
is settled that minor inconsistencies do not affect the credibility of witnesses; on the contrary, they
may even heighten their credibility.

5. ID.; ID.; OFFER TO COMPROMISE IN CRIMINAL CASES; RULE. — Accused-appellant offered to

compromise the case for the sum of P10,000.00. The second paragraph of Section 27, Rule 130 of
the Revised Rules of Court expressly provides that: "In criminal cases, except those involving quasi-
offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by
the accused may be received in evidence as an implied admission of guilt." Murder is not among
those criminal cases which may be compromised.

6. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY, PRESENT IN CASE AT BAR. — We

agree with the trial court that the crime was committed with treachery because of the sudden and
unexpected attack on the victim, who was then urinating at the side of the road, with a deadly 7-inch
Batangas knife. Accused-appellant consciously adopted this mode of attack to facilitate or insure the
commission of the crime without risk to himself arising from any defensive or retaliatory act on the
part of the victim.

7. ID.; MURDER; IMPOSABLE PENALTY. — The penalty prescribed for murder under Article 248 of the
Revised Penal Code is reclusion temporal in its maximum period to death, a penalty which consists of
three (3) periods. There being neither generic aggravating nor mitigating circumstances present, the
imposable penalty is the medium period of the prescribed penalty — reclusion perpetua.

DECISION

DAVIDE, JR., J.:

Accused-appellant appeals from the decision of Branch 45 of the Regional Trial Court (RTC) of
Masbate in Criminal Case No. 5557 1 convicting him of the crime of murder for the death of Dante
Huelva on 18 May 1987 in Barangay Pia-ong, Dimasalang, Masbate, and sentencing him: jgc:chanrobles.com.ph

". . . to suffer the penalty of RECLUSION PERPETUA in the absence of any mitigating circumstance
and to indemnify the parent of the victim in the amount of P30,000.00." 2

The decision was promulgated on 18 February 1991.

The records disclose that two (2) days after the killing of Dante Huelva, a criminal complaint for
murder was filed by the Acting Station Commander of the Integrated National Police (INP) of
Dimasalang, Masbate with the 5th Municipal Circuit Trial Court (MCTC) of Dimasalang-Palanas-Uson
(5th Judicial Region) at Dimasalang, Masbate. 3 The Judge presiding over the said court asked both
Ramon Sayson, 4 who was Dante’s companion when the incident occurred, and Godofreda Huelva, 5
Dante’s mother, searching questions. The court then issued a warrant for the arrest of the accused-
appellant and fixed the bail bond for his temporary liberty at P30,000.00. 6

Accused-appellant was arrested on 20 May 1987 and was released the following day after posting the
required bond. 7
308

Having failed to submit his counter-affidavit for purposes of the preliminary investigation, the MCTC
considered him as having waived the second stage of the preliminary investigation and ordered the
records of the case forwarded to the Office of the Provincial Fiscal of Masbate. 8

Accused-appellant then sought a reinvestigation of the case; this request was consequently granted.
On 7 September 1987, 2nd Assistant Provincial Fiscal Jesus C. Castillo issued a resolution, duly
approved by Provincial Fiscal Hermenegildo Betonio, Jr., dismissing the case for insufficiency of
evidence and directing the police authorities to investigate further and gather more evidence to ferret
out the real perpetrator. 9 During the said reinvestigation, Ramon Sayson testified for the
prosecution. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On appeal to the Department of Justice by the offended party, however, the abovecited resolution
was reversed by the then Secretary of Justice, Honorable Sedfrey A. Ordoñez, in Resolution No. 856,
series of 1988, dated 15 September 1988. 10 Pursuant thereto, the Provincial Fiscal was directed to
file an information for murder against Accused-Appellant.

On 9 November 1988, the Office of the Provincial Fiscal filed with the Regional Trial Court (RTC) of
Masbate an Information 11 charging the accused-appellant with the crime of murder committed as
follows: jgc:chanrobles.com.ph

"That on or about May 18, 1987, in the evening thereof, at Barangay Pia-ong, Municipality of
Dimasalang, Province of Masbate, Philippines, within the jurisdiction of this Court, the said accused,
with intent to kill, evident premeditation, treachery and taking advantage of nighttime, did then and
there willfully, unlawfully and feloniously, attack, assault and stab one Dante Huelva, hitting the
latter on the different parts of the body, thereby inflicting wounds which caused his instantaneous
death."cralaw virtua1aw library

The case was docketed as Criminal Case No. 5557 and was assigned to Branch 45 of the court.

Upon being arraigned on 1 September 1989, Accused-appellant entered a plea of not guilty. 12

The prosecution presented Dr. Ernesto Tamayo, the Municipal Health Officer of Dimasalang, Masbate
who identified the postmortem examination report (Exhibit "A") and the death certificate of Dante
Huelva (Exhibit "B"), Dominico Pangantihon, Godofreda Huelva and Cpl. Carlos Mitra as witnesses for
its evidence in chief; Godofreda Huelva was recalled as a rebuttal witness. Ramon Sayson could no
longer testify as he had left Dimasalang and his whereabouts remain undetermined. The defense, on
the other hand, presented as witnesses for its evidence in chief Paquito Banda, George Combati,
Salvacion Andueza, Miguel Andueza and the accused-appellant, who was also recalled as a
surrebuttal witness.

The prosecution’s evidence is succinctly summarized in the Brief for the Appellee, thus: jgc:chanrobles.com.ph

"On May 18, 1987, at about 6:30 o’clock in the evening, Domingo (sic) Pangantihon was on his way
home from Piaong, Dimasalang, Masbate, when appellant Alberto Lase and Ramon Sayson passed
him by. At that moment, Dante Huelva was about six meters ahead of them and was urinating by the
roadside. Appellant proceeded directly to the back of Dante Huelva and without any warning stabbed
him once with a 7-inch long Batangas knife in the stomach. Afterwards, appellant ran away. Dante
Huelva shouted for help. Ramon Sayson came to his rescue and brought him towards the Poblacion.
(tsn, October 17, 1989, pp. 6-17).

Meanwhile, Godofreda Huelva, mother of the victim Dante Huelva, was on her way home to Piaong,
Dimasalang, Masbate, at about 7:00 o’clock in the evening of May 18, 1987, coming from her
daughter’s house in Canomay, Dimasalang, Masbate, when she met Eliza Cortes who informed her
that her son Dante was stabbed. She proceeded to the Dr. Alino’s Hospital and found out that Dante
was already dead. The following morning, Ramon Sayson told her that it was appellant Alberto Lase
who stabbed Dante. (tsn, October 17, 1989, pp. 17-25).

The stabbing of Dante Huelva was reported to the Integrated National Police (INP) of Dimasalang,
Masbate, on the same night of the incident. The following morning, Police Cpl. Carlos Mitra of the
Dimasalang INP conducted an investigation of said stabbing incident. He investigated Ramon Sayson
who disclosed that appellant was the assailant of Dante Huelva and readily identified and pointed to
appellant among the persons presented in a police line-up. Ramon Sayson executed a sworn
statement (Exhibit "F"). The blood-stained pants of Dante Huelva and the hole thereon (Exhibit "G")
were likewise identified (tsn, January 12, 1990, pp. 2-8). chanrobles virtual lawlibrary
309

The autopsy conducted on the body of Dante Huelva by Dr. Ernesto Tamayo, Municipal Health Officer
of Dimasalang, Masbate, on May 21, 1987, disclosed the following injuries sustained by the victim, to
wit: (a) perforating stab wound, hand, right; (b) stab wound, 2 inches below the umbilicus, point of
entrance measured 1 inch in diameter, 3 and 1/2 inches deep, penetrating the intestines; and (c)
severe internal hemorrhage (Exhibit "A"), which injuries directly caused his death (Exhibit "B"). Dr.
Tamayo further testified that the wounds sustained by the victim were caused by a sharp pointed
instrument (tsn, October 17, 1987, pp. 2-5)." 13

In her rebuttal testimony, Godofreda Huelva testified that accused-appellant offered to settle the
case for the sum of P10,000.00. Thus: jgc:chanrobles.com.ph

"FERNANDEZ: chanrob1es virtual 1aw library

Q Now the accused also testified that you filed this case against him because you wanted him to be
paid about (sic) the death of the victim?

A He wanted to pay me but I did not agree.

Q You mean that he wanted to settle this case but you refused?

A Yes, sir.

Q How much were they offering you for this case to be settled?

A About ten thousand." 14

On the other hand, Accused-appellant interposed the defense of alibi; he relied on the testimony of
his principal witnesses to support his version that he was somewhere else and not at the scene of the
crime at the time of the killing.

His version is summarized in his Brief as follows: jgc:chanrobles.com.ph

"Accused-appellant Alberto Lase testified that on May 18, 1987, at around 5:30 in the afternoon, he
was with Miguel Andueza at the house of Kagawad Marcelo Tamayo. They waited for Artemio
Andueza who was then drunk. At around 7:00 in the evening, they were fetched by Mrs. Andueza
who informed them that something happened in Piaong.

On their way home, they passed by the clinic to visit Dante Huelva. He saw Juan Huelva and the
policeman at the clinic. The barangay captain talked to the policeman. Dante Huelva was already
dead when they arrived.

The charges levelled against him is (sic) not true. In fact, after preliminary investigation by the fiscal,
the case against him was dismissed. The reason why he was implicated in this case was because
Ramon Sayson told the policeman that Dante Huelva’s assailant was tall and that victim’s (sic)
parents wanted to be paid for the death of the victim." 15

In his surrebuttal testimony, Accused-appellant vaguely denied this offer of compromise. He,

however, insinuated that he could offer a higher amount: jgc:chanrobles.com.ph

"MEDINA: chanrob1es virtual 1aw library

Q Mrs. Huelva testified here that you are offering in this case for P10,000, is that true. (sic). chanrobles virtual lawlibrary

WITNESS: chanrob1es virtual 1aw library

A I did not say that. If that is true even P50,000 I am going to pay them." 16

The defense also sought to discredit the testimony of Dominico Pangantihon because it was months
after the incident, and only after Ramon Sayson failed to testify, that he decided to come out and
testify as an alleged eyewitness to the killing.

The trial court gave full credit to the version of the prosecution and disregarded the defense of alibi
in view of the positive identification of the accused-appellant and the possibility of his being at the
scene of the crime at the time of its commission. Thus, in a Decision promulgated on 18 February
310

1991, 17 the trial court held him liable for the killing of Dante Huelva which, in view of the
attendance of treachery, was qualified to murder. As earlier adverted to, the accused-appellant was
sentenced to suffer the penalty of reclusion perpetua and was ordered to indemnify the parent of the
victim in the amount of P30,000.00. On 21 February 1991, he filed his Notice of Appeal. 18

In his main Brief filed on 15 September 1991, 19 accused-appellant insists on his innocence and
maintains that the trial court committed the following errors: chanrob1es virtual 1aw library

"I

. . . IN RELYING HEAVILY ON THE INCONSISTENT AND UNRELIABLE TESTIMONIES OF THE

PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE FOR THE DEFENSE.

II

. . . IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

III

. . . IN HOLDING THAT THE CRIME COMMITTED BY THE ACCUSED IS MURDER QUALIFIED BY

TREACHERY, ALTHOUGH TREACHERY WAS NOT ALLEGED IN THE INFORMATION, AND IN HOLDING
THAT NOCTURNITY IS DEEMED ABSORBED BY TREACHERY." cralaw virtua1aw library

Being interrelated, Accused-appellant discusses the first and second assigned errors jointly,
unleashing the force of his arguments against the credibility of prosecution witnesses Dominico
Pangantihon, who belatedly came out in the open as a witness to the incident, and Police Corporal
Carlos Mitra. As to the first, Accused-appellant argues that while it may be true that in a long line of
cases this Court "had enunciated the (sic) credibility of the testimony of a witness who had incurred
delay (sic) in reporting the crime he witnessed, it had also nevertheless ruled that: jgc:chanrobles.com.ph

"‘ . . . the silence of an alleged eyewitness for several weeks renders his credibility doubtful . . . The
long delay in reporting the crime or its author to the authorities not caused by threat, intimidation or
coercion, renders the testimony untruthful. (People v. Besa, 183 SCRA 533).’" 20

He then avers that in the instant case, the testimony of Dominico Pangantihon could not be believed
because the delay of the latter in reporting the incident was not caused by threat, intimidation or
coercion, but by his own fear of being implicated. Such reasoning is alleged to be unacceptable
because being a barangay official (councilman) at that time, it was his duty and responsibility to
report the crime. As a matter of fact, he should have apprehended the assailant who was alone at
the time of the attack.

As to P/Cpl. Mitra, Accused-appellant claims that said witness "incurred various glaring material
inconsistencies which render his testimony doubtful and unreliable." 21 Such inconsistencies relate to
the following matters: (a) whether it was accused-appellant or Ramon Sayson who was summoned to
the police station for questioning, (b) whether Ramon Sayson told him that he (Sayson) could
recognize the accused-appellant’s face but does not know his name or did in fact mention the name
of the said accused-appellant, (c) whether the holding of a police line-up was indeed reduced to
writing in Sayson’s sworn statement, (d) whether the murder weapon recovered from the accused-
appellant and placed inside his (Mitra’s) drawer was thereafter lost or was given to Pat. Tamayo who
is already deceased and (e) whether the entry in the police blotter concerning a claim of identification
of the accused-appellant, in relation to the investigation of Sayson, is true. chanrobles virtual lawlibrary

Additionally, Accused-appellant suggests that the testimonies of prosecution witnesses Dr. Tamayo

and Godofreda Huelva are likewise unreliable.

In his third assigned error, Accused-appellant insists that the qualifying circumstance of treachery is
not alleged in the information filed by the prosecution. Moreover, nocturnity, even if considered as
absorbed in treachery, was not present in this case because although the stabbing occurred at 6:30
o’clock in the evening — considered in law to be nighttime — there is no proof that such
circumstance was especially sought or taken advantage of to facilitate the commission of the crime or
ensure the assailant’s escape.
311

The People, in its Brief 22 submitted by the Office of the Solicitor General, refutes the arguments of
the accused-appellant and maintains that the latter’s guilt has been proven beyond reasonable
doubt; however, it agrees with the accused-appellant’s observation that treachery was not alleged in
the information and that nighttime was not purposely and deliberately sought. It is further alleged
that indeed, "6:30 o’clock in the evening of May 18, 1987 could not be totally dark as it was
summertime, when days were longer than nights, and at such time darkness could not yet have
surrounded the area." 23 Thus, the Office of the Solicitor General recommends that accused-
appellant should only be found guilty of the crime of Homicide under Article 249 of the Revised Penal
Code. Since the aggravating circumstance of treachery, though not alleged in the information, was
duly proved, and the same is not offset by any mitigating circumstance, the imposable penalty
should be the maximum of the prescribed penalty — reclusion temporal — pursuant to Article 64 of
the Revised Penal Code. Pursuant to the Indeterminate Sentence Law, it is averred that accused-
appellant may then be sentenced to an indeterminate penalty of Ten (10) years of prision mayor, as
minimum, to Seventeen (17) years, Four (4) months and One (1) day of reclusion temporal as
maximum. It is finally recommended that the amount of indemnity be increased from P30,000.00 to
P50,000.00 in accordance with the prevailing jurisprudence.

At the bottom of the first and second assigned errors is the issue of the credibility of witnesses, a
matter appropriately addressed to the trial court 24 because it is in a better position to decide the
matter, having heard the witnesses and observed their deportment and manner of testifying during
the trial. 25 Thus, the said court’s findings on the credibility of witnesses are entitled to the highest
degree of respect and will not be disturbed on appeal absent any clear showing that it overlooked,
misunderstood or misapplied some facts or circumstances of weight or substance which could have
affected the result of the case. 26

We have painstakingly examined the records of the instant case and scrutinized the transcripts of the
stenographic notes of the testimonies of the witnesses and are fully convinced that the exception to
the foregoing settled doctrine has not been shown to exist in this case.

The failure of prosecution witness Dominico Pangantihon to immediately report the incident certainly
did not detract from his credibility. While it was his duty as a barangay official to have assumed the
responsibility of reporting the incident, come to the succor of the victim or even run after and arrest
the assailant, it is a sad reality that not all in our society, including many of our public officials, are
imbued with the highest sense of civic duty which is necessarily expected of leaders in the
community. Such indifference or apathy should not, however, cast any shadow of doubt on or impair
the credibility of a person who fails to report a crime or immediately come forward to testify. The
initial reluctance of witnesses in this country to volunteer information about a criminal case or their
unwillingness to be involved in or dragged into criminal investigations is common. 27 Delay in itself
is, therefore, not enough. It would, of course, be entirely different if it clearly appears to the trial
court that the witness himself is not credible for the rule is settled that evidence, to be believed,
must not only proceed from a credible witness but must also be credible in itself. 28 Respect should
not likewise be accorded to such testimony if there is proof that the said witness is influenced by
improper or ulterior motives in so volunteering to testify for the victim sometime after the occurrence
of the incident.
chanrobles.com:cralaw:red

The trial court, after observing the demeanor and deportment of said witness, together with the
variations in his expressions while on the witness stand — which are badges of truthfulness 29 —
concluded that both he and his testimony are credible. Accused-appellant presents no factual bases
or strong arguments to convince Us that the trial court erred in that regard. Nor has he shown any
improper motive which could have impelled Dominico to testify against him or implicate him in the
commission of the crime. The absence of evidence as to an improper motive strongly tends to sustain
the conclusion that none existed, and that the testimony is worthy of full faith and credit. 30 For
indeed, if an accused had nothing to do with the crime, it would be against the natural order of
events and of human nature and against the presumption of good faith for a prosecution witness to
falsely testify against the accused. 31

The alleged contradictions or inconsistencies in the testimony of Cpl. Mitra relate to minor, if not
inconsequential, matters. The rule is settled that minor inconsistencies do not affect the credibility of
witnesses; 32 on the contrary, they may even heighten their credibility. 33

Then too, Accused-appellant offered to compromise the case for the sum of P10,000.00. The second
paragraph of Section 27, Rule 130 of the Revised Rules of Court expressly provides that: jgc:chanrobles.com.ph

"In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by
312

law to be compromised, an offer of compromise by the accused may be received in evidence as an

implied admission of guilt." 34

Murder is not among those criminal cases which may be compromised.

As regards the third assigned error, it is clear that both the accused-appellant and the OSG may not
have carefully read the Information filed in this case. Contrary to their claims, the Information does
allege treachery. More specifically, it states: ". . . the said accused, with intent to kill, evident
premeditation, treachery and taking advantage of nighttime, did then and there . . . ." 35 The trial
court likewise missed the word treachery when it quoted the Information in its decision. 36
Interestingly, the criminal complaint filed on 20 May 1987 by the INP Acting Station Commander of
Dimasalang with the MCTC mentions only treachery as a qualifying circumstance. In all likelihood,
either both the accused-appellant and the Office of the Solicitor General merely relied on the
Information as quoted in the decision and in the Appellant’s Brief, 37 or that the latter merely relied
on its representation in the Appellee’s Brief to the effect that the Information does not allege the
qualifying circumstance of treachery. In this regard, the Office of the Solicitor General failed to
exercise due care in the preparation of the Appellee’s Brief, while the counsel for accused-appellant
unjustly took advantage of the inadvertence committed by the trial court.

We agree with the trial court that the crime was committed with treachery because of the sudden
and unexpected attack on the victim, who was then urinating at the side of the road, with a deadly 7-
inch Batangas knife. Accused-appellant consciously adopted this mode of attack to facilitate or insure
the commission of the crime without risk to himself arising from any defensive or retaliatory act on
the part of the victim. 38

We likewise agree with the conclusion of both the accused-appellant and the Office of the Solicitor
General that evident premeditation was not duly established by the prosecution.

The penalty prescribed for murder under Article 248 of the Revised Penal Code is reclusion temporal
in its maximum period to death, a penalty which consists of three (3) periods. 39 There being neither
generic aggravating nor mitigating circumstances present, the imposable penalty is the medium
period of the prescribed penalty — reclusion perpetua. 40 The trial court is therefore correct.
However, conformably with the prevailing jurisprudence, the indemnity should be increased from
P30,000.00 to P50,000.00.

WHEREFORE, except for the above observations with respect to the aggravating circumstance of
nighttime, and the modification of the indemnity which is hereby increased from P30,000.00 to
P50,000.00, the challenged Decision of Branch 45 of the Regional Trial Court of Masbate in Criminal
Case No. 5557 finding the accused-appellant ALBERTO LASE, alias "BERT" guilty of the crime
charged, is hereby AFFIRMED. cralawnad

Costs against the Accused-Appellant.

SO ORDERED.
313
314

G.R. No. 109172 August 19, 1994

TRANS-PACIFIC INDUSTRIAL SUPPLIES, INC., petitioner,

vs.
The COURT OF APPEALS and ASSOCIATED BANK, respondents.

Gancayco Law Offices for petitioners.

Jose A. Soluta, Jr. & Associates for private respondent.

BIDIN, J.:

In this petition for review on certiorari, petitioner Trans-Pacific Industrial Supplies, Inc. seeks the reversal of the
decision of respondent court, the decretal portion of which reads:

WHEREFORE, the decision of June 11, 1991 is SET ASIDE and NULLIFIED; the complaint is
dismissed, and on the counterclaim, Transpacific is ordered to pay Associated attorney's fees of
P15,000.00.

Costs against Transpacific.

SO ORDERED. (Rollo, p. 47)

Sometime in 1979, petitioner applied for and was granted several financial accommodations amounting to
P1,300,000.00 by respondent Associated Bank. The loans were evidenced and secured by four (4) promissory
notes, a real estate mortgage covering three parcels of land and a chattel mortgage over petitioner's stock and
inventories.

Unable to settle its obligation in full, petitioner requested for, and was granted by respondent bank, a restructuring of
the remaining indebtedness which then amounted to P1,057,500.00, as all the previous payments made were
applied to penalties and interests.

To secure the re-structured loan of P1,213,400.00, three new promissory notes were executed by Trans-Pacific as
follows: (1) Promissory Note No. TL-9077-82 for the amount of P1,050,000.00 denominated as working capital; (2)
Promissory Note No. TL-9078-82 for the amount of P121,166.00 denominated as restructured interest; (3)
Promissory Note No. TL-9079-82 for the amount of P42,234.00 denominated similarly as restructured interest
(Rollo. pp. 113-115).

The mortgaged parcels of land were substituted by another mortgage covering two other parcels of land and a
chattel mortgage on petitioner's stock inventory. The released parcels of land were then sold and the proceeds
amounting to P1,386,614.20, according to petitioner, were turned over to the bank and applied to Trans-Pacific's
restructured loan. Subsequently, respondent bank returned the duplicate original copies of the three promissory
notes to Trans-Pacific with the word "PAID" stamped thereon.

Despite the return of the notes, or on December 12, 1985, Associated Bank demanded from Trans-Pacific payment
of the amount of P492,100.00 representing accrued interest on PN No. TL-9077-82. According to the bank, the
promissory notes were erroneously released.

Initially, Trans-Pacific expressed its willingness to pay the amount demanded by respondent bank. Later, it had a
change of heart and instead initiated an action before the Regional Trial Court of Makati, Br. 146, for specific
performance and damages. There it prayed that the mortgage over the two parcels of land be released and its stock
inventory be lifted and that its obligation to the bank be declared as having been fully paid.
315

After trial, the court a quo rendered judgment in favor of Trans-Pacific, to wit:

WHEREFORE, premises considered and upon a clear preponderance of evidence in support of the
stated causes of action, the Court finds for the plaintiffs and against defendant, and

(a) declares plaintiff's obligations to defendant to have been already fully paid;

(b) orders defendant to execute and deliver to plaintiffs a release on the i September

11, 1981 mortgage over TCT (50858)
S-10086 and TCT (50859) S-109087, and ii December 20, 1983 chattel mortgage,
within fifteen (15) days from the finality hereof;

(c) orders defendant to pay plaintiffs Romeo Javier and Romana Bataclan-Javier the
sum of P50,000.00 as and for moral damages; and

(d) orders defendant to pay plaintiffs the sum of P30,000.00 as attorney's fees, plus
expenses of the suit.

Defendant's counterclaims are dismissed for lack of merit.

With costs against defendant.

SO ORDERED. (Rollo, p. 101)

Respondent bank elevated the case to the appellate court which, as aforesaid, reversed the decision of the trial
court. In this appeal, petitioner raises four errors allegedly committed by the respondent court, namely:

RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT THE ACCRUED INTEREST IN

THE AMOUNT OF 492,100.00 HAS NOT BEEN PAID WHEN ARTICLE 1176 OF THE CIVIL CODE
PROVIDES THAT SUCH CLAIM FOR INTEREST UPON RECEIPT OF PAYMENT OF THE
PRINCIPAL MUST BE RESERVED OTHERWISE IT IS DEEMED PAID.

II

RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT WITH THE DELIVERY OF THE
DOCUMENTS EVIDENCING THE PRINCIPAL OBLIGATION, THE ANCILLARY OBLIGATION OF
PAYING INTEREST WAS NOT RENOUNCED CONTRARY TO THE PROVISIONS OF ART. 1273
OF THE CIVIL CODE AND THE UNDISPUTED EVIDENCE ON RECORD.

III

RESPONDENT APPELLATE COURT ERRED IN NOT HOLDING THAT PETITIONER HAS FULLY
PAID ITS OBLIGATION CONFORMABLY WITH ARTICLE 1234 OF THE CIVIL CODE.

IV

RESPONDENT APPELLATE COURT ERRED IN AWARDING ATTORNEY'S FEES IN FAVOR OF

ASSOCIATED BANK (Rollo, p. 15).

The first three assigned errors will be treated jointly since their resolution border on the common issue, i.e., whether
or not petitioner has indeed paid in full its obligation to respondent bank.

Applying the legal presumption provided by Art. 1271 of the Civil Code, the trial court ruled that petitioner has fully
discharged its obligation by virtue of its possession of the documents (stamped "PAID") evidencing its indebtedness.
Respondent court disagreed and held, among others, that the documents found in possession of Trans-Pacific are
mere duplicates and cannot be the basis of petitioner's claim that its obligation has been fully paid. Accordingly,
since the promissory notes submitted by petitioner were duplicates and not the originals, the delivery thereof by
respondent bank to the petitioner does not merit the application of Article 1271 (1st par.) of the Civil Code which
reads:

Art. 1271. The delivery of a private document evidencing a credit, made voluntarily by the creditor to
the debtor, implies the renunciation of the action which the former had against the latter.
316

Respondent court is of the view that the above provision must be construed to mean the original copy of the
document evidencing the credit and not its duplicate, thus:

. . . [W]hen the law speaks of the delivery of the private document evidencing a credit, it must be
construed as referring to the original. In this case, appellees (Trans-Pacific) presented, not the
originals but the duplicates of the three promissory notes." (Rollo, p. 42)

The above pronouncement of respondent court is manifestly groundless. It is undisputed that the documents
presented were duplicate originals and are therefore admissible as evidence. Further, it must be noted that
respondent bank itself did not bother to challenge the authenticity of the duplicate copies submitted by petitioner. In
People vs. Tan, (105 Phil. 1242 [1959]), we said:

When carbon sheets are inserted between two or more sheets of writing paper so that the writing of
a contract upon the outside sheet, including the signature of the party to be charged thereby,
produces a facsimile upon the sheets beneath, such signature being thus reproduced by the same
stroke of pen which made the surface or exposed impression, all of the sheets so written on are
regarded as duplicate originals and either of them may be introduced in evidence as such without
accounting for the nonproduction of the others.

A duplicate copy of the original may be admitted in evidence when the original is in the possession of the party
against whom the evidence is offered, and the latter fails to produce it after reasonable notice (Sec. 2[b], Rule 130),
as in the case of respondent bank.

This notwithstanding, we find no reversible error committed by the respondent court in disposing of the appealed
decision. As gleaned from the decision of the court a quo, judgment was rendered in favor of petitioner on the basis
of presumptions, to wit:

The surrender and return to plaintiffs of the promissory notes evidencing the consolidated obligation
as restructured, produces a legal presumption that Associated had thereby renounced its actionable
claim against plaintiffs (Art. 1271, NCC). The presumption is fortified by a showing that said
promissory notes all bear the stamp "PAID", and has not been otherwise overcome. Upon a clear
perception that Associated's record keeping has been less than exemplary . . ., a proffer of bank
copies of the promissory notes without the "PAID" stamps thereon does not impress the Court as
sufficient to overcome presumed remission of the obligation vis-a-vis the return of said promissory
notes. Indeed, applicable law is supportive of a finding that in interest bearing obligations-as is the
case here, payment of principal (sic) shall not be deemed to have been made until the interests have
been covered (Art. 1253, NCC). Conversely, competent showing that the principal has been paid,
militates against postured entitlement to unpaid interests.

In fine. the Court is satisfied that plaintiffs must be found to have settled their obligations in full.

As corollary, a finding is accordingly compelled that plaintiffs (sic) accessory obligations under the
real estate mortgage over two (2) substituted lots as well as the chattel mortgage, have been
extinguished by the renunciation of the principal debt (Art. 1273, NCC), following the time-honored
axiom that the accessory follows the principal. There is, therefore, compelling warrant (sic) to find in
favor of plaintiffs insofar as specific performance for the release of the mortgages on the substituted
lots and chattel is concerned. (Rollo, p. 100)

premised by:

Records show that Associated's Salvador M. Mesina is on record as having testified that all three (3)
December 8, 1990 promissory notes for the consolidated principal obligation, interest and penalties
had been fully paid (TSN, July 18, 1990, p. 18). It is, moreover, admitted that said promissory notes
were accordingly returned to Romeo Javier. (Ibid.)

The above disquisition finds no factual support, however, per review of the records. The presumption created by the
Art. 1271 of the Civil Code is not conclusive but merely prima facie. If there be no evidence to the contrary, the
presumption stands. Conversely, the presumption loses its legal efficacy in the face of proof or evidence to the
contrary. In the case before us, we find sufficient justification to overthrow the presumption of payment generated by
the delivery of the documents evidencing petitioners indebtedness.

It may not be amiss to add that Article 1271 of the Civil Code raises a presumption, not of payment, but of the
renunciation of the credit where more convincing evidence would be required than what normally would be called for
to prove payment. The rationale for allowing the presumption of renunciation in the delivery of a private
instrument is that, unlike that of a public instrument, there could be just one copy of the evidence of credit. Where
several originals are made out of a private document, the intendment of the law would thus be to refer to the
317

delivery only of the original original rather than to the original duplicate of which the debtor would normally retain a
copy. It would thus be absurd if Article 1271 were to be applied differently.

While it has been consistently held that findings of facts are not reviewable by this Court, this rule does not find
application where both the trial and the appellate courts differ thereon (Asia Brewery, Inc. v. CA, 224 SCRA 437
[1993]).

Petitioner maintains that the findings of the trial court should be sustained because of its advantage in observing the
demeanor of the witnesses while testifying (citing Crisostomo v. Court of Appeals, 197 SCRA 833) more so where it
is supported by the records (Roman Catholic Bishop of Malolos v. Court of Appeals, 192 SCRA 169).

This case, however, does not concern itself with the demeanor of witnesses. As for the records, there is actually
none submitted by petitioner to prove that the contested amount, i.e., the interest, has been paid in full. In civil
cases, the party that alleges a fact has the burden of proving it (Imperial Victory Shipping Agency v. NLRC 200
SCRA 178 [1991]). Petitioner could have easily adduced the receipts corresponding to the amounts paid inclusive of
the interest to prove that it has fully discharged its obligation but it did not.

There is likewise nothing on the records relied upon by the trial court to support its claim, by empirical evidence, that
the amount corresponding to the interest has indeed been paid. The trial court totally relied on a disputable
presumption that the obligation of petitioner as regards interest has been fully liquidated by the respondent's act of
delivering the instrument evidencing the principal obligation. Rebuttable as they are, the court a quo chose to ignore
an earlier testimony of Mr. Mesina anent the outstanding balance pertaining to interest, as follows:

Court:

Q Notwithstanding, let us go now specifically to promissory note No. 9077-82 in the

amount of consolidated principal of P1,050,000.00. Does the Court get it correctly
that this consolidated balance has been fully paid?

A Yes, the principal, yes, sir.

Q Fully settled?

A Fully settled, but the interest of that promissory note has not been paid, Your
Honor.

Q In other words, you are saying, fully settled but not truly fully settled?

A The interest was not paid.

Q Not fully settled?

A The interest was not paid, but the principal obligation was removed from our
books, Your Honor.

Q And you returned the promissory note?

A We returned the promissory note. (TSN, July 18, 1990, p. 22)

That petitioner has not fully liquidated its financial obligation to the Associated Bank finds more than ample
confirmation and self-defeating posture in its letter dated December 16, 1985, addressed to respondent bank, viz.:

. . . that because of the prevailing unhealthy economic conditions, the business is unable to generate
sufficient resources for debt servicing.

Fundamentally on account of this, we propose that you permit us to fully liquidate the remaining
obligations to you of P492,100 through a payment in kind (dacion en pago) arrangement by way of
the equipments (sic) and spare parts under chattel mortgage to you to the extent of their latest
appraised values." (Rollo, pp. 153-154; Emphasis supplied)

Followed by its August 20, 1986 letter which reads:

We have had a series of communications with your bank regarding our proposal for the eventual
settlement of our remaining obligations . . .
318

As you may be able to glean from these letters and from your credit files, we have always been
conscious of our obligation to you which had not been faithfully serviced on account of unfortunate
business reverses. Notwithstanding these however, total payments thus far remitted to you already
exceede (sic) the original principal amount of our obligation. But because of interest and other
charges, we find ourselves still obligated to you by P492,100.00. . . .

. . . We continue to find ourselves in a very fluid (sic) situation in as much as the overall outlook of
the industry has not substantially improved. Principally for this reason, we had proposed to settle our
remaining obligations to you by way of dacion en pago of the equipments (sic) and spare parts
mortgaged to you to (the) extent of their applicable loan values. (Rollo, p. 155; Emphasis supplied)

Petitioner claims that the above offer of settlement or compromise is not an admission that anything is due and is
inadmissible against the party making the offer (Sec. 24, Rule 130, Rules of Court). Unfortunately, this is not an iron-
clad rule.

To determine the admissibility or non-admissibility of an offer to compromise, the circumstances of the case and the
intent of the party making the offer should be considered. Thus, if a party denies the existence of a debt but offers to
pay the same for the purpose of buying peace and avoiding litigation, the offer of settlement is inadmissible. If in the
course thereof, the party making the offer admits the existence of an indebtedness combined with a proposal to
settle the claim amicably, then, the admission is admissible to prove such indebtedness (Moran, Comments on the
Rules of Court, Vol. 5, p. 233 [1980 ed.); Francisco, Rules of Court, Vol. VII, p. 325 [1973 ed.] citing McNiel v.
Holbrook, 12 Pac. (US) 84, 9 L.ed. 1009). Indeed, an offer of settlement is an effective admission of a borrower's
loan balance (L.M. Handicraft Manufacturing Corp. v. Court of Appeals, 186 SCRA 640 [1990]). Exactly, this is what
petitioner did in the case before us for review.

Finally, respondent court is faulted in awarding attorney's fees in favor of Associated Bank. True, attorney's fees
may be awarded in a case of clearly unfounded civil action (Art. 2208 [4], CC). However, petitioner claims that it was
compelled to file the suit for damages in the honest belief that it has fully discharged its obligations in favor of
respondent bank and therefore not unfounded.

We believe otherwise. As petitioner would rather vehemently deny, undisputed is the fact of its admission regarding
the unpaid balance of P492,100.00 representing interests. It cannot also be denied that petitioner opted to sue for
specific performance and damages after consultation with a lawyer (Rollo, p. 99) who advised that not even the
claim for interests could be recovered; hence, petitioner's attempt to seek refuge under Art. 1271 (CC). As
previously discussed, the presumption generated by Art. 1271 is not conclusive and was successfully rebutted by
private respondent. Under the circumstances, i.e., outright and honest letters of admission vis-a-vis counsel-induced
recalcitrance, there could hardly be honest belief. In this regard, we quote with approval respondent court's
observation:

The countervailing evidence against the claim of full payment emanated from Transpacific itself. It
cannot profess ignorance of the existence of the two letters, Exhs. 3 & 4, or of the import of what
they contain. Notwithstanding the letters, Transpacific opted to file suit and insist(ed) that its liabilities
had already been paid. There was thus an
ill-advised attempt on the part of Transpacific to capitalize on the delivery of the duplicates of the
promissory notes, in complete disregard of what its own records show. In the circumstances, Art.
2208 (4) and (11) justify the award of attorney's fees. The sum of P15,000.00 is fair and equitable.
(Rollo, pp. 46-47)

WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.

SO ORDERED.
319

G.R. Nos. 114011-22 December 16, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VEVINA BUEMIO, accused-appellant.

KAPUNAN, J.:p

Vevina Buemio, a field officer of a travel agency, appeals from the decision of the Regional Trial Court in Pasay City, Branch 117, rendered on January 26, 1994,
the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Vevina Buemio GUILTY beyond reasonable doubt for
illegal recruitment on a large scale under Article 39, of Presidential Decree (P.D.) 2018, and
sentences her to a penalty of life imprisonment and a fine of P100,000.00 to indemnify Eliseo
Principe, Eduardo Gutierrez and Ramon Villanueva the amount of P150,000.00, without subsidiary
imprisonment in case of insolvency and to pay the costs.

SO ORDERED.  1

The facts as found by the trial court are as follows:

Sometime in September, 1991, Cecilia Baas, a clerical employee at the Villamor Air Base in Pasay City, learned
from Catalina Asis that Vevina Buemio could send job applicants abroad for employment. Catalina, an officemate of
320

Vevina's husband at the same air base, arranged a meeting between Cecilia and Vevina at the office of the latter's
husband. When the two met for the second time at the residence of Vevina in 9 Second St., Villamor Air Base,
Vevina promised to provide Cecilia with a job as a factory worker in japan with a minimum salary of 10,000 yen a
day. Vevina also promised to provide Cecilia with all the necessary travel documents. For her part, Cecilia would
give Vevina P60,000.00 as placement fee and for the expenses in the processing of travel documents. Cecilia
believed Vevina because the latter was the wife of an official at the Villamor Air Base.

On September 11, 1991, Cecilia, together with her husband and one Rafael Andres, went to the office of Vevina's
husband and paid P30,000.00 representing half of the fees agreed upon. Cecilia paid the second half of the fees on
September 28, 1991 at Vevina's residence. In both instances, Vevina issued receipts acknowledging Cecilia's
payments.

At the airport on the day when Cecilia, Marilou Gonzales, Rafael Andres and Armando Garcia were supposed to
leave for Japan, Vevina handed them their passports and tickets. To their surprise, they found out that they were
bound for Korea, not Japan. Vevina explained to them that she would be following them in Korea where they would
be getting their plane tickets for Japan. When Cecilia noticed that the name appearing on the passport given her
was that of "Pacita Garcia," Vevina told her that she could use other names in her passport like other people do.
Convinced by Vevina's explanations, the group took off for Korea.

In Korea, they checked in at the Naiagara Hotel but they just stayed inside their hotel rooms. They only left their
rooms twice after Vevina's arrival when she took them on a tour. Vevina also got their pocket money purportedly to
buy their food.

Vevina informed them later that the plane tickets to Japan were expensive in Korea. She proposed that she herself
would proceed to Japan where she would buy their tickets. She left for Japan with Lito Camora and Sergio Andres
who had "complete tickets." However, Vevina, came back to Korea without the group's tickets. Instead, she advised
them to go back to the Philippines using their round-trip tickets. Believing Vevina's promise that she could still send
them to Japan without any expense on their part, the group left for the Philippines on October 16, 1991 with Vevina
staying behind in Korea.

Since Vevina's arrival in the Philippines on October 22, 1991, the group frequented Vevina's residence, inquiring
about their trip to Japan. As Vevina's promises remained unfulfilled, the group, showing their displeasure,
demanded that their money be given back to them. Vevina promised to return their money but when she failed to do
so, they fled their respective complaints before the National Bureau of Investigation (NBI). 2

It was sometime in October, 1991 that, through one Elsa Sta. Ana, Vevina met Eliseo Principe, Ramon Villanueva
and Eduardo Gutierrez at Villanueva's residence in Bunlo, Bocaue, Bulacan. Elsa knew that the three were looking
for jobs and that Vevina was also looking for people interested in working abroad. Vevina explained that she could
send them to Japan where they could be factory workers with a minimum salary of "isang lapad" or 10,000.00 yen a
day. Having manifested their interest in getting the job, the three were advised by Vevina to raise right away the
placement fee of P60,000.00 each in order that they could leave for Japan in a week's time. Vevina told them to
bring to her residence the placement fee and a prepared receipt.

Because Vevina was leaving for Korea, she instructed each of the three to give P1,500.00 to one Jenny who would
secure their passports. The three obliged but only Principe and Gutierrez were given their passports. When Vevina
arrived from Korea, she advised Villanueva to secure his passport himself as there were "some problems."
Villanueva did as instructed and personally secured his passport. The three were then made to sign application
forms for Korean visas upon Vevina's guarantee that the "onward visa" from Korea was necessary for them to reach
Japan. Unfortunately, the Korean Embassy denied their visa applications.

Nevertheless, to raise the placement fee, Principe borrowed the title to the property of her sister-in-law and
mortgaged the property for P200,000.00 with P70,000.00 interest. On October 24, 1991, Principe, together with
Gutierrez and Villanueva, their respective wives and Elsa Sta. Ana, went to Vevina's house and handed her
P90,000.00 representing half of the placement fee agreed upon. The balance would be given to Vevina before their
departure for Japan. Vevina then signed the following typewritten receipt which was prepared by Gutierrez's wife:

10/24/91

ACKNOWLEDGMENT RECEIPT

This is to acknowledge receipt of PESOS: Ninety Thousand & 00/100 (90,000.00) from the following
persons, representing 50% partial payment for their placement fees:

1. Eliseo Principe P30,000.00

2. Ramon Villanueva 30,000.00

321

3. Eduardo Gutierrez 30,000.00

-----------
P90,000.00
vvvvvvvvvv

Received by:

(Signature over
printed name)
VEVINA N. BUEMIO

Date Rec'd. 10/24/91  3

After a week had gone by without a word from Vevina, Principe, Villanueva and Gutierrez went to her residence to
inquire. Vevina told them that the money they had given her was insufficient and that she needed P50,000.00 more.
Since they did not have that amount with them, the three agreed to deliver it to Vevina at Villanueva's residence that
evening. As agreed, they met at Villanueva's residence that same evening and, after receiving the amount, Vevina
signed the receipt handwritten by Gutierrez's wife which states:

10-31-91

This is to acknowledge receipt the amount of PESOS: Fifty Thousand and 00/100 (P50,000.-) only,
representing 2nd partial payment for placement fee and other expenses of the following:

1. Eliseo Principe

2. Ramon Villanueva

3. Eduardo Gutierrez

Received by:

(Signature over printed name)

VEVlNA N. BUEMIO

Date Rec'd. 10/31/91  4

Vevina then assured them that they would be leaving for Japan within a few days.

The three repaired once more to Vevina's residence after several days. Vevina informed them that they would be
leaving for abroad if not for the problem with the travel tax amounting to P10,000.00. Exhilarated by the prospect of
soon leaving for work abroad, the three gave Vevina the amount on November 12, 1991 at Principe's residence in
Marilao, Bulacan. Vevina issued them a handwritten receipt which reads:

Nov. 12, 1991

Received the amount of Ten Thousand Pesos only (P10,000.00) part of their partial payment for
plane tickets & hotel accommodation.

Received by

(Signature)
VEVINA BUEMIA  5

The three thereafter went to Vevina's office to inquire why they still could not leave for Japan. Again, Vevina told
them that she still had some documents to take care of but she assured them that they were scheduled to depart on
November 18 and some other dates. However, Vevina's promises remained unfulfilled even after those dates had
passed. Thus, the three demanded their money back and Vevina promised to return it to them.

Having failed to get their money back, the three reported the matter to the NBI where they were instructed to verify
from the Philippine Overseas Employment Administration (POEA) whether Vevina was authorized to recruit job
applicants for abroad. The POEA accordingly issued a certification dated June 11, 1992 stating that "VEVINA
BUEMIO, in her personal capacity" was "neither licensed nor authorized . . . to recruit workers for overseas
employment from Jan., 1991 to the present."  6
322

Vevina was apprehended by NBI agents on January 27, 1992. Two days later, an information for illegal recruitment,
docketed as Crim. Case No. 92-0129, was filed against her in the Regional Trial Court in Pasay City for falsely
representing and alleging that "she could secure employments as factory workers abroad for Cecilia Bass, Rose
Flores, Marilou Gonzales, Eduardo Prudenciado, Ramon Villanueva, Leonilo Arganda, Eliseo Principe, Eduardo
Gutierra, Sergio Andres, Magdalena Arizala and Lito Camora" and for having wilfully, unlawfully and feloniously
recruited them and collected from them "the amounts ranging from P20,700.00 to P82,000.00 each," but which
amount she appropriated to herself after failing to deploy the complainants abroad.  7

On the same day, eleven (11) informations for estafa, docketed as Criminal Cases Nos. 92-0130 to 92-0140 were
likewise filed in the same court against Vevina for having allegedly defrauded the following of the corresponding
amounts: Cecilia Bass, P60,000.00; Rose Flores, P20,700.00; Marilou Gonzales, P60,000.00; Eduardo
Prudenciado, P55,000.00; Ramon Villanueva, P50,000.00; Leonilo Arganda, P30,000.00; Eliseo Principe,
P50,000.00; Eduardo Gutierrez, P50,000.00; Sergio Andres, P60,000.00; Magdalena Arizala, P82,000.00, and Lito
Camora, P28,600.00 or $1,100.00. A typical information for estafa filed against Vevina reads as follows:

That on or about the 11th and 28th of September 1991, in Pasay, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above named accused Vevina Buemio, defrauded
Cecilia Baas, in the following manner, to wit: that said accused, by means of false representations
and fraudulent allegations to the effect that she could secure employment as factory worker abroad
for said complainant, and that she could facilitate her working and travel papers, did then and there
wilfully, unlawfully and feloniously ask and demand the amount of P60,000.00 from the complainant
allegedly to be used for the facilitation of the latter's working and travel papers; that complainant
carried away by said misrepresentations, in fact, she gave and delivered to said accused, the
amount of P60,000.00 which amount, accused misapplied, misappropriated and converted to her
own personal use and benefit, and failed to deploy complainant for employment abroad, and despite
repeated demands, accused faded and refused to do so, or account for the said amount, to the
damage and prejudice of said complainant, in the said amount of P60,000.00.

Contrary to law. 8

On February 11, 1992, the following amended information for illegal recruitment was filed in Crim. Case No. 92-
0129:

That on or about and during the period comprising from April 1991 to October 1991, in Pasay City,
Metro Manila, Philippines, the above-named accused, by means of false representations and
fraudulent allegations to the effect that she could secure employments as Factory Workers abroad
for Cecilia Baas, Rose Flores, Mardou Gonzales, Eduardo Prudenicado, Ramon Villanueva, Leonila
Arganda, Elicio Principe, Eduardo Gutierrez, Sergio Andres, Magdalena Arizala and Lito Camora,
did then and there wilfully, unlawfully and feloniously recruit for a fee aforesaid persons without the
corresponding license from the Department of Labor and Employment.

Contrary to law. 9

The defense forthwith filed a motion for reinvestigation in view of the amendment of the information and, allegedly,
the denial of her right to a preliminary investigation. It prayed further for the court to fix the bailbond for the liberty of
the accused.   The court accordingly held the arraignment of the accused in abeyance pending the result of the
10

reinvestigation.   At her arraignment on April 22, 1992, Vevina pleaded not guilty to the charges against her in Crim.
11

Cases Nos. 92-0129 to 92-0140.   The number of complainants, however, diminished when some of them executed
12

affidavits of desistance upon the common allegation that Vevina did not promise them employment abroad but
merely assisted in the processing of their travel papers.  13

Testifying in her own defense at the trial, Vevina swore that during the first week of October, 1991 when she was in
Korea, Principe, Villanueva and Gutierrez went to her residence in Villamor Air Base requesting for assistance in
going to Japan. Jermilyn, her friend who ran errands for her, accompanied the three who had learned from a certain
Baltazar, Vevina's former client, that Vevina could help them because of her job as the field officer of the Continental
Tour and Travel Agency. From the telephone conversation with her husband and Jennilyn, she learned that the
three had relatives in Japan who could provide them employment in that country.

The day after Vevina arrived from Korea on October 23, 1991, Principe told her by phone that he and his
companions would be arriving at her residence at 6:00 p.m. Since she told them that she had an appointment at
10:30 p.m., that day being her husband's birthday, Principe told her that they would be coming to her place instead
at 12:00 midnight.

The three arrived at the appointed time. It was the first time for her to meet them. Principe, who would be
shouldering the expenses of Villanueva and Gutierrez, was the spokesman of the group. As the three handed her
P90,000.00, she emphasized to them that part of the amount would defray the expenses for her own ticket and hotel
accommodations as she would be travelling with them.  She signed a receipt prepared by the group but she did not
14
323

read its contents anymore nor did she count the money which she placed inside a drawer, as she was busy
attending to her husband's guests.

The three having given her their business registration papers, income tax returns and calling cards, Vevina
immediately processed their travel documents and passports. She first proposed that the three go to Thailand but
the Thai airline did not issue tickets for them because they had not secured an "onward visa."   Thus, she next
15

proposed that since entry to Hongkong would not entail securing a visa thereto, the three should take a Hongkong-
Japan-Korea route. The three, together with other clients of Vevina, applied for a Korean visa but only Principe was
granted said visa. Vevina then gave Principe tickets for the Manila-Hongkong, Hongkong-Japan, Japan-Korea and
Korea-Manila trip. Upon her advice, Principe also applied for a visa at the Japanese embassy. Because Villanueva
and Gutierrez wanted to be sure first that Principe would be granted a Japanese visa, no tickets were issued to
them. However, all three later decided to give up their travel plans and demanded that she gave them back their
money. She agreed to return the money "as soon as some of the groups gave back the money that they
used."   She had received P50,000.00 for Principe's ticket at Villanueva's residence, and P10,000.00 for their hotel
16

accommodations.  7 1

On January 26, 1994, the trial court rendered the aforementioned decision convicting appellant of illegal recruitment.
Vevina filed a motion for its reconsideration but this was denied by the court on February 3, 1994.   Hence, this
18

appeal questioning the trial court's giving weight and credence to the testimony of the prosecution witnesses, and
alleging denial of due process to the appellant.

On the issue of denial of due process, appellant contends that she was not given the opportunity to present
additional witnesses. The records belie such claim. There were three resettings   of the hearings of the case where
19

the defense was given an opportunity to present additional witnesses before the trial court finally ordered the case
submitted for decision.   The defense filed a motion for the reconsideration of said order   which the trial court
20 21

granted   but still, the defense failed to present its promised additional witnesses. Hence, on November 30, 1993,
22

the trial court issued an order decreeing that the defense had waived presentation of further evidence and directing
it to make a formal offer of the evidence already presented within ten days.   On January 19, 1994, the defense
23

submitted a motion to defer the promulgation of judgment and to reopen the case   but the following day, it
24

nevertheless formally offered its exhibits.  25

From the foregoing, it is very clear that appellant was given more than enough opportunity to fully ventilate her
defense and therefore she was accorded due process of law. There is due process if the following conditions are
present: (1) a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction
lawfully acquired by the court over the person of the defendant or over the property subject of the proceedings; (3)
the defendant must be given an opportunity to be heard, and (4) judgment must be rendered upon lawful
hearing.   All these conditions have been satisfied in the case at bar. What is repugnant to due process is an
26

absolute lack of opportunity to be heard.  7 Appellant's failure to present additional witnesses was within her power
2

and that of her counsel to avert. Verily, her failure to act with prudence and diligence cannot elicit approval or
sympathy from the Court.  28

On the merits of the appeal, appellant contends in the main that the testimonies of Principe, Villanueva and
Gutierrez are contrary to ordinary human experience. Thus, they could not have been enticed to work in factories in
Japan as there was no mention of any contacts of appellant in that country who could provide them employment,
nor were their specific work and workplaces as well as the peso equivalent of their supposed salary ever pointed out
by the appellant. Neither was it proven that appellant enticed them with convincing benefits in working in Japan
which would be enough for them to part with their money just so they could be "TNTs"   in Japan.
29

Appellant's contentions boil down to the issue of credibility. As a rule, appellate courts will not disturb the findings of
the trial court on said issue unless certain facts or circumstances of weight have been overlooked, misunderstood or
misapplied which, if considered, might affect the result of the case. This is because the trial court heard the
testimony of the witnesses and observed their deportment and manner of testifying during the trial.   No negative 30

circumstances attend this case as to warrant departure from the general rule.

In fact, a review of the transcript of stenographic notes in this case shows that the testimonies of the prosecution
witnesses are credible. Taken as a whole and even under the crucible test of examination by the defense, said
testimonies are not only consistent on all material respects but also replete with minutiae of the questioned
transactions with the appellant.  Inasmuch as the trial court found the positive declarations of the complainants
31

more credible than the sole testimony of the appellant denying said transactions, there must be a well-founded
reason in order to deny great weight to the trial court's evaluation of the prosecution witnesses' testimonies.   The 32

defense has failed to provide that reason as it has failed to prove any ill-motive on the part of the complainant-
witnesses in so imputing to appellant such a serious crime as illegal recruitment.

We find the instant appeal to be without merit. Article 13 (b) of the Labor Code defines recruitment as "any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract
services, promising or advertising for employment, locally or abroad, whether for profit or not." The pertinent
provision of the Labor Code on illegal recruitment are as follows:
324

Art. 38. Illegal Recruitment. — (a) Any recruitment activities, including the prohibited practices
enumerated under Article 34 of this Code, to undertaken by non-licensees or non-holders of
authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry (now
Department) of Labor and Employment or any law enforcement officer may initiate complaints under
this Article.

(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an

offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in carrying out any unlawful or illegal
transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is
deemed committed in large scale if committed against three (3) or more persons individually or as a
group.

xxx xxx xxx

Art.39. Penalties. — (a) The penalty of life imprisonment and a fine of One Hundred Thousand
Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined
herein.

xxx xxx xxx

(Emphasis supplied.)

Recruitment for overseas employment is not in itself necessarily immoral or unlawful. It is the lack of the necessary
license or permit that renders such recruitment activities unlawful or criminal. When three or more persons are
victimized, the offense becomes illegal recruitment in large scale,   an offense constitutive of economic sabotage. In
33

other words, the crime of illegal recruitment in large scale is committed when a person (a) undertakes any
recruitment activity defined under Art. 13(b) or any prohibited practice enumerated under Art. 34 of the Labor Code;
(b) does not have a license or authority to lawfully engage in the recruitment and placement of workers; and (c)
commits the same against three or more persons, individually or as a group.  34

The last two requisites are present in this case. By appellant's own admission, she was a field of officer of a travel
agency who merely assisted prospective travellers procure the necessary travel papers. Her admission is proof that
she was not a licensed recruiter per the records of the POEA. Although some of the complainants desisted from
pursuing their cases against appellant, it is undeniable that more than three persons raised claims that they had
been victimized by appellant's recruitment activities. What remains to be determined thereof is whether or not the
acts committed by appellant constituted illegal recruitment as defined by the Labor Code.

The prosecution's theory that appellant promised employment abroad to the complainants has been proven beyond
reasonable doubt not only by the testimonies of prosecution witnesses but also by the aforequoted receipts signed
by appellant indicating that she received "placement fees." The term "placement" is defined in the same way as
"recruitment" under Art. 13(b) of the Labor Code. Obviously, to deflect the import of the use of the phrase
"placement fees" in the receipts she signed, appellant claimed that she did not read the receipts when she signed
them feigning tiredness and pointing to the late hour of the night when she signed one of them. But her claim
crumbles in the face of her own admissions that as a field officer of a travel agency, she was well aware of the
importance of documents and that it was not her practice to sign papers without reading them. Indeed, there is
every reason to believe that she had read them before affixing her signature, but she did not object to the use of
"placement fees" in the receipts.

That appellant was prevaricating as regards the nature of the amounts she received from the complainants is
manifested by the fact that while she testified that she demanded and accepted the amount of P10,000 to solve the
"travel tax problems" of some of the complainants, the aforequoted handwritten receipt she signed shows that the
same amount was for "plane tickets & hotel accommodation." Moreover, if indeed it is true that the amounts she
demanded and collected from the complainants were mere processing fees needed to secure travel papers, then
she would have received them upon official receipts of the travel agency, in its office and at the appropriate office
hours. The evidence proven however, shows that two of the receipts were prepared by a complainant's wife while
another appears to be in appellant's own handwriting on a yellow ruled pad paper, and that she received various
amounts in places other than her office including her own residence, and after office hours. In one instance, a
transaction even occurred at midnight in her own home.

Appellant also claims that the visa applications of the complainants she had presented in evidence prove that they
were not as seekers for jobs overseas. This stretches judicial credulity to the limits. The four complainants who
testified for the prosecution could not have afforded travel abroad, much more as tourists. Cecilia Bass and the
three, Principe, Villanueva and Gutierrez, were all unemployed. Neither was there proof that complainants had
sources of income which they could rely on even if unemployed or low-salaried. Furthermore, as regards Cecilia
325

Bass, the use of the name "Pacita Garcia" in the passport given her was not even Satisfactorily explained by the
appellant. It is of judicial notice, however, that fake passports are the usual tools of illegal recruiters.

That appellant even accompanied some complainants abroad on the pretext that she would secure their plane
tickets there does not help her case any. Instead of bolstering her claim that she was merely helping the
complainants secure travel papers, that story instead undermines the alleged legality of her activities. She did not
actually have to go abroad to secure tickets and travel documents since these may be obtained just as easily within
this country. The rule, therefore, that for evidence to be believed, it must not only proceed from the mouth of a
credible witness but it must be credible in itself such as the common experience and observation of mankind can
prove as probable under the circumstances,   finds meaning in this case.
35

Upon the evidence presented and on record, there is therefore no reason to disturb the trial court's conclusion that
appellant violated the law against illegal recruitment in large scale.

We note, however, that the trial court omitted Cecilia Baas in its decision. Since Cecilia Bass is named one of the
complainants in the amended information for illegal recruitment and who testified in court to prove her charges, her
case should have been duly considered.

The trial court stated that the "complainants executed affidavits of desistance except Principe, Villanueva and
Gutierrez."   This, perhaps, explains why the trial court did not even mention the testimony of Cecilia Baas in its
36

decision. However, the records show that only the following executed affidavits of desistance: Lito B. Camora (Exh.
8), Roel B. Perez (Exh. 9), Magdalena P. Arizala and Fe P. Domagtoy (Exh. 10), and Eduardo P. Prudenciado,
Leonilo D. Arganda and Rose V. Flores (Exh. 11).   7 Of these seven persons, Camora, Arizala, Prudenciado,
3

Arganda and Flores filed complaints for estafa against appellant while Perez and Domagtoy did not. Affidavits of
desistance, however, may not exonerate an accused from criminal liability, especially when the evidence already
adduced suffices to convict. In People v. Romero,   the Court holds:
38

The fact that complainants Bernardo Salazar and Richard Quillope executed a Joint Affidavit of
Desistance does not serve to exculpate accused-appellant from criminal liability insofar as the case
for illegal recruitment is concerned since the Court looks with disfavor the dropping of criminal
complaints upon mere affidavit of desistance of the complainant, particularly where the commission
of the offense, as is in this case, is duly supported by documentary evidence.

Generally, the Court attaches no persuasive value to affidavits of desistance, especially when it is
executed as an afterthought. It would be a dangerous rule for courts to reject testimonies solemnly
taken before the courts of justice simply because the witnesses who had given them, later on,
changed their mind for one reason or another, for such rule would make solemn trial a mockery and
place the investigation of truth at the mercy of unscrupulous witness(es).

Complainants Bernardo Salazar and Richard Quillope may have a change of heart insofar as the
offense wrought on their person is concerned when they executed their joint affidavit of desistance
but this will not affect the public prosecution of the offense itself. It is relevant to note that "the right of
prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the
sovereign power instinctly charged by the common will of the members of society to look after, guard
and defend the interests of the community, the individual and social rights and the liberties of every
citizen and the guaranty of the exercise of his rights." The cardinal principle which states that to the
State belongs the power to prosecute and punish crimes should not be overlooked since a criminal
offense is an outrage to the sovereign State. As provided by the Civil Code of the Philippines:

Art. 2034. There may be a compromise upon the civil liability arising from an
offense; but such compromise shall not extinguish the public action for the
imposition of the legal penalty.

While the trial court included the eleven estafa cases in the docket numbers appearing on the face of the decision to
identify the cases under consideration, it omitted any mention about them. A thorough search on the records for a
reason for such omission yielded a negative result. Notably, the Solicitor General failed to notice the same omission
in his brief. The settled rule is that where other crimes or felonies are found to have been committed by an accused
charged with violation of another law, conviction under the latter law does not preclude punishment under the other
statutes. 
39

WHEREFORE, the Decision of the trial court finding appellant Vevina Buemio guilty beyond reasonable doubt of the
crime of illegal recruitment in large scale under Arts. 38 and 39 of the Labor Code and imposing on her the penalty
of life imprisonment and the payment of a fine of P100,000.00 is hereby AFFIRMED, subject to the modification that
she shall refund the amounts she had unlawfully collected while committing the acts constituting illegal recruitment
to Cecilia Baas, Eliseo Principe, Ramon Villanueva and Eduardo Gutierrez. Costs against the appellant.

SO ORDERED.
326

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

1. Rule 130 Section 30 – Admission by conspirator

[G.R. No. 48185. August 18, 1941.]

FELICIANO B. GARDINER, as Acting Provincial Fiscal of Pampanga, Petitioner, v. HONORABLE

PEDRO MAGSALIN, Judge of First Instance of Pampanga, ET AL., Respondents.

Feliciano B. Gardiner, in his own behalf.

Jose Alejandrino, for respondent Eugenio Villegas.

Francisco M. Ramos, for respondent Maximo Manlapid.

SYLLABUS

1. EVIDENCE; ADMISSIBILITY OF TESTIMONY OF A CONSPIRATOR AGAINST HIS

COCONSPIRATORS TO PROVE CONSPIRACY. — The testimony of a conspirator is admissible in evidence
to prove the conspiracy. Section 12 of rule 123 refers to an extrajudicial declaration of a conspirator - not to his
testimony by way of direct evidence.

DECISION

OZAETA, J.:

This is an original petition for the writ of mandamus to compel the respondent judge to admit the
testimony of Catalino Fernandez, one of the accused in criminal case No. 6598, to prove the alleged
conspiracy between him and his five coaccused, respondents herein.

It appears that on October 30, 1940, the herein petitioner, as Acting Provincial Fiscal of Pampanga,
filed an information against the said Catalino Fernandez and the herein respondents Pedro Yalung,
Eugenio Villegas, Maximo Manlapid, Magno Icban, and Rufino Maun, charging them with having
conspired together to kill, and that they did kill, one Gaudencio Vivar, with evident premeditation.

Upon arraignment Catalino Fernandez pleaded guilty and his five coaccused, not guilty. At the trial of
the latter, the former was called by the fiscal as his first witness, to testify to the alleged conspiracy.
Upon objection of counsel for the defense, the respondent judge did not permit the witness Catalino
Fernandez to testify against his coaccused, on the ground that he being a conspirator, his act or
declaration is not admissible against his coconspirators until the conspiracy is shown by evidence
other than such act or declaration, under section 12, rule 123 of the Rules of Court. A written motion
for reconsideration, supported with lengthy argument, was filed by the fiscal to no avail. Hence the
present petition for mandamus.

The only question raised here is the interpretation of section 12 of rule 123, which reads as
follows:jgc:chanrobles.com.ph

"SEC. 12. Admission by conspirator. — The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in evidence against the coconspirator after the
conspiracy is shown by evidence other than such act or declaration." cralaw virtua1aw library

That is not a new rule of evidence. It is a re-enactment of paragraph 6, section 298 of the old Code
327

of Civil Procedure, which provided that after proof of a conspiracy, the act or declaration of a
conspirator relating to the conspiracy may be given in evidence. This rule has a well-settled meaning
in jurisprudence, but apparently the respondents completely missed it. It is one of the exceptions to
the "res inter alios" rule. It refers to an extrajudicial declaration of a conspirator — not to his
testimony by way of direct evidence. For illustration, let us suppose that after the formation but
before the consummation of the alleged conspiracy between Catalino Fernandez and his five
coaccused, the former borrowed a bolo from a friend, stating that he and his coaccused were going
to kill Gaudencio Vivar. Such act and declaration of Fernandez could not be given in evidence against
his coaccused unless the conspiracy be proven first. The testimony of Fernandez’s friend to the effect
that Fernandez borrowed his bolo and told him that he (Fernandez) and his coaccused were going to
kill Gaudencio Vivar would be admissible against Fernandez, but not against his coaccused unless the
conspiracy between them be proven first. It is admissible against Fernandez because the act,
declaration, or omission of a party as to a relevant fact may be given in evidence against him
(section 7, rule 123). But, without proof of conspiracy, it is not admissible against Fernandez’s
coaccused because the act and declaration of Fernandez are res inter alios as to his coaccused and,
therefore, cannot affect them. But if there is conspiracy, each conspirator is privy to the acts of the
others; the act of one conspirator is the act of all the coconspirators.

To further explain the rule in the language of the jurisprudence on the subject, we add: jgc:chanrobles.com.ph

". . . The evidence adduced in court by the coconspirators as witnesses are not declarations of
conspirators, but direct testimony to the facts to which they testify. Aside from the discredit which
attaches to them as accomplices, their evidence is entirely competent to establish the facts to which
they testify. The rule for which counsel contends is applicable only when it is sought to introduce
extrajudicial: declarations and statements of coconspirators" (People v. Steelik, 187 Cal. 361, 203 P.
78, 84.) .

"There is no rule requiring the prosecution to establish a conspiracy in order to permit a witness to
testify what one or all of several accused persons did; and evidence adduced by coconspirators as
witnesses, which is direct evidence of the facts to which they testify, is not within the rule requiring a
conspiracy to be shown as a prerequisite to its admissibility. . . ." (22 C. J. S. 1293; see also 2
Wharton’s Criminal Evidence, 1189; Cox and others v. State, 8 Tex. Cr. App. 254, 303, 34 Am. Rep.
746; White v. State, 60 Tex. Cr. R. 559, 132 S. W. [2d] 518; Bannister v. State, 112 Tex. Cr. R. 158,
15 S. W. [2d] 629; Bland v. State, 89 S. W. [2d] 996, 998.)

Let the writ of mandate issue as prayed for by the petitioner, with costs. So ordered.

Abad Santos, Diaz, Moran and Horrilleno, JJ., concur.

G.R. No. L-22426           May 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PELAGIO CONDEMENA, CASAMERO PATINO, SIMPLICIO ANIEL, RICARIDO CAUSING @
GARIDO, defendants,
SIMPLICIO ANIEL, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

Jose V. Santos for defendant-appellant.

ANGELES, J.:

Pelagio Condemena, Casamero Patino, Ricarido Causing and Simplicio Aniel were charged with the crime of
robbery in band with homicide in the Court of First Instance of Leyte, with the qualifying circumstance of treachery,
and aggravating circumstances of nocturnity, abuse of superior strength and dwelling.

After trial, the court found all the accused guilty beyond reasonable doubt of the crime of robbery in band with
homicide without, however, making a finding on any of the aggravating circumstances alleged in the information,
instead it took into consideration the lack of instruction and education in mitigation of their criminal liability, and
328

sentenced each to a penalty of reclusion perpetua, to pay P6,000.00 to the heirs of the victim, without subsidiary
imprisonment in case of insolvency, and to pay the proportionate costs.

Pending their appeal in this Court, Pelagio Condemena, Ricarido Causing and Casamero Patino withdrew their
appeal which was granted in a resolution of the Court of June 5, 1954. As the record now stands, only Simplicio
Aniel remained as the appellant.

The evidence for the prosecution has established that on October 6, 1962, at about 6 o'clock in the afternoon,
Barcelisa Lamoste was sitting by the side of the cradle of her child facing her husband Fermin Lamoste who was on
the yard of the house. Their eldest daughter, Esmeralda Lamoste, 14 years old at that time, was at the door of their
house together with her younger brothers and sisters.

Suddenly, four men arrived at their house. Of these four, Barcelisa Lamoste recognized Pelagio Condemena who
had been living in Mambajao, Villaba, Leyte, for quite a long time as their neighbor. Barcelisa Lamoste did not know
the names of the companions of Pelagio Condemena, but she recognized them by their faces. On the witness
stand, Barcelisa Lamoste pointed and identified Pelagio Condemena to be one of the four men who were in their
house on October 6, 1962, at about 6 o'clock in the afternoon, the date and approximate time of the commission of
the crime. In the words of the trial judge, "Barcelisa Lamoste also unhesitantly and unmistakenly, in open court,
pointed to the three companions of Pelagio Condemena on that fateful day and time above-mentioned who turned
out to bear the names of Ricarido Causing @ Garido Casamero Patino and Simplicio Aniel." (p. 2, Rec.)

She further testified that Simplicio Aniel and Casamero Patino were armed with guns, and Pelagio Condemena and
Ricarido Causing were armed with bolos when these four men arrived in their house on October 6, 1962, at about 6
o'clock in the afternoon. That upon their arrival, Simplicio Aniel rushed towards her and pointed the gun, about one
foot long, at her face, telling her the following words: "Do not shout. If you shout. I will kill you." Barcelisa Lamoste,
out of fear, did not in fact shout. While Simplicio Aniel was thus pointing the gun at her, the three other men went
directly towards where her husband was. Two of them, Casamero Patino and Ricarido Causing, each held the
hands of her husband and when resistance from Fermin Lamoste was already impossible, Pelagio Condemena,
with the use of his bolo, stabbed her husband on the right side of the breast. Upon being hit with the bolo-stab, she
heard her husband said: "Dong, why did you stab me when I did not commit any wrong?" After Fermin Lamoste was
stabbed, Pelagio Condemena, Ricarido Causing and Casamero Patino dragged her husband towards the kitchen of
the house. Pelagio Condemena stayed outside while Casamero Patino and Ricarido Causing went up the house
through the kitchen. 1ªvvphi1.nêt

Esmeralda Lamoste, who was at the door of the house together with her young brothers and sisters, saw Ricarido
Causing stab her father with a bolo on the right breast below the nipple. Then Casamero Patino and Ricarido
Causing approached Simplicio Aniel, at the time still pointing his gun towards her mother, and demanded from
Barcelisa their money. Her mother, out of fear, pointed to Ricarido Causing their trunk. Ricarido Causing opened the
trunk and took the amount of P200.00 from it.

Barcelisa Lamoste explained that the money was the proceeds of the sale of their carabao on October 5, 1962, the
day previous to the incident. After taking the money, the four men, Pelagio Condemena, Ricarido Causing, Simplicio
Aniel and Casamero Patino fled towards the same direction where they had come from. After they were gone,
Barcelisa Lamoste shouted for help. Crispen Bactol was the first person who responded to the call for help.

Crispin Bactol testified that at about 6 o'clock in the afternoon of October 6, 1962, he saw four men going to the
house of Fermin Lamoste. He recognized Pelagio Condemena to be one of the group. Later on, he heard a
woman's voice from the house of Fermin Lamoste calling for help. On his arrival at the house of Fermin Lamoste in
answer to the call for help, he saw Fermin Lamoste dead. He asked Barcelisa Lamoste who were the persons who
killed her husband. Barcelisa Lamoste answered that of the four men, he only knew Pelagio Condemena.

Jose P. Burgos, municipal judge of Villaba, Leyte, testified that on December 3, 1962, Pelagio Condemena,
accompanied by a certain P.C. soldier, appeared before him and sworn to the truth and veracity of his confession,
Exhibit "B", the pertinent portions of which are:

9. Q. — What are the names of your four (4) companions in going to the house of Fermin Lamoste?

     A. — I know their names but I do not know their surnames.

10. Q. — Who are they and where are they residing at present?

     A. — ... @ Simplicio Aniel, from bo. Oson, ....

11. Q. — What arms are you carrying and your companions in going to the house of Fermin Lamoste?

     A — ... @ Simplicio Aniel is carrying a shorten Japanese Rifle, ....

329

Judge Burgos further testified that on December 11, 1962, in the presence of Felix Arañez, Chief of Police of
Villaba, Leyte, accused Casamero Patino appeared before him and sworn to the truth and veracity of his statement.
Exhibit "C", its translation is Exhibit "C-1", with the following pertinent portions:

5. Q. — Why are you detained here, what crime are you charged?

     A. — Because I was with the robbery and to the murder of Fermin Lamoste.

6. Q. — Do you know the robbers and those who murdered Fermin Lamoste?

     A. — Yes, sir. They ... and Simplicio Aniel.

As evidenced by the medical certificate, Exhibit A and A-1, the victim suffered the following injuries:

1. Incised wound on right hypochondrium 3/6" x ½ cm. x 1 cm. obliquely directed.

2. Incised wound in the anterior auxillary line on the right hypochondrium 1-½" from the first wound obliquely
directed 3/4" x ½ cm. up to the abdominal cavity.

Appellant Simplicio Aniel, in exculpation, interposed the defense of alibi. He presented Benjamin (Benigno) Corpin,
a 73-year old man, who testified that on October 6, 1962, he was in the market fair of Celso Muertigue in Wague,
Leyte, selling salted fish. His companion on that date was Simplicio Aniel whom he hired to help him. The two of
them left Considra (or Consuegra), Leyte, at 7:00 o'clock in the morning and returned home to Considra from the
market fair at 5:00 o'clock in the afternoon of the same day. They arrived together in his house at Considra where
the two of them took their meals. Then after that, Simplicio Aniel went to his house. Aniel's house was only about 10
to 15 meters away from his home.

Felix Arañez, Chief of Police of Villaba, Leyte, also testified for the defense. He testified that on October 7, 1962, a
day after the robbery and the killing occurred, he went to the house of Fermin Lamoste in Sitio Mambajao, Villaba,
Leyte. His purpose was to investigate the incident which was reported to him by the Barrio Lieutenant of Cagnocot.
During his investigation, Barcelisa Lamoste, wife of the deceased, informed him that at about 6:00 o'clock in the
afternoon of October 6, 1962, there were unidentified persons who went up their house while she was holding her
baby in the cradle; that Fermin Lamoste was outside the house and when he was brought up the house, he was
already stabbed; that one of them pointed his gun at her; that she was not able to identify the robbers, not even one,
because it was already dark; that Barcelisa Lamoste pointed to the two sons of Segundo Mesa as the persons she
suspected to be responsible for the robbery because on the day of the incident, these two went to their house to buy
corn and they promised to come back the following afternoon; that he investigated the two sons of Segundo Mesa
but he had to release them for lack of evidence; that when he further asked Barcelisa Lamoste whether there were
other persons who were responsible for the commission of the crime aside from the two sons of Mesa, she said that
she and Pelagio Condemena had a misunderstanding a week before the crime was committed; that when he found
out later on that this Pelagio Condemena did not go inside the house, he abandoned the investigation of Pelagio
Condemena because he had received information that before the commission of the crime, Pelagio Condemena
had already abandoned his house in Mambajao.

On the basis of these facts, the question before the Court hinges on whether or not appellant Simplicio Aniel has
been sufficiently identified as one of the four men who participated in the commission of the crime charged.

The defense argued that the identification in open court made by Barcelisa Lamoste and her daughter, Esmeralda
Lamoste, should not have been considered by the that court as a "positive identification" which could sustain the
conviction of Simplicio Aniel for the crime charged. It is contended that the testimony of Barcelisa Lamoste that
Simplicio Aniel was the person who pointed the gun at her, while his three other companions killed her husband
and, thereafter, robbed their house, was more than sufficiently contradicted, rebutted and destroyed by the
testimony of Felix Arañez, the Chief of Police of Villaba, Leyte, who investigated the crime the day following the
commission of the offense; that the court should have given credence to the testimony of Benjamin Corpin with
whom Simplicio Aniel was together on October 6, 1962, from 7:00 o'clock in the morning up to 5:00 o'clock in the
afternoon, selling salted fish in the market fair of Celso Muertigue in Wague, Leyte, at the time the robbery and
killing of Fermin Lamoste took place; that while it may be true that this witness was not able to recall the other dates
when he hired Simplicio Aniel to carry salted fish to Wague, Leyte, aside from October 6, 1962, Benjamin Corpin
had given the reason why he particularly remember the hiring of Simplicio Aniel on that day, because on that same
day, he was reminded by his son-in-law who for the first time went fishing in Gotosan and this being the first time his
son-in-law fished in Gotosan, it is not strange that that date made a deep impression in his memory.

The lower court, however, did not believe the testimony of Benjamin Corpin because he was not able to account the
whereabout of Simplicio Aniel after 5:00 o'clock in the afternoon of October 6, 1962, the time they returned home to
Considra from Wague, Leyte. According to the trial court, Corpin was sure that they arrived in Consuegra (or
Considra), Leyte, at 5:00 o'clock in the afternoon of October 6, 1962, because Juan Delanta told them that it was
exactly 5:00 o'clock in the afternoon when asked by Benjamin Corpin. On cross-examination, however, Corpin
330

admitted that he treated Simplicio Aniel as his son, because Simplicio Aniel is the nephew of Corpin's son-in-law. He
also admitted that he did not remember the other dates, not even the last time, when he hired Simplicio Aniel to
carry his salted fish to Wague, Leyte. Thus, the court who had personally seen and observed the behavior and
manner of the witness while testifying, concluded that his testimony is not worthy of belief because it is tainted with
bias and interest of the witness to obtain a judgment of acquittal. His memory is also faulty. The fact that a person
has reached the "twilight of his age" is not always a guaranty that he would tell the truth, the trial court further added.

With respect to the testimony of the chief of police Arañez, We are more impressed into believing that he had
attempted to tailor his testimony in an effort to bolster the validity of the defense of alibi. We are not persuaded to
accord credence to the testimony of the chief of police that Barcelisa Lamoste told him that she was not able to
identify the robbers, because he himself swore to the truth of the information after he had gathered evidence
pointing to Simplicio Aniel and his companions as the perpetrators of the crime.

He declared thus:

Q. — Is it your purpose or intention to impress the Court that you do not believe that Pelagio Condemena, et
al., have been charged falsely?

A. — No, sir.

Q. — What do you mean by that?

A. — I mean that these persons now who are accused are the ones responsible of the crime committed.

Q. — That is why you were the one who actually signed the criminal complaint in this case, is that right?

A. — Yes, sir, when the complaint was amended.

Q. — The incident took place on October 6, 1962 and the filing of the complaint took place on October 24,
1962, can you explain why the filing of the complaint was delayed?

A. — Because we were searching for more evidence, and when we were able to gather sufficient evidence,
we filed this case. (tsn, pp. 56-57, Pareja).

Well settled is the rule that the defense of alibi is weak where the prosecution witnesses positively identified the
accused. To prosper such a defense, it must be established by clear and convincing evidence and not merely
supported by witnesses who bear close ties of relationship to the accused. The degree of the evidence trust be such
as to preclude any doubt that the accused could not have been physically present at the place of the crime or its
immediate vicinity, at the time of its commission.

Barcelisa Lamoste, in the words of the trial judge who had personally seen and observed her behavior and manner
of testifying on the witness stand, "unhesitantly and unmistakenly" pointed to Simplicio Aniel as the person who
rushed towards her and pointed his gun, about one foot long, at her face, warning her at the same time not to shout
or else she will be killed. Esmeralda Lamoste substantially corroborated the testimony of her mother. And Crispin
Bactol's testimony has demonstrated a circumstance of strong persuasion when he recognized Condemena and his
companions when they were passing in front of his house. The credibility of their testimony was never successfully
impugned by the defense whom they were cross-examined on the witness stand. No motive was shown by the
defense why these witnesses should impute so grave a crime to Simplicio Aniel who they did not even know before
the crime was committed.

The positive identification of appellant Simplicio Aniel was further bolstered when Pelagio Condemena and
Casamero Patino, in their sworn statements Exhibits "B" and "C", named Simplicio Aniel as one of them in the group
when they killed Fermin Lamoste and robbed the house of P200.00 on October 6, 1962, at about 6:00 o'clock in the
afternoon.

Extrajudicial confessions, independently made without collusion, which are identical with each other in their
essential details and are corroborated by other evidence on record, are admissible as circumstantial evidence
against the person implicated to show the probability of the latter's actual participation in the commission of the
crime. As this Court has said:

While confession of a co-conspirator are not ordinarily admissible as evidence against another co-
conspirator, the fact that they implicate the latter and were made soon after the commission of the crime, is
circumstantial evidence to show the probability of their co-conspirator having actually participated therein.
(People vs. Lumahang et al., L-6357, May 7, 1954.)
331

The commission of the crime was attended by treachery. The act of the accused in suddenly rushing towards the
victim, then two of them, each holding the hands of the victim, and the third of them stabbed the victim, is
characterized by treachery insuring the accomplishment of their purpose without risk to themselves from any
defense or retaliation the victim might offer.

The conspiracy among the accused is evident and equally proven. Their acts collectively and individually executed
have clearly demonstrated the existence of a common design towards the accomplishments of the same unlawful
purpose and objective — to rob the house of Lamoste. Altho the killing of Fermin Lamoste was accomplished by
only three of the intruders without any physical participation thereof by the appellant Simplicio Aniel, however, as
conspiracy has been established, the crime committed is robbery in band, and the homicide was committed on the
occasion thereof, all the members of the band are liable for robbery with homicide (People vs. Evangelista, et al., L-
2489, April 12, 1950). And

... any member of a band who is present at the commission of a robbery by the band, shall be punished as
principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the
same. (Art. 296, Revised Penal Code.)

the appellant Simplicio Aniel is liable as principal because the evidence does not show that he had attempted to
prevent the assault and the killing of Fermin Lamoste. (People vs. Garduque, et al., L-10133, July 31, 1958.)

The information charging appellant Simplicio Aniel, and the three other accused, of the crime of robbery in band with
homicide alleged three aggravating circumstances, namely, nocturnity, use of superior strength, and commission of
the crime in the dwelling of the offended party. The lower court, however, after finding all the four accused guilty of
the crime charged, did not consider the above aggravating circumstances when it imposed the penalty, instead took
into account lack of instruction and education in mitigation of their liability. In this respect, the trial court was in error.
Existing jurisprudence has settled that lack of instruction and education a mitigating circumstance in the crime of
theft or robbery is not recognized, 1 although it might he under certain situations in cases of homicide.  2 As to the
aggravating circumstances of dwelling and superior strength, the evidence has clearly established the presence
thereof in the commission of the crime. Two of the four accused each held the hands of Fermin Lamoste, who was
at the time unarmed, before he was stabbed, while Simplicio Aniel, the appellant herein, guarded the wife, Barcelisa
Lamoste, with the gun pointed at her face, and the crime was committed in the dwelling of the victim. The trial court,
therefore, should have considered dwelling and superior strength as aggravating circumstances. (People vs. Sina-
on, L-15631, May 27, 1966.)

The aggravating circumstance of nocturnity, however, cannot be appreciated. The record does not show that the
peculiar advantages of nighttime was purposely sought by the accused in the commission of the deed.

As this Court has pointed out:

... in default of any showing or evidence that the peculiar advantages of nighttime was purposely and
deliberately sought by the accused, the fact that the offense was committed at night will not suffice to
sustain nocturnidad. It must concur with the intent or design of the offender to capitalize on the intrinsic
impunity afforded by darkness of night. (People vs. Boyles, et al., L-15308, May 29, 1964.)

The penalty imposable on persons found guilty of the crime of robbery in band with homicide, under Article 294,
paragraph 1, Revised Penal Code, is reclusion perpetua to death. Considering that appellant Simplicio Aniel acted
in conspiracy with his co-accused, and there is no evidence that said appellant attempted to prevent the commission
of the offense charged, and taking into account the two aggravating circumstances of dwelling and superior
strength, without any mitigating circumstance to offset the same, in the opinion of the writer, the appellant Simplicio
Aniel should be made to suffer the extreme penalty of death. However, in view of the lack of the requisite vote, the
sentence imposed on him by the trial court is hereby affirmed. Costs against said appellant.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Fernando, J., is on leave.

Footnotes

1
People vs. Melendrez, 59 Phil. 154; People vs. de la Cruz, 77 Phil. 444; People vs. Mendoza, L-7039, Jan.
31, 1957; and People vs. Semanada, L-11361, May 26, 1958.

2
People vs. Huberto, 61 Phil. 64.

G.R. No. L-28347 January 20, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PAN PROVO, ET AL., defendants, JOSE MESINA, defendant-appellant.
332

Solicitor General Antonio P. Barredo, Assistant Solicitor General Frine' C. Zaballero and Solicitor Jaime M. Lantin
for plaintiff-appellee.

Conrado T. Quiaoit Conrado C. Genilo, Jr. and Pedro de Jesus for defendant-appellant.

CONCEPCION, J.:

Defendant Jose Mesina seeks the reversal of a decision of the Court of First Instance of Tarlac, the dispositive part
of which reads:

WHEREFORE, on reasonable doubt, the accused PAN PROVO and LEONARDO DAVID are
ACQUITTED of the crime charged, with costs de officio. However, PAN PROVO should be released
from detention because of the pendency of Criminal Case No. 2190 of this Court wherein the said
accused is one of those charged for Murder. With reference to LEONARDO DAVID, his immediate
release is ordered unless his confinement is warranted by some other legal cause.

As for the accused JOSE MESINA, the Court finds him GUILTY of the crime of Murder punishable
under Article 248 of the Revised Penal Code, and he is hereby sentenced to suffer the penalty of
reclusion perpetua; to indemnify the heir of the victim Matignas Serrano in the amount of TEN
THOUSAND PESOS (Pl0,000.00); and to pay the costs. The Court has imposed the penalty in its
medium period, instead of the maximum penalty of death because the aggravating circumstance of
nighttime and use of superior strength alleged in the information have already been absorbed in the
qualifying circumstance of treachery.

On October 9, 1958, shortly after dusk, Matignas Serrano, a security guard of the Clark Field Air Base, was forcibly
taken away by five men from his guard post at Fish Hawk No. 1, locally known as "Pisok," at Bamban, Tarlac, where
there is a cement vault, about 1-1/2 meters by 2 meters at its base and about 2-1/2 meters in height, with an iron
door which is padlocked. There are electric wires, on top of the vault, connected with the wirings running southward
from wooden -transmission n posts on both sides of said
vault.1 His dead body was found, on October 11, 1958, in a sugarcane plantation near a wooded area, known as Sapang
Bituka, not far away from said post, with fractured "cervical vertebrae, right mandible, and right basofrontal bones." On
December 2, 1958, a complaint was filed accusing herein appellant Jose Mesina, together with John Doe, Peter Doe,
Richard Doe and William Doe, of kidnapping with murder. Soon thereafter, the corresponding information was filed with
the Court of First Instance of Tarlac charging Jose Mesina and Leonardo David, alias Benaring with the aforesaid crime.
Still later, the information was amended to include Pan Provo as one of the accused.

The main evidence for the prosecution against Mesina consisted of the testimonies of Benita Mayuyu, Anastacio
Serrano, Apolonio Gilbert, Kudiaru Laxamana and Emilio Provo, and Exhibits C and E. The prosecution, likewise,
introduced the testimony, among others, of Robert Armstrong, superintendent of the police at the Air Base, which is
partly in Camp O'Donnell, province of Pampanga, and partly in Bamban, Tarlac.

Armstrong testified that, in addition to a private road therein, the Air Base used to maintain its communications with
Camp O'Donnell by radio, as well as thru underground cables, about two (2) inches in diameter, containing around
900 wires, for the protection of which and other property within the base the U.S. Government had engaged as
sentries the services of former members of the Philippine Scouts and members of the Non-Christian tribe known as
"Baluga," among whom was the deceased Matignas Serrano, whose guard post wag on a small plateau, on top of a
hill, about 600 feet high. Early in 1958, the communication officer of the Air Base had reported difficulty in
communication, which was found to be due to the disappearance of a portion of said cables, about 3 miles in length-
apart from the disappearance of bridges and culverts-owing, presumably, to pilferage. In the evening of October 9,
1958, Anastacio Serrano, another Baluga sentry, reported that his brother Matignas Serrano had been missing from
this post at "Pisok," with his carbine, since 6:00 o'clock that evening. The next day, a posse searched in vain the
vicinity of "Pisok." On October 11, 1958, the body of Matignas was found in a state of decay at Sapang Bituka, not
far away from Pisok.  The carbine and ammunition issued to him were missing. Armstrong further said that Pan
lâwphî1.ñèt

Provo is another Baluga chief in the region; that he (Armstrong) had seen Pan Provo and Mesina together on
several occasions; that Pan Provo and Mesina are related to each other; and that once Pan Provo asked him
(Armstrong) to engage the services of Mesina as security guard.

It appears from the testimonies of Anastacio Serrano, Benita Mayuyu, Apolonio Gilbert and Kudiaru, Laxamana that,
on October 9, 1958, at about 9:00 a.m., Mesina went to the house of Anastacio Serrano, at Baluga Village,
accompanied by a man whose face was partly covered; that, presently, Apolonio Gilbert arrived, also, at said house
of Anastacio Serrano, to ask for some rice; that the three (3) visitors took their lunch in that house; that, soon
thereafter, Mesina urged Anastacio to let him get some "pipes," referring to the electric cable lines, guarded by
Matignas Serrano near Pisok, within the Air Base Anastacio answered that he could not grant Mesina's request
because the "pipes" (cables) belonged to the Americans; that, thereupon, Mesina remarked: "If you do not know
how to get along with people, you win not live long"; that, later, at about 3:00 p.m., Mesina and the unknown man,
333

who came with him, departed stating that they were in a hurry because they had companions waiting for them at
Pisok; that, just after sunset that evening, Benita Mayuyu went to the post of her husband at Pisok and gave him a
flashlight he had bade her to bring that, soon after, five (5) men, four (4) of them masked, came; that the unmasked
man was Mesina, whom she knew long before, and who asked a cigarette from Matignas; that, as the latter
extended his hand holding the cigarette, Mesina grabbed the rifle slang on his (Matignas') shoulder, whereas the
four (4) masked men held him, and, with the help of Mesina, dragged him down the hill, and disappeared in the
darkness at the foot thereof; that she, thereupon, screamed for help; that as her nephew Berting Sibal, whose house
was not far away, came, she bade him to inform her brother-in-law, Anastacio Serrano, that Matignas had been
kidnapped; that when Anastacio Serrano came, later that evening, he found Benita crying miserably; that he
gathered from her that Matignas had been taked away by several men, and since, in view of her condition, he could
not get from her the detail's of the occurrence, he proceeded to the Air Base and reported the matter; that the officer
then on duty therein told him (Anastacio) to go home and come back the next day with a search team, which he did;
that upon learning of the disappearance of Matignas, on October 10, 1958, Kudiaru Laxamana, another security
guard of the Air Base, went, with several persons, to Pisok where Benita Mayuyu confirmed the news that Matignas
had been kidnapped by several persons and told him that one of them was Jose Mesina; that, as Laxamana and 4
others proceeded down the hill to search for Matignas, following the footprints visible on the ground, Mesina came
and joined the search; that the aforementioned footprints led to a sugarcane field, at a given point of which the
footprints were divided into two (2) sets, one leading to the left and another to the right; that when the search team
was, about to take the latter direction, Mesina persuaded the members of the Team to follow the footprints leading
to the left; that, heeding Mesina's advice, the search team followed this lead but failed to locate Matignas; that when
the team, together with Mesina, returned to Pisok. Anastacio Serrano was there; that Benita Mayuyu then said that
Mesina should not be allowed to go free "because he was the one who kidnapped my husband"; that, thereafter,
Anastacio brought Mesina and the others to the office of the Provost Marshal; and that, one Lt. Ocampo, an officer
therein, referred them to Camp Olivas, upon the ground that the event had taken place beyond his territorial
jurisdiction.

In an affidavit, Exhibit C, subscribed and sworn to before the Justice of the Peace of Angeles, Pampanga, Leonardo
David stated that, when he was about to fetch his carabao in the vicinity of Pisok, early in the evening of October 9,
1958, he met his brother, Federico David alias "Pedring," who was accompanied by Jose Mesina and Manuel
Zamora, alias "Maning"; that "Pedring" bade him to join the group, which he did, in going Pisok; that as Matignas
Serrano refused to allow them passage therein, "Pedring" held Matignas snatched his carbine, and, with the
assistance of his companions, dragged him away from his guard post; that Matignas was brought to a place in
Sapang Bituka, under a big tree, where "Pedring" gave him fist blows and then hit him on the head with the butt of
the carbine taken away from him; and that Matignas then fell down unconscious.

Exhibit E is the transcript of the testimony given by Emilio Provo before Fiscal Fernando M. Bartolome of Tarlac, at
the preliminary investigation conducted by the latter, on July 16, 1959. Emilio Provo then testified, among other
things, that Mesina is well known to him, Mesina having visited frequently Emilio's father, Pan Provo; that in 1958,
his father was engaged in supervising the digging of cable lines and culverts and the dismantling of bridges in the
Clark Air Force Base — with the assistance of many persons, among them Emilio Provo and Jose Mesina; that the
cables, culverts and I-Beams thus contained were sold to Domingo de Vera and a Chinaman in Mabalacat,
Pampanga; that on October 9, 1958, just after twilight, Emilio and Pan Provo went to the house of Jose Mesina,
whom the latter invited to go to Pisok; that on the way thereto, Federico David, alias "Pedring," and Leonardo David,
alias "Benaring," joined them; that before reaching Pisok, Emilio's companion said that they would get Matignas
Serrano, the guard in that place, "because of the tubes" they were taking "and that one that was enclosed in a tank
which were being guarded by Matignas Serrano that as they reached Pisok, Pan Provo called Matignas Serrano
that as Matignas stepped out of his guard post, Mesina wrested the carbine slung on the former's shoulder; that Pan
Provo and Federico and Leonardo David helped Mesina drag Matignas down the hill; that, as Matignas offered
resistance Mesina, Pan Provo and Federico David boloed him at Sapang Bituka, where Matignas was left, already
dead; and that when they learned that the body of Matignas Serrano was found subsequently, Emilio Provo and Pan
Provo fled to Pulong Calara, in the mountains.

Although Emilio Provo admitted having given this testimony, he denied, before the lower court, any knowledge
about the truth thereof and affirmed that he gave said testimony upon instructions of Angel Manipon and one
Panolapi, who had assured him that he would, thereafter, be free.

Appellant denied having performed any of the acts imputed to him by the prosecution. The defense would, also,
have the Court believe that on October 9, 1958, Mesina was in his house at Barrio San Nicolas, Bamban, Tarlac, up
to 5:00 o'clock p.m.; that, after taking an early dinner he attended the religious service, which lasted up to 8:00 p.m.,
at the Iglesia ni Cristo, to which he is affiliated, in that barrio; that, at about 8:30 p.m. he and Ruben Villas attended
a barrio meeting called by barrio lieutenant Remigio Ocampo; that, upon adjournment of the meeting, around 10:00
p.m., they returned to the house of Mesina and then went to bed.

As indicated above, the trial court acquitted Pan Provo and Leonardo David, upon the ground of reasonable doubt,
but convicted Mesina of the crime of murder, and sentenced him accordingly, whereupon Mesina interposed the
present appeal contending that the trial court erred: (1) in relying upon the testimony of Benita Mayuyu; (2) in giving
credence to the testimony of Anastacio Serrano, Apolonio Gilbert and Kudiaru Laxamana; (3) in admitting Exhibits C
and E as evidence; and (4) in not believing the evidence for the defense.
334

Under the first assignment of error, the defense assails the credibility of Benita Mayuyu's testimony, upon the
ground that she had given conflicting versions, in that at one time she said it was dark, between 8:00 and 8:30 p.m.,
when her husband was taken away by several men, one of whom was Mesina, and, at another time, stated that the
occurrence took place just after that in a seeming effort to explain how she could recognize said appellant; that in
the evening of October 9, 1958, she did not tell either her nephew Berting Sibal or her brother-in-law Anastacio
Serrano, that she had recognized appellant among the kidnappers of Matignas; that she, likewise, failed to convey
such information to Anastacio Serrano, as soon as he arrived at Pisok the next morning, not even when Mesina then
showed up in that place; and that neither had she revealed his participation in the commission of the crime charged,
while they were going to the office of the Provost Marshal on October 10, 1958:

At the outset, it should be noted that Benita Mayuyu is a member of the Non-Christian tribe known as Baluga. As
such, she had grown up and lived in a primitive condition, devoid of any education whatsoever. She is illiterate and
cannot read, not even a time-piece. Although Matignas had been snatched by his kidnappers at 8:00 or 8:30 p.m.,
she explained that this was a mere estimate of the time, which may be mistaken, and that the evening had
happened "just after twilight." It is well to remember, in this connection, that, in response to her screams for help, her
nephew Berting Sibal came; that she bade Berting Sibal to forthwith inform her brother-in-law, Anastacio Serrano, of
the kidnapping of Matignas; and that, after verifying this fact, Anastacio Serrano immediately reported to the
authorities that Matignas "had been missing with his carbine since 1800 house ... 9 Oct. '58," as recorded in the
"Daily Journal SPL Police Operation" of the Air Base. In other words, Anastacio Serrano had estimated the time of
the disappearance of Matignas to be about 6 p.m. Considering that Anastacio is more enlightened than Benita
Mayuyu and that Matignas had been snatched from his post "just after twilight," there is every reason to believe that
Anastacio's estimate of the time of the occurrence is more accurate than that of his sister-in-law. In fact, Benita
testified that, at 5 p.m., she brought the dinner of Matignas, who, after taking the same, bade her to bring his
flashlight, whereupon she picked it up at their hut, barely 70 meters away from Pisok, and then brought the flashlight
thereto, at about 6 p.m. The occurrence took part shortly thereafter.2

Then, too, "Pisok" is in a small plateau, then cleared of grass, on a hill about 600 feet in height. Although, for lack of
electric lights in the vicinity, it was already dark, particularly at the foot of the hill, it is a fact that Pisok was at the top
thereof; that twilight had been over only shortly before; that the hut of Matignas and Benita was barely 70 meters
away from Pisok,3 that Benita's eyesight had already been adjusted to the existing conditions when she went to Pisok
bringing a flashlight to Matignas; that her ability to see and recognize persons and objects was enhanced by the
circumstance that she had been with Matignas several minutes before the arrival of his kidnappers; that the glow of the
light at the Air Base proper, although 5 to 6 kilometers or miles away, rendered the top of the hill, where Pisok was, less
dark than the area at the foot thereof; and that she was beside her husband when the malefactors snatched him. We are
satisfied that the surrounding circumstances were not such as to render it impossible, or even improbable, for Benita to
identify a person whom she knew well, like Mesina, had he been with the kidnappers, unmasked. Indeed, Kudiaru
Laxamana learned from Benita, on October 10, 1958, that she had recognized Mesina among the offenders, the night
before. What is more, Mesina testified that, in a conversation he had with her on October 10, 1958, Benita said she had
recognized one of the kidnappers. Benita had no possible reason to inculpate
him — if he were not really the unmasked kidnapper — and thereby exculpate the true culprit.

Let us now consider appellant's argument based upon Benita's failure to forthwith reveal the participation of Mesina
in the commission of the crime. It will be recalled that, as soon as Matignas and his kidnappers had disappeared in
the darkness at the foot of the hill, Benita hurried down another part of the hill, screaming for help. When, soon
thereafter, her nephew Berting Sibal appeared, she bade him to inform Anastacio Serrano that Matignas had been
kidnapped. She did not tell Berting Sibal the details of the occurrence, for there was vital urgency of rescuing
Matignas and, hence, she did not wait for Berting to approach her, but conveyed her message to him as soon as he
was within shouting distance.

When Anastacio Serrano came, it was sometime later. Meanwhile, there was nothing she could do to save
Matignas. It is not unusual for female members of our masses, particularly those least enlightened, to express their
sorrow or desperation by crying loudly and otherwise acting in a frenzied or hysterical manner. An intense
lamentation and expression of grief for a misfortune, when unchecked soon enough, is bound to result in a condition
of numbness, under which the mind becomes somewhat dull. Under these circumstances, it is not difficult to picture
Benita's plight on October 10, 1958. When Anastacio Serrano eventually arrived, she was in no condition to explain
the occurrence or to do anything except lament the loss of her husband. She was in a daze, and did not clearly
perceive or remember what she did, or what transpired about her. She did not converse with Anastacio Serrano
when he arrived, or notice the presence of Jose Mesina, either when he first showed up that morning, or when she
went to Clark Field and later to Camp Olivas. When Kudiaru Laxamana arrived later in the morning of October 10,
1958, she, however, confided to him that Jose Mesina was one of the culprits. And still later, when the search team
headed by Laxamana came back empty handed, she said: "do not let thus man (referring to Mesina) go free, for he
was the one who kidnapped" her husband.

The first assignment of error is, therefore, untenable.

Appellant assails the testimony of Anastacio Serrano and Apolonio Gilbert upon the ground that neither had inquired
about the identity of the companion of Mesina, or conversed with him (Mesina's companion) when they (Mesina and
his companion) allegedly went to the house of Anastacio Serrano in the morning of October 9, 1958, and stayed
335

there up to 3:00 p.m., and that the remark of Mesina, about the short life of them who do not know how to get along
with others, does not have the import the prosecution attaches thereto.

The significance of said remark is, however, irrelevant to the veracity of said witnesses for the prosecution, who
corroborated each other in connection therewith. Moreover, in the light of the fact that Mesina and the unknown
person, who came with him, left the house of Anastacio Serrano, at 3:00 p.m., stating that their companions were
waiting for them at Pisok; that, at about 6:00 p.m., that same day, Mesina and four (4) masked men went to Pisok,
snatched the carbine of Matignas and dragged took away; and that, thereafter, Matignas was found dead, it is clear
that the remark in question, made after the refusal of Anastacio Serrano to allow further pilferage of electric cables
within the Air Base, was meant to be a threat to those who might obstruct said pilferage. Upon the other hand, since
the man who accompanied Mesina to the house of Anastacio Serrano had his face covered with a towel, it was
obvious that Mesina and he did not want his identity to be known. It was, therefore, indiscreet and useless to
converse with him or to otherwise ask who he was or where he came from.

It is argued that the act of Mesina of dissuading the posse headed by Kudiaru Laxamana from following the set of
footprints going to the right of the sugarcane plantation near Pisok, and of persuading the posse to track the
footprints leading to the left of said plantation is "too insignificant" to implicate said appellant. This argument is
manifestly devoid of merit, aside from being immaterial to the issue of credibility of Laxamana's testimony. Indeed,
considering that the posse had thereby failed to locate the body of Matignas, which it would have found had it (the
posse) turned right, which was the logical course to take — as Laxamana wanted — to for there were small
footprints in that direction and Matignas is small, the aforementioned act of Mesina tends to show that he knew
where the body was and corroborates the testimony of Benita Mayuyu to the effect that he was one of those who
snatched Matignas in the evening of October 9, 1958.

It is next urged that Kudiaru Laxamana, Anastacio Serrano and Benita Mayuyu had contradicted each other, in that
— according to the defense — the first said that Benita "told the search party not to allow Mesina to go free because
he was the one who kidnapped her husband," whereas Anastacio Serrano affirmed that Benita "told him about Jose
Mesina only the day after they came from the Office of the Provost Marshal and when they were already at Camp
Olivas," and Benita declared that "it was only when they were at Clark Field when she told Anastacio Serrano about
Jose Mesina and she did not tell the same to other members of the search party." 4

The statement of Benita Mayuyu, testified to by Laxamana, was made to him, not to the search party or to Anastacio
Serrano, so that no inconsistency exists between the latters testimony and that of Laxamana. Besides, Benita did
not testify that the participation of Mesina in the commission of the offense had been revealed by her to no other
person than Anastacio Serrano. What she said is that no other person heard her or was present when she
conveyed the aforementioned information to Anastacio Serrano. Then, too, after the ordeal of the night before,
Benita did not feel well on October 10, 1958. The apprehension and the tension resulting from the failure to locate
the body of Matignas on that date did not certainly help improve the situation. Hence, when she was, thereafter,
brought, first to Clark Field and, then — after the usual period of waiting during the preliminary inquiries therein
made — referred to Camp Olivas, she was literally and understandably groggy. When we add to this the fact that
she was kept on the witness stand for five (5) days, and that she was so extensively cross-examined by several
lawyers for the defense that the transcript of her testimony covered one hundred and five (105) pages, some of
which are single space, it is not in the least strange that this simple, illiterate member of one of our tribes of
aborigines, found herself uncertain or confused on whether her conversation with Anastacio Serrano took place at
Clark Field or at Camp Olivas. Well settled 19 the rule that inconsistencies and contradictions incurred by an
illiterate witness in the course of a lengthy examination will not affect the credibility of the testimony. 5

One fact stands in bold relief and that is that Benita Mayuyu had positively recognized one of the culprits and that
she had so stated, from the very first moment she explained the circumstances under which her husband had been
"kidnapped." This was established, not only by the testimony and that of Kudiaru Laxamana and Anastacio Serrano,
but, also by the appellant himself.  In the light of the foregoing, and considering that neither Laxamana, nor
6

Anastacio Serrano, nor Benita Mayuyu had possible motive to falsely incriminate appellant Jose Mesina. We do not
find sufficient grounds to doubt the veracity of said witnesses for the prosecution.

Referring now to Exhibits C and E, Leonardo David testified that he had acted under duress in subscribing to the
first and swearing to the truth of its contents, whereas Emilio Provo affirmed that he knew nothing about the truth of
his statements in Exhibit E, he having made the same upon instructions of Angel Manipon and one Panolapi, who
assured him that he would thereby be set free. Furthermore, appellant maintains that, being in the nature of
extrajudicial admissions or confessions, the same are admissible in evidence against its makers only, not against
him.

The testimony of Leonardo David about his alleged maltreatment bythe police has all the earmarks of artificiality, for
he did not reveal said maltreatment, either to his own father, when the latter visited him at Camp Olivas, or to the
Justice of the Peace of Angeles City, before whom he subscribed and swore to the truth of the contents of Exhibit C.
Besides, his signatures on each and everyone of the three (3) pages thereof appear to have been written with a firm
hand. More important still, -apart from, in effect, exculpating himself therein, Leonardo David points in Exhibit C to
his brother — Federico David, alias "Pedring" — as the sole killer of Matignas Serrano.  The participation of Jose
lâwphî1.ñèt

Mesina, as one of those who helped "Pedring" drag Matignas away from his guard post, was merely an incident in
336

the description of the crime, as committed principally by "Pedring." Likewise significant is the fact that the latter -
Federico David, alias
"Pedring" — had already been killed, in an encounter with peace officers, shortly after October 9, 1958 .7 In short, there
was no reason why the agents of the law Who investigated Leonardo David would resort to duress in order to secure a statement substantially favorable to him.

Exhibit E is the transcript of the questions propounded by Fiscal Bartolome of Tarlac and of the answers given by
Emilio Provo at the preliminary investigation conducted by said official. Angel Manipon and Panolapi — who,
according to Emilio Provo, induced him to give said answers — did not take part in said investigation. It does not
even appear that they were present when it was held. There is, likewise, nothing in the record to indicate the
interest, if any, of Manipon and Panolapi in the case at bar, or that Emilio Provo had reasonable grounds to believe
that they could order his release or cause to take place.

Again, unlike Exhibit C, which depicts Federico David — alias "Pedring" — as the main culprit, the testimony of
Emilio Provo in Exhibit E tends to show that his father, Pan Provo, was the mastermind, for it was he (Pan Provo)
who invited Mesina to go to Pisok, and it was he (Pan Provo) who called Matignas and persuaded him to step out of
his guard post. Moreover, Pan Provo took part in the act of hacking Matignas to death. As in Exhibit C, the reference
to Mesina in Exhibit E was merely incidental to the main role played by Pan Provo. Had A been concocted by the
prosecution in this case, the story given by Emilio Provo in Exhibit E would have, in all probability, followed a pattern
identical to that of Exhibit C, made prior thereto, or to that resulting from the testimony of Benita Mayuyu, Anastacio
Serrano and Kudiaru Laxamana. Although all are unanimous on :the participation of Mesina, and Exhibits C and E
are in accord that Pan Provo and Federico David had taken part, also, in the commission of the crime, these two (2)
documents do not agree as regards the details of their participation therein. In short, the explanation given by Emilio
Provo, for his statements contained in Exhibit E, is manifestly unworthy of credence.

As regards the admissibility of Exhibits C and E as evidence against Mesina, it should be noted that, although
extrajudicial confessions are in general admissible only against those who made the same, this rule is subject to an
exception. As pointed out and applied in People v. Condemena:8

Extra-judicial confessions independently made without collusion, which are identical with each other
in their essential details and are corroborated by other evidence on record, are admissible as
circumstantial evidence against the person implicated to chow the probability of the latter's actual
participation in the commission of the crime.9

Indeed, as early as November 5, 1915, this Court had occasion to state: 10

... The truth of the incriminating statements of Miguela Sibug, Damaso Valencia's widow, in connection with each
one of the said three defendants, is proved by those made by the other witness for the prosecution, Lorenzo Reyes,
and by the confession, although extra-judicial, made by Faustino Mañago himself in the municipality of Hagonoy to
the lieutenant of the Constabulary, Cristobal Cerquella and to the municipal president and a policeman of the said
pueblo and this confession is worthy of credence and is admissible against him, as it is likewise credible and
admissible against his co-defendants, Abdon de Leon and Severino Perez, his accusation of their participation in
the crime, inasmuch as the confession is corroborated both by the testimony of Miguela Sibug herself and by that of
Lorenzo Reyes and confirmed by the other evidence related thereto and found in the record. 11.

The applicability of the foregoing exception — which has been repeatedly acknowledged and applied by this
Court 12 — to the case at bar becomes apparent when we bear in mind that the statements contained in Exhibits C and E
were made — obviously without collusion and independently of each other — for the purpose of establishing the guilt of
Federico David and Pan Provo, respectively, and that they corroborate one another and the testimony of Benita Mayuyu,
Anastacio Serrano and Kudiaru Laxamana with respect to the fact that Matignas Serrano was dragged away from his
guard post in the evening of October 9, 1958, by Mesina and several other persons — apparently for not allowing them to
steal and take away electric cables from Clark Field Air Base — and then killed. Hence, said Exhibits C and E were
properly admitted as circumstantial evidence tending to show the probability of the participation of appellant in the
commission of said offense, as testified to by said witnesses for the prosecution.

Needless to say, as one of the weakest defenses available in criminal cases, the alibi set up by appellant herein
cannot offset the testimony of Benita Mayuyu, who positively identified him as one of those who seized Matignas
Serrano, at Pisok, in the evening of October 9, 1958, corroborated by the testimony of the aforementioned
witnesses for the prosecution and by the aforementioned Exhibits C and E. It may not be amiss to add that Lazaro
David, whose testimony was introduced by Mesina to corroborate his alibi, could not explain why he allegedly
remembered distinctly the presence of Mesina at the religious service in the Iglesia ni Cristo and the barrio meeting
held subsequently thereto, in the evening of October 9, 1958, but could not remember other events of similar nature,
at about that period of time. Upon the other hand, Remigio Ocampo ,would have Us believe that Mesina arrived at
said meeting in the barrio of San Nicolas around 9:00 p.m., which does not negate Mesina's presence at Pisok, at
about 6: 00 p.m., the latter being less than 1/2 kilometer from the barrio of Camatsili, which, in turn, is about one-
hour's walk from San Nicolas. 13

The acts proven constitute the crime of murder, qualified by abuse of superior strength, with the aggravating
circumstances of nocturnity and evident premeditation, in which would warrant the imposition of the extreme
337

penalty, were it not for the lack of the number of votes necessary therefor. Except as to the indemnity, which should
lie increased from P10,000 to P12,000, 14 We find, therefore, no reason to disturb the decision appealed from, which. as
thus modified as to the indemnity, is hereby affirmed in all other respects, with the costs of this instance against appellant
Jose Mesina. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Villamor and Makasiar, JJ., concur.

Barredo, J., took no part.

PEOPLE VS PROVO ET AL AND JOSE MESINA

G.R. L-28347, January 20,1971

FACTS: Jose Mesina, Leonardo David, and Pan Provo were accused of the crime of murder. The victim, Matignas Serrano,
was a security of Clark Field Air Base and had a guard post at Fish Hawk 1, or locally known as “Pisok.” According to
witnesses, he was forcibly taken by a group of men from his post, one of which was identified as Jose Mesina. Matignas
was later found dead in a nearby sugarcane plantation.

The main evidence for the prosecution against Mesina consisted of the testimonies of Benita Mayuyu, Anastacio
Serrano, Apolonio Gilbert, Kudiaru Laxamana and Emilio Provo, and Exhibits C and E.

According to the testimonies, Mesina went to the house of Anastacio Serrano accompanied by an unidentified man,
Apolonio Gilbert also arrived at the same house. The three visitors ate their lunch there, and thereafter Mesina urged
Anastacio to get some pipes (electric cable lines) guarded by his brother, Matignas. However, Anastacio answered that
he could not grant such request because the cables belonged to the Americans. Later, Mesina and the unknown man
departed stating that they had companions waiting for them at the “pisok.” Also, Benita Mayuyu, wife of the victim,
testified and positively identified one of the men who took his husband as Jose Mesina.

Exhibit C is an affidavit of Leonardo David, subscribed and sworn to before the Justice of the Peace of Angeles,
Pampanga, stating that when he was in the vicinity of Pisok, early in the evening of October 9, 1958, he met his brother,
Federico David (Pedring) who was accompanied by Jose Mesina and Manuel Zamora (Maning), that "Pedring" bade him
to join the group, which he did; that when Matignas Serrano refused to allow them passage in the Pisok, "Pedring" held
Matignas, snatched his carbine, and, the group dragged him away from his guard post; that Matignas was brought to a
place in Sapang Bituka, where "Pedring" gave him fist blows and then hit him on the head with the butt of the carbine
taken away from him; and that Matignas then fell down unconscious.

Exhibit E is the transcript of the testimony given by Emilio Provo before Fiscal of Tarlac, at the preliminary investigation
conducted by the latter. Emilio Provo testified, among other things, that Mesina is well known to him, Mesina having
visited frequently Emilio's father, Pan Provo; that his father was engaged in supervising the digging of cable lines and
culverts and the dismantling of bridges in the Clark Air Force Base — with the assistance of many persons, among them
Emilio Provo and Jose Mesina; that the cables, culverts and I-Beams thus contained were sold in Mabalacat, Pampanga;
that on October 9, 1958, just after twilight, Emilio and Pan Provo went to the house of Jose Mesina, whom the latter
invited to go to Pisok; that on the way thereto, Federico David (Pedring) and Leonardo David (Benaring) joined them;
that before reaching Pisok, Emilio's companion said that they would get Matignas Serrano, the guard in that place,
because of the tubes that were enclosed in a tank which were being guarded by Matignas Serrano; that as they reached
Pisok, Pan Provo called Matignas Serrano and that as Matignas stepped out of his guard post, Mesina wrested the
338

carbine slung on the former's shoulder; that Pan Provo and Federico and Leonardo David helped Mesina drag Matignas
down the hill; that, as Matignas resisted, Pan Provo and Federico David boloed him at Sapang Bituka, where Matignas
was left, already dead; and that when they learned that the body of Matignas Serrano was found subsequently, Emilio
Provo and Pan Provo fled to Pulong Calara, in the mountains.

Petitioner contends that Exhibits C and E, being in the nature of extrajudicial admissions or confessions, are admissible in
evidence against its makers only, not against him.

ISSUE: Whether or not the Exhibits C and E are admissible against Mesina? Yes

RULING: it should be noted that, although extrajudicial confessions are in general admissible only against those who
made the same, this rule is subject to an exception. As pointed out and applied in People v. Condemena:

Extra-judicial confessions independently made without collusion, which are identical with each other in their essential
details and are corroborated by other evidence on record, are admissible as circumstantial evidence against the person
implicated to chow the probability of the latter's actual participation in the commission of the crime.

In the present case, the statements contained in Exhibits C and E were made — obviously without collusion and
independently of each other — for the purpose of establishing the guilt of Federico David and Pan Provo, respectively,
and that they corroborate one another and the testimony of the other witnesses with respect to the fact that Matignas
Serrano was dragged away from his guard post in the evening of October 9, 1958, by Mesina and several other persons
— apparently for not allowing them to steal and take away electric cables from Clark Field Air Base — and then killed.
Hence, said Exhibits C and E were properly admitted as circumstantial evidence tending to show the probability of the
participation of appellant in the commission of said offense, as testified to by said witnesses for the prosecution.

Needless to say, as one of the weakest defenses available in criminal cases, the alibi set up by appellant herein cannot
offset the testimony of Benita Mayuyu, who positively identified him as one of those who seized Matignas Serrano, at
Pisok, corroborated by the testimony of the aforementioned witnesses for the prosecution and by the aforementioned
Exhibits C and E.

The acts proven constitute the crime of murder, qualified by abuse of superior strength, with the aggravating
circumstances of nocturnity and evident premeditation. (Mesina guilty, other accused acquitted)

G.R. No. L-27909 December 5, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARCADIO PUESCA alias "Big Boy", WALTER, APA, FILOMENO MACALINAO, JR. alias "White", MAGNO
MONTANO alias "Edol", JOSE GUSTILO alias "Peping" and RICARDO DAIRO alias 'Carding" defendants-
appellants.

Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Jaime M. Lantin for
appellee.

Castor M. Baltazar for appellants.

339

PER CURIAM:

Automatic review of the judgment of the Davao Court of First Instance in Criminal Case No. 6813, finding appellants
Arcadio Puesca alias "Big Boy", Jose Gustilo alias "Peping", Magno Montaño alias "Edol", Filomeno Macalinao,
Jr. alias "White", Walter Apa and Ricardo Dairo alias "Carding" guilty beyond reasonable doubt of the crime of
Robbery in Band with Homicide, attended by the aggravating circumstance of nocturnity, and imposing upon them
the penalty of DEATH, ordering them to indemnify jointly and severally the heirs of the deceased Candido Macias in
the amount of P6,000.00 and P20,000.00, the latter sum representing the money robbed, and to pay the costs.

The following facts were the basis of the trial court's judgment: On the early evening of November 27, 1960,
Candido Macias and his wife, Marcela Macias, were taking supper in their house located in Barrio Sinayawan.
Sinayawan is a barrio of Hagonoy, Davao del Sur and lies near the road to Digos. Under the house were their son,
Fortunato Macias, and son-in-law, Anacleto Delfino. Fortunato Macias was repairing a jeep, assisted by Anacleto
Delfino who was holding a lighted "Petromax" lamp.

Suddenly, strangers with firearms unceremoniously entered the house. Three of them went upstairs. Marcela
Macias and Candido Macias heard the voice of one of them emanating from the sala, ordering the occupants of the
house to lie down on the floor. Candido Macias left the table and went out to the sala. Two gun reports were heard
and Candido Macias instantly slumped to the floor. Marcela Macias stood up and walked towards her husband but
before she could reach him, she was met by one of the intruders who ordered her to lie flat on the floor, otherwise
all of them would die.

Someone under the house also directed Fortunato Macias and Anacleto Delfino not to move. Turning to his left,
Fortunato Macias saw two armed men. He immediately ran towards the coconut plantation near the house where he
took refuge. Anacleto Delfino also turned around to see who those persons were. When he held his lamp up, he
saw two gunmen, one tall and the other short. He Identified one of them as appellant Arcadio Puesca and the other
as appellant Magno Montaño. According to Delfino, appellant Puesca fired at him and he was hit between the elbow
and the armpit. Delfino brought down the lamp and lay flat on his belly. When he was brought to the sala which was
then lighted by a "Petromax" lamp, Delfino saw his father-in-law, Candido Macias, lying on the floor near the door.
He was already dead. He also noticed two persons with firearms whom he Identified as appellants Jose Gustilo and
Filomeno Macalinao, Jr.. At that time, Marcela Macias noticed that the intruders were ransacking the house. The
trunk in the master's bedroom was forcibly opened, and the sum of P20,000.00 was taken. This sum represented
the proceeds from the sale of a parcel of land for P17,000.00 together with their income from a twenty-four-hectare
riceland and their three jeeps for hire. They also took the gun of Candido Macias which was lying on the bed, as well
as his new pair of pants and other clothes. The aparador in the sala was toppled down by appellants Gustilo and
Macalinao.

When Francisco Macias, another son of Candido Macias, heard the gun reports he rushed to his father's house
which was about eighty (80) meters away from his home. As he approached the house, two persons with carbines
who were in the kitchen fired upon him. He was ordered to crawl to the sala and to lie flat on his stomach on the
floor. He observed that the house was being ransacked. When Francisco Macias tried to look around, two men
kicked him on the head. Later, Francisco was told to go downstairs and to get the key of one of the jeeps from his
house. As he went down, he was followed by two other armed men.

The gun reports in the house of Candido Macias were also heard by the spouses Marietta Macias-Olarte and
Epifanio Olarte, daughter and son-in-law, respectively, of Candido Macias. They immediately left their house to find
out what was happening in Candido Macias' house. On their way thereto, they heard bullets whistling over their
heads. They sought shelter in the house of Anacleto Delfino, whose wife, Antonia Macias, was the sister of Marietta
Macias-Olarte. Francisco Urbano, a tenant of Candido Macias, happened to reside at that time in said house. When
the firing subsided, Marietta Macias-Olarte, Epifanio Olarte, Antonia Macias and Francisco Urbano went to the
backyard of Delfino's house. The distance from the house of Anacleto Delfino to the house of Candido Macias was
some forty (40) meters. The group of Marietta Macias-Olarte then saw three men coming from the house of Candido
Macias. As the three men neared their place, Epifanio Olarte tried to talk to Francisco Macias, but he was
immediately pushed back and one of the escorts of Macias fired at him. Marietta Macias-Olarte and Francisco
Urbano testified that they recognized the tall, stoop-shouldered gunwielder as Walter Apa because of the light of the
moon and his proximity to them. They also recognized the shorter fellow as appellant Ricardo Dairo, when they saw
was carrying a gun. Appellant Ricardo Dairo remained with the group of Marietta, while Francisco Macias and
appellant Walter Apa continued on their way. Francisco Macias was not allowed by appellant Apa to turn his face
sideways. After they secured the key from his house, Francisco Macias and appellant Walter Apa returned to the
house of Candido Macias, passing through the backyard of the house of Delfino where they were joined by
appellant Ricardo Dairo.

Under the house of Candido Macias, Francisco Macias started the motor of one of the jeeps, and thereafter, eight of
the men boarded the jeep. Apparently to prevent pursuit, the tires of the other jeep were fired upon. The jeep which
was driven by Francisco proceeded towards Barrio Liling on the way to Davao City. After a while Francisco Macias
was ordered to stop the vehicle and someone alighted from the rear, and Francisco Macias was ordered to move
over to the center of the front seat, According to Francisco Macias, he was able to recognize fully the man who took
over the steering wheel. He Identified him as appellant Jose Gustilo. When Francisco tried to look sideways, one of
340

them hit him on the head with a pistol. After the jeep had run for more than one hour, it was stopped. Francisco
Macias went down the jeep and one of the men said that he should be shot. Francisco Macias pleaded for his life.
Appellant Jose Gustilo intervened and suggested to his companions that they spare Francisco's life. Francisco
Macias was then hogtied and stripped of his clothes. The men then fled away in the jeep. After their departure,
Francisco was able to untie his feet, and he walked about two kilometers to a friend's house, where he borrowed a
pair of pants and shirts. Later, he boarded a passenger bus for Digos, a municipality adjacent to Hagonoy.

The robbery and killing in the house of Candido Macias were reported that same night, November 27, 1960, by
Francisco Macias to Antonio Viran, Chief of Police of Hagonoy, Davao. Accompanied by police officers, Chief Viran
went to the house of Candido Macias in Barrio Sinayawan and found Candido Macias dead. The furniture in the
house were in topsyturvy condition. The officer interviewed persons in the house and the latter assured him that
they could recognize the culprits. The get-away jeep was recovered near a bridge on the road to Davao City. The
following morning, Chief Viran returned to the house of Candido Macias, accompanied by Mayor Llanos of Digos,
Zosimo Melendez, Chief of Police of Digos, Sgt. Bano and Lt. Javier of the Digos Police Force. Chief Viran found
P17.00 in one-peso bills, while Chief Melendez found empty shells in the sleeping room of Candido Macias, and a
bullet slug on the floor of the sala. They also saw downstairs a jeep with flat tires and a "Petromax" lamp destroyed
by bullets.

Chief Viran reported the incident to the Provincial Governor if Davao. Col. Jacinto Romero, Chief of Police Affairs
Unit in the Office of the Provincial Governor, then joined hands with the police to solve the robbery — killing incident.

On December 1, 1960, Sgt. Lucio Bano met one Roger Cahilog who informed him that appellants Arcadio Puesca
alias "Big Boy" and Jose Gustilo alias "Peping", slept in his house on the night of November 26, 1960 and that he
overheard the two talking about robbery. He thus became suspicious of the two.

On December 2, 1960, appellants Puesca and Jose Gustilo were apprehended by Sgt. Bano and Lt. Javier in
Davao City. On December 10, 1960, appellant Puesca, who was detained in the municipal jail of Digos, told Sgt.
Bano and Chief Melendez that he would like to see Mayor Llanos in order to confess his participation in the crime. In
the evening of that date, Mayor Llanos met appellant Puesca in his office on the second floor of the municipal
building. Appellant Puesca was questioned by the Mayor on his participation. Present were Chief Melendez, Chief
Viran, Lt. Javier and Lei Hong, owner of a tape recording machine. Appellant Puesca's investigation was tape
recorded by Lei Hong. Puesca confessed that he was one of the gang who entered the house of Macias and
committed the robbery and killing therein. He mentioned as his companions Jose Gustilo alias "Peping", Magno
Montaño alias "Edol", Felimon. Carding and Mariano. He said that there were others who were 'with them whose
names he did not know but whom he could Identify if he saw again. The confession of appellant Puesca was taken
down in writing (Exhibit "L").

Appellant Jose Gustilo, like Puesca, admitted to Mayor Llanos his participation in the commission of the crime and
mentioned as his companions Arcadio Puesca alias "Big Boy", Magno Montaño alias "Edol", Filomeno Macalinao,
Carding, Mariano and others. The questioning of appellant Gustilo was tape recorded by Lei Hong, and was taken
down in writing (Exhibits "R", "R-1", "R-2": "U", "U-1"; "V", "V-1", "V-2"; "W", "W-1" and "W-2").

Following the confession of appellants Puesca and Gustilo, appellant Magno Montaño alias "Edol" was arrested by
Chief Viran. In his own handwriting (Exhibits "Q", "Q-1" to "Q-3"), appellant Montaño confessed his guilt and names
as his confederates in the crime Arcadio Puesca alias "Big Boy", Jose Gustilo alias "Peping" and Felimon
Macalinao. Appellant Montaño confession was tape recorded by Lei Hong in the presence of Mayor Llanos and the
police officers.

The confessions of appellants Puesca and Montaño (Exhibits "L" and "Q".) were subsequently subscribed and
sworn to by the declarants before Augusto H. Fernandez, Justice of the Peace of Digos. Appellant Gustilo, on the
other hand, refused to sign his confession (Exhibit "R") and did not give any reason for his refusal.

On December 15, 1960, appellant Filomeno Macalinao, Jr. was arrested at the Sasa Airport, Davao City, as he was
about to board a plane for Cebu. In a confrontation with appellant Puesca and later with appellant Gustilo, he was
Identified by the two as the person they had mentioned in their confessions as their companion in the commission of
the crime.

In order to Identify all the culprits, Chief Viran showed to Francisco Urbano and Marietta Macias-Olarte the pictures
of some police characters, from which the two picked out the pictures of appellant Walter Apa (Exhibit "S") and
Ricardo Dairo (Exhibit "T"), They told the officer that Apa and Dairo were among those whom they saw on the night
of the incident. Appellants Apa and Dairo were picked up by the police and confined in jail.

Sometime in December 1960, Marietta Macias-Olarte, Anacleto Delfino, Francisco Macias and Francisco Urbano
were invited to the municipal jail of Digos, where, from a group of detained prisoners, they pointed to appellants
Arcadio Puesca, Jose Gustilo and Magno Montaño as three of the men who had participated in the robbery and
killing of Candido Macias. Subsequently, in January 1961, Francisco Urbano was called to the municipal building of
341

Hagonoy, and from among a group of persons he pointed to appellant Ricardo Dairo as one of the culprits he
recognized.

The Cadaver of Candido Macias was autopsied by Dr. Julio M. Layug, Municipal Health Officer of Digos, Davao, as
the Municipal Health Officer of Hagonoy was away. The result of his autopsy examination is found in the report,
Exhibit "A", and read as follows:

1. Gunshot wound 3 inches above the left mammary gland more on the left side of the manubrium
measuring 1 cm. in diameter, penetrating the skin, muscle, aorta of the heart, lung and the slug was
lodged between the right 8th and 9th ribs at the back and between the muscle and the skin between
the spinal column and the right scapula. The slug found was caliber 38.

2. Gunshot wound 3 inches below the left mammary gland externally at the left axillary line
measuring 1 cm. in diameter, penetrating the skin, muscle, lung, liver, and the right lumbar region.
The gunshot wound at this place of exit measures 1-½ cms. in diameter and in overted position.

Dr. Layug testified that the second shot was fired while the victim was falling down, and that death supervened in
only three or four minutes. The cause of death was due to "shock with internal hemorrhage caused by the gunshot
wounds".

Counsel de oficio for all of the appellants maintains that the court a quo erred: (1) in giving more weight and
credence to the "biased and unbelievable declarations of relatives of the deceased"; (2) in admitting and believing
the confessions of some of the appellants which "were extracted through third degree"; and (3) in denying the
motion of appellants for new trial. In a supplemental brief, counsel for appellant Filomeno Macalinao, Jr. argues that
the evidence on record, outside of the confessions, is inadequate to prove conspiracy; that there, is no evidence
that appellants took and carried away the money, pistol and clothes of Candido Macias; that none of the witnesses
saw the slaying of Candido Macias; that the Identification of Macalinao by Anacleto Delfino is "shaky and
indecisive"; and that nocturnity should not have been considered as an aggravating circumstance.

To begin with, appellants can no longer raise in issue the denial of their motion for new trial. They have previously
challenged before this Court by certiorari the correctness of the order of the court a quo denying their motion for
new trial.   This Court found the petition devoid of merit, hence, the same was dismissed on July 28, 1967. Entry of
1

judgment was made on September 20, 1967.

On the question of sufficiency of the evidence as basis for the conviction of appellants, the Court finds that the
evidence clearly shows that appellants were positively Identified by the prosecution witnesses as participants in the
crime. Thus, Anacleto Delfino declared that appellants Arcadio Puesca and Magno Montaño were the persons he
saw under the house of Candido Macias, his father-in-law; that he recognized them because he raised the lamp
higher to find out who they were; and that it was appellant Arcadio Puesca who fired at him, hitting him between the
elbow and the armpit. He further stated that when he placed the lamp down on the ground, Puesca shot the lamp
and ordered Anacleto to go upstairs. Puesca admitted in his confession that he fired at a man holding a "Petromax"
"with the intention of hitting the light and to scare the man ..." (Exhibit "L"). Anacleto Delfino also testified that upon
reaching the second floor of the house, he saw two armed men whom he Identified as appellants Jose Gustilo and
Filomeno Macalinao, Jr.. After he was made to lie on the floor, he heard sounds in the room of something being
broken. According to Puesca, a certain Felimon and Jose Gustilo were the first to go up the house followed by
Magno Montaño, then he heard two shots fired inside the second floor of the house. This was confirmed by Magno
Montaño (Exhibit "Q-1") who stated that Jose Gustilo and Felimon Macalinao went up the house and that after he
heard those shots he asked Jose Gustilo why he shot the victim, and Gustilo replied that he "wanted to challenge
me" (Exhibit "Q-2").

Marietta Macias-Olarte and Francisco Urbano testified that appellants Walter Apa and Ricardo Dairo were the ones
who escorted Francisco Macias when they came from the house of Candido Macias, passing through the backyard;
that when they talked with Francisco Macias and Olarte tried to place his hands on the shoulders of Francisco,
Walter Apa pushed him; that Apa fired at Olarte who fell to the ground. Marietta and Francisco testified that they
recognized Walter Apa as the tall stoop-shouldered person holding a gun and that the shorter fellow, also armed
with a carbine, was Ricardo Dairo. After Francisco Macias and Walter Apa had proceeded to the former's house, it
was Ricardo Dairo who guarded Olarte, Antonio Macias, Delfino and Francisco Urbano. After a few minutes,
Francisco Macias returned to the house of Candido Macias.

Francisco Macias declared that two persons armed with carbines fired at him; that while lying face downwards on
the floor, he heard "sounds as if something have (sic) been ransacked ... persons going down ... The aparador was
(sic) tumbled down ..." He further testified that when he drove the jeep of the deceased with the appellants aboard, it
was appellant Jose Gustilo who took over the wheel from him. In their attempt to impugn the credibility of the
testimony of Anacleto Delfino, appellants contended that this witness could not have recognized appellants Arcadio
Puesca and Magno Montaño, much less Jose Gustilo and Filomeno Macalinao, Jr.. It is claimed that it would have
been difficult for Anacleto Delfino to recognize Arcadio Puesca and Magno Montaño because when Delfino turned
around and put up the lamp, the lamp blocked Delfino's face, preventing him from getting a clear view of the two.
342

This contention, however, is not borne by the facts. When the witness, Anacleto Delfino, held the lighted lamp, he
did not hold it directly in front of his face. He held the lamp at the right side of his face in such a manner that his view
of the appellants who were just three meters away should not in the least be impeded. Moreover, because of the
bright fight of the "Petromax" lamp, Identification of the culprits was not an improbability.

Appellants further argued that it was improbable for Delfino to have recognized Jose Gustilo and Filomeno
Macalinao, Jr., since he saw them for the first time under the light of a kerosene lamp, and he was gripped by fear
and lying on the floor with his face downward. Contrary to appellants' contentions, fear does not necessarily detract
from a person's physical ability to observe. It should be borne in mind that a person will easily remember another
who does him harm, because consciously or unconsciously he turns his attention to the offender.  2

At any rate, according to Delfino, he was looking straight at the appellants whose faces were clearly visible to him
under the bright light of the kerosene lamp in the sala.

Q. Those persons looked at you squarely and plainly, without any attempt of hiding
their Identities, is that not correct?

A. I do not know whether they were looking at me, but I was looking at them. Maybe
they were looking at me also.

Q. The robbers did not shoot at this small lamp or put out its light?

A. No, this lamp was placed at the center of the sala.

Q. The two men nonchalantly were carrying their arms under the brightness of the
light of this lamp, this kerosene lamp, correct?

A Yes, they were lighted by that lamp. (pp. 364-365, t.s.n., Emphasis supplied).

Appellants further argued that it is doubtful for Marietta Macias-Olarte to have recognized appellants Walter Apa and
Ricardo Dairo because she only saw the illumination of the moon but did not see the moon itself. This argument
ignores the possibility that a person may be aware of the presence of the moon in the sky not necessarily because
he looks at it directly but because of its manifestations, such as its effulgence on the structures on the ground.
Moreover, Olarte recognized Walter Apa and Ricardo Dairo because of their proximity to her.

Neither can Francisco Urbano's Identification of Walter Apa and Ricardo Dairo be successfully impugned. Urbano
Identified the two on the basis of distinct physical characteristics which have not been denied, such as the fact that
Walter Apa was the taller one and stoop-shouldered, while Ricardo Dairo was the shorter one. Urbano clearly saw
the two when they were only a meter from him, under bright moonlight. To find out the Identities of the perpetrators
of the offense, Chief of Police Viran took to Sinayawan pictures which were provided by Col. Romero. These
pictures were shown to the witnesses. The witnesses Francisco Urbano and Marietta Macias-Olarte, picked out the
pictures of Walter Apa (Exhibit "S") and Ricardo Dairo (Exhibit "T") and told Chief Viran that the two were among
those who had robbed and killed Candido Macias. On this basis, Apa and Dairo were arrested.

Nor can the circumstance that Francisco Macias could only Identify Jose Gustilo, although he was with the other
perpetrators of the crime, render the Identification of appellants made by the other witnesses incredible. It should be
recalled that there were circumstances which could have prevented Francisco Macias from recognizing the others.
Thus, the moment Francisco Macias set foot on the house of the deceased he was fired upon, then ordered to lie
flat, face downwards, on the floor. When he tried to move his head, he was immediately kicked by two of the
assailants. When he was ordered to get the key, he was not even allowed to turn his head to look at the men behind
him. When he got the key from his house, he noticed that his escort concealed himself behind the coconut trees. It
was only appellant Jose Gustilo whom he had the best opportunity to recognize because Gustilo sat by his side in
the jeep and took over the steering wheel from him. Even while he was in the jeep, whenever he attempted to look
at the other people in the back of the jeep, he was immediately hit with the butt of a pistol. He was hogtied and left
on the road. He remembered that Gustilo had a moustache and had a light complexion.

Nor are We persuaded that the prosecution eyewitnesses should be disbelieved because they are related to the
victim. It is true that except for Francisco Urbano, who was a tenant of the deceased, the rest are related to the
victim, either by affinity or consanguinity. But relationship to the victim, standing by itself, does not prove that they
are prejudiced and biased, considering that their testimonies are clear and convincing and corroborated by other
facts and circumstances.  3

As the then Solicitor General Felix V. Makasiar (now Associate Justice of this Court) aptly observed: "... it does not
appear that the prosecution eyewitnesses had some grievances or ill feelings against any of the appellants; the
record does not disclose any untoward or wicked motive which could have induced them to twist the truth or perjure
themselves in a prosecution for a heinous crime as the present case. The prosecution witnesses were subjected to
343

extreme cross-examination by defense counsel, and the falsity of their declaration, if indeed there were, could have
been ferreted and exposed."

The contention that there could not be robbery with homicide in this case, because there is "no evidence that
appellants took and carried away the money" and the personal properties of Candido Macias, overlooks the fact that
the taking and carrying away of the money and the personal properties of the deceased has been sufficiently
established by testimony of the witnesses, confirmed and corroborated by the admissions of appellants Puesca,
Gustilo and Montaño. Francisco Macias distinctly heard "sounds as if something have (sic) been ransacked" and
that "the aparador which was in the sala, fell with a loud thud on the floor." Marcela Macias also declared that the
intruders were ransacking the things inside their room. After the departure of the perpetrators of the offense, she
saw that things were scattered in their room, the trunk containing their money appeared to have been forcibly
opened and the P20,000 kept there, which was part of the proceeds of the sale of their land, was gone. So were the
deceased's pistol and a pair of new pants. When the Chief of Police went to the crime scene, he found many things
in disarray in the sala. The aparador was lying on the floor broken, and papers and other things were scattered. This
robbery was further confirmed by the recitals contained in the confessions of Puesca, Gustilo and Montaño (Exhibits
"L", "R" and "Q"), wherein they stated that when they met in the Holiday Canteen at Sta. Ana, Davao City on
November 25, 1960 at about 7:00 o'clock in the evening, they planned originally to raid and rob the Christensen
Plantation, but upon seeing the plantation well-guarded, they changed their plans and decided to rob the Macias
family in Sinayawan; that they proceeded to Sinayawan in a jeep, alighting from the jeep at a distance of about 200
meters; that they walked to the house of Candido Macias; and that therein they committed the crime in a manner
confirmatory to that testified to by the prosecution witnesses. According to Puesca, Felimon and Carding were the
ones who took the cash from the Macias' house. Regarding the killing of Candido Macias, his wife testified that
when the robbers came up the sala, she and her husband and two grandchildren were sitting by the dining table;
that she was ordered to lie flat on the floor; that she saw her husband stand up then walk around the table: and that
suddenly she heard two gun reports and saw her husband fall down.

The evidence clearly and convincingly demonstrate that the appellants were engaged in a conspiracy to effect the
object of their criminal purpose. Since conspiracy by its very nature is formed in utmost secrecy, it can seldom be
proved by direct evidence.   Conspiracy is "generally proved by a number of indefinite acts, conditions and
4

circumstances which vary according to the purposes to be accomplished. If it be proved that the defendants
pursued by their acts the same object, one performing one part and another a part of the same, so as to complete it,
with a view to the attainment of the same object, one will be justified in the conclusion that they were engaged in a
conspiracy to effect the object ..."   In contrast with evidence premeditation, which requires as an essential condition
5

that a sufficient period of time must elapse to afford full opportunity for premeditation and reflection on the possible
consequences of the intended criminal act, conspiracy arises on the very moment the plotters agree, expressly or
impliedly, to commit the felony and forthwith decide to accomplish it. Once this is established, each and everyone of
the conspirators is made criminally liable for the crime committed by any member of the conspiracy.  6

The Solicitor General cites the following facts to show the existence of conspiracy; First, upon breaking into the
premises of the house of the victim, Candido Macias, three men went upstairs into the house, two of them being
appellants Jose Gustilo and Filomeno Macalinao, Jr., both with drawn guns, surprising the inmates Candido Macias
and his wife Marcela Macias, who were then having supper (pp. 489, 330, 321-322, t.s.n.). Candido Macias was
ordered to lie down on the floor but he did not obey and walked towards the sala instead (p. 490, t.s.n.), whereupon
he was shot. Thereafter, appellants ransacked the room of the victim, forced open the trunk and got therefrom
P20,000.00 in cash (pp. 492, 502, t.s.n.). They also took the victim's new pants and clothes and his gun from his
bed (p. 501, t.s.n.).

Two others, appellants Arcadio Puesca and Magno Montaño, went under the house and immobilized Anacleto
Delfino and Fortunato Macias who were then repairing a jeep (pp. 315317, t.s.n.). They pointed their guns at them
and ordered them not to move (pp. 314-315, t.s.n.). Fortunato, however, succeeded in running away towards the
coconut plantation (p. 362, t.s.n.). Anacleto Delfino was told to go upstairs where he was made to lie flat on the floor
(p. 320, t.s.n.).

While all this was going on in the house, appellants Walter Apa and Ricardo Dairo, who were armed with carbines,
were standing outside apparently on guard (pp. 417, 418, 131-134, t.s.n.). When Francisco Macias came to the
house, he was ordered to get the key to the jeep from his house, and appellants Apa and Dairo followed Francisco
from behind (pp. 419, 421, t.s.n.), passing through the backyard of the house of Anacleto Delfino, on their return to
the place where the jeep was parked (pp. 135-137, t.s.n.).

Francisco Macias having gotten the ignition key of the jeep, all of the appellants boarded the jeep, and with
Francisco Macias driving it, the appellants left the scene of the crime (pp. 421-423, t.s.n.).

Second, the confessions of appellant Arcadio Puesca (Exhibit "L"), appellant Magno Montaño (Exhibit "Q") and
appellant Jose Gustilo (Exhibit "R") admit their participation in the commission of the crime at the house of Macias
(pp. 924992, 988-1133, t.s.n.). The confession of Jose Gustilo, however, was the only one which was unsigned as
he afterwards refused to affix his signature thereto; but his confession was tape recorded and from the replay of the
recording made during the trial, it may be seen that his confession was freely and voluntarily given (pp. 732, 748-
344

749, 782, 791, 816-817, 828-836, 924992, t.s.n.). Towards the end of his tape recorded confession, the following
questions and answers were given:

In your confession now given to me, Peng, the incident of the hold-up in Makilala, the hold-up in
Sinayawan, Hagonoy, Davao, in the house of the late Candido Macias, were you able to relate
everything which you think you would tell me before you offered to make that confession?

Yes, sir, because I narrated all the things what I have already in mind.

You would like to tell me now that all the things which you just narrated are the truth and nothing but
the truth?

Yes, sir.

Are you going to confirm the truth of the statement, which you told me now?

Yes, sir.

Are you going to affirm your confession even though these statements which you have narrated to
me will be used against you?

Yes sir. (pp. 990-991, t.s.n.).

The confessions of Arcadio Puesca, Magno Montaño and Jose Gustilo are admissible against them. Their
confessions could be considered as corroborative evidence of the testimonies of prosecution eyewitnesses pointing
to them as the culprits who participated in the commission of the crime.

Third, the testimonies of prosecution eyewitnesses find corroboration in the extrajudicial confessions of appellants
Puesca alias "Big Boy", Gustilo alias "Peping", and Montaño alias "Edol", insofar as said confessions tell about the
participation of their other companions in the commission of the crime. Thus, Arcadio Puesca, in his extrajudicial
confession, named Jose Gustilo alias "Peping", Magno Montaño alias "Edol", Felimon, Carding, Mariano and two
others whose names he did not know, as his companions in the perpetration of the crime (Exhibit "L", folder of
exhibits; pp. 774-775, t.s.n.). He narrated how the plan to rob the Macias family was conceived, as well as the
manner in which they implemented the plan. The person referred to as "Felimon", he said, was appellant Filomeno
Macalinao, Jr. (p. 731, t.s.n.). Thus, in the tape recorded confession of appellant Jose Gustilo, he declared that his
confederates in the crime were Arcadio Puesca alias "Big Boy", Magno Montaño alias "Edol", Filomeno Macalinao,
Mariano, Carding and others (Exhibits "R", folder of exhibits; pp. 927-928, 930-931, 935, 940, 942-945, 946-952,
958-960, 963-965, 966, 968-969, 970-981, t.s.n.). And thus, in the confession of Magno Montaño alias "Edol", which
was in his own handwriting and which was also tape recorded, he mentioned Arcadio Puesca alias "Big Boy", Jose
Gustilo alias "Peping" and Felimon Macalinao as his confederates in staging the hold up (pp. 999-1005, 1119-1120,
1122, t.s.n.; Exhibit "Q", folder of exhibits). According to his confession, it was Gustilo who shot to death the late
Candido Macias (pp. 1002, 1122-1123, t.s.n.), and that it was Macalinao who got the 38 caliber pistol of the
deceased (p. 1128, t.s.n.). Both declarants corroborated the narration given by Puesca.

It is true that an extrajudicial confession is admissible only against the person who made it, but it is also settled that
such confession is admissible as corroborative evidence of other facts that tend to establish the guilt of his co-
defendants. 7 This Court has also allowed its admission against a co-accused as circumstantial evidence to show the probability of the co-conspirator having
actually participated in the commission of the crime. 8

Fourth, the claim of the defense that the confessions of appellants Puesca, Gustilo and Montaño were extracted
from them through force and violence is not supported by the evidence. No motive on the part of the investigating
officials or officers has been proven that could have impelled- them to concoct the facts narrated in the extrajudicial
confessions. Judging from the details of the narration given therein, only the appellants could have supplied the
facts. With respect to the extrajudicial confessions of appellants Puesca and Montaño, Judge Augusto Fernandez,
before whom the confessions had been signed and sworn to, declared that the affiants read the contents thereof,
and confirmed the said contents as true and correct, after which they freely affixed their signatures on the
documents (pp. 828-831, t.s.n.) With respect to the extrajudicial confession of appellant Gustilo, it was first orally
given and tape recorded after which it was put down in writing (pp. 782, 791, 815, t.s.n.) However, appellant Gustilo
refused to sign his confession before the justice of the peace without giving any reason for such refusal (p. 834,
t.s.n.). The circumstance that he was able to refuse, without having been punished or maltreated for such refusal, is
a strong indication that his confession was not extracted from him by force or intimidation. As a matter of fact, the
tape recording of his confession shows that it was voluntarily given. The trial judge who heard the replay of Gustilo's
confession could have surely noted from the manner in which appellant gave his answers if he had been maltreated
(pp. 924-992, t.s.n.) The trial judge was positive that the verbal confession had all the indicia of voluntariness.

The killing of Candido Macias was committed "by reason or on occasion of the robbery".   The original design of the 9

perpetrators of the offense comprehended robbery in the dwelling of the victim. There is robbery with homicide if the
345

homicide resulted by reason or on the occasion of the robbery. Thus, in Mangulabnan,   this Court stated that in
10

order to determine the existence of the crime of robbery with homicide, the rule is that it is enough that a homicide
resulted by reason or on the occasion of the robbery, and it is immaterial that the death supervened by mere
accident. It is sufficient that the homicide was produced by reason or on occasion of the robbery, inasmuch as it is
only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons
intervening in the commission of the crime, that has to be taken into consideration.

There is homicide by reason of the robbery when there is a direct relation, an intimate connection, between the
robbery and the killing, whether the killing be prior or subsequent to the robbery or whether both crimes be
committed.

Finally, counsel for appellant Filomeno Macalinao, Jr. poses the query-if by the ruling in People vs.
Apduhan   robbery with homicide (subdivision 1, Article 294, Revised Penal Code) is not comprehended in Article
11

295, how would the circumstance of "band" be appreciated? The term "band" is defined both in paragraph 6, Article
14 and Article 296 of the Revised Penal Code. "Band" is a generic aggravating circumstance in robbery with
homicide or robbery with rape, intentional mutilation or with physical injuries, resulting in insanity, impotency and
blindness (subdivision 2, Article 263, Revised Penal Code), which means that it can be offset by a generic mitigating
circumstance. But if "band" is present in the other kinds of robbery with violence mentioned in paragraphs 3, 4 and 5
of Article 294, then it is a qualifying or inherent circumstance which raises the penalty to the maximum period and
cannot be offset by any generic mitigating circumstance. This qualifying circumstance should be expressly alleged in
the information.

In the case at bar, the crime committed is robbery with homicide. Considering that the crime was committed by six
armed men, the circumstance of "band" should be considered merely as a generic aggravating circumstance. It is
also obvious that the perpetrators of the offense waited for the night before committing the robbery to better
accomplish their purpose. The trial court, therefore, correctly found the existence of "band" and "nocturnity". These
two aggravating circumstances, when occurring jointly in the commission of a crime, are generally treated only as
one aggravating circumstance. Nevertheless, they may be considered separately when their elements are distinctly
perceived and can subsist independently, revealing a greater degree of perversity.   In the instant case, it is not
12

necessary to decide whether or not the two should be treated distinctly from each other, since the existence of one
is sufficient for the imposition of the maximum penalty, and the concurrence of an additional circumstance will not
alter the same.   However, the indemnity of P6,000.00 due the heirs of the deceased should be increased to
13

P12,000.00.

On July 13, 1977, during the pendency of this appeal, appellant Jose Gustilo alias "Peping" died at the New Bilibid
Prisons Hospital. In view thereof, on September 8, 1977, this Court issued a Resolution, which states:

... Considering the letter dated August 2, 1977 of Gerardo N. San Pedro, Administrative Officer IV,
Bureau of Prisons, informing the Court of the death of appellant Jose Gustilo alias Peping last July
13, 1977, as wen as the comment of the Solicitor General thereon, the Court Resolved to DISMISS
the case as to appellant Jose Gustilo (p. 580, rollo).

WHEREFORE, except for the dismissal of the case as against Jose Gustilo alias "Peping" and with the foregoing
modification as to the amount of indemnity, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

Teehankee, Barredo, Antonio, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

Fernando and Makasiar, took no part.

Separate Opinions

AQUINO, concurring:

Band and nocturnity are distinct aggravating circumstances (People vs. Fontabla, 61 Phil. 589). Dwelling should
also be considered as aggravating in this case. Hence, death is the proper penalty.

Castro, C.J., concurs.

346

Separate Opinions

AQUINO, concurring:

Band and nocturnity are distinct aggravating circumstances (People vs. Fontabla, 61 Phil. 589). Dwelling should
also be considered as aggravating in this case. Hence, death is the proper penalty.

Castro, C.J., concurs.

Footnotes

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. VICENTE N. CUSI JR., Presiding Judge, Branch I,
Court of First Instance of Davao, ARCADIO PUESCA alias Big Boy, et al, respondents. 14 SCRA 944

1965

FACTS: Puesca, Apa, Gustilo, Macalinao, Dairo, and Montano were charged with robbery in band with
homicide, to which they pleaded not guilty. While Sgt. Bano was testifying as prosecution witness regarding the
extrajudicial confession made to him by Puesca, he said that the latter, aside from admitting his participation in
the commission of the offense charged, revealed that other persons conspired with him to commit the offense,
mentioning the name of each and every one of them. The prosecuting officer asked the witness to mention in
court the names of Puesca's alleged coconspirators. Counsel for the accused Macalinao, Gustilo and Dairo
objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients
were concerned. The respondent judge resolved the objection directing the witness to answer the question but
without mentioning or giving the names of the accused who had interposed the objection. The witness was
allowed to answer the question and name his co-conspirators except those who had raised the objection. The
prosecuting officer's motion for reconsideration of this ruling was denied. ISSUE: Whether or not Sgt. Bano
have been allowed to answer the question in full. RULING: Yes. Hearsay evidence, if timely objected to, may
not be admitted. But while the testimony of a witness regarding a statement made by another person, if
intended to establish the truth of facts asserted in the statement, is clearly hearsay evidence, it is otherwise if
the purpose of placing the statement in the record is merely to establish the fact that the statement was made
or the tenor of such statement (People vs. Lew Yon). In the present case, the purpose of the prosecuting
officer is nothing more than to establish the fact that the accused Puesca had mentioned to Sgt. Bano the
names of those who conspired with him to commit the offense charged, without claiming that Puesca's
statement or the answer to be given by Sgt. Bano would be competent and admissible evidence to show that
the persons so named really conspired with Puesca. The question propounded to the witness was proper and
the latter should have been allowed to answer it in full, with the understanding, however, that his answer shall
not to be taken as competent evidence to show that the persons named really and actually conspired with
Puesca and later took part in the commission of the offense.

G.R. No. 101117 June 15, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARCELINO CEDON, Defendant-Appellant.

The Solicitor General for plaintiff-appellee.chanrobles virtual law library

Public Attorney's Office for defendant-appellant.

347

QUIASON, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 29, Catbalogan, Samar, in Criminal Case No. 3247,
disposing as follows:

WHEREFORE, the court finds the accused Marcelino Cedon (alias Seling Cedon) guilty beyond reasonable doubt of
kidnapping for ransom under Art. 267 of the Revised Penal Code and hereby sentences him to reclusion perpetua, to
indemnify the complainant Felimon Gerona, Sr. the amount of Five Thousand Pesos (P5,000.00), without subsidiary
imprisonment in case of insolvency, and to pay the costs.chanroblesvirtualawlibrarychanrobles virtual law library

It appearing that the accused Marcelino Cedon has been detained since March 21, 1990, this preventive imprisonment
should be taken into account in the service of his sentence (Rollo, p. 23).

We reverse the decision.

The Information filed against appellant, reads as follows:

That on or about the 17th day of December, 1986, at Sitio Bito-on, Barangay Bulo-an, Sierra Island, Municipality of
Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, who being members (sic) of a terrorist group and armed with assorted firearms, conspiring, confederating
together and mutually helping and aiding one another with Teodoro Zaldo alias "Pilo Bulan", Eli Lomuardo, Simo Cedon,
Ruben Molito, Mepen Doe, Lando Doe, Davis Doe and Jaime Doe, who are still at large and whose identities are still
unknown, and one Danilo Alvarez, whose case had been provisionally dismissed on May 19, 1989 before the Regional
Trial Court, 8th Judicial Region, Branch 29, Catbalogan, Samar, by force and without authority, did then and there
willfully, unlawfully, feloniously and illegally kidnap and carry away the person of Felimon Gerona from his house to an
unknown island with the use of a motorboat, and kept said Felimon Gerona under heavy guards to better secure the
consent of the victim through fear to pay the ransom in the amount of Five Thousand Pesos (P5,000.00), Philippine
Currency for his release and the victim was released only after having paid the ransom in the amount of Five Thousand
Pesos (P5,000.00), Philippine Currency (Rollo, p. 4).

IIchanrobles virtual law library

On the basis of the evidence adduced at the trial, the court a quo found that on December 17, 1986, while Felimon
Gerona, Sr. (Gerona), was having lunch at his house in Sitio Bito-on, Barangay Bulo-an, Sierra Island, Catbalogan, Samar,
several armed men arrived. Two of them ordered him to go down the house. Once on the ground, his hands were
bound. He recognized, as among the group, Teofilo Bulan and Ruben Bolito, who belonged to a gang of robbers called
"Sabarra." He also noticed appellant, standing on the concrete pavement near the beach (TSN, November 15, 1990, pp.
4-7).chanroblesvirtualawlibrarychanrobles virtual law library
348

Bulan accused Gerona of being an intelligence agent, which he denied. He was then taken on board a motorboat to
Aripuyok Island, known as "the killing fields," which is half a kilometer away from Barangay Bulo-
an.chanroblesvirtualawlibrarychanrobles virtual law library

In the island, Gerona�s captors tried to force him to admit that he was an intelligence agent but he stuck to his denial
of the charge. Bulan finally told him that he needed funds to buy certain equipment for the use of his band. After Gerona
agreed to give P5,000.00, he was taken back to Barangay Bulo-an, with his left hand tied to the mast of the
motorboat.chanroblesvirtualawlibrarychanrobles virtual law library

The band, with Gerona in tow, arrived in Barangay Bulo-an at around 4:00 P.M. Gerona again saw appellant, who was
sitting on the concrete fence near the beach. Thereafter, Bulan asked Gerona for money to buy gasoline. The latter
obliged by getting P100.00 from a portion of the roof of his house.chanroblesvirtualawlibrarychanrobles virtual law
library

When Gerona�s wife returned home, Bulan said, "Auntie, we took uncle." Scared, Gerona�s wife remained silent.
After 4:00 P.M., the culprits, including appellant, left.chanroblesvirtualawlibrarychanrobles virtual law library

The next day, Gerona withdrew P5,000.00 from a bank in Catbalogan. His wife delivered the money to
Bulan.chanroblesvirtualawlibrarychanrobles virtual law library

Gerona did not immediately report the incident to the police authorities. It was only on May 4, 1987, after the
townspeople organized the "alsa masa" as a counter - insurgency movement, did he inform the authorities of the
extortion. He also enlisted with the CAFGU as a means to retaliate against the extortionists. In 1990, Gerona together
with some members of the CAFGU, arrested appellant and another suspect, Danny Alvarez.

IIIchanrobles virtual law library

Appellant emphatically asserted his innocence and claimed that he was cleaning the boat owned by Corazon Escareal at
the seashore in Barangay Rama, when Bulan and his companions arrived. Bulan told him to go with them to gather
bamboo in Barangay Bulo-an. When he declined, Bulan pulled a gun tucked in his waist and forced him to go with them.
For fear of his life, knowing that Bulan was a member of the NPA, appellant went with him to Barangay Bulo-an. After
gathering the bamboo, they loaded it on the motor boat. He was then ordered to go home, while Bulan and his group
stayed behind.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant claimed that he was apprehended in 1990 by Gerona because the latter wanted him to testify against Pilo
Bulan. When appellant refused to do so, Gerona demanded P2,500.00 from him. Since appellant failed to give the said
amount, Gerona arrested him. His hands were then tied up and he was ordered to board a motorboat. Gerona and his
son, Gerona, Jr., pounded appellant�s hands with the muzzle of a gun, while demanding money from him. After an
hour, appellant was brought to the PC Camp in Barangay Maulong. He was not able to report the mauling incident to the
349

authorities because he was afraid of the Geronas. He eventually told the PC soldier that he had been manhandled, but
the latter did nothing about it.

IVchanrobles virtual law library

Before us, appellant assigns the following as errors of the trial court, to wit:

1. When it gave weight and credence to the improbable and contradictory testimonies of the prosecution witnesses;
andchanrobles virtual law library

2. When it failed to acquit the accused-appellant on the ground of insufficient evidence and reasonable doubt to
warrant his conviction (Appellant�s Brief, pp. 5-9).

In the case of People v. Dramayo, 42 SCRA 59 (1971), we held:

. . . Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to
demonstrate that culpability lies. . . . Their freedom is forfeit only if the requisite quantum of proof necessary for
conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has
always been committed. . . . Only if the judge below and the appellate tribunal could arrive at a conclusion that the
crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of
conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof
against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The
conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only
did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.

The records showed that appellant was not a socius criminis of Bulan but was merely forced to join his group at gun
point.chanroblesvirtualawlibrarychanrobles virtual law library

A careful perusal of the testimonies of the prosecution witnesses against appellant, casts doubt as to whether he was
really an active participant in the criminal enterprise. Gerona testified:

Q. You said that you know Marcelino Cedon for about five (5) years ago, (sic) on June 1986, do you know his
whereabouts?chanrobles virtual law library

A. Yes, he was in Rama.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What about on (sic) December 1986?chanrobles virtual law library

350

A. He was in Brgy. Bulo-an and he was with the group.chanroblesvirtualawlibrarychanrobles virtual law library

Q. When the gun was pointed at you by Davis, where was Marcelino Cedon?chanrobles virtual law library

A. He was standing in the concrete flooring near the beach.chanroblesvirtualawlibrarychanrobles virtual law library

Q. How far was he from your house?chanrobles virtual law library

A. About seven (7) meters.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What did you observe from him?chanrobles virtual law library

A. He was armed, but I could not see what kind of arm (sic) he had tack(ed) in his waist but it was
bulging.chanroblesvirtualawlibrarychanrobles virtual law library

Q. When you were in that island of Aripuyok, where was Marcelino Cedon?chanrobles virtual law library

A. He was assigned to guard the house, and he was ordered not to leave.chanroblesvirtualawlibrarychanrobles virtual
law library

Q. Did you in fact arrive at Sitio Bito-on?chanrobles virtual law library

A. Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Did you in fact arrive, rather, . . . when you arrived at Sitio Bito-on, where was Marcelino Cedon?chanrobles virtual
law library

A. He was still standing at the concrete fence (TSN, November 15, 1990, p. 10; Italics supplied).

Felimon Gerona, Jr. testified:

Q. Do you know a certain Marcelino Cedon?chanrobles virtual law library

351

A. Yes, I know him and he is here. That man, Sir. (Witness point to the accused).chanroblesvirtualawlibrarychanrobles
virtual law library

Q. Why do you know him?chanrobles virtual law library

A. Because sometimes they go to our place.

xxx xxx xxx

Q. What about Marcelino Cedon, was he wearing a mask or not?

ATTY. MORALES: Leading, Your Honor.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL: Alternative question, Your Honor.chanroblesvirtualawlibrarychanrobles virtual law library

COURT: Witness may answer.

A. No, he was not wearing a mask. He was standing just a few feet away from our house (TSN, October 16, 1990, p. 4;
Italics supplied).

The case for the prosecution pivots on the testimony of Pedro Comeque. The testimony of the latter was contradicted
on vital points by Gerona himself. While Comeque testified that appellant was with the group of Bulan that returned
from Aripuyok Island, Gerona categorically stated that appellant was left in Sitio Bito-on when he (Gerona) was brought
to Aripuyok Island and, as a matter of fact, he saw appellant again in the same place upon his return in the
afternoon.chanroblesvirtualawlibrarychanrobles virtual law library

While Comeque testified that he saw from his window how Gerona was kidnapped, the latter said that Comeque was
with him when he was kidnapped. Gerona testified:

Q. While you were eating at the door of your house and all of the sudden there were two persons pointed (sic) the gun
at you, who were inside your house.chanroblesvirtualawlibrarychanrobles virtual law library

A. My son and my maid.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What about Pedro Comeque, were was he?chanrobles virtual law library
352

A. He was also inside the house.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Are you certain that Pedro Comeque was inside you house when the two persons pointed the gun at you?chanrobles
virtual law library

A. Yes, he was still inside the house (TSN, November 15, 1990, p. 15; Italics supplied).

Comeque admitted that his testimony that appellant was a member of the group of Bulan was based on hearsay. He
testified:

Q. To the best of you recollection who were those persons whom you recognize?chanrobles virtual law library

A. I did not recognize anyone except the accused.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What made you remember him?chanrobles virtual law library

A. Because I know him and besides Naro Bacalan told me that he participated.chanroblesvirtualawlibrarychanrobles
virtual law library

Q. In other words, if Genaro Bacalan did not tell you, you did not recognize Marcelino Cedon?chanrobles virtual law
library

A. I really know him but I am sure about him because somebody told me that he participated (TSN, October 9, 1990, pp.
8-9; Italics supplied).

The testimony of prosecution witness, Rudito Basilan, supports appellant�s protestation of innocence. According to
him, he was also forced to go to Barangay Bulo-an by Bulan to gather bamboo.chanroblesvirtualawlibrarychanrobles
virtual law library

His testimony on the participation of appellant is as follows:

Q. At that time when Felimon Gerona was tied, where was Marcelino Cedon?chanrobles virtual law library

A. He was standing.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What did you notice in his person?chanrobles virtual law library

353

A. Nothing, he was just standing.chanroblesvirtualawlibrarychanrobles virtual law library

Q. After Felimon Gerona was tied, what transpired next?chanrobles virtual law library

A. He was brought to an island called Camantigi-an.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Was he in fact brought to Camantigi-an?chanrobles virtual law library

A. Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Do you know if Marcelino Cedon was with the group when you went to Camantigi-an?chanrobles virtual law library

A. He was not with them.chanroblesvirtualawlibrarychanrobles virtual law library

Q. When the motor boat left for Camantigi-an, were you with the group?chanrobles virtual law library

A. No, I did not go with them. We remained at Brgy. Bulo-an.chanroblesvirtualawlibrarychanrobles virtual law library

Q. How many were you (who) remain(ed) in Brgy. Bulo-an?chanrobles virtual law library

A. The accused Marcelino Cedon, myself and three (3) others whom I did not
recognize.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Do you know the reason why you were left behind (in) the barangay? I mean, the five of you?chanrobles virtual law
library

A. I don�t know why they left us. They only said (sic) to us, �do not come along with us, you just stay here (TSN,
November 29, 1990, pp. 3-5).

If appellant�s culpability was based on the sole fact that he was seen near the house of Gerona when the latter was
kidnapped, then Basilan should likewise have been indicted because he was also in the crime
scene.chanroblesvirtualawlibrarychanrobles virtual law library
354

Time and again, the Court has held that conspiracy must be proven beyond reasonable doubt. The reason is obvious.
Under the law, a conspirator, even though how minimal his participation in the crime, is as guilty as the principal
perpetrator of the crime. We do not find, however, that appellant is a conspirator. His was a passive presence in the
scene of the crime. Mere presence of the accused at the scene of the crime does not imply conspiracy (People v.
Campos, 202 SCRA 387 [1991]).chanroblesvirtualawlibrarychanrobles virtual law library

Moreover, the prosecution has failed to prove any overt act on the part of appellant, showing that he joined Bulan�s
gang to perpetrate the criminal act. Mere knowledge, acquiescence to or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent an active participation in the commission of the crime, with a view to
the furtherance of the common design and purpose (People v. Bragaes, 203 SCRA 555 [1991]; Taer v. Court of Appeals,
186 SCRA 598 [1990]; Orodio v. Court of Appeals, 165 SCRA 316 [1988]).chanroblesvirtualawlibrarychanrobles virtual law
library

The quantum of proof required in criminal prosecution to support a conviction has not been satisfied with regard to
appellant�s participation in the kidnapping for ransom of Gerona, Sr. The oft-repeated truism that the conviction of the
accused must rest not on the weakness of the defense but on the strength of the prosecution (People v. De Guzman,
194 SCRA 601 [1991]) applies in this appeal.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the decision of the court a quo is REVERSED AND SET ASIDE and appellant is ACQUITTED of the crime
charged.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.
355

G.R. No. L-9341             August 14, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
SERVANDO BAY, defendant-appellant.

Buencamino and Lontok for appellant.

Attorney-General Avanceña for appellee.

CARSON, J.:

The information in this case charges the appellant, Servando Bay, with the crime of rape, committed as follows:

On the night of June 7 of the present year, 1913, in the barrio of San Teodoro of the township of Calapan,
Mindoro, in the jurisdiction of this Court of First Instance, the above- named accused accidentally met
Florentina Alcones walking along the beach, and, on finding that she was alone, did maliciously and
criminally drag her toward a place covered with underbrush, and there by means of force and intimidation
did lie with her against her will.

The testimony of the witnesses for the prosecution is substantially as follows: That the complaining witness and the
accused are neighbors: that about 7 o'clock in the evening of June 7, 1913, when turning from her rice field she was
joined by the accused, and that a short distance from the mouth of Subaan River he caught hold of her, picked her
up, and carried her to the edge of some thickets, where he threw her on the ground and attempted to have carnal
intercourse with her; that angered by her resistance he drew his dagger, and force her under threat of her life to
accede to his desires; that a party who were passing near the place where the crime was committed heard her cries,
and put into shore; that one of the party stepped ashore, and seeing the accused get up from the place where the
woman claims the crime was committed, asked "What's this?;" that the accused made no explanation of his conduct
or his presence there, and left the place forthwith; that immediately thereafter the woman, accompanied by some of
the party from the boat, went to the councilman of the barrio and made complaint; that the accused, having been
brought before the councilman and asked had he committed the crime of which he was charged, admitted that he
had; that thereafter the accused was sent to the justice of the peace, who held him for trial.

Upon his evidence the accused was convicted in the court below of the crime with which is charged in the
information and sentenced to seventeen years four months and one day of reclusion temporal, together with the
accessory penalties.

Counsel for appellant lays great stress upon certain apparent contradictions and inconsistencies in the testimony of
some of the witnesses for the prosecution, and vigorously contends that the trial court erred in accepting as true the
testimony of the complaining witness and of the witnesses called by the prosecution to corroborate her. He
emphasizes what he calls the inherent improbability of the story told by the offended woman, and points to the facts
that she appears to be much more than twice the age of the accused, and anything but attractive in her personal
appearance . His contention is that the charge of rape is a pure fabrication, and that it was brought by the woman
for the sole purpose of wreaking her vengeance and spite upon the accused, with whom she had a quarrel over the
trespass of one of his carabaos on her land.

It is true that there are some apparent contradictions and inconsistencies in the testimony of some of the ignorant
witnesses called for the prosecution, and that it is somewhat difficult to understand how the accused, a young
married man, could have been so lost to all sense of right and decency as to assault a woman so much older than
himself, a neighbor, and an old friend of his family. But her evidence, supported by that of other witnesses for the
prosecution, is so convincing and conclusive that we are forced to believe that he did it in fact commit the atrocious
crime with which he is charged.

We are not forgetful of the fact that convictious for this crime should not be sustained without clear and convincing
proof of the guilt of the accused; or that experience has shown that unfounded charges of rape or attempted rape
356

have not frequently bee preferred by women, actuated by some sinister or ulterior and undisclosed motive. We
recognize that in cases of this nature it is the duty of the courts to scrutinized with the utmost care the story told by
the complaining witness and the witnesses called to corroborate her, especially when it appears either that the
offended party did not make immediate outcry or that there was any unexplained delay in instituting criminal
proceedings. But in the case at bar it conclusively appear that the offended woman sought assistance and made
formal and official complaint immediately after the commission of crime under such conditions as practically to
prelude the possibility of a conspiracy between herself and the other prosecuting witnesses to press a false charge
against the accused.

There can be no possible doubt that the party passing in a boat the deserted place where the crime was committed
was attracted by her cries and complaints, and that the arrival of those aboard was a fortunate coincidence which
she could not well have anticipated, had she planned the filing of false charges against the accused. There can be
no question also that she went immediately to the councilman of her barrio to make complaint against the accused,
accompanied by some of the passengers on the boat. And there can be no question also that as a result, these
proceedings were instituted forthwith in the court of the justice of the peace.

There is a direct conflict in the testimony as to whether the accused, when the complaint was made to the
councilman of the barrio, did or did not admit his guilt, and this evidence is so contradictory that it would be difficult if
not possible to make an express finding on this point. But whatever be the truth as to these alleged admissions of
his guilt, the evidence leaves no room for doubt that neither at the moment when the party in the boat came upon
him in company with his victim nor when he appeared before the councilman upon her complaint did he claim, as he
does now, that her charge that he had assaulted her was a pure fabrication, invented for the purpose of wreaking
vengeance upon him.

There can be no possible doubt that he was present when the party on board the boat were attracted to the place
where she raised her outcry charging him with the assault, and that he was present later or when he presented her
complaint to the councilman of the barrio. Under such circumstances, we are convinced that an innocent man would
instantly and indignantly repudiate such a charge, and attempt there and then to establish his innocence, explaining
how he came to be there present with the woman, and the conditions under which she had made the false charge.

The witnesses called both for the prosecution and the defense go into considerable detail as to all that occurred at
the time when the party on board the boat responded to the calls of the woman and immediately thereafter, and yet
there is not the slightest indication in the evidence that there was on the part of the accused any such indignant
denials and protests as would be expected from an innocent man suddenly confronted with such a charge under
such circumstances. Indeed his conduct at that time was, to our minds, wholly at variance with that which might
fairly be expected from him, granting the truth of his testimony and that of the other witnesses for the defense.

Having in mind the fact that the trial judge saw and heard the witness testify, and upon a full review of all the
evidence, we are of opinion that there is nothing in the record which would justify us in disturbing the findings of the
court below as to the degree of credit which should be accorded the various witnesses, or as to the guilt of the
accused of the crime of which he was convicted.

We find no error in the proceedings prejudicial to the substantials rights of the accused, and the judgment entered in
the court below convicting and sentencing him should, therefore, be affirmed, with the costs of this instance against
the appellant. So ordered.

G.R. No. L-59551 August 19, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL NAVOA y MARTINEZ and BERNARDO LIM y RAMIREZ alias "Jack Robertson," alias "Lim Ming
Tak," alias "Christopher Kelly," defendants-appellants.

The Solicitor General for plaintiff-appellee.

Dakila F. Castro for defendant-appellant M. Navoa.

Divina S. Cuejillo for defendant-appellant B. Lim.

GUTIERREZ, JR., J.:
357

This is an automatic review of the decision of the then Court of First Instance of Manila, Sixth Judicial District,
Branch XXX convicting defendants-appellants Manuel Navoa and Bernardo Lim of the crime of Arson. The
dispositive portion of the decision reads:

WHEREFORE, the Court finds both accused Manuel Navoa y Martinez and Bernardo Lim y
Ramirez, also known as Jack Robertson, Lim Ming Tak and Christopher Kelly, guilty beyond
reasonable doubt of arson, as charged in the information and hereby sentences them to suffer the
penalty of death, to indemnify, jointly and severally, the building and theater owners, N. de la Merced
& Sons, Inc. and Universal Management Corporation, in the total amount of P774,550.29, and to pay
the costs.

In an information dated June 29, 1979, defendants-appellants Manuel Navoa and Bernardo Lim were charged with
the crime of arson as follows:

The undersigned accused MANUEL NAVOA y MARTINEZ and BERNARDO LIM y RAMIREZ, alias
'Jack Robertson' alias 'Lim Ming Tak,' alias 'Christopher Kelly' of the offense of Violation of Article
320, paragraph 4, in relation to Article 326-A, of the Revised Penal Code, as amended, (ARSON)
committed as follows:

That on or about July 9, 1978, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with others whose true names, Identities and present whereabouts are still
unknown, and helping one another, did then and there wilfully, unlawfully, feloniously and
deliberately, with the use of gasoline, set fire to and burn the MANILA CINEMA BUILDING, a
commercial building where commodities of value were kept and which housed the Manila Cinema 1
and 2 Theatres, among others, located at the corner of Claro M. Recto Avenue and N. Reyes, Sr.,
St., this City, owned by the N. de la MERCED & SONS, INC., and which building was near and
adjacent to other commercial buildings thereat, and therefore was a populated place, thereby
causing as a consequence the said MANILA CINEMA BUILDING to be totally destroyed and burned,
thus inflicting damage and destructions to the said building and its contents amounting to six (6)
million pesos, to the damage and prejudice of the said owner thereof in the same sum of six (6)
million pesos, Philippine currency; that as a further result thereof, the hereunder named persons
sustained fatal injuries which were the direct cause of their death immediately thereafter:

1. Elmer Red Rebadavia, Lot 15, Blk. 86 Velvet St., SSS Village, Marikina, Rizal

2. Remedios C. Gayo, 204 Manila Times Village, Pamplona, Rizal

3. Gina Estela Montiel, 1709-B M. Hizon St., Sta.Cruz, Manila

4. Ricardo Acordon, 142 Binangonan St., Maypajo, Caloocan City

5. Alex Ibasco y Saldivar, 1659 Kundiman St., Sampaloc, Manila

6. Elmer Guidilla, 19 Examiner St., Bo. West Triangle, Quezon City

7. Magdalena Aparis Benares, 1444 4th St., Fable Estate, Paco, Manila

8. Nenita a, 255-E dela Paz Sto. Nino, Marikina, Metro Manila

9. Leovegildo D. Vicedo, 1164 E. San Andres, Malate, Manila

10. George M. Riego, Buenmar Subdivision, Mangahan, Pasig, Metro Manila

11. one (l) unidentified female of about 20 years old

12. and three (3) others unknown/unidentified persons.

On July 9, 1978, at about 2:30 and 3:30 o'clock in the afternoon, the Manila Cinema Building housing the Manila
Cinema 1 and 2 theaters located at the corner of ß M. Recto Avenue and Nicanor Reyes, Sr., Streets, Manila was
burned, causing damage and destruction to the said building. In addition, fourteen (14) persons died in the fire,
eleven of whom were Identified. All died because of asphyxia due to suffocation (Exhs. "B", "B-1," "B-2", "B-3", "C",
"C-l," "C-2," "D," "D-l," "D-2," "E", "E-1," "E-2," "F," "F-l," "F-2", "G,", "G-l," "G- 2," "H," "H-1," "H-2," "I," "I-1," "I-2," "J,"
"J-l," "J-2", "K","K-l," "K-2," "L," "L-1", L-2," "M", "M-1" and "M-2").

N. de la Merced & Sons, the owner of the Manila Cinema Building, and Universal Management Corporation, the
owner of Manila Cinema 1 and 2 paid a total of P514,068.29 as indemnification to heirs of the deceased to defray
358

their funeral and hospitalization expenses and to those who survived the fire, of which P244,541.80 was reimbursed
by the insurer, Filipino Merchants Insurance Co. (Exhs. "U-1 " to "U-2"). Damage to the building was estimated at
P4,160,750.00 of which only P3,109,693.89 was paid by the insurer (Exhs. "S," "S-1 " and "T").

On June 29, 1979, defendant-appellant Bernardo Lim alias "Jack Robertson," alias Christopher Kelly," alias "Lim
Ming Tak," acting as an alleged informer of Police Corporal Vicente Palmon and his fellow arson operatives,
informed the latter that it was Manuel Navoa who was responsible for the fire that destroyed Manila Cinema 1 and 2.

Relying solely on the credibility of Bernardo Lim and without first securing a warrant of arrest, Corporals Palmon and
Harrison Tolosa arrested appellant Manuel Navoa. At the police headquarters, appellant Navoa allegedly executed
statements waiving his constitutional rights to silence and to counsel (Exh. "O") and giving an extra-judicial
confession (Exhs. "A," "A-1" to "A-9"). Both waiver and extra-judicial confession were subscribed and sworn to
before Inquest Fiscal Zeus Abrogas.

Earlier, on that same day, appellant Bernardo Lim likewise executed a waiver of his constitutional rights to silence
and to counsel (Exhs. "P" and "Q") and also gave an extra-judicial confession (Exhs. "R", "R-1 " to "R-10").

On June 24, 1979, appellant Manuel Navoa made a reenactment of how the theaters were set on fire during which,
pictures were taken at various stages (Exhs. "N," "N-1" to "N-14 ").

Both defendants-appellants pleaded not guilty upon arraignment.

The testimony of appellant Bernardo Lim was summarized by the trial court as follows:

... It was at 8:45 o'clock in the morning of June 22, 1979, that he was arrested by Corporal Palmon
and brought to the police headquarters where upon instruction by a police investigator whom he only
knew as Lito, he wrote in his own hand what purports to be a waiver of his constitutional rights
(Exhibit P) and affixed his signature to what appears to be his statement naming and identifying his
co-accused Navoa as the one who had set ablaze the two theaters in question and made the
corrections therein (Exhibits R, R-1 to R-10) after being maltreated, dealt countless fist blows on the
chest, tortured and threatened by said police investigator, which statement (Exhibits R, R-1 to R-10)
was but prepared by Corporal Palmon without his participation. Told earlier that it was his right to be
assisted by counsel, he said he needed none because anyway he was going to give his statement
voluntarily.

On the other hand, appellant Manuel Navoa's testimony is summarized as follows:

... Between 7:00 and 7:15 o'clock in the morning of June 22, 1979, at the junction of Jose Abad
Santos and Rizal Avenue Extension, as he was walking to take a ride to go to school, he was
accosted by three police officers. Corporal Palmon poking a gun at him and Corporal Tolosa twisting
his arm and handcuffing his two hands, they shoved him into a waiting jeep where a Chinese looking
man was riding in. Taken to the police headquarters at United Nations Avenue in Manila, upon
arrival he was first brought to the fingerprint section where after his handcuffs were removed he was
made to fill up a form containing his personal data. After being fingerprinted, Corporal Palmon
brought him to his office at the second floor of the building where upon being met by Corporal Tolosa
he was divested of his bag containing books, notebooks, pencils, ball pens, school Identification card
and driver's license with P200 in cash kept inside his jacket. Except for the cash money, all were
returned to him Told by Corporal Palmon that he was responsible for the burning of the two theaters,
he denied having anything to do with it, whereupon Corporal Tolosa told Corporal Palmon, 'Just
leave it to me.' It is not true that he was informed of his constitutional rights to silence and to counsel.
In fact they did not even allow him to get in touch with his relatives. For, when he tried to reach the
telephone, Corporal Tolosa told him, 'Just try holding the phone and I will shoot you,' as he pointed a
gun at him. Frightened, he did not attempt again to use the telephone. About the waiver, Exhibit 0,
Corporal Tolosa's companion wrote it on a piece of paper. After giving to Corporal Tolosa, it was
given to him. With a ball pen handed to him Corporal Tolosa told him to copy it on a typewriting
paper, a gun being pointed by Corporal Tolosa on his right cheek. Frightened, he did as ordered.
After that, Corporal Tolosa and his companion typed the statement (Exhibits A, A-1 to A-9). Except
the portion beginning from his name on the first page (Exhibit A) until question and answer No. 17 on
the third page (Exhibit A-2) everything on it is not true. After typing the statement, Corporal Tolosa
disapproved of some words used and ordered him to make the corrections. When he told him that
he needed the assistance of a lawyer, Corporal Tolosa ordered him to follow what he was told to do,
otherwise he would get hurt or killed. Because of that he obeyed and made the corrections
appearing on the fourth seventh and tenth pages (Exhibits A-1, A-7 and A-9). Afterwards Corporal
Tolosa ordered him to sign the statement, otherwise he would be tortured. Frightened, he did as he
was told. Nothing was given him for lunch. And it was only in the morning of the next day, June 23,
1979, that he was given food while at the Theft and Robbery Section. When told by him that it was
Kelly (accused Lim) alone who was responsible for having him arrested upon a false complaint,
359

Corporal Tolosa boxed him twice on the chest. He never admitted anything to Corporal Palmon. But
aside from what Corporal Tolosa did to him, Patron Julito Andales struck twice with his open palms
his two ears, boxed him thrice on the chest and several times on the stomach and tied a piece of
wire around his neck that he tightened and loosened slowly while he was at the Arson Section, being
forced to give answers to the questions that would tally with his police report, such as the fact that it
was not gasoline but a chemical that was used to burn the theaters, and that he was the one
responsible for the burning of Delta Theater and Roman Cinerama and the fire in Tambunting and
other places in Metro Manila. When first brought to the police headquarters, Corporal Palmon
threatened to kill him, asking Corporal Tolosa if they should kill him. Then Corporal Palmon warned
him that if he would not admit guilt to Corporal Tolosa he would return to kill him. Before being
brought to the inquest fiscal, Corporal Tolosa told him to answer that what appears in his statement
is his signature and that he was not tortured at an, if asked by the fiscal. About the alleged re-
enactment in the pictures, Exhibits N, N-1 to N-14, he was but ordered by Corporal Tolosa and
Patrolman Andales to pose for them while they were being taken. It was only in the morning of June
23, 1979, that his parents and relatives came. To them he revealed the threat he received and the
torture he suffered from the police officers. A request was made by his mother to General James
Barbers to have him undergo psychiatric examination so that he could also be physically examined
by a doctor (Exhibit 3). lt was in August 1976 at the Jai Alai that he came to know the accused Lim
for the first time. Since then he used to extort money from him, P20, P30, P50, while in the company
of people carrying guns. In March 1979, the accused Lim asked for P50,000 from him. Told that he
could not give him that much, the accused Lim threatened to kidnap his younger sister and report
him to the Philippine Constabulary as the one responsible for the murders, rapes, hold-ups and
burnings in Metro Manila. But because of the threat that his parents and the members of his family
would be killed one by one, his parents did not report it to the police authorities when he told them
about it.

Teresita Gutierrez, Edgardo Silva, Cristina de la Cruz and Glory Rabbon, accused Navoa's teachers
at Gregorio Araneta University in Malabon, Metro Manila, swore to his presence in his classes on
June 15, 16, 17 and 19 and July 8 and 10, 1978, as evidenced by their class records (Exhibits 1 & 2
Navoa).

Solely on the basis of the extra-judicial confessions of both defendants-appellants (Exhibits "A," "A-1" to "A-10," "R,"
"R-1 " to "R-10"), the trial court rendered the appealed judgment of conviction.

Appellant Bernardo Lim now assigns the following errors:

The lower court erred in:

CONVICTING APPELLANT BERNARDO LIM y RAMIREZ ON THE BASIS MERELY OF THE

ALLEGED EXTRA-JUDICIAL CONFESSION (EXHIBITS "R" TO "R-10") OF THE SAME IN
VIOLATION OF SECTION 20 ARTICLE IV OF THE 1973 CONSTITUTION.

II

CONVICTING APPELLANT BERNARDO LIM Y RAMIREZ WITH THE CAPITAL PUNISHMENT OF

DEATH WITHOUT PROOF BEYOND REASONABLE DOUBT.

III

NOT TAKING INTO ACCOUNT THE ARREST OF APPELLANT BERNARDO LIM y RAMIREZ
WITHOUT ANY WARRANT AFTER ONE YEAR FROM THE OCCURRENCE OF THE INCIDENT
SUBJECT MATTER OF THIS APPEAL.

IV

DISREGARDING THE ALIBI OF APPELLANT BERNARDO LIM y RAMIREZ EVEN IF THERE WAS
NO POSITIVE AND PROPER IdENTIFICATION OF THE ACCUSED BY WITNESSES OF THE
PROSECUTION.

FAILING TO DETERMINE WHETHER OR NOT THE FIRE WAS THE RESULT OF AN ARSON OR
AN ACCIDENT.
360

On the other hand, appellant Manuel Navoa faults the trial court with the following errors:

FIRST ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT FINDING THAT ACCUSED- APPELLANT MANUEL NAVOA
WAS ILLEGALLY AND ARBITRARILY ARRESTED ON JUNE 22, 1979.

SECOND ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN ADMITTING THE ALLEGED WAIVER (EXH. "O") OF ACCUSED-
APPELLANT MANUEL NAVOA WHICH WAS TAKEN BY MEANS OF VIOLENCE, FORCE,
THREAT AND INTIMIDATION.

THIRD ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN ADMITTING THE ALLEGED EXTRA-JUDICIAL CONFESSION

(EXHS. "A," "A-1" TO "A-9") OF ACCUSED-APPELLANT MANUEL NAVOA WHICH WAS TAKEN
IN VIOLATION OF THE 1973 CONSTITUTION.

FOURTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN ADMITTING THE ALLEGED EXTRA-JUDICIAL CONFESSION

(EXHS. "A, " "A-1 " to "A-9") OF ACCUSED-APPELLANT MANUEL NAVOA WHICH WAS TAKEN
BY MEANS OF VIOLENCE, FORCE, THREAT AND INTIMIDATION.

FIFTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN FINDING THAT THE ALIBI SET BY ACCUSED-APPELLANT
MANUEL NAVOA CANNOT STAND ON THE WAY OF CONVICTION FOR THE OFFENSE
CHARGED.

SIXTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN IGNORING THE TESTIMONIES OF THE WITNESSES FOR
ACCUSED-APPELLANT MANUEL NAVOA WHICH CONTRADICTED CERTAIN INCRIMINATORY
STATEMENTS IN THE ALLEGED EXTRA-JUDICIAL CONFESSION (EXHS. "A", "A-l" TO "A-9").

SEVENTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE POLICE
INVESTIGATORS DESPITE THEIR INHERENT INCREDIBILITIES, IRRECONCILABLE
INCONSISTENCIES AND PATENT PARTIALITY.

EIGHTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN CONSIDERING THE ALLEGED EXTRA-JUDICIAL

CONFESSION (EXHS. "R, " "R-1 " to "R-10") OF CO-ACCUSED BERNARDO LIM AS EVIDENCE
AGAINST ACCUSED-APPELLANT MANUEL NAVOA.

NINTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED- APPELLANT MANUEL NAVOA
ON THE GROUND OF REASONABLE DOUBT.

The main thrust of the defendants-appellants' arguments on appeal is that they were not afforded the opportunity to
avail of their rights under Section 20, Article IV of the 1973 Constitution; that there was no intelligent waiver of their
rights, and as such, their extra-judicial confessions are inadmissible against them.

The records show that the extra-judicial confessions of the accused formed the only basis for the judgment of
conviction. The confessions were taken without the assistance of any counsel for the accused. The confessions
were preceded by waivers of the right to counsel. Manuel Navoa stated that he did not need the assistance of a
lawyer or anybody else because he wanted to tell the truth about his participation in the crime. To augment the
waiver which formed the first part of his typewritten confession, he also executed a short waiver in his own
handwriting. Accused Bernardo Lim did likewise.
361

During the trial, accused Navoa repudiated the waivers and the confessions. He testified that the police investigators
employed force and intimidation, including outright torture to secure his confession. However, the trial court did not
believe that the accused were "forced, threatened, intimidated, and tortured into executing their respective
extrajudicial statements." It found no reason why the police officers should resort to torture "if only to have them (the
accused) falsely charged and unjustly convicted of the serious crime of arson for which the penalty is death,
fourteen people having perished in the fire that had been set ablaze." The court found the confessions replete with
details; no complaints were filed against the police officers; and no doctors examined the accused for the alleged
injuries.

On the basis of the above findings, accused Navoa and Lim were each sentenced to DEATH and ordered to pay
P774,550.29 in indemnifications.

We first pass upon the question of whether or not the extrajudicial confessions were voluntary.

Even before the adoption of the "right to counsel" rule for custodial interrogations in Article IV, Section 20 of the
1973 Constitution, this Court had already ruled that to be valid, a confession must be shown to have proceeded
from the free will of the person confessing.

Thus, in People v. Bagasala (39 SCRA 236), we stated that where the confession is involuntary, being due to
maltreatment, or induced by fear or intimidation, there is a violation of this constitutional provision. Any form of
coercion, whether physical, mental or emotional thus stamps it with inadmissibility. What is essential for its validity is
that it proceeds from the free will of the person confessing."

The test of free will does not require a showing of force or intimidation. On November 23, 1976, this Court ruled:

The constitutional inquiry is not whether the conduct of the police officers in obtaining the confession
was shocking, but whether the confession was free and voluntary; that is, it must not be extracted by
any sort of threats or violence, nor obtained by any direct or implied promises, nor by the exertion of
improper influence. (People v. Alto, 26 SCRA 364) It has been recognized that 'coercion can be
mental as well as physical and that the blood of the accused is not the only hallmark of an
unconstitutional inquisition. (Blackburn v. Alabama, 361 U. S. 199, 206, 4 L. Ed. 2d. 242).

In the light of the trial court's factual findings it is difficult for this Court to make a categorical finding from the records
that the police investigators resorted to cruel and reprehensible tactics to extort the confessions. However, we can
glean enough to rule that, under the standard of proof beyond reasonable doubt, Navoa's confession was far from
being the product of his free will, Assuming there was no torture, there was, at the very least, improper pressure and
intimidation.

Appellant Navoa's testimony during trial alleges that he was intimidated into signing the confession (Exhibits "A," "A-
1 " to "A-9 "). He states:

Q. After these personal items of yours were taken, what happened?

A. Corporal Tolosa told that I was the one responsible for the burning of Cinema 1
and 2.

Q. What did you answer?

A. I told him I don't know anything about it.

Q. What did he do afterwards?

A. Corporal Palmon told Corporal Tolosa, 'Shall we kill him?

(t. s. n., December 9, 1980, p. 5)

xxx xxx xxx

Q. At that time. did they allow you to get in touch with any of your relatives?

A. They did not.

Q. Did you attempt to inform them you wanted to get in touch with your relatives?

A. Yes.
362

Q. To whom did you make this request?

A. To Tolosa.

Q. What was his answer?

A. When I tried to reach the telephone at the table of Tolosa, Tolosa suddenly
pointed his gun at me and told me, 'Just try holding the telephone and I will shoot
you.'

Q. What was your reactions?

A. I became frightened after that.

(t. s. n., December 9, 1980, p. 6)

More important than the intimidation is the maltreatment that appellant Manuel Navoa allegedly suffered at the
hands of the police investigators. He testified:

Q. In what manner did he torture you?

A. First, he tapped my ears two times very slowly.

Q. With what hands?

A. Two hands.

Q. Afterwards?

A. I became very dizzy after that. I did not say anything, some words, and suddenly
he boxed me three times in the chest and several times in the stomach and because
of that I became weak and frightened and after that I did not say again anything
some words because if I will say something, it will be against me. He suddenly tied
with a wire again my neck. And slowly he untied and tied it again and untied again.

(t.s.n., December 9, 1980, p. 9)

xxx xxx xxx

Q. Besides pointing his gun at you, what did Tolosa do to you?

A. He boxed me two times in the chest and once in the stomach. When I told him that
Kelly was the one responsible for having jailed me when he complained to the police
falsely.

(t. s. n., December 9, 1980, p. 8)

xxx xxx xxx

Q. What did Andales do to you?

A. He tapped my two ears and because of what he had done, I became dizzy, and
after that, he boxed me three times in the chest, several times in the stomach and
also he tied a wire around my neck and tightened it slowly and very slowly he
loosened and tightened again.

Q. Where did this take place?

A. In the room of the Arson Division.

(t. s. n., December 9, 1980, p. 9)

Navoa stood firm in his testimony during the grueling cross-examination. Thus:

Q. How were you harmed by Cpl. Tolosa?

363

A. I was already at the headquarters, your Honor.

Q. How were you harmed?

A. He boxed me two times on the chest and once in the stomach, your Honor.

(t. s. n., December 9, 1980, p. 30)

xxx xxx xxx

Q. Now, after Cpl. Tolosa subjected you to bodily harm, do I get you correctly that
Pat. Andales subjected you also to bodily harm?

A. Yes, sir.

Q. And this was tapping your ears two times, boxing you on your stomach three
times?

WITNESS:

Yes, sir.

ATTY. BODEGON:

Q. And not only that, Pat. Andales also tied a wire around your neck?

A. Yes, sir.

Q. And do I understand correctly that he would tighten this wire and then let it loose
again and then tighten it again?

A. Yes, sir.

Q. In such that you were subjected to excruciating pain?

A. (witness nodding his head).

(t.s.n., March 3, 1981, pp. 34-35)

The trial court stated that no results of medical examinations indicating torture were presented in evidence by the
accused. Noteworthy is our pronouncement in People v. Cabrera (I 34 SCRA 362) with respect to the taking of
extrajudicial confessions:

... [W]e reiterate the reminder to Judges and Fiscals before whom declarants are brought for
swearing to the truth of their statements to adopt the practice of having the confessants physically
and thoroughly examined by independent and qualified doctors before administering the oath, even
if it is not requested by the accused. If physicians are not available then they should themselves
examine the bodies of the declarants for signs of possible violence. This would not only deter
attempts to secure confessions through violence but would also preclude future controversies on
whether the statements were obtained through torture or not, which only delay criminal trials.
(People v. Castro, 11 SCRA 699 [1964]; People v. Francisco, 74 SCRA 159 [1976]). (Emphasis
supplied)

The written waiver (Exh. "O") of appellant Navoa purportedly waiving his constitutional rights to silence and to
counsel should have been excluded by the trial court.

In a case decided last May 31, 1982, we stated that a defendant may waive effectuation of his right to remain silent
and to be assisted by counsel at a custodial police interrogation provided the waiver is made voluntarily, knowingly,
and intelligently (People v. Rollo, 114 SCRA 304).

In the case at bar, there was no such voluntary, knowing, and intelligent waiver. Exhibit "O" is so pat and aptly
worded, so contrived as to be exactly suited to meet legal objections that it could have been prepared only by a
veteran police investigator and not by an ordinary layman like appellant Manuel Navoa. Exhibit "O" reads:
364

Ako Manuel Navoa y Martinez, 23 taon gulang, binata at kasalukuyang naninirahan sa 2975 Jose
Abad Santos, Tondo, Manila, pagkatapos kong malaman ang aking mga karapatan sang ayon sa
ating Bagong Saligang Batas ay malaya at kusang loob na nagsasaad nitong mga sumusunod:

l) Na ako ay pina-alala naman ng mga pulis ay aking karapatan sa ilalim ng ating Bagong Saligang
Batas tulad ng karapatan kong manatiling tahimik at huwag sumagot sa anumang itatanong sa akin,
karapatan ko ring magkaroon ng sariling abogado habang ako ay tinatanong ng pulis.

2) Pagkatapos kong malaman ang aking mga karapatan na nabanggit sa itaas nito ako ay
magbibigay ng isang malaya at kusang loob na salaysay na ako ay hindi pinilit o kaya ay
pinangakuan ng anumang pabuya sa pagsisiyasat na ito.

3) Na hindi ko na kailangan ang tulong ng isang abogado sapagkat pawang katotohanan lamang
ang sasabihin ko.

4) Na ako ay pansamantalang nagpapadetine sa pulisya ng aking kagustuhan na ako ay hindi

tinakot, pinilit o kaya ay pinangakuan ng anumang pabuya.

5) Na bilang patunay sa sinabi kong ito ay kusang-loob kong inilagda ang aking pangalan ngayong
ika-22 ng Hunyo, 1979, ganap na ika-12:20 ng hapon dito sa Lungsod ng Maynila.

Manuel Navoa is not well versed in the niceties of the law and is without any experience whatsoever in criminal
investigations. Indeed there is persuasive merit in his submission that he only copied the waiver under threat of a
gun from a prepared text written by one of the police investigators. Thus:

Q. Will you inform the Honorable Court how you signed, under what circumstances
you signed Exh. "O "?

A. The police companion of Tolosa wrote in a piece of paper a waiver and gave it to
Tolosa who then gave me a piece of typewriting paper and ball pen and told me to
copy the waiver with his gun pointed at my right cheek.

Q. What did you do when he told you to copy the waiver?

A. I became frightened and I copied it.

(t. s. n., December 9, 1980, p. 6)

When Navoa waived his right to counsel and executed the extra-judicial confession, he was alone in the company of
the police interrogators, deprived of outside support. This Court is far from satisfied that the waiver of counsel and
the subsequent confession were indeed products of Navoa's free will.

Moreover, the following material allegations in defendant-appellant Navoa's alleged extrajudicial confession, to wit:
(1) That at about 5:00 o'clock in the afternoon of June 15, 1978 at Mehan Garden, a certain Jack Robertson asked
defendant-appellant Navoa if he wanted to earn some fast money; (2) That on June 16, 1978, defendant-appellant
Navoa again met Jack Robertson, this time, Robertson requested him to recruit several persons who also wanted to
earn fast money, (3) That on June 17 and 18, 1978, Jack Robertson requested defendant-appellant Navoa and his
recruits to watch a movie at the Manila Cinema 1 at the Manila Cinema Building along Claro M. Recto Avenue; (4)
That on July 8,1978, defendant-appellant Manuel Navoa bought some gasoline; and (5) That on July 9, 1978,
defendant-appellant Manuel Navoa and his recruits again watched a movie at the Manila Cinema 1 where they
discreetly placed bags of gasoline at designated places-are all belied by the collective testimonies of the teachers of
defendant-appellant Navoa who categorically testified that on those dates, he was present in their classes based on
their recollections and evidenced by their class records.

Cristina de la Cruz, a teacher of Animal Husbandry at the Gregorio Araneta University Foundation testified:

ATTY. FERNANDEZ:

Q. There has been presented in this court an alleged statement of Manuel Navoa
which the prosecution claimed to have been executed voluntarily. In that statement
marked as Exhs. "A," "A-1" to "A-9" inclusive, it was stated that at around 10:00
o'clock of June 16, 1978 which is a Friday, Manuel Navoa was with a certain Jack
Robertson at Mehan Garden. Now do you know where Manuel Navoa was at around
10:00 o'clock in June 16, 1978 which was a Friday?

A. Yes, he was in my class.

365

ATTY. FERNANDEZ:

Q. Also in the same statement, Manuel Navoa was claimed to have voluntarily stated
that on June 19, 1978 which is a Monday he was at Cinema 1 watching a movie with
a certain Jack Robertson and six recruits. Would you know where Manuel Navoa
was in the morning of June 19, 1978?

A. He was in my class also.

Q. Likewise in the said statement, Manuel Navoa was alleged to have stated that on
July 10, 1978 which is a Monday in the morning, he went to Mehan Garden for a
meeting with Jack Robertson. Do you know where Manuel Navoa was on July 10,
1978 in the morning.

A. He was attending my class, sir.

Q. Do you have the records of your class to show that on those particular dates and
time, you mentioned, Manuel Navoa attended your class?

A. Yes, I have my record. It is here.

(t. s. n., October 2, 1980, pp. 3-4)

xxx xxx xxx

ATTY. FERNANDEZ:

Q. According to your record of attendance, how many times was Navoa absent
during the first semester of 1978?

A. He was a regular student and he attended class. There was no absences at all.

(t. s. n., October 2, 1980, p. 5)

Teresita Gutierrez, appellant Manuel Navoa's teacher in Land Reform gave similar testimony. To the same effect is
the testimony of Edgardo Silva, defendant-appellant Manuel Navoa's teacher in Logic:

Q. Well on your record, was Navoa present on June 15, and 17?

A. Yes, sir.

Q. All right, will you check your record and inform us whether the said accused
Manuel Navoa was present in your office during this date?

A. He was present, sir.

(t. s. n., November 7, 1980, p. 38)

The testimonies of the teachers are supported by the class records of attendance which were submitted in evidence.

Apart from the extra-judicial confessions, the trial court also relied on the pictures (Exhs. "N," "N-1 " to "N-10") taken
during the re-enactment of the crime by appellant Navoa.

In People V. Buscato (74 SCRA 30) this Court sustained the submission of the Acting Solicitor General that for a
reenactment to be given evidentiary weight, the validity and efficacy of the confession must first be shown. Such a
showing is absent in this case.

These pictures, therefore, should have been likewise excluded by the trial court because they were based on the
inadmissible extra-judicial confession of defendant-appellant Navoa (People v. Alcaraz, 136 SCRA 74).

In addition, the prosecution's claim that the re-enactment was voluntarily done at the initiative of appellant Navoa is
belied by the direct testimony of the police photographer who took the pictures during the alleged re-enactment. The
police photographer categorically testified that it was indeed Patrolman Palmon who directed the positioning of the
people who took part in the re-enactment. Thus,
366

Q. And who instructed the positioning of these people in the pictures marked Exhibits
"N-6" to "N-10"?

A. Corporal Palmon, sir.

Q. In all these pictures marked Exhs. "N-6" to "N-10," it was Corporal Palmon who
directed the positioning of these persons?

WITNESS

A. Yes, sir.

(t.s.n., November 9, 1979, pp. 53-54)

To the same effect is the testimony of appellant Navoa. He testified that it was Patrolman Andales who instructed
him what to do in the preparation of the materials to be used in the re-enactment and that it was Patrolman Tolosa
who directed the movements depicted in the pictures:

Q. Now, pictures marked Exhs. "N," "N-1" to "N-14" inclusive presented before this
court and pursuant to the testimony of Patrolman Palmon, said pictures were taken
when you voluntarily executed the preparation for the burning of Cinema I and 2 as
depicted in the pictures, Exhs. "N," "N-1" to "N-14". What can you say?

A. In the making of the preparation to be used in the re-enactment, Andales told me

what to do.

(t. s. n., December 9, 1980, p. 11)

xxx xxx xxx

Q. Who directed the movements depicted in the pictures, Exhs. "N," "N-1" to "N-14"?

A. Tolosa supervised Andales who told me what to do.

(t. s. n., December 9, 1980, p. 11)

The foregoing circumstances show that the re-enactment of the crime and the pictures taken during such re-
enactment were pursuant to a script made by police officers and directed by them. With more reason, the pictures
taken during the reenactment should have been excluded.

With the exclusion of appellant Navoa's written waiver of his constitutional rights (Exh. "O"), his extra-judicial
confession (Exhs. "A, " "A-1" to "A-9") and the pictures taken during the re-enactment of the crime (Exhs. "N," "N-1"
to "N-14"), the record is bereft of any other evidence which could support a judgment of conviction. No eyewitness
who saw Navoa at the vicinity of the scene of the crime was ever presented. The prosecution failed to prove the guilt
of Navoa beyond reasonable doubt.

While it is true that appellant Navoa put up only the defense of denial, this defense went far enough to give rise to a
reasonable doubt of his guilt. Consequently, Navoa has to be acquitted if only to give meaning to the time honored
principle that the prosecution must rely on the strength of its own evidence and not on the weakness of the defense.

Like Manuel Navoa, appellant Bernardo Lim was convicted on the basis of his extra-judicial confession (Exhs. "R,"
"R-1" to "R-10") alone. But unlike Navoa, Bernardo Lim's later contention that his extra-judicial confession was
extorted in violation of Section 20, Article IV of the 1973 Constitution appears to be without merit. On the contrary,
appellant Lim, who was a police informer, testified during trial that he indeed voluntarily gave his statement to the
police investigators. Thus:

Q. Were you informed of your right under our Constitution to remain silent or to call
for an attorney, to provide you with a lawyer in that investigation. Were you informed
of that matter?

A. No. I voluntarily gave statement to the police."

(t. s. n., August 22, 1980, p. 5)

xxx xxx xxx

367

Q. Were you told that you have the right to get a counsel?

A. Yes.

Q. What did you say?

A. I said I don't have to get counsel because I am going to give voluntary statement.

(t. s. n., August 22, 1980, p. 7)

However, Lim's extra-judicial confession upon which the judgment was based is not adequate to support conviction
for the crime of arson warranting the extreme penalty of DEATH. Lim's statement limits his participation solely to the
giving of information as to the exact location of the comfort rooms of the theater and their distances to the screen.

The reliability of Lim's confession is doubtful. He testified that his participation in the plotting took place in
December, 1977 and January 3, 1978. The building housing Cinemas 1 and 2 was burned on July 9, 1978. The two
appellants never saw each other again until January 26, 1979.

This fact was emphasized during the trial, to wit:

Q. (89) Do I Understand that you never met again from January 3, 1978 up to
January 26, 1979, a period of more than a year?

A. Yes.

Being the police informer who fingered Manuel Navoa as the principal culprit, Lim appears to know more about the
crime than what appears in the records. In his confession and testimony, he limits himself to the giving of
information such as the layout of the movie houses which facilitated the commission of the crime. Actually such
information was unnecessary as Navoa's alleged confession shows he and six other men went to the theaters more
than once to acquire fun familiarity with the place they were supposed to burn down. The culpability of appellant Lim
is intimately tied up with the truth of Navoa's confession and the community of criminal design between the two.
Since we find a lack of proof beyond reasonable doubt to convict Navoa, we are constrained to acquit Lim for the
same reason.

The intentional burning of two moviehouses which resulted in the death of fourteen (14) victims is shocking in the
perversity of the minds which conceived it, in their senseless lack of concern for the sanctity of human life. By its
very nature, the crime of arson is difficult to investigate. The crime itself usually destroys the evidence which would
incriminate the perpetrators. For that very reason, however, the development of more sophisticated police
techniques is imperative.

In this particular case, the police should have been more aware of the protections afforded by Article IV, Section 20
of the Bill of Rights to persons undergoing custodial interrogation. In the belief that the extrajudicial confession and
the re-enactment, taken without the required constitutional safeguards, were enough to sustain conviction,
determined efforts to apprehend the six other arsonists or to get admissible and more convincing evidence were no
longer taken.

Section 20 of the Bill of Rights which provides:

No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel and to be informed of
such right. No force, violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him, Any confession obtained in violation of this section shall be inadmissible
in evidence.

governs the permissible procedures which the government may use in applying its power against individuals
suspected of complicity in the commission of a crime. Without in any way minimizing the importance of giving police
agencies ample latitude in the legitimate exercise of their duties, this Court is bound to give full and effective
meaning to the public policy enunciated in Section 20, towards the creation of more effective safeguards against
oppressive and arbitrary, albeit at times, well-meaning state power.

Not even the most conservative elements of society can deny that accused persons suffer an enormous
disadvantage when confronted by the overwhelming interests of the State in public order, public safety, or its own
self-preservation. The accused is at a disadvantage when government power and resources, coupled with the
private motives of government officials are used against him.
368

The old argument that society's need for efficient law enforcement outweighs and, therefore,
condones small encroachments on individual liberties his no place in a democratic form of government.

The continued acceptance of hitherto "valid" confessions to sustain judgments of conviction may lead to sloppy
police investigations, to a lack of initiative, industry and resourcefulness on the part of the investigators, and to gross
miscarriages of justice in many cases which must forever remain unknown.**

In any balancing of interests, the scales will even out vis-a-vis government action only when there is an
improvement of police procedures, the development of anti-crime techniques, and the perfection of law enforcement
systems. And very often, such development of methods is possible only when the traditional, authoritarian, and
easier procedures are proscribed and no longer available.

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE. Appellants Manuel Navoa and
Bernardo Lim are ACQUITTED of the crime charged on grounds of reasonable doubt.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Cruz and Paras, JJ., concur.

G.R. No. L-69971 July 3, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERNESTO LUVENDINO y COTAS, accused/appellant.

FELICIANO, J.:

On the morning of 17 January 1983, 18-year old Rowena Capcap left her home at Deva Village, Tambak, Taguig,
Metro Manila to attend classes at the University of Manila where she was a sophomore commerce student. She
369

would usually be home by 7:30 to 8:00 on school evenings,   but on that tragic day, she would not reach home alive.
1

On that particular evening, her father Panfilo Capcap arriving home from work at around 7:30 p.m., noted her
absence and was told by his wife and other children that Rowena was not yet home from school. Later, a younger
brother of Rowena, sent on an errand, arrived home carrying Rowena's bag which he had found dropped in the
middle of a street in the village. 
2

Panfilo Capcap lost no time in seeking the help of the barangay captain of Hagonoy, Taguig. Not being satisfied with
the latter's promise to send for a "tanod" to help locate his missing daughter, Panfilo went to the Taguig Police
Station to report his daughter as missing. The desk officer there advised him that a search party would be mounted
presently. 
3

Panfilo returned home and, with the help of some neighbors, launched a search party for the missing Rowena. The
search ended in a grassy vacant lot within the Deva Village Subdivision, only about 70 to 80 meters from the
Capcap residence, where lay the apparently lifeless body of Rowena, her pants pulled down to her knees and her
blouse rolled up to her breasts. Her underwear was blood-stained and there were bloody fingerprint marks on her
neck. Rowena, her body still warm, was rushed to a hospital in Taguig, where on arrival she was pronounced dead. 4

An autopsy was conducted on the following day by the National Bureau of Investigation and the autopsy report
disclosed the following:

Cyanosis, lips and fingernail beds with pupils dilated and bloody froths coming out of nostrils.

Abrasions, 1.0 x 3.0 cm., area of the buttocks, left side; 1.5 x 3.0 cm., area of right elbow.

Contused-abrasions, 3.0 x 8.0 cm., area of the lateral aspect of the right chest; 4.0 x 5.0 cm., area of
the antero-lateral aspect, middle third, left arm.

Contusion, 7.0 x 13.0 cm., area of the anterior aspect of the neck from left to right in varying sizes
and shapes.

Interstitial hemorrhages among the muscles and soft tissues in the anterior aspect of the neck with
petechial hemorrhages noted and severe congestion of the pharynx with subpleural, subpericardial
puntiform hemorrhages.

Fracture, laryngeal cartilage.

Lungs, presence of multiple petechial hemorrhages along the surface of both lungs; cut sections
showed severe congestion.

Heart, covered with moderate amount of adipose tissues with right chamber distended with dark fluid
blood.

Brain and other visceral organs are congested.

Stomach, one-third filled with digested food materials.

CAUSE OF DEATH:

Asphyxia by manual strangulation (throttling).

REMARKS:

Genital examination revealed the presence of an old healed hymenal laceration at 6:00 o'clock
position corresponding to the face of the watch, edges rounded, base retracted and non-coaptable.
Smears taken for presence of spermatozoa yield a positive a positive result.  5

The autopsy report also stated that the multiple injuries indicated the victim had struggled vigorously with her
attacker(s); that the presence of spermatozoa showed that the victim had sexual intercourse prior to death; and that
death was due to asphyxia by mutual strangulation.  6

By 5 March 1984, an information had been filed in the trial court charging Ernesto C. Luvendino, Cesar Borca alias
"Cesar Putol" and Ricardo de Guzman alias "Ric" with the crime of rape with murder committed as follows:

That on or about the 17th day of January, 1983, in the Municipality of Taguig, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping and aiding one another, by means of force and
370

intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of one
Rowena Capcap y Talana, against her will and consent; that by reason or on the occasion thereof,
the said accused in pursuance of their conspiracy, with intent to kill and treachery and taking
advantage of their superior strength, did then and there willfully, unlawfully and feloniously attack,
assault, hit and strangulate the said Rowena Capcap y Talana which directly caused her death.

Contrary to law.  7

Warrants of arrest were issued against all the above accused but only accused-appellant Ernesto Luvendino was
actually apprehended; the other two (2) have remained at large. At arraignment, Luvendino assisted by his counsel,
Atty. Luisito Sardillo, pleaded not guilty and then proceeded to trial.

On 12 December 1984, the trial court rendered a decision finding Luvendino guilty, sentencing him to death,
requiring him to indemnify the heirs of the victim Rowena in the amount of P50,000.00 for the damages suffered as
a result of her death.

Appellant Luvendino contends that the trial court committed grievous error in —

. . . having required Atty. Luisito Sardillo to continue as counsel of the accused-appellant

notwithstanding his [Sardillo's] express mental reservations.

II

. . . believing the insidious machinations of third persons and witness Salvador B. Cemitara
surrounding the alleged threats [against] Cemitara, including Exhibit "D."

III

. . . admitting and giving credence to the evidence of re-enactment and admission of guilt, both of
which were uncounseled.

IV

. . . giving credence and weight to the identification of appellant Ernesto Luvendino by witness
Cemitara.

. . . finding appellant Luvendino guilty of rape with murder. 8

The above assignments of error may be condensed to three (3), that is, whether or not the trial court erred in: (1) not holding that his "demonstration" or re-
enactment of the crime as well as his subsequent written admission of guilt as inadmissible for having been made without the benefit of counsel; (2) according
credence to the identification and other statements made by prosecution witness Cemitara; and (3) allowing Luvendino's counsel before the trial court to continue
as such notwithstanding such counsel's express mental reservations.

Under his first assignment of error, appellant Luvendino contends that the "demonstration" or re-enactment and his
extrajudicial confession were effected and secured in the absence of a valid waiver by him of his constitutional rights
and that the re-enactment and the confession should be held inadmissible in evidence because they had been
involuntarily made.

We turn first to the admissibility of the testimony (of Panfilo Capcap) relating to the contents of the demonstration or
re-enactment of the crime. The decision of the trial court had the following to say about the re-enactment:

For sometime, the suspects had not been known. As a matter of fact, in the January 22 and 23,
1983 issues of TEMPO, a newspaper of general circulation in Metro Manila, it was reported that the
group of men who waylaid her were still unidentified, (Exhs. C & R). However, Panfilo Capcap
stated that at about midnight of February 10, 1983, he was awakened by the police at their
residence. They went to the vacant lot where they found dead body of Rowena. A police officer,
whom he later knew to be Sgt. Birxo, told him they had arrested Ernesto
Luvendino, alias "Joey". The accused was then demonstrating how they brought the girl to the
vacant lot. While Luvendino was re-enacting the events that transpired in the evening of January 17,
pictures were taken by a photographer brought by the police officers. As the re-enactment was
going on, Capcap said he heard the accused said that he and his companion boxed her in the
stomach, dragged her to the lot and raped her there. The accused allegedly admitted he and Cesar
Borca had strangled Rowena and he likewise admitted he had abused her. Capcap stressed that in
371

the course of the demonstration Luvendino remarked: "Inaamin ko po na kasama ko si Cesar Borca
sa pag re-rape kay Rowena." Luvendino allegedly demonstrated how she was boxed, dragged and
abused and pointed to the place where they had left her remains. Capcap drew a sketch of the
scene (Exh. I). He also narrated that after the re-enactment, he and Luvendino were taken to the
Eastern Police District in Pasig and were investigated separately. He likewise testified that sometime
before the apprehension of Luvendino he was informed by Ernesto Uy that a certain Bayani
Cemitara had seen Rowena with several men by the entrance of Deva Village in the early evening of
January 17, 1983.

xxx xxx xxx

. . . . The records indicate that immediately after his apprehension, the police officers brought him to
the Deva Subdivision where he demonstrated how the victim was boxed, dragged and taken to the
vacant lot where she was raped and throttled to death. According to the evidence for the
prosecution, Luvendino in the re-enactment, had not only admitted his presence in the commission
of the crime but had likewise admitted he was with Borca in abusing Rowena. Significantly, the
evidence for the prosecution in this regard was not rebutted nor denied by the accused.

xxx xxx xxx  9

(Emphasis supplied)

Clearly, the trial court took into account the testimony given by Panfilo Capcap on what had occurred during the re-
enactment of the crime by Luvendino. We note that the re-enactment was apparently staged promptly upon
apprehension of Luvendino and even prior to his formal investigation at the police station.   The decision of the trial
10

court found that the accused was informed of his constitutional rights "before he was investigated by Sgt. Galang in
the police headquarters" and cited the "Salaysay"   of appellant Luvendino.   The decision itself, however, states
11 12

that the re-enactment took place before Luvendino was brought to the police station. Thus, it is not clear from the
record that before the re-enactment was staged by Luvendino, he had been informed of his constitutional rights
including, specifically, his right to counsel and that he had waived such right before proceeding with the
demonstration. Under these circumstances, we must decline to uphold the admissibility of evidence relating to that
re-enactment.  13

We consider next the extrajudicial confession of appellant Luvendino. Luvendino claimed first of all that the
extrajudicial confession had been extracted from him by means of a beating administered by many policemen at the
police station and that a chain had been wrapped around his neck. The trial court disposed of this claim in the
following manner:

In an extra-judicial confession, the confessant carries the burden of convincing the court that his
admissions are involuntary and untrue. (People v. Manabo, 18 SCRA 30). This Luvendino had failed
to do. He claimed he was given fist blows by many policemen and his neck was strangled with a
chain when he refused to admit guilt at the Eastern Police District and then later given the "7-up
treatment" in another place. Although he said he sustained injuries, no proof was submitted to that
effect except his bare and uncorroborated testimony. He admitted that his mother and Atty.
[Eustacio] Flores were present when he subscribed before the fiscal the next day, but he did not say
that he had told them about the torture employed on him. If it were really true that he was abused in
the manner he described it, tale-tell signs of the maltreatment could have been visible the following
morning and would not escape the notice of his mother and his lawyer and appropriate steps could
have been taken so that he may be examined by a competent physician. It is interesting to note that
Atty. Flores made no mention of such injuries when he was called as a defense witness.  14

The trial court disbelieved and rejected Luvendino's claim that he have been beaten into making his confession.
Appellant has given us no basis for overturning this conclusion of fact. The presumption of the law is one of
spontaneity and voluntariness of an extrajudicial confession of an accused in a criminal case, for no person of
normal mind would deliberately and knowingly confess to being the perpetrator of a crime, especially a heinous
crime, unless prompted by truth and conscience.   Thus the Court has ruled that where the confessant failed to
15

present any evidence of compulsion or duress or violence on his person for purposes of extracting a confession;
where he failed to complain to the officers who administered the oaths, such as the Fiscal in this case; where he did
not institute any criminal or administrative action against his alleged intimidators for maltreatment; where he did not
have himself examined by a reputable physician to buttress his claim of maltreatment; and where the assailed
confession is replete with details which could not have been known to the police officers if they merely concocted
the confession, since the statements were inculpatory in character, the extrajudicial confession may be admitted, the
above circumstances being considered as factors indicating voluntariness.  16

Luvendino next claimed that he had not been informed of his constitutional rights before his confession was given
by him or extracted from him. In the first place, Police Sgt. Galang testified as prosecution witness that he had
indeed informed Luvendino of the latter's constitutional rights before he commenced investigating Luvendino at the
372

police headquarters.   In the second place, the written extrajudicial confession itself stated that Luvendino was
17

informed of his constitutional rights and that he was waiving those rights.   In the third place, according to Luvendino
18

himself, he first signed his extrajudicial statement, which also set out a separately signed waiver of his rights, at the
police department and that later, when he was brought to the office of Provincial Fiscal Mateo, he subscribed to or
signed once more the same document, this time under oath. As already noted from the trial court's decision, when
Luvendino subscribed under oath to his extrajudicial confession in the presence of the Provincial Fiscal, his mother
and Atty. Eustacio Flores were also present. Said the trial court:

But even as he had waived the right to counsel while interrogated by Sgt. Galang, the accused was
nevertheless assisted by one before he signed the "Salaysay", Exhibit "L". From the narration of the
accused himself it can be gathered that the was brought to the Fiscal's Office in Pasig in the morning
of February 10, 1983. At that office, he was at first aided by a lawyer from the CLAO. He did not sign
the statement for he wanted to talk to his mother. He was returned to the police station where his
mother saw him in the afternoon. In the headquarters, they requested that they be allowed to
engage a lawyer of their choice and their request was granted. The mother called for Atty. Flores
who arrived when the accused was already back in the Office of the Fiscal. In the presence of Atty.
Flores and his mother, the accused was investigated by the fiscal after which, also in the presence
of his mother and assisted by Atty. Flores, the accused signed Exhibit "L".   (Emphasis supplied)
19

Although Atty. Eustacio Flores, a former Mayor of Pateros, did not serve as defense counsel during the trial, it is
clear that Luvendino and his mother regarded Atty. Flores as Luvendino's counsel at least in respect of that specific
occasion in the Fiscal's office, and that Atty. Flores did so act as counsel of Luvendino.

It is, however, claimed by appellant Luvendino that at the time he had first signed his extrajudicial confession at the
police headquarters, he was without counsel. Luvendino thus apparently seeks to distinguish the initial signing of his
"Salaysay" (Exhibit "L") at the police headquarters from his subsequent subscribing thereto under oath in the Office
of the Provincial Fiscal of Rizal. There is no question that on the latter occasion, Luvendino was questioned by the
Fiscal in the presence of his mother while Luvendino was assisted by Atty. Eustacio Flores.

In People v. Burgos,   the Court did make the following general statements:
20

The trial court validly rejected the extra-judicial confession of the accused as inadmissible in
evidence. The court stated that the appellant's having been exhaustively subjected to physical terror,
violence, and third degree measures may not have been supported by reliable evidence but the
failure to present the investigator who conducted the investigation gives rise to the "provocative
presumption" that indeed torture and physical violence may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by counsel during the
custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty.
Anyog, to help the accused when he subscribed under oath to his statement at the Fiscal's Office
was too late. It could have no palliative effect. It cannot cure the absence of counsel at the time of
the custodial investigation when the extrajudicial statement was being taken.   (Emphasis supplied)
21

The above statements in Burgos were not, however, intended to establish a rigid and automatic rule that the
subsequent presence of and assistance by counsel of the accused prior to and during the subscribing under
oath of an extrajudicial confession and an accompanying waiver of right to counsel, cannot have any legal
effect at all. For one thing, under the factual circumstances of People v. Burgos — where the trial court
believed the statements of the accused that he had been "exhaustively subjected to physical terror, violence
and third degree measures" and where the investigating officer was not presented as a witness by the
prosecution — the above statements were clearly appropriate. In the case at bar, Police Sgt. Galang who
had interrogated Luvendino at the police station was, as already pointed out, presented as a witness by the
prosecution and had testified in extenso, that Luvendino had been informed by him (Police Sgt. Galang) of
his constitutional rights, that Luvendino had waived his rights voluntarily and intelligently, being convinced
that he did not need the assistance of a lawyer and could, by himself, clarify what had taken place.
Moreover, Luvendino in the Office of the Provincial Fiscal in Pasig, had initially been assisted by a Citizens
Legal Aid Office (CLAO) lawyer. But he at that time nonetheless declined to swear to Exhibit "L" and later,
together with his mother, insisted that he be allowed to retain a lawyer of their own choice, which requests
was honored. Moreover, and perhaps more importantly, the trial court in the instant case did not accord any
credence to Luvendino's claim that he had been physically beaten up by the police officers at the Taguig
police station. In the afternoon of the same day, Luvendino had every opportunity in the presence of his
mother and his own chosen counsel, Atty. Eustacio Flores, to denounce to the Provincial Fiscal at the
latter's office any maltreatment that the police officers might have earlier in the day administered to him, to
abjure the extrajudicial confession or the waiver of his right to counsel there incorporated as non-voluntary of
non-intelligent and to refuse to sign once more under oath his "Salaysay". He did not do so; Atty. Flores did
not do so either then and there or when he testified as a defense witness. Their failure to do so deprives his
contention before this Court of any real force. Luvendino may be deemed to have in effect ratified, before
the Fiscal and with the aid of counsel, the extrajudicial confession and waiver of the right to counsel which
he had earlier signed without the presence of counsel in the police station.
373

But even if appellant Luvendino's contention were to be accepted at face value (and we do not so accept it), the
same result must be reached. The doctrine that an uncounseled waiver of the right to counsel is not to be given
legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales v. Enrile   and22

reiterated on 20 March 1985 in People v. Galit.   In Morales, the Court explained that Section 20, Article IV of the
23

1973 Constitution required that:

7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be
used against him. The person arrested shall have the right to communicate with his lawyer, a
relative, or anyone he choses by the most expedient means — by telephone if possible — or by
letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the court upon
petition either of the detainee himself or by anyone on his behalf. The right to counsel may be
waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole
or in part, shall be inadmissible in evidence. (Emphasis supplied).

While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution, that doctrine
affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have
no retroactive effect and do not reach waivers made prior to 26 April 1983, the date of promulgation of Morales.

In People v. Nabaluna,   the Court upheld the validity of the waiver of the right to counsel which had been made on
24

5 December 1977, that is, prior to 26 April 1983, which waiver had been made without the assistance of counsel, for
the reason that at the time such waiver was made, there was no rule or doctrine or guideline requiring the waiver of
the right to counsel should itself be made only in the presence and with the assistance of counsel. The trial court
admitted in evidence the extrajudicial statements made by appellant Nabaluna and found the accused guilty of
robbery with homicide in a decision rendered on 26 September 1981. In affirming the decision of the trial court, the
Court said:

The court in mindful of the strictures and pronouncements found in the case of Morales v. Ponce
Enrile, G.R. Nos. 61106 and 61107, promulgated on April 26, 1983, 121 SCRA 538, quoted and
reiterated in the case of People v. Galit, L-51770, March 20, 1985 and in the case of People v.
Pascual, 109 SCRA 197, promulgated on November 12, 1981, particularly as to the requisite steps
before a person under custodial investigation may be deemed to have properly waived his right to
counsel, such as a counsel being present to assist him when the accused manifests such waiver.
However, the stated requirements were laid down in the said cases, to serve as governing
guidelines, only after the judgment in this case had already been rendered by the trial court.
Consequently, no error should attach to the admission by the trial court of the extra-judicial
statements given by the accused as evidence in this case. The trial court was then sufficiently
convinced that the accused had waived assistance of counsel and there was at that time no
pronounced guidelines requiring that the waiver of counsel by accused can be properly made only
with the presence and assistance of a counsel. . . . .   (Emphasis supplied)
25

It may be recalled that even before Nabaluna, the Court had already determined that Section 20, Article IV of the
1973 Constitution, was to be given prospective effect only. In Magtoto v. Manguera,   the Court sustained the
26

admission in evidence of an extrajudicial confession which had incorporated an uncounseled waiver by the
confessant of his constitutional rights during custodial investigation established in Section 20, Article IV of the 1973
Constitution, upon the ground that such confession and waiver had been executed before the effectivity of the 1973
Constitution.   The decision in Magtoto v. Manguera was not unanimous, but the majority decision has been
27

reiterated many times   and it is much too late in the day to consider
28

re-examining the doctrine there laid down.

Applying Nabaluna to the case at bar, we believe and so hold that appellant Luvendino validly waived his right to
counsel so far as his extrajudicial confession was concerned, although he was not assisted by counsel when he
initially signed his confession at the police headquarters (disregarding for present purposes only, the subsequent
events in the office of the Provincial Fiscal). At the time the extrajudicial confession and waiver were first executed
(i.e., 10 February 1983), there was no rule of doctrine prescribing that waiver of the right to counsel may be validly
made only with the assistance of counsel. It is scarcely necessary to add that we are here referring only to
extrajudicial confessions and waivers which were made voluntarily and intelligently.

Coming now to the second error assigned by appellant Luvendino — that the trial court had erred grieviously in
believing the testimony of prosecution witness Cemitara — the Court finds no reason to depart from the well-settled
rule that the assessments by a trial court of the credibility and sincerity of the witnesses who testified before it, are to
be accorded great respect by appellate courts. The trial court gave full faith and credence to the testimony of
prosecution witness Salvador Cemitara in view of the straightforward character of his testimony. We need only to
note that appellant Luvendino presented no evidence to show any personal grudge on the part of Cemitara against
374

Luvendino, nor any evidence of any ill motive weighty enough to have moved Cemitara falsely to testify for the
prosecution. Indeed, there was nothing to show that Cemitara was in the least bit acquainted with appellant
Luvendino before the events which culminated in the slaying of Rowena Capcap.

Luvendino asserts, as his third principal assignments of error, that he had been deprived of due process because he
was represented, or continued to be represented, by a lawyer who had manifested mental reservations. Neither
Luvendino nor his counsel — Atty. Sardillo — had indicated what precisely the latter's mental reservations were. We
assume that those mental reservations consisted of private doubts as to the innocence of Luvendino of the crime
with which he was charged. Atty. Sardillo was Luvendino's choice as defense counsel. Atty. Sardillo had appeared
in at least two (2) previous hearings and had cross-examined prosecution witness Cemitara before he (Sardillo)
offered in open court to withdraw as defense counsel on 14 November 1983. The trial court could scarcely be
faulted for declining Atty. Sardillo's offer to withdraw, considering that such offer had been made without the
conformity or permission of Luvendino. Atty. Sardillo himself did not insist on withdrawing as defense counsel. If
appellant Luvendino in truth had entertained substantial doubts as to the sincerity or capability or impartiality of his
lawyer, he could have easily terminated the services of that counsel and retained a new one or sought from the trial
court the appointment of counsel de officio. Instead, Luvendino continued to retain the services of Atty. Sardillo until
the trial court rendered its decision. In any event, an examination of the record will show that Atty. Sardillo continued
to represent appellant Luvendino as defense counsel with reasonable competence.

We would note, finally, that doubts on the part of a lawyer as to the ultimate innocence of a client accused of a
serious felony do not, in themselves, constitute bases for claiming miscarriage of justice or failure of due process or
assailing the professional work done by the lawyer. Of course, complete confidence in the innocence of one's client
may lend added sincerity and even passion to the lawyer's pleading and argumentation. It is, however, precisely one
of the demanding requirements of the legal profession that the lawyer must present all the defenses and arguments
allowed by the law to a person accused of crime, without regard to the lawyer's private beliefs or suspicions as to his
client's guilt.

Appellant Luvendino's principal defense on the merits was that of alibi. It is too well-settled to require documentation
that, for the defense of alibi to prosper, the accused must not only prove that he was somewhere else during the
approximate time of the commission of the crime; he must further prove that it was physically impossible for him to
have been at the scene of the crime during its commission. Luvendino testified that on or about that time the rape
with homicide was committed, he was at his house in Pateros, recuperating from a wound allegedly sustained from
a beating inflicted upon him by one Romy Boy. Except for his own uncorroborated testimony, however, Luvendino
failed to present any evidence showing that he was medically incapacitated to be at the scene of the crime during its
commission. He filed no complaint against his alleged assailant "Romy Boy." Besides, Pateros and Taguig are
neighboring municipalities which public transport readily and quickly available between the two (2) locales; there
was simply no showing that Luvendino could not have been in Taguig during the time the crime was committed.

Finally, in respect of the civil liability aspects of the crime, the Court considers that the amount of P4,500.00
representing funeral expenses actually incurred by the family of Rowena Capcap, should be awarded to them as
actual damages.  Further, given the circumstances obtaining in the instant case, especially the ruthless and
29

mindless slaying of Rowena after she had been raped, the Court believes that the amount of P30,000.00 should be
awarded to Rowena's heirs as moral damages, over and above the civil indemnity of P50,000.00 which was
awarded by the trial court.

WHEREFORE, the decision of the trial court in Criminal Case No. 54537 is hereby MODIFIED by changing the
enforceable penalty from death to reclusion perpetua and by requiring appellant Ernesto C. Luvendino to pay the
heirs of Rowena Capcap the amount of P4,500.00 as actual damages and P30,000.00 as moral damages, in
addition to the civil indemnity of P50,000.00 awarded by the trial court. In all other respects, the decision of the trial
court is AFFIRMED. Costs against accused-appellant.

SO ORDERED.

Gutierrez, Jr., Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Nocon, and Bellosillo, JJ.,
concur.

Narvasa, C.J., concurs in the result.

Separate Opinions

 
375

ROMERO, J.: concurring:

What is writ large in the ponencia is the ambiguity of the validity of the waiver of the right to counsel made by an
accused who is unassisted by counsel in a written and signed extrajudicial confession. Unable to support his
position with a specific legal provision on the matter, the ponente has had to fall back on cases where the facts are
not exactly on all fours with the case at bar. The strictures and guidelines laid down in the Morales v.
Enrile and People v. Galit cases for uncounseled waivers to be valid hardly afforded protection for appellant
Luvendino, for the doctrines embodied therein could not be applied retroactively.

However, time seems to be on the side of appellant Luvendino now. Republic Act No. 7438 approved on April 27,
1992 which defines "certain rights of persons arrested, detained or under custodial investigation as well as the
duties of the arresting, detaining and investigating officers" provides explicitly in Sec. 2 (d):

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

Can the aforecited provision with its much broader protection for persons who execute extrajudicial confessions
while under arrest, detained or under custodial investigation, be invoked by appellant so as to render his confession
which was not signed in the presence of counsel or any of the persons enumerated therein invalid?

Although at first blush, it would seem that said provision may be applied retroactively by way of exception to the
general rule that laws should only be applied prospectively as it is clearly beneficial to the accused, appellant's
conviction, however, stands. Although he was not assisted by counsel when he signed his confession with the
waiver of his right to counsel at the police headquarters, it may be deemed to have been ratified when he repeated
the same at the Office of the Provincial Fiscal in Pasig with the aid of counsel and in the presence of his mother.

CRUZ, J.: concurring and dissenting:

I agree with the ponencia except only where it adopts the excerpt from People v. Nabaluna making the doctrine
announced in Morales v. Enrile effective only on April 26, 1983, the date of its promulgation. I concurred only in the
result of Nabaluna precisely because I could not agree with that observation, which was merely obiter dictum.
The ratio decidendi of the case consisted of the telling testimonial evidence against the accused, not the challenged
extra-judicial confession. I had (and still have) misgivings about the quoted portion because I believed (and still do)
that the right to counsel and the limitations on its waiver existed even before Morales and indeed even
before Magtoto v. Manguera, 63 SCRA 5. That case held that the right to counsel began only when the 1973
Constitution became effective. Three strong dissents were filed by Castro, Fernando, and Teehankee, JJ., who all
became Chief Justice. I particularly agreed with Justice Fred Ruiz Castro who pointed out that the right to counsel
was even then, and even before, already available under Art. 125 of the Revised Penal Code. He complained
against the majority ruling in these stirring words:

I regard as intolerable in a civilized nation, which proclaims equal justice under law as one of its
ideals, that any man should be handicapped when he confronts police agencies because of the
happenstance that he is poor, underprivileged, unschooled or uninformed. The majority
interpretation does violence to the democratic tradition of affording the amplest protection to the
individual — any and every individual — against the tyranny of any governmental agency. It should
be unthinkable that an innocent man may be condemned to penal servitude or even sent to his
death because he is not blessed with familiarity with the intricacies of the law.

The present ponencia says that the Magtoto decision "has been reiterated many times and it is much too late in the
day to consider re-examining the doctrine laid down." I regret I have to disagree. It is never too late to re-examine
any decision of this Court and amend or even reverse it whenever warranted regardless of the number of times it
has been reiterated. Rectifying error is better than persisting in it.

Separate Opinions

ROMERO, J.: concurring:

What is writ large in the ponencia is the ambiguity of the validity of the waiver of the right to counsel made by an
accused who is unassisted by counsel in a written and signed extrajudicial confession. Unable to support his
position with a specific legal provision on the matter, the ponente has had to fall back on cases where the facts are
not exactly on all fours with the case at bar. The strictures and guidelines laid down in the Morales v.
376

Enrile and People v. Galit cases for uncounseled waivers to be valid hardly afforded protection for appellant
Luvendino, for the doctrines embodied therein could not be applied retroactively.

However, time seems to be on the side of appellant Luvendino now. Republic Act No. 7438 approved on April 27,
1992 which defines "certain rights of persons arrested, detained or under custodial investigation as well as the
duties of the arresting, detaining and investigating officers" provides explicitly in Sec. 2 (d):

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

Can the aforecited provision with its much broader protection for persons who execute extrajudicial confessions
while under arrest, detained or under custodial investigation, be invoked by appellant so as to render his confession
which was not signed in the presence of counsel or any of the persons enumerated therein invalid?

Although at first blush, it would seem that said provision may be applied retroactively by way of exception to the
general rule that laws should only be applied prospectively as it is clearly beneficial to the accused, appellant's
conviction, however, stands. Although he was not assisted by counsel when he signed his confession with the
waiver of his right to counsel at the police headquarters, it may be deemed to have been ratified when he repeated
the same at the Office of the Provincial Fiscal in Pasig with the aid of counsel and in the presence of his mother.

CRUZ, J.: concurring and dissenting:

I agree with the ponencia except only where it adopts the excerpt from People v. Nabaluna making the doctrine
announced in Morales v. Enrile effective only on April 26, 1983, the date of its promulgation. I concurred only in the
result of Nabaluna precisely because I could not agree with that observation, which was merely obiter dictum.
The ratio decidendi of the case consisted of the telling testimonial evidence against the accused, not the challenged
extra-judicial confession. I had (and still have) misgivings about the quoted portion because I believed (and still do)
that the right to counsel and the limitations on its waiver existed even before Morales and indeed even
before Magtoto v. Manguera, 63 SCRA 5. That case held that the right to counsel began only when the 1973
Constitution became effective. Three strong dissents were filed by Castro, Fernando, and Teehankee, JJ., who all
became Chief Justice. I particularly agreed with Justice Fred Ruiz Castro who pointed out that the right to counsel
was even then, and even before, already available under Art. 125 of the Revised Penal Code. He complained
against the majority ruling in these stirring words:

I regard as intolerable in a civilized nation, which proclaims equal justice under law as one of its
ideals, that any man should be handicapped when he confronts police agencies because of the
happenstance that he is poor, underprivileged, unschooled or uninformed. The majority
interpretation does violence to the democratic tradition of affording the amplest protection to the
individual — any and every individual — against the tyranny of any governmental agency. It should
be unthinkable that an innocent man may be condemned to penal servitude or even sent to his
death because he is not blessed with familiarity with the intricacies of the law.

The present ponencia says that the Magtoto decision "has been reiterated many times and it is much too late in the
day to consider re-examining the doctrine laid down." I regret I have to disagree. It is never too late to re-examine
any decision of this Court and amend or even reverse it whenever warranted regardless of the number of times it
has been reiterated. Rectifying error is better than persisting in it.

People v. Luvendino G.R. No. L-69971 July 3, 1992 211 SCRA 36 (1992)

Facts: On the morning of 17 January 1983, 18-year old Rowena Capcap left her home at Deva Village, Tambak, Taguig,
Metro Manila to attend classes at the University of Manila where she was a sophomore commerce student. She would
usually be home by 7:30 to 8:00 on school evenings, 1 but on that tragic day, she would not reach home alive. On that
particular evening, her father Panfilo Capcap arriving home from work at around 7:30 p.m., noted her absence and was
told by his wife and other children that Rowena was not yet home from school. Later, a younger brother of Rowena,
sent on an errand, arrived home carrying Rowena’s bag which he had found dropped in the middle of a street in the
village. Panfilo Capcap lost no time in seeking the help. The search ended in a grassy vacant lot within the Deva Village
Subdivision, only about 70 to 80 meters from the Capcap residence, where lay the apparently lifeless body of Rowena,
that the presence of spermatozoa showed that the victim had sexual intercourse prior to death; and that death was due
to asphyxia by mutual strangulation. By 5 March 1984, an information had been filed in the trial court charging Ernesto
377

C. Luvendino, Cesar Borca alias “Cesar Putol” and Ricardo de Guzman alias “Ric” with the crime of rape with murder. The
trial court rendered a decision finding Luvendino guilty, sentencing him to death, requiring him to indemnify the heirs of
the victim Rowena in the amount of P50,000.00 for the damages suffered as a result of her death. Appellant Luvendino
contends that the trial court committed grievous error.

Issue: Whether the re-enactment of the accused of a crime he was charged of without the presence of an independent
and competent counsel can be admitted as evidience in the court.

Held: No, Clearly, the trial court took into account the testimony given by Panfilo Capcap on what had occurred during
the re-enactment of the crime by Luvendino. We note that the re-enactment was apparently staged promptly upon
apprehension of Luvendino and even prior to his formal investigation at the police station. The decision of the trial court
found that the accused was informed of his constitutional rights “before he was investigated by Sgt. Galang in the police
headquarters” and cited the “Salaysay” of appellant Luvendino. The decision itself, however, states that the re-
enactment took place before Luvendino was brought to the police station. Thus, it is not clear from the record that
before the re-enactment was staged by Luvendino, he had been informed of his constitutional rights including,
specifically, his right to counsel and that he had waived such right before proceeding with the demonstration. Under
these circumstances, we must decline to uphold the admissibility of evidence relating to that re-enactment. That the
“demonstration” or re-enactment and the accused extrajudicial confession were effected and secured in the absence of
a valid waiver by him of his constitutional rights and that the re-enactment and the confession should be held
inadmissible in evidence because they had been involuntarily made.

1. Rule 130 Section 33 – Confession

G.R. No. 110290 January 25, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAÑO, MANUEL "JUN" ABENOJA, JR., and FREDDIE
"BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN, accused-appellant.
378

DAVIDE, JR., J.:

In five separate informations filed on 22 May 1987 with the Regional Trial Court (RTC), Branch 3, Baguio City, the
accused were charged with murder in Criminal Cases Nos. 4647-R and 4648-R, with frustrated murder in Criminal
Case No. 4649-R, and with attempted murder in Criminal Cases Nos. 4650-R and 4651-R. The crimes were
allegedly committed on 6 September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon Bayquen and
Anna Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen, and Danny Ancheta.

The informations in the murder cases charged that the accused acted in conspiracy and alleged the presence of the
qualifying circumstance of treachery and the ordinary aggravating circumstances of evident premeditation and
price.1

Only the appellant and Wilfredo Quiaño were arrested. However, before Quiaño could be arraigned, he escaped on
12 July 1987 while under the custody of the Philippine Constabulary/PNP Regional Command I at Camp Dangwa,
La Trinidad, Benguet.  The cases, which were consolidated and jointly tried, proceeded only against the appellant.
2

After the appellant pleaded not guilty at his arraignment on 4 September 1987, trial on the merits was held on
various dates from 11 May 1988 until 10 January 1990.

On 30 May 1990, the trial court promulgated its decision  in the consolidated cases acquitting the appellant in
3

Criminal Case No. 4649-R (frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R (attempted murder) for
insufficiency of evidence but convicting him in the two murder cases, Criminal Cases Nos. 4647-R and 4648-R, with
treachery as the qualifying circumstance.  It also ruled that the aggravating circumstances of evident premeditation
4

and price had been duly established. It then sentenced the appellant as follows:

Upon these premises, the accused Jaime Agustin is found GUILTY of two (2) counts of murder, the
prosecution having proven his guilt beyond reasonable doubt. In each of the criminal cases
aforesaid, he should be sentenced to the maximum penalty of Death, there being two aggravating
circumstances. However, since the death penalty is not imposable at this time, the accused is
sentenced to Reclusion Perpetua. He is further ordered to indemnify the heirs of the victims; Anna
Theresa Francisco the sum of sixty Three Thousand Pesos (P63,000.00) as actual damages
(Exhibits "F," "I" and "G"); and Dr. Napoleon Bayquen, the sum of Thirty Thousand Pesos
(P30,000.00). With costs against the accused, Jaime Agustin.

SO ORDERED. 5

The version of the prosecution is based on the testimonies of (1) Isidoro Magpantay, a member of the Baguio City
Police Force, who identified the initial report (Exhibit "A"); (2) Christie Napeñas, a stenographic reporter in the Office
of the City Fiscal of Baguio City, who took down the stenographic notes of City Fiscal Erdolfo Balajadia's
investigations of accused Wilfredo Quiaño (Exhibit "D") on 30 January 1987 and of the appellant on 10 February
1987, and who identified her stenographic notes containing the statement of the appellant (Exhibit "B") and the
transcript of said stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in Criminal Case No. 4650-R,
who testified on how they were shot; (5) Eulogio Francisco, the father of Anna Theresa Francisco, who identified her
death certificate (Exhibit "I") and testified on the list of expenses (Exhibit "G"); (6) Rogelio Mumar, a supervising
ballistics expert, who declared that the fourteen shell recovered from the scene of the crime were not fired from any
of the three armalite rifles submitted to him; (7) Atty. Reynaldo Cajucom, who testified that he was the lawyer who
assisted the appellant and accused Wilfredo Quiaño while they were being investigated by City Fiscal Balajadia; and
(8) Lilian San Luis Bayquen, wife of Dr. Napoleon Bayquen and mother of Dominic Bayquen, who testified on what
she did after Dominic informed her by telephone about the shooting incident.

The evidence for the prosecution established the following facts. At past 7:30 p.m. of 6 September 1986 in Baguio
City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa
Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their Brasilia to the
doctor's residence at Trancoville at 21-D Malvar Street, Baguio City, from his driving the car. While they were
cruising along Malvar Street and nearing the Baptist church, a man came out from the right side of a car parked
about two meters to the church. The man approached the Brasilia, aimed his armalite rifle through its window, and
fired at the passengers. The Brasilia swerved and hit a fence. The gunman immediately returned to the parked car
which then sped away.

All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was blown
off. Dominic was bale to get out of the Brasilia to run to the Alabanza store where she telephoned her mother and
told her what had happened. Later, she and her mother brought her father and Anthony to the hospital.  Danny
6

Ancheta went home and was then brought to the Notre Dame Hospital for treatment.  Anna Theresa Francisco was
7

brought to the funeral parlor.  The police later arrived at the crime scene and conducted an investigation. they
8

recovered some empty shells of an armalite rifle. 9

379

On 30 January 1987, accused Wilfredo "Sonny" Quiaño, an alleged former military agent or "asset" who had been
picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio City Fiscal
Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and Anna Theresa
Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who
engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite, and a certain "Jimmy."
During the investigation, Wilfredo Quiaño was assisted by Atty. Reynaldo Cajucom, a representative of the
Integrated bar of the Philippines (IBP). Ms. Christie Napeñas, a stenographic notes of the proceedings during the
investigation.   Thereafter, she transcribed the notes and the transcription became the sworn statement of Wilfredo
10

Quiaño which he signed, with the assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia.  11

In the morning of 10 February 1987, "Jimmy," who turned out to be appellant Jaime Agustin, was picked up in Sto.
Tomas, Pangasinan, by military personnel and brought to Baguio city. At 4:00 p.m. of that date, he was taken to the
office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime. Atty. Reynaldo
Cajucom assisted the appellant during the investigation. Ms. Christie Napeñas took down stenographic notes of the
proceedings during the investigation. The stenographic notes consisted of 22 pages (Exhibit "B"), each of which was
signed afterwards by the appellant and Atty. Cajucom. Ms. Napeñas subsequently transcribed these notes which
the prosecution marked as Exhibit "C." The appellant narrated therein his knowledge of the shooting of Dr. Bayquen
and revealed the identities of his cohorts in the crime. In a confrontation two days later, he identified Quiaño as
"Sony," the triggerman.

The defense presented the appellant and his wife, Elizabeth Agustin. The appellant, who is a farmer and whose
highest educational attainment was grad four, impugned the validity of his extrajudicial statement. he alleged that in
the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his return he
was met by two armed men who took him to their car where two other companions, armed with armalites, were
waiting. They then brought him out of Pangasinan. He later learned that they were on their way to Baguio City.

Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he
was made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three times
near the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the shooting, which
he finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City.

While he was giving his statement at the fical's office, the armed men stayed with him and their presence deterred
him from telling the investigating fiscal that he was being threatened. He further declared that although he was given
a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle who is a lawyer, Atty. Oliver
Tabin, and that Atty. Cajucom interviewed him from only two minutes in English and Tagalog but not in Ilocano, the
dialect he understands. Then later, at Camp Dangwa to where he was taken, he told his wife to get in touch and talk
with Atty. Tabin. Finally, he asserted that he was promised by his captors that he would be discharged as a state
witness if he cooperates, but the plan did not push through because his co-accused, Quiaño, escaped.  12

Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February 1987 to
buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later when she finally
learned that he was detained at Camp Dangwa.  13

The trial court admitted the appellant's extrajudicial statement and gave scant consideration to his claim of force,
intimidation, and other irregularities because of the following reasons: (a) the presence of material improbabilities in
his tale of when and how he was allegedly taken at gunpoint from his hometown in Pangasinan; (b) it was
improbable that he was made to kneel thrice at gunpoint along Kennon Road considering the vehicles which were
passing along that road; (c) it was unbelievable that when he was in the Fiscal's Office he asked for his uncle, Atty.
Tabin if he could not go home for a period of one month; (d) no less than the city Fiscal of Baguio City interrogated
him and yet he did not tell the fiscal that he was being forced to give a statement; (e) the fiscal even provided him
with a lawyer who conferred with him and apprised him of his rights; (f) he signed each and every page of the
stenographic notes of his statement and this was witnessed by no less than the City Fiscal of Baguio and the lawyer
who assisted him; and (g) he disclosed in his statement that he voluntarily gave it because of his ill feeling against
his co-accused who did not give him any money.

The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the crime,"
and that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in on the plan,"
and even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a statement only when he
was not given the money." Since the proof of corpus delicti required in Section 3, Rule 133 of the Rules of Court
was established by the prosecution's evidence, it found his conviction for murder inevitable.

The appellant filed a notice of appeal. In this brief, he imputes upon the trial court the commission of this lone error:

THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONSIDERING ACCUSED-

APPELLANT'S EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM.  14
380

The appellant insists that his extrajudicial confession was taken in violation of his rights under Section 11, Article III
of the constitution. He argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own choice
but was foisted upon him by the city Fiscal. Worse, the said lawyer is a law partner of the private prosecutor, Atty.
Arthur Galace, and conferred with him in English and Tagalog although he understood only Ilocano. Moreover,
when Atty. Cajucom briefly conferred with him and when the city Fiscal interrogated him, his military escorts were
present.

He stresses that the lawyer "who assists the suspect under custodial interrogation should be of the latter's choice,
not one foisted on him by the police investigator or other parties,"   and that where there are serious doubts on the
15

voluntariness of the extrajudicial confession, the doubts must be resolved in favor of the accused.   He then
16

concludes that his extrajudicial confession is inadmissible and his conviction cannot stand, there being no other
evidence linking him to the crimes charged.

In its brief,   the appellee, reiterating the reasons of the trial court in upholding the validity of the confession, prays
17

for the affirmance of the appealed decision.

After a careful study of the records of Criminal Cases Nos. 4647-R and 4648-R and a painstaking evaluation of the
evidence, we find this appeal to be impressed with merit. Indeed, the extrajudicial admission — not extrajudicial
confession — of the appellant, which is the only evidence of the prosecution linking him to the commission of the
crime charged, is wholly inadmissible because it was taken in violation of Section 12, Article III of the Constitution.
We also see in these cases a blatant disregard of the appellant's right under Section 2 of Article III when he was
unlawfully arrested.

Before we go any further, it should be pointed out that, contrary to the pronouncement of the trial court and the
characterization given by the appellant himself, the assailed extrajudicial statement is not extrajudicial confession. It
is only an extrajudicial admission. We take this opportunity to once more distinguish one from the other. Sections 26
and 33, rule 30 of the Rules of
Court   clearly show such a distinction.
18

In a confession, there is an acknowledgment of guilt of the accused or of the criminal intent to commit the offense
with which he is charged.   Wharton   defines a confession as follows:
19 20

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the
crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent
to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words,
and admission is something less than a confession, and is but an acknowledgment of some fact or
circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish
the ultimate fact of guilt.

We have examined the assailed extrajudicial statement of the appellant, and we are satisfied that nothing therein
indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances which in
themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate fact of guilt.
Nevertheless, when what is involved is the issue of admissibly in evidence under Section 12, Article III of the
Constitution, the distinction is irrelevant because Paragraph 3 thereof expressly refers to both confession and
admission. Thus:

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

The first two paragraphs of Section 12 read:

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

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.

These first and second paragraphs are taken from Section 20, Article IV (Bill of Rights) of the 1973 Constitution
which read:

Sec. 20. No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to counsel,
and to be informed of such right. No force, violence, threat, intimidation, or any other means which
381

vitiates the free will shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence.

The first two paragraphs of Section 12, Article III of the present Constitution have broadened the aforesaid Section
20 in these respects: (1) the right to counsel means not just any counsel, but a "competent and independent
counsel, preferably of his own choice"; (2) the right to remain silent and to counsel can only be waived in writing and
in the presence of counsel; and (3) the rule on inadmissibility expressly includes admissions, not just confessions.

In Morales vs. Enrile,   this Court, applying Section 20, Article IV of the 1973 Constitution, laid down the duties of an
21

investigator during custodial investigation and ruled that the waiver of the right to counsel would not be valid unless
made with the assistance of counsel:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be
used against him. The person arrested shall have the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means — by telephone if possible — or by
letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the court upon
petition either of the detainee himself or by anyone on his behalf. The right to counsel may be
waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down, whether exculpatory of inculpatory, in whole
or in part, shall be inadmissible in evidence.

We reiterated the above ruling in People vs. Galit,   People vs. Lumayok,   People vs. Albofera,   People vs.
22 23 24

Marquez,   People vs. Penillos,   and People vs. Basay,   among other cases.
25 26 27

The right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful
information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."   It is
28

not enough for the investigator to merely repeat to the person under investigation the provisions of Section 20,
Article IV of the 1973 Constitution or Section 12, Article III of the present Constitution; the former must also explain
the effects of such provision in practical terms, e.g., what the person under investigation may or may not do, and in
language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of
the investigator to explain, and contemplates effective communication which results in the subject understanding
what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will
necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the
person undergoing the investigation.

In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be
asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will
be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him
and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the
assistance of counsel. That counsel must be a lawyer.  29

The waiver of the right to counsel must be voluntary, knowing, and intelligent.   Consequently, even if the
30

confession of an accused speaks the truth, if it was made without the assistance off counsel, it is inadmissible in
evidence regardless of the absence of coercion or even if it had been voluntarily given.  31

The extrajudicial admission of the appellant,   contained in twenty-two pages of yellow pad, does, indeed, appear to
32

be signed by him and Atty. Reynaldo Cajucom. what we find in these yellow pads are stenographic notes. these
were transcribed by the stenographer who took down the stenographic notes, but for reasons not explained in the
records, the transcript of the notes (Exhibit "C"), which consists of twelve pages,   was not signed by the appellant
33

since it does not indicate any jurat. On the other hand, the same stenographic reporter, who took down the
stenographic notes when accused Wilfredo Quiaño was being investigated by City Fiscal Balajadia, transcribed the
notes, and the transcription   was subscribed and sworn to by the accused before City Fiscal Balajadia and also
34

signed by Atty. Cajucom, who represented the accused in the investigation.

Since we cannot even reads or decipher the stenographic notes in the yellow pads, we cannot expect the appellant,
who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to rely solely on
the transcript and presume its accuracy. A perusal of the transcript convinces us that the appellant was not given a
fair deal and was deprived of his rights under Section 12(1), Article III of the Constitution. Firstly, he was not fully
and properly informed of his rights. The transcript (Exhibit "C") shows the following preliminary questions of the City
Fiscal and the answers of the appellant:

01. QUESTION — Mr. Jaime Agustin, I am informing you that

you are under investigation in connection
382

with the death of Dr. Nap Bayquen of which

you are one of the principal suspects. I am
informing you of your constitutional rights
before you give any statement. First, you
have the right to remain silent meaning, you
may give a statement or you may not give
any statement. If you will not give a
statement, you will not be forced to do so,
do you understand this right?

ANSWER — I understand, sir.

02. Q — If you will give a statement, you have the

right to be assisted by a lawyer of your own
choice, if you cannot afford to secure the
services of a lawyer the government will
provide a lawyer for you, do you understand
this right?

A — I understand, sir.

03. Q — Now, do you want to be assisted by a

lawyer?

A — Yes, sir.

04. Q — I am now informing you that a lawyer in the

person of Atty. Reynaldo Cajucom is now
present in this investigation room, do you
wish to avail of his assistance in connection
with this investigation?

A — I want, sir.

05. Q — I am also informing you that whatever you

say in this investigation can be used as
evidence in your favor and it can also be
used as evidence against you in any criminal
or civil case, do you understand that?

A — Yes, sir, I understand.

06. Q — After informing you of your constitutional

rights, are you now willing to give a
statement?

A — Yes, sir, I agree.

Investigator — Atty. Reynaldo Cajucom, the witness or

respondent Jaime Agustin has chosen you to
give him assistance in this investigation, are
you willing to assist him?

Answer — I am willing, fiscal, to assist the witness.

Investigator — Have you appraised [sic] him of his

constitutional rights?

Answer — Yes, fiscal.

Investigator — Do you know after examining him whether

or not he is giving a free and voluntary
statement of his own volition without any
intimidation or force exerted on him?
383

A — As stated by him, fiscal, he is willing to give

a free and voluntary statement in relation to
what really happened.

It is at once observed that the appellant was not explicitly told of his right to have
a competent and independent counsel of his choice, specifically asked if he had in mind any such counsel and, if
so, whether he could afford to hire his services, and, if he could not, whether he would agree to be assisted by one
to be provided for him. He was not categorically informed that he could waive his rights to remain silent and to
counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his right to
remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in the transcript and no
other independent evidence was offered to prove its existence.

Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as
his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City fiscal at the time the
appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere
coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by
the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but
whether it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as
shown in the above-quoted portion of Exhibit "C," the city fiscal immediately suggested the availability of Atty.
Cajucom without first distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether
he could hire such counsel; and if he could not, whether he would simply exercise his right to remain silent and to
counsel. In short, after the appellant said that he wanted to be assisted by counsel, the City fiscal, through
suggestive language, immediately informed him that Atty. Cajucom was ready to assist him.

While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may
reject the counsel chosen for him by the investigator and ask for another one,   the circumstances obtaining in the
35

custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he
was not even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the
other hand, the city Fiscal clearly suggested the availability of Atty. Cajucom. then too, present at that time were
Capt. Antonio Ayat and Sgt. Roberto Rambac, military officers of RUC I, who brought him to the City Fiscal's Office
for investigation in the afternoon of the day when he was unlawfully arrested in Sto. Tomas, Pangasinan. Along
Kennon road, on the way to Baguio City, he was coerced and threatened with death if he would not admit knowing
"Jun" and "Sonny" and hi participation in the crime. This testimony was unrebutted by the prosecution. The
presence of the military officers and the continuing fear that if he did not cooperate, something would happen to him,
was like a Damocles sword which vitiated his free will.

Why it was the City Fiscal who had to conduct the custodial investigation is beyond us. Nothing in the records shows
that at that time the criminal cases against the culprits had already been filed with the City Fiscal's Office for
preliminary investigation and had, therefore, ceased to be a police matter. If they had been so filed, then the City
Fiscal should have followed the usual course of procedure in preliminary investigations. It appears, however, from
the informations in Criminal Cases Nos. 4647-R and 46648-R that it was Assistant City Fiscal Octavio M. Banta who
conducted the preliminary investigation and who prepared, signed, and certified the informations. city Fiscal
Balajadia merely approved them and administered the jurat in the certification. the conclusion then is inevitable that
he did not conduct the preliminary investigation.

Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom, we
doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt because he
is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the
appellant and that no injustice be committed to him,   and, moreover, he generally has in his favor the presumption
36

of regularity in the performance of his duties,   there are special circumstances in these cases which convince us
37

that he was unable to assist the appellant in a satisfactory manner. For one, he admitted on cross-examination that
at that time, and even until the time he took the witness stand, he was an associate of the private prosecutor, Atty.
Arthur Galace, in these and the companion cases. Thus:

Q Mr. Witness, at the time you assisted the accused you belonged to the office of
Atty. Galace, you were an associate at the time when you assisted the accused?

A I was represented [sic] then as IBP Legal Aid.

Q The question is not answered, we are only requesting him if he was an associate
of Atty. Galace up to the present?

A Yes.  38

Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former
informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a fourth
grader and a farmer, could only understand Ilocano. Thus:
384

ATTY. TABIN:

So in other words when you appraised [sic] him of his constitutional rights using
English Language and Tagalog Dialect you did not have any Ilocano dialect
Interpreter. . . .

xxx xxx xxx

WITNESS:

As far as I can remember, I explained it in Tagalog and English.  39

And when asked whether he was sure if the appellant understood him, Atty. Cajucom merely answered:

A At least I put everything as far as I could give to him to appraise [sic] him of his
constitutional rights. 
40

Then too, even if he were fully understood by the appellant, we are not satisfied that his explanations were
adequate. On direct examination, he gave the following answers:

Q — Did you explain the constitutional rights of the accused to

caution him of the consequences of his statement?

A — I explained to him that he has the right to remain silent, to

confront in person the witnesses against him and that he has
the right to choose a counsel to assist him in the hearing of
the case which was being investigated then.

Q — And what was his reply regarding the consequences of this

statement?

A — He told me that he is willing to give a truthful statement and

in order to shed light. 41

It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused;
rather, Atty. Cajucom made the appellant believe that he was only a witness. Thus:

Q [by the prosecutor]

— But, nevertheless, you gave the precautionary measure

entitled to any witness?

A — Yes, sir.

Q — Why do you say that it was given voluntarily?

A — Before presenting him to the investigation we were given

time to talk personally without any other people and that
was the time that I explained to him all his rights and
consequences pertaining to him as witness to this case.  42

On cross-examination, Atty. Cajucom also declared:

ATTY. TABIN:

That is why I am requesting him how he explained in that language, Your Honor.

WITNESS:

I told him that this is a grave case which he would be giving some narrations as a
witness and his involvement would mean the most grievous offense and if found
guilty will bring him for some years in jail and I told him that I could help him if he will
be presenting the truth and narrate is the truth. This is in combination, English and
Tagalog, and most of the time, I made it in Tagalog.   43
385

Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability
to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and
Tagalog.

Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on 10
February 1987 by military men in Pangasinan without a warrant for his arrest.   Since the crimes with which the
44

appellant was charged were allegedly committed on 6 September 1986 or more than five months earlier, no arrest
without a warrant could have been legally and validly effected. a warrantless arrest should comply with the
conditions prescribed in Section 5, rule 113 of the Rules of Court. Said section provides:

Sec. 5. Arrest without warrant when lawful. — A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

None of these exceptional circumstances were present at the time the appellant was arrested on 10 February 1987.
The prosecution did not even insinuate that the crimes were committed in the presence of the arresting officers (for
otherwise they could have arrested the appellant on 6 September 1986 yet) or that the appellant was a prisoner who
had escaped from his place of detention; or that the crimes had just been committed for they were in fact committed
more than five months earlier. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were
then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures
for the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the
conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards
stacked against him.

Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was
obtained in violation of Section 12 (1), Article III of the Constitution. since it is the only evidence which links him to
the crimes of which he was convicted, he must then be acquitted.

His acquittal must not write finis to these murder cases. These crimes must be solved and the triggerman and the
mastermind apprehended. We see in these cases the failure of the Government to exert the necessary efforts to
bring the guilty parties to the bar of justice. Until now, the accused, who were implicated by the triggerman as having
ordered for a price the murder of Dr. Bayquen, remain at large and the records do not show any diligent effort to
effect their arrest. The triggerman escaped while in the custody of the PC/INP at Camp Dangwa. The City
Prosecutor's Office of Baguio City should then use all the resources at its command, in coordination with the law-
enforcement agencies of the Government, such as the National Bureau of Investigation and the Philippine National
Police, to immediately arrest the other accused.

WHEREFORE, judgment is hereby rendered REVERSING the challenged judgment of the Regional Trial Court,
branch 3, Baguio City, in Criminal Case No. 4647-R and Criminal Case No. 4648-R, and ACQUITTING appellant
JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby ORDERED unless for some other
lawful cause his continued detention is warranted.

Costs de oficio.

SO ORDERED.

People v Agustin 240 SCRA 541 (1995)

2/14/2011

0 Comments
 

Facts: Quiaño, the gunman who killed the victims, confessed during the investigation conducted by Baguio City Fiscal
Erdolfo Balajadia in his office that he was the triggerman. He implicated Abenoja, Jr., who engaged him to kill Dr.
Bayquen for a fee, Cartel, who provided the armalite, and a certain "Jimmy." During the investigation, Wilfredo Quiaño
was assisted by Atty. Reynaldo Cajucom. Stenographic notes of the proceedings during the investigation as transcribed
with the sworn statement of Quiaño was signed, with the assistance of Atty. Cajucom, and swore to before City Fiscal
386

Balajadia. The following day, Agustin was apprehended, and was investigated and was afforded the privileges like that of
Quiaño. Agustin’s defense interpose that he was forced to admit involvement at gunpoint atKennon Road. He further
declared that although he was given a lawyer, Cajucom (a law partner of the private prosecutor), he nevertheless, asked
for his uncle Atty. Oliver Tabin, and that Atty. Cajucom interviewed him from only two minutes in English and Tagalog but
not in Ilocano, the dialect he understands. The promise that he would be discharged as a witness did not push through
since Quiaño escaped. However the RTC convicted him, since conspiracy was established, hence this appeal.

Issue: Whether or not accused-appellant’s extrajudicial statements are admissible as evidence to warrant conviction.

Held: No. The statement of the accused is inadmissible as evidence in court. Despite asking for his uncle to represent
him he was provided with an impartial counsel who is an associate of the private prosecutor. It also appears that some of
the transcripts of the notes of the proceeding that show the extrajudicial statement made by the accused were not signed
by him. By making his statements the accused voluntarily waived his right to remain silent but that was not put in writing
either.It would be in violation of the mandate of custodial investigation to admit the statement of the accused when the
process undertaken is one bereft of meeting the standard requirements of the due process that should be accorded to the
accused in custodial investigation, hence he should be acquitted.

[G.R. No. 98060. January 27, 1997]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SATURNINA SALAZAR y PALANAS, Accused-Appellant.

DECISION

PANGANIBAN, J.:

As her defense in this appeal, appellant alleges violation of her constitutional rights against warrantless search and
seizure, and to counsel during custodial investigations. However, the search, being merely an incident of a legitimate
buy-bust operation against illegal drugs, needed no warrant. And while her right to counsel during the custodial
investigation was indeed violated, there were other evidence sufficient to warrant her conviction beyond reasonable
doubt.

This appeal seeks the reversal of the Decision1 in Criminal Case No. 925 of the Regional Trial Court of Oroquieta City,
Branch 13, finding appellant Saturnina Salazar y Palanas guilty beyond reasonable doubt of violation of Section 4, Article
II of Republic Act No. 6425 (Dangerous Drugs Act of 1972), as amended by Presidential Decree No. 1675, and imposing
upon her the penalty of life imprisonment and payment of P20,000.00 as fine, with costs.

The Facts

According to the Prosecution

Appellant was tried under an Information 2 the accusatory portion of which reads: 3chanroblesvirtuallawlibrary
387

"'That on or about the 23rd day of August 1988, at 1:35 o'clock in the afternoon, more or less, in Barangay Poblacion II,
Oroquieta City, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there and
without authority of law, wilfully, unlawfully and feloniously sell, deliver and give away five (5) marijuana sticks to a
NARCOM Agent posing as a buyer in consideration of the amount of Five Peso (P5.00) marked bill with Serial No.
FJ526501; and, as a result of the said Buy-Bust operation, confiscated from the control and possession of the accused
were six (6) marijuana sticks and five (5) grams, more or less, of dried marijuana leaves in addition to the five (5)
marijuana sticks aforestated.'

Contrary to law."

On arraignment, appellant, assisted by counsel pleaded not guilty to the crime charged. 4 The prosecution presented
Sgt. Jim Cubillan, Cpl. Emilio de Guzman, and Forensic Chemist Bernabe Arenga and various evidence proving the
following facts:

After being informed of the activities of drug pushers in Oroquieta City, Sgt. Cubillan and Cpl. de Guzman of the
Narcotics Command (NARCOM) of the Philippine Constabulary (PC), left Ozamis City on August 23, 1988, for the former
city. Upon their arrival at noon, they were met by the police informer who accompanied them to the place where a
pusher operated. Near the City Hall, the informer pointed to them the residence-cum-store of appellant and thereafter
left the two constabulary operatives.

Right then and there, Sgt. Cubillan took a five-peso bill with Serial No. FJ526501 from his billfold, marked it with his
initials and handed it to Cpl. de Guzman. The latter then went to the store and told the woman seated on the windowsill
that he wanted "to score" 5 ("mag-score nga ako"). 6 The woman nodded. After indicating that he wanted five (5) sticks
of marijuana, Cpl. de Guzman asked her if what she was about to give him was "genuine" and gave her the five-peso bill.
After the woman gave him five sticks of marijuana, Cpl. de Guzman unwrapped one stick. He smelled its contents and at
the same time noticed the seeds therein. He then placed the contraband in his pocket, showed his identification card to
the woman and told her that he was a NARCOM agent. 7

At that moment, Sgt. Cubillan approached the two. He had positioned himself at the back of the store, around four or
five meters away from Cpl. de Guzman and the woman. 8 He and Cpl. de Guzman arrested the woman, whom they later
learned to be Saturnina "Nena" Salazar. They recovered from appellant the P5.00-bill. Upon being informed by Cpl. de
Guzman that appellant had taken the five marijuana sticks from a plastic container on the table inside the store, Sgt.
Cubillan took the container which had six (6) more marijuana sticks and around five (5) grams of dried marijuana leaves.
9chanroblesvirtuallawlibrary

The NARCOM agents took appellant to the local PC headquarters. On board a motorcar, Sgt. Cubillan asked her if she
knew of other pushers in the vicinity. She pointed to the place of Josephine Bayotas. When they passed by Bayotas'
residence, the two PC operatives also arrested her. 10chanroblesvirtuallawlibrary
388

At the PC headquarters in Camp Naranjo, Sgt. Cubillan interrogated appellant while Cpl. de Guzman took her bio-data.
11 Her fingerprints were also taken. 12 Thereafter, Cpl. de Guzman made her sign her bio-data and the paper containing
her fingerprints. It was Sgt. Cubillan who instructed her to sign the piece of bond paper which was used to wrap the
marijuana sticks before they were submitted to the laboratory for examination. 13chanroblesvirtuallawlibrary

For their part, Sgt. Cubillan and Cpl. de Guzman executed a joint affidavit to support the complaint that was to be filed
against appellant. 14

The confiscated and dried leaves were turned over to Sgt. Dominador Berjuega who sent the specimen to the National
Bureau of Investigation (NBI) in Cagayan de Oro City. NBI Forensic Chemist Bernabe Arenga, who conducted the
examination, executed a Certification, dated August 29, 1988, (Exh. D) 15 stating that the laboratory examinations
conducted on the eleven (11) confiscated cigarette sticks and the "crushed dried stalks and flowering tops suspected to
be marijuana" yielded "positive results for marijuana." 16 He also submitted Dangerous Drugs Report No. DDM-88-107
(Exh. E) finding: 17chanroblesvirtuallawlibrary

"Gross weight of specimens......15.3280 grams

Microscopic, chemical and chromatographic examinations conducted on the above-mentioned specimens gave POSITIVE
RESULTS for MARIJUANA."

According to the Defense

The defense presented Jeanife Mission, appellant's 12-year-old daughter, to testify on the manner by which the arrest
was conducted by the NARCOM agents. According to Jeanife, at around 1:35 p.m. on August 23, 1988, she was at home
with her mother. Jeanife was watching their sari-sari store in front of their house as her mother took a nap. Two persons
arrived and went inside their house. One of them ransacked their things. When her mother woke up, she was held by
one of the two persons and taken to the sala. Jeanife failed to hear their conversation, but she saw the two persons take
her mother away. It was at the jail when she next saw her mother. 18

In her own defense, Nena Salazar testified that at around 1:30 p.m. of August 23, 1988, she was sleeping in the only
bedroom of their house which was separated from the sala by a bamboo divider. When she heard someone "doing
something" in the sala, she stood up to see what the matter was, but she was met by a big fellow who, by the
identification card he showed her, was named Jimmy Cubillan. She also identified the other person as de Guzman by his
ID card.

Cubillan held her left hand. She tried to untangle herself from Cubillan's hold and asked him, "why do you hold my hand,
sir?" Cubillan said, "This is (a) raid, we are looking for something." He did not, however, show any search warrant, but he
asked her where she had placed the marijuana that she was allegedly selling. She denied selling the contraband as she
was still on probation after she had been convicted of selling marijuana in 1986. 19chanroblesvirtuallawlibrary
389

Because Cubillan could not find marijuana in her house, he pulled out his pistol and told her threateningly that should
she refuse to tell him where the marijuana was, he would "salvage" her. The two persons brought her to the PC
headquarters where she was investigated by Cubillan. She was not informed of her right to counsel nor her right to
remain silent. However, she kept silent, not answering any of Cubillan's questions. Later, they held her right hand and
forced her to sign something. They also asked her to affix her thumbmark to a piece of paper, telling her that she could
refuse to do so only if she would divulge to them the names of drug pushers in the area. She just signed and affixed her
thumbmark to a piece of paper the contents of which she was not even allowed to read. By then, it was almost
midnight. The following day, she was brought to the city jail. Bayotas was also arrested, but she was already in the PC
headquarters when she (appellant) was brought there. 20

As stated earlier, Saturnina "Nena" Salazar was convicted of the crime charged. Thus, the case was disposed in this wise:
21chanroblesvirtuallawlibrary

"WHEREFORE, finding the accused Saturnina Salazar guilty beyond reasonable doubt of selling a prohibited drug without
being authorized by law, she is hereby sentenced to life imprisonment and to pay a fine of P20,000.00.

Costs against accused.

SO ORDERED."

Through her counsel, she interposed the instant appeal. 22chanroblesvirtuallawlibrary

After the parties had filed their respective briefs, appellant, through the Public Attorney's Office, filed an urgent
manifestation and motion stating that since she was found in possession of five (5) grams of dried marijuana leaves and
eleven (11) sticks of marijuana which, at.02 gram per stick, would all sum up to less than 6 grams only and therefore
would involve a penalty of only six (6) years, her appeal should be referred to the Court of Appeals for review. As legal
basis therefor, she cited the Decision in People vs. Simon 23 and the August 15, 1994 Resolution in G.R. No. 113360,
People vs. Margarita Joseco y Magbanua, where the total weight of the subject illegal drugs was 400 grams. 24 However,
in the Resolution of March 27, 1995, the Court merely noted the said urgent manifestation and motion. 25 Hence,
notwithstanding the insignificant amount of marijuana involved, the Court itself shall consider this case. 26 After all, the
penalty actually imposed by the trial court was life imprisonment.

Ruling of the Trial Court

The trial court gave full faith and credence to the testimonies of the prosecution witnesses. On the other hand, it found
that the defense was unable to sufficiently rebut the presumption of regularity in the government witnesses'
performance of their duty, finding it hard to believe that the NARCOM agents brought her to their headquarters to force
her into divulging the identity of other drugs pushers in the area and that the case against her was only a "trumped-up
charge". Appellant's defense consisting of denials did not overcome the positive testimony of the prosecution witnesses.

Assignment of Errors
390

Appellant alleges in this appeal that the trial court gravely erred in (a) convicting her of the crime charged despite the
unreasonable and unlawful search and seizure conducted by the NARCOM agents; (b) disregarding her constitutional
right to presumption of innocence, and (c) finding her guilty beyond reasonable doubt of the offense charged.

The Court's Ruling

Appelant's Guilt Sufficiently Proven

Section 4, Article II of R.A. 6425 provides:

"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit
or transport any prohibited drug, or shall act as a broker in any of such transactions.

xxx xxx xxx"

Indispensable in every prosecution for illegal sale of marijuana, a prohibited drug, is the submission of proof that the
sale of the illicit drug took place between the poseur-buyer and the seller thereof, coupled with the presentation of the
corpus delicti as evidence in court. 27 The element of sale must be unequivocally established in order to sustain a
conviction.

This is precisely the import of the testimony of Cpl. de Guzman when he said: 28chanroblesvirtuallawlibrary

"Q And what was your purpose in coming to Oroquieta City?

A We came here because we were informed by our informant that there were drung (sic) pushers here.

xxx xxx xxx

Q And after you met your informant in Oroquieta City what happened next?
391

A He accompanied us to the store of the pusher.

xxx xxx xxx

Q And what happened when you reached the place where the pusher was?

A When he pointed to us the alleged drug pusher we talked with Sgt. Cubillan who got a marked money and I posed as a
buyer.

Q Did you approach the store pointed to you by your informant?

A Yes.

Q And what happened at the staore (sic) of the alleged pusher?

A I went to the store and talked to the owner that I wanted to buy marijuana.

Q How exactly did you tell the owner of the store?

A I said I wanted to score.

COURT:

Q Do you know what is the meaning of score?

A That is the term used by the users so that they will not be identified.

Q And what did the suspected pusher say?

A She nodded.

xxx xxx xxx

392

FISCAL RAMOS:

Q What happened after she gave you the five sticks of marijuana?

A I bought five sticks of marijuana and asked her if this is genuine and I gave the money. I opened one stick, I smelled
and saw that there were seeds inside. I placed it in my pocket and then I showed my ID and edentified (sic) myself as a
NARCOM agent.

Q What made you conclude that the 5 cigarette sticks which the alleged pusher gave you were marijuana cigarettes?

A I learned that from my training and schooling.

Q What happened after you identified yourself as a NARCOM agent?

A Sgt. Cubillan came near and he arrested her.

Q What happened after that?

A I informed Sgt. Cubillan that the container from where the marijuana waa (sic) taken is on the table and in it were 6
sticks and 5 grams of dried leaves.

Q What did Sgt. Cubillan do when you pointed to the container?

A He took it and looked inside.

Q And what happened after that?

A We brought her to the PC."

Sgt. Cubillan corroborated Cpl. de Guzman's account testifying that:

"Q And what did you do upn (sic) being informed that there is a pusher in Oroquieta City?
393

A I asked him to accompany me to where is (sic) pusher is.

Q Did your informant lead you to where the pusher was?

A Yes.

Q And what happened thereat?

A He led us and pointed to a woman inside a store and said that she is a pusher.

xxx xxx xxx

Q And after your informant pointed to you a particular woman inside a store as a pusher what step if any did you take?

A I and Cpl. de Guzman decided to conduct a buy bust operation.

Q Please explain who (sic) that is done?

A That is entrapment by the use of marked money.

Q And from whom will this marked money come from?

A From me.

Q And who will be the buyer in that buy bust operation?

A Cpl. de Guzman.

Q And so you conducted a buy bust operation against the woman with Cpl. de Guzman as the buyer, what happened
next?

A I got a P5.00 bill in my folder and signed my signature thereon and gave it to Cpl. de Guzman to buy marijuana.
394

Q How much was the money?

A P5.00.

xxx xxx xxx

FISCAL RAMOS:

Q What happened next after you gave this P5.00 bill to Cpl. de Guzman?

A He went to the store.

Q And how about you, where were you?

A I was just outside at the back of the store.

Q And did you see what happened after Cpl. de Guzman went to the store?

A Cpl. de Guzman talked to the woman.

Q Did you hear their conversation?

A No, because she has a low voice.

Q What else did you see?

A I saw that the woman gave something to Cpl. de Guzman.

Q And what did Cpl. de Guzman do after receiving that something given by the woman?

A He looked at it and examined it and smelled it.

395

Q And what happened next after Cpl. de Guzman examined and smelled that something given by the woman?

A Cpl. de Guzman showed an ID and when I saw him do that I went near him.

Q What happened after you went near him?

A We arrested her.

Q And will you please tell us why you arrested that woman?

A We arrested her because our Narcom agent bought marijuana fromher (sic) and after that we arrested her.

xxx xxx xxx

A We arrested her because she sold a suspected marijuana cigarette.

Q How many suspected marijuana cigarettes were sold to Cpl. de Guzman?

A Five sticks.

Q Were you able to recover those five sticks of suspected marijuana cigarettes?

A These were delivered to Cpl. de Guzman and those five suspected sticks of marijuana were in the possession of Cpl. de
Guzman.

Q What else if any were you able to recover from the woman?

A The marked money, P5.00 bill, and also Cpt. de Guzman told me that the marijuana was taken by the woman from the
table in a plastic container.

Q And this table were (sic) the plastic container was placed from where the five suspected marijuana cigarettes were
taken, where was it located?

A Inside the store.

396

Q And what did you do after you were informed by de Guzman that the five suspected marijuana cigarettes were taken
from the plastic container?

A I got the plastic container and I saw six sticks of suspected marijuana cigarettes and five grams of dried marijuana
leaves.

xxx xxx xxx

Q What did you do after confiscating from the woman the 6 suspected marijuana cigarettes and 5 grams more or less
dried marijuana leaves in addition to the five rolled suspected marijuana cigarettes, what happened next?

A I brought the suspect to the PC headquarters at Camp Naranjo." 29chanroblesvirtuallawlibrary

Combined with the findings of Forensic Chemist Arenga that the cigarette sticks confiscated from appellant were
marijuana, the corpus delicti of the crime had thus been established with certainty and conclusiveness.

Search Warrant Unnecessary

In alleging that the NARCOM agents conducted an unlawful search and seizure in her house, appellant contends that,
because said agents had known of alleged drug-pushing activities in Oroquieta City, they should have obtained a search
warrant before intruding into her residence. Appellant's contention is devoid of merit as the necessity of acquiring a
search warrant has not been proven in this case.

In going to Oroquieta City on the strength of reports of drug-pushing activities, the NARCOM agents did not know of the
identity of the alleged pushers. 30 When they conducted the buy-bust operation, it was precisely for the purpose of
entrapping and identifying the culprit. A buy-bust operation has been considered as an effective mode of apprehending
drug pushers. If carried out with due regard to constitutional and legal safeguards, a buy-bust operation deserves judicial
sanction. 31

Because the drug pusher had been caught in flagrante delicto, the arresting officers were duty-bound to apprehend the
culprit immediately and to search her for anything which may be used as proof of the commission of the crime. 32 The
search, being an incident of a lawful arrest, needed no warrant for its validity. In fact, in People vs. Figueroa, 33 this
Court said:

"The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the
one arrested to include the premises or surrounding under his immediate control. Objects in the 'plain view' of an officer
who has the right to be in the position to have that view are subject to seizure and may be presented as evidence."
397

Hence, appellant may not successfully claim the right against a warrantless search, 34 even as regards the plastic
container with dried marijuana leaves which was found on the table in her house/store. Contrary to appellant's
contention, the contraband seized from her, having been obtained as a result of the buy-bust operation to which the
defense failed to impute any irregularity, was correctly admitted in evidence.

Informer's Testimony Merely Corroborative

Neither is her right to confront witnesses against her affected by the prosecution's failure to present the informer who
pointed to her as a drug pusher. The presentation of an informant in an illegal drugs case is not essential for conviction
nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and
cumulative. 35 In a case involving the sale of illegal drugs, what should be proven beyond reasonable doubt is the fact of
the sale itself. Hence, like the non-presentation of the marked money used in buying the contraband, the non-
presentation of the informer on the witness stand would not necessarily create a hiatus in the prosecutions' evidence.
36chanroblesvirtuallawlibrary

Appellant's claim that she was threatened by the NARCOM agents is self-serving. That her daughter corroborated that
portion of appellant's account did not make her claim credible. The trial court, which was in a better position than this
Court in determining the issue of credibility, unequivocally said: 37

"The Court finds that the defense has not sufficiently rebutted the presumption of regularity in the government
witnesses' performance of duty. Jennife (sic) Mission, for the defense, sought refuge from cross-examination by
resorting to evasive 'I don't knows' and her demeanor on the stand did not inspire this Court's faith in her testimony.
Accused herself claimed that she has stopped selling marijuana after being charged in 1986, for which she is now under
probation, but she had no satisfactory explanation as to why she was brought to PC headquarters despite the fact that
the Narcom agents did not find any contraband in her house. The Court finds it hard to believe that the Narcom agents
brought her to headquarters only for the purpose of forcing her to divulge the names of drug pushers in the city, failing
in which they would hie her off to court on trumped-up charges."

It should be added that, according to appellant, she recognized the NARCOM agents by the 5" x 7" identification cards
they pulled from their shirts, which they showed her. 38 It is simply contrary to human experience for an officer of the
law to exhibit his identification card if his intention in arresting an offender is to commit mischief.

Violation of Appellant's Right to Counsel

We find appellant's claim that she was not informed of her right to counsel during custodial investigation to be correct.
Moreover, the NARCOM agent's admission that they made her sign and thumbmark the bond paper which they used to
wrap the marijuana found in her possession was violative of her constitutional right to counsel. While the bond paper
does not appear to have been considered as a pivotal piece of evidence against appellant, such act of the NARCOM
agents is worth noting if only to provide guidance to law enforcement operatives. In People vs. Simon, 39 where the
accused was made to sign the booking sheet and arrest report stating that he was arrested for selling two tea bags of
suspected marijuana and the receipt for the seized property, the Court said:

"x x x. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime
charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an
398

offense, there being nothing in the records to show that he was assisted by counsel. Although appellant manifested
during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the
presence of counsel, hence whatever incriminatory admission or confession may be extracted from him, either verbally
or in writing, is not allowable in evidence. Besides, the arrest report is self-serving and hearsay and can easily be
concocted to implicate a suspect."

Prosecution's Other Evidence

Sufficient for Conviction

As in the Simon case, where the non-admission of certain pieces of evidence did not weaken the prosecution's case,
there is proof beyond reasonable doubt of the consummation of the sale of marijuana by appellant to a NARCOM agent.
Hence, the presumption of innocence in her favor has been sufficiently overturned in accordance with law. Her
contention that a mother-of-five like her would not resort to selling illegal drugs in such a small amount as the marijuana
involved in this case, is belied by her own admission that when she committed the crime, she was still on probation for
having been caught in another occasion selling marijuana in 1986. 40

Neither could the location of her residence and store behind the DSWD office and near the city jail as well as the fact
that she did not know Cpl. de Guzman deter her from committing the offense. In People vs. Simon, 41 the Court noted
that

"x x x (D)rug-pushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed
at any time and in any place. It is not contrary to human experience for a drug pusher to sell to a total stranger, for what
matters is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale
and delivery of the marijuana leaves. x x x."

Appellant's contention that she could not have taken the risk of selling the five (5) marijuana sticks for only five pesos
and therefore the contraband was "planted," is totally baseless. She herself did not bring out this alleged irregularity in
the performance of the NARCOM agents' duty at the witness stand. On the other hand, the testimony of the two (2)
peace officers carried with it the presumption of regularity in the performance of official functions.
42chanroblesvirtuallawlibrary

Appellant claims that the prosecution evidence is weak because Sgt. Cubillan was allegedly caught lying on the witness
stand. She alleges that the prevarication of said witness was reflected by his testimony that after arresting appellant,
they proceeded to the PC headquarters. Later, he testified that they still dropped by Bayotas' residence to arrest her.
This alleged change in testimony which was explained by the witness himself, 43 is too inconsequential to dent the
prosecution's compelling evidence on the fact of sale of illegal drugs.

The Court also finds too preposterous to merit scrutiny appellant's contention that in convicting her, the trial court
relied on her previous conviction for violation of the Dangerous Drugs Law. Her being under probation was not alleged in
the Information. It was brought out in the trial where she herself admitted that she was on probation when she
committed the offense in this case. However, while the trial court mentioned that fact in the Decision of March 1, 1991,
it based its findings on evidence presented by both the prosecution and the defense and not on the fact that appellant
was a probationer convicted of engaging in the abominable trade of illegal drugs when she committed the offense.
399

The Proper Penalty

As in all other cases decided by the Court after the effectivity of Republic Act. No. 7659 on December 31, 1993, the
beneficial provisions of said law shall be applied to this case although the offense was committed prior thereto. Because
the marijuana recovered from appellant was less that 750 grams, the penalty imposable upon her shall, under the ruling
in the Simon case, range from prision correccional to reclusion temporal or more specifically the penalty of prision
correccional, considering that the marijuana involved was less that 250 grams.

No mitigating circumstances have been proven in this case. In regard to aggravating circumstances, the prosecutor
volunteered at the start of the trial that appellant was then on probation. Appellant herself admitted that she was on
probation when she was arrested by Sgt. Cubillan and Cpl. de Guzman. 44chanroblesvirtuallawlibrary

As such, the circumstance of quasi-recidivism should ideally aggravate her offense considering that she committed the
felony after having been convicted by final judgment and before serving sentence. 45 That she was on probation would
not erase the fact of her conviction even though service of her sentence was suspended. However, for its appreciation as
an aggravating circumstance, quasi-recidivism must be proven by records of the previous sentence. 46 As this Court
stated in People vs. Capillas,47 the evidence (or the lack of it) must prevail over appellant's admission that she was a
probationer when she committed the crime.

Consequently, under Art. 64 (1) of the Revised Penal Code which provides that in the absence of mitigating and
aggravating circumstances the medium period of the penalty shall be imposed, the penalty should be the medium
period of prision correccional.48 There being no circumstance to disqualify appellant from availment of the benefits of
the Indeterminate Sentence law, the same must be applied.

Prescinding from the foregoing, this Court is convinced that the guilt of appellant has been sufficiently proven beyond
reasonable doubt by the evidence on record.

WHEREFORE, the appealed Decision convicting appellant Saturnina Salazar y Palanas of the crime of violation of Section
4, Article II of Republic Act. No 6425, as amended, is hereby AFFIRMED subject to the MODIFICATION that appellant shall
suffer the indeterminate sentence of four (4) months of arresto mayor as minimum penalty to four (4) years and two (2)
months of prision correccional as maximum penalty.

Considering that appellant has been detained for the maximum penalty herein imposed, her IMMEDIATE RELEASE from
custody, unless she is being held for other valid reasons, is hereby ordered.

SO ORDERED.
400

As the Court held in People vs. Tiozon (198 SCRA 368 [1991]),

treachery cannot be considered where the lone witness did not see the
commencement of the assault. The importance of such testimony cannot be
overemphasized considering that treachery cannot be presumed nor
established from mere suppositions. chanroblesvirtualawlibrary chanrobles virtual law library

PEOPLE OF THE PHILIPPINES vs. EUTROPIO TIOZON y ACID G.R. No. 89823 June 19, 1991 FACTS: Tiozon was found guilty
in violating PD 1866 by having in his possession, custody and control one . 38 caliber revolver with 3 ammunitions
without authority of law in shooting and causing the death of Leonardo Bolima. Around 11:00 PM, February 24, 1989,
Tiozon, who appeared to be very drunk, went to Bolima’s house. Bolima’s wife saw Tiozon showing a gun to her husband
and even toyed with it. Later, she found out that the two had already left and then five minutes later and/or after she
had heard two successive gunshots, she heard Tiozon knocking at their door and at the same time informing her that he
accidentally shot her husband. Tiozon helped in carrying the victim towards the main road, however, after a few steps,
he changed his mind and put down the victim. He reasoned out that the victim was already dead.
401

DEFENSE OF TIOZON: He was not the one holding the gun immediately before the shooting incident, for as admitted by
the victim's wife, her husband also toyed with the gun. Also, he does not own the gun because it was tucked in Bolima’s
waistline before the shooting incident.

CONTENTION OF THE STATE: Tiozon’s defense is baseless. In the absence of an eyewitness, the prosecution proved his
guilt beyond reasonable doubt using circumstantial evidences, which met the criteria set by Rule 133, Sec. 5 of the
Revised Rules of Court. RULING: Tiozon is only guilty of homicide. There being no proof that accused-appellant had no
license to possess the firearm in question, he could not be convicted for illegal possession of a firearm. There is unlawful
possession under sec. 1 of PD 1866 if one does not have the license to possess the firearm. Even if he has the license, he
cannot carry the firearm outside his residence without legal authority. PD 1866: Codifying the laws on illegal/unlawful
possession, manufacture, dealing in, acquisition or disposition, of firearms, ammunition or explosives or instruments
used in the manufacture of firearms, ammunition or explosives, and imposing stiffer penalties for certain violations
thereof and for relevant purposes Section 1 of P.D. No. 1866 reads: SECTION 1. Unlawful Manufacture, Sale Acquisition,
Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of
Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of
firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed

G.R. Nos. L-91011-12 November 24, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDUARDO MACAM y LONTOC, EUGENIO CAWILAN, JR. y BELEN, ANTONIO CEDRO y SANTOS, ERNESTO
ROQUE y MARIANO AND DANILO ROQUE y MARIANO, accused. DANILO ROQUE and ERNESTO
ROQUE, accused-appellants.

The Solicitor General for plaintiff-appellee.

Conde and Associates for accused-appellants.

QUIASON, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 104, Quezon City in Criminal Case No. Q-
53781, finding Danilo Roque and Ernesto Roque guilty beyond reasonable doubt of the crime of Robbery with
Homicide and sentencing each of them to suffer the penalty of reclusion perpetua.

In Criminal Case No. Q-53781, appellants, together with Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr.,
were accused of Robbery with Homicide as defined and penalized under Article 294(1) of the Revised Penal Code,
committed as follows:

That on or about the 18th day of August, 1987, in Quezon City, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused; conspiring together, confederating with and
mutually helping one another, with intent to gain, and by means of intimidation and/or violence upon
person, armed with a firearm and bladed weapons, did, then and there, wilfully, unlawfully and
feloniously rob one BENITO MACAM y SY in the manner as follows: on the date and in the place
aforementioned, the said accused, pursuant to their conspiracy, entered the residence of said
offended party located at No. 43-A Fema Road, Brgy. Bahay Toro, this City, and thereafter divested
the said offended party of the following properties:

One (1) model .59 cal. 9mm (toygun)

One (1) Walter P 38 cal. 9mm (toygun)
One (1) airgun rifle with leather attache case
One (1) master CO2 refiller
One (1) Sony TV antennae
Three (3) betamax tapes
One (1) Kenyo betamax rewinder
402

One (1) Samsonite attache case

One (1) set of four pieces of trays
One (1) Airmail typewriter
One (1) Sony betamax
One (1) Sony TV Trinitron
One (1) chessboard
One (1) Toyota Crown car bearing plate No. CAS-997
Assorted jewelry
Cash money (still undetermined)
One (1) .22 Walter

valued in the total amount of P454,000.00, more or less, Philippine Currency, and by reason of the
crime of Robbery, said accused, with intent to kill, did, then and there, wilfully, unlawfully and
feloniously attack, assault and employ personal violence upon the person of one Leticia Macam y
Tui, thereby inflicting upon her serious and mortal injuries which were direct and immediate cause
(sic) of her untimely death, and on the occasion of said offense, one Benito Macam y Sy, Salvacion
Enrera y Escota, and Nilo Alcantara y Bautista, all sustained physical injuries which have required
medical attendance for a period of more than thirty (30) days and which have incapacitated all of
them from performing their customary labor for the said period of time, to the damage and prejudice
of the heirs of the late LETICIA MACAM y TUI and to the damage and prejudice of the said offended
parties in such amount as may be awarded under the provisions of the Civil Code (Rollo, pp. 3-4).

Together with Criminal Case No. Q-53781, Criminal Case No. Q-53783 was filed against Eugenio Cawilan, Sr. for
violation of Presidential Decree
No. 1612, otherwise known as the Anti-Fencing Law (Rollo, p. 31).

Upon being arraigned, all the accused in Criminal Cases Nos. Q-53781 and Q-53783 pleaded "not guilty" to the
crimes charged.

After the prosecution had presented its evidence on July 4, 1989, accused Eduardo Macam, Antonio Cedro and
Eugenio Cawilan, Jr., assisted by their respective counsels, changed their plea from "not guilty" to "guilty" (Rollo, p.
23). Consequently, a separate judgment was rendered sentencing each of them to suffer the penalty of reclusion
perpetua and ordering each of them to pay P30,000.00 to the heirs of Leticia Macam without subsidiary
imprisonment in case of insolvency, but with all the accessory penalties provided for by law, and to pay the costs
(Rollo, p. 24).

The trial proceeded with respect to Eugenio Cawilan, Sr. and appellants. Of the latter, only Danilo Roque testified.

On September 26, 1989, the trial court rendered its judgment finding appellants guilty beyond reasonable doubt of
the crime of Robbery with Homicide in Criminal Case No. Q-53781 and acquitting Eugenio Cawilan, Sr. of violation
of the Anti-Fencing Law in Criminal Case No. Q-53783 (Rollo, pp. 43-44).

II

The trial court accepted the prosecution's version as correct and made the following findings of fact:

The prosecution evidence, stripped of non-essentials, shows that on August 18, 1987, Eduardo
Macam, Antonio Cedro, Eugenio Cawilan, Jr., Danilo Roque and Ernesto Roque went to the house
of Benito Macam located at 43 Fema Road, Quezon City, and that upon arrival at said place,
Eduardo Macam, a nephew of Benito Macam, entered the house and talked to Benito Macam.
Benito then offered lunch to Eduardo, who told him that he had companions waiting outside. Benito
then told his maid, Salvacion Enrera, to call the said companions of Eduardo and ask them to enter
the house and have their lunch. Salvacion went outside and called the persons waiting in a tricycle
who, she positively identified, were Antonio Cedro, Eugenio Cawilan, Jr., Danilo Roque and Ernesto
Roque. Salvacion Enrera testified that only Antonio Cedro, Eugenio Cawilan, Jr. and Danilo Roque
entered the house and that Ernesto Roque remained in the tricycle. After Antonio Cedro, Eugenio
Cawilan, Jr. and Danilo Roque had taken their lunch, Eduardo Macam suddenly grabbed the clutch
bag of Benito Macam and pulled out Benito's gun and after they announced a hold-up, they started
ransacking the place and looking for valuables. After tying up the members of Benito Macam's
household, namely, Leticia Macam, Nilo Alcantara, Salvacion Enrera, and the children of Benito
Macam, the same persons brought them to a room upstairs. After a while, Leticia Macam, Nilo
Alcantara, Salvacion Enrera, and Benito Macam were taken out of the room and brought to another
room where Leticia Macam was killed and Benito Macam, Nilo Alcantara, and Salvacion Enrera
were stabbed. The prosecution presented as Exhibit "C" a list of the items taken by the said persons
with a total value of P536,700.00.
403

Nilo Alcantara testified that while he was being brought downstairs by Antonio Cedro, he saw Leticia
Macam being held by Danilo Roque inside the comfort room and that Danilo Roque told Antonio
Cedro that "pare doon mo na upakan yan." Nilo then testified that he was brought back to a room
upstairs where he suddenly heard a very loud scream from Leticia Macam, after which, he was
suddenly stabbed by Antonio Cedro.

Salvacion Enrera testified that she was brought to another room by Antonio Cedro where she saw
Benito Macam and Nilo Alcantara bloodied from stab wounds and that she heard a loud scream from
Mrs. Leticia Macam prior to her being stabbed by Danilo Roque (Rollo, pp. 36-37).

III

The version of the defense, as summarized by the trial court, is as follows:

In exculpation, the defense in Criminal Case Q-53781 presented its sole witness accused Danilo
Roque, who testified that in the morning of August 18, 1987, while he was driving his tricycle, he was
stopped by three persons who, he came to know only during the trial of this case, were Eduardo
Macam, Eugenio Cawilan, Jr. and Antonio Cedro. According to Danilo Roque, the said persons
stopped him and asked that he bring them to Fema Road for which they were willing to pay P50.00
and that he agreed to bring them to Fema Road after Eduardo Macam gave him a calling card.
Danilo Roque testified that they stopped at the residence of Benito Macam where Eduardo Macam
alighted from his tricycle and entered the compound, and that after a while, he, together with Antonio
Cedro and Eugenio Cawilan, Jr., was called by the maid of Benito Macam to go in the house and
eat. After eating, Danilo stated that he washed the dishes and swept the floor, when suddenly,
Eugenio Cawilan, Jr. pulled out a gun and announced a hold-up and told Danilo to keep silent and
just follow what was asked of him to do. After the said persons tied the occupants of the house of
Benito Macam, they told Danilo to help them gather some of the things therein, which order, Danilo
obeyed for fear of his life. Danilo Roque then testified that after placing the things in a car parked
inside the house, Eduardo Macam said, "Kailangan patayin ang mga taong yan dahil kilala ako ng
mga yan," and that upon hearing this, he went out of the house and went home using his tricycle. He
likewise testified that his brother, Ernesto Roque, was not at the said location. Danilo testified that
his brother Ernesto had just arrived from the province on August 19, 1987 and that he asked Ernesto
to go with him to the factory of Zesto Juice and that while they were at the said factory, where he
was told by Eduardo Macam to get his payment, he and his brother Ernesto were suddenly
apprehended by the security guards. He and Ernesto were then brought to the Quezon City
Headquarters where Danilo alleged (sic) they (Ernesto Roque, Eduardo Macam, Eugenio Cawilan,
Jr., and Antonio Cedro) were forced to admit certain acts (Rollo, pp. 34-35).

The issues raised by appellants can be summarized into whether or not (a) their arrest was valid; and (b) their guilt
have been proved beyond reasonable doubt.

Appellants contend that their arrest without a warrant and their uncounseled identification by the prosecution
witnesses during the police line-up at the hospital are violative of their constitutional rights under Section 12, Article
3 of the Constitution (Rollo, p. 119).

Appellants gave the following version of the circumstances surrounding their arrests:

. . . , Accused-Appellant Danilo Roque stated that between 4:00 o'clock (sic) and 5:00 o'clock (sic) in
the afternoon of August 19, 1987, he and his brother, Accused-Appellant Ernesto Roque, went to the
factory of Accused Eduardo Macam's father in Kaloocan City to collect the fare of P50.00 from
Accused Eduardo Macam; they were suddenly approached by the security guards of the factory and
brought inside the factory where they were mauled by the security guards and factory workers and
told they were involved in a robbery-killing; thereafter, Patrolman Lamsin and his policemen-
companions brought them to the headquarters of the Quezon City Police Department for
investigation and detention; the other Accused, Eduardo Macam, Antonio Cedro and Eugenio
Cawilan, Jr., were in the jail of the Station Investigation Division, the Accused including Accused-
Appellants Danilo Roque and Ernesto Roque were forced to admit to the robbery killing, but
Accused-Appellants Danilo Roque and Ernesto Roque refused to admit they had anything to do with
it; then all the Accused were brought to the Quezon City General Hospital before each of the
surviving victims of the crime charged in handcuffs and made to line up in handcuffs together with
some policemen in civilian clothes for identification by the surviving victims who the policemen spoke
to before all of the Accused were pointed to as the suspects in the crime charged (TSN, July 12,
1989, pp. 15-18; Rollo, pp. 145-148) (Rollo, pp. 121-122).

It appears that the security guards at the factory of the father of accused Eduardo Macam detained appellants. They
were later brought to the Quezon City Police Headquarters for investigation. Since they refused to admit their
participation in the commission of the crime, appellants were then brought to the Quezon City General Hospital and
404

were made to line-up together with several policemen in civilian clothes. Salvacion Enrera, Benito Macam and Nilo
Alcantara, who were confined at the hospital for injuries sustained during the robbery, were asked to pinpoint the
perpetrators. At that time, appellants were handcuffed and bore contusions on their faces caused by the blows
inflicted on them by the police investigators (TSN, July 12, 1989, pp. 15-18).

In Gamboa v. Cruz, 162 SCRA 642 (1988), we held that the right to counsel attaches upon the start of an
investigation, i.e., when the investigating officer starts to ask questions to elicit information, confessions or
admissions from the accused (See also People v. Dimaano, 209 SCRA 819 [1992]).

Historically, the counsel guarantee was intended to assure the assistance of counsel at the trial, inasmuch as the
accused was "confronted with both the intricacies of the law and the advocacy of the public prosecutor." However,
as a result of the changes in patterns of police investigation, today's accused confronts both expert adversaries and
the judicial system well before his trial begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 S Ct 2568 [1973]). It is
therefore appropriate to extend the counsel guarantee to critical stages of prosecution even before the trial. The law
enforcement machinery at present involves critical confrontations of the accused by the prosecution at pre-trial
proceedings "where the result might well settle the accused's fate and reduce the trial itself to a mere formality." A
police line-up is considered a "critical" stage of the proceedings (U.S. v. Wade, 388 U.S. 218, 18 L Ed 2d 1149, 87 S
Ct 1926 [1967]).

After the start of the custodial investigation, any identification of an uncounseled accused made in a police line-up is
inadmissible. This is particularly true in the case at bench where the police officers first talked to the victims before
the confrontation was held. The circumstances were such as to impart improper suggestions on the minds of the
victims that may lead to a mistaken identification. Appellants were handcuffed and had contusions on their faces.

However, the prosecution did not present evidence regarding appellant's identification at the police line-up. Hence,
the exclusionary sanctions against the admission in evidence of custodial identification of an uncounseled accused
can not be applied. On the other hand, appellants did not object to the in-court identification made by the
prosecution witnesses. The prosecution witnesses, who made the identification of appellants at the police line-up at
the hospital, again identified appellants in open court. Appellants did not object to the in-court identification as being
tainted by the illegal line-up. In the absence of such objection, the prosecution need not show that said
identifications were of independent origin (Gilbert v. California, 388 U.S. 263, 18 L Ed 2d 1178, 87 S Ct 1951
[1967]).

The arrest of appellants was made without the benefit of a warrant of arrest. However, appellants are estopped from
questioning the legality of their arrest. This issue is being raised for the first time by appellants before this Court.
They have not moved for the quashing of the information before the trial court on this ground. Thus, any irregularity
attendant to their arrest was cured when they voluntarily submitted themselves to the jurisdiction of the trial court by
entering a plea of not guilty and by participating in the trial (People v. Rabang, 187 SCRA 682 [1990]).

Appellants further contend that their guilt has not been proved beyond reasonable doubt, conspiracy not having
been established by positive and conclusive evidence (Rollo, p. 131).

The presence of conspiracy between appellants and the other accused can be shown through their conduct before,
during and after the commission of the crime (People v. Dagoma, 209 SCRA 819 [1992]).

It is undeniable that appellant Danilo Roque was the tricycle driver, who brought the accused Eduardo Macam,
Antonio Cedro and Eugenio Cawilan, Jr. to the house of Benito Macam. He contends that he did not know the said
accused. Yet, why did he agree to bring them to the Macam residence when the route going to that place is out of
his regular route? Why did he agree to bring them to that place without being paid the P50.00 as agreed but was
merely given a calling card?

Upon arriving at the residence of Benito Macam, appellant Danilo Roque, together with his co-accused, went inside
the house to eat. He even admitted that after eating, he washed the dishes, swept the floor and sat on the sofa in
the sala instead of going out of the house. This conduct is not in keeping with his being merely the tricycle driver
hired by the accused to transport them to their destination.

Appellant Danilo Roque was the one who gathered the articles stolen from the house of the victim and who placed
them inside the tricycle. While he claimed that he was merely intimidated by the accused to do so, his subsequent
conduct belied this claim. According to him, he escaped after hearing accused Eduardo Macam tell his co-accused
to kill all the possible witnesses who may be asked to identify them. Yet he continued to ply his route as if nothing
unusual happened. How he was able to escape unnoticed by his co-accused is a puzzle by itself. Likewise, he did
not mention the incident to anyone, not even to his brother, appellant Ernesto Roque, whom he saw the following
day. He did not report the incident to the police. In People v. Logronio, 214 SCRA 519 (1992), we noted: "For
criminals to make an innocent third party a passive and unnecessary witness to their crime of robbing and killing,
and then to let such witness go free and unharmed, is obviously contrary to ordinary human experience."
405

Appellant Danilo Roque's denial of his participation in the commission of the crime is not sufficient to overcome the
testimony of the prosecution witnesses, who positively identified the former as one of the persons who entered the
Macam's residence, robbed and stabbed the occupants therein.

Salvacion Enrera testified that she was stabbed by appellant Danilo Roque. Nilo Alcantara, likewise, positively
identified appellant Danilo Roque as one of those who brought Leticia Macam to the comfort room, where she was
found dead.

Appellant Ernesto Roque did not even testify in his defense at the trial. The Constitution does not create any
presumption of guilt against an accused who opts not to take the witness stand (Griffin v. California, 380 U.S. 609,
14 L. Ed 2d 106, 85 S Ct 1229 [1965]). That is his right. However, appellant Ernesto Roque cannot rely on the
testimony of Danilo Roque because said testimony failed to rebut and impeach the evidence of the prosecution
against both appellants (Cf. Desmond v. U.S. 345 F. 2d 225 [CA 1st 1965]). We agree with the finding of the trial
court that appellant Ernesto Roque, while remaining outside the house of Macam, stood as a look-out, which makes
him a direct co-conspirator in the crime (U.S. v. Santos, 4 Phil. 189 [1905]).

Appellants contend that the crimes committed were robbery and homicide, and not the complex crime of robbery
with homicide (Rollo, p. 143). We do not agree. The rule is whenever homicide has been committed as a
consequence or on occasion of the robbery, all those who took part as principals in the robbery will also be held
guilty as principals of the special crime of robbery with homicide although they did not actually take part in the
homicide, unless it clearly appears that they endeavored to prevent the homicide (People v. Veloso, 112 SCRA 173
[1982]; People v. Bautista, 49 Phil. 389 [1926]; U.S. v. Macalalad, 9 Phil. 1 [1907]).

Lastly, the award of civil damages made by the trial court is not in accordance with law and jurisprudence. In its
judgment, the trial court disposed in pertinent part as follows: "In Crim. Case Q-53781, the court finds accused
DANILO ROQUE and ERNESTO ROQUE guilty beyond reasonable doubt of the crime of Robbery with Homicide, . .
. and hereby sentences each of them to suffer the penalty of RECLUSION PERPETUA and each to indemnify the
heirs of the deceased the sum of P30,000.00, ." (Rollo, pp. 43-44; emphasis supplied). The trial court overlooked
the rule in Article 110 of the Revised Penal Code that the principals shall be "severally (in solidum)" liable among
themselves (People v. Hasiron, 214 SCRA 586 [1992]).

WHEREFORE, the decision is AFFIRMED with the MODIFICATIONS: (1) that the civil damages awarded in favor of
the heirs of Leticia Macam are increased to P50,000.00; and (2) that the word "each" before "to indemnify the heirs"
in the dispositive portion of the decision is deleted.

SO ORDERED.
406

G.R. No. 77865 December 4, 1998

PEOPLE OF THE PHILIPPINES, appellee,

vs.
RAFAEL OLIVARES, JR. and DANILO ARELLANO, appellants.

MARTINEZ, J.:

Involved in this case is the crime of robbery with homicide committed during the season of yuletide. The facts as
narrated in the People's brief are as follows:

Prosecution witness Sgt. Eduardo Marcelo testified that he took the statements of appellant Rafael
Olivares, Jr. and one Purisimo Macaoili and verbal investigation of appellant Danilo Arellano
because the latter refused to give any statement.

Prosecution witness Cpl. Tomas Juan of the Valenzuela Police Station V testified that in the morning
of December 28, 1981, he was assigned by his station commander to follow-up the robbery with
homicide that took place at Tanada Subdivision, Gen. T. De Leon, Valenzuela, Metro Manila. He
learned from Patrolman Bote that a regular employee of the Cardinal Plastic Industries (where the
crime was committed) had not yet reported for work. With that information, Cpl. Juan, accompanied
by Pat. Rodriquez Acharon, and Reyes proceeded to the business establishment and were able to
confirm from the workers that appellant Danilo Arellano failed to report for work since the
commission of the crime, Melchor Salle (cousin of appellant Arellano) volunteered to bring them to
Danilo Arellano, in a factory situated in San Juan, Metro Manila. Thereat, Melchor Salle was able to
secure information from the "barkada" of appellant Arellano who turned out to be appellant Olivares,
Jr. Appellant Olivares accompanied them to Broadway, Barangay Kristong Hari, Quezon City, where
they found appellant Arellano. After being ask about the incident that took place at the Cardinal
Plastic Industries, appellant Arellano readily admitted to the police authorities his participation in the
commission of the crime. Thereafter, appellant Arellano was invited to the police station (pp. 4-9,
TSN, November 3, 1982). On further direct examination, Cpl. Juan identified in open court the Sanyo
cassettes, the tapes and the wristwatch they recovered from the place where appellant Arellano
pointed to them. Said items were turned over to the police station (pp. TSN, Nov. 17, 1982).

Prosecution witness Purisimo Macaoili testified that he found the dead body of Mr. Sy (Tiu Hui) in
the morning of december 26, 1981 inside the building where the business establishment is situated.
Mr. Sy was residing alone inside his room because at that time his wife was in Hongkong. Some of
the workers also reside inside the business establishment. Mr. Macaoili also saw the dead body of
the father of Mr. Sy (Zie Sing Piu) in the same building inside the establishment which was at that
time registered as Foodman & Company, a candy manufacturer (now Cardinal Plastic Industries).
The bodies of the victims were about eight (8) to ten (10) arms-length apart. Thereafter, his
companion Erning phoned Mr. Sy's brother who was then residing near Malacañang and informed
him about the incident. Mr. Sy's brother arrived in the factory at around 6:30-o'clock in the morning
and saw the bodies of the victims. The same brother asked for the assistance of the police who
arrived at the scene of the crime and who conducted on-the-spot investigation. Later on and upon
the direction of the police, the bodies of the victims were brought to the morgue. Mr. Macaoili did not
notice any missing personal belongings of the victims at that time inside the building (pp. 4-13, TSN,
Aug. 6, 1982). Further, Mr. Macaoili testified that he came to know that the wristwatch, the cassettes,
and other personal items of the victims were missing when appellants were apprehended. He knew
the cassette and the wristwatch because said items had been used by the victim, Tiu Heu. He knew
appellant Arellano because he is his barriomate at Tuburan, Iloilo and was a laborer at Foodman
Industries long before December 26, 1981. He also knew appellant Olivares, Jr. as they are also
barriomates and worked somewhere in Quezon City. He testified that appellant Olivares, Jr. twice
visited the factory before December 26, 1981 and he saw him two or three weeks before said date.
He also saw appellant Arellano inside the compound of Foodman Industries on December 25, 1981.
Appellant Arellano resides inside the compound of the factory staying in the other room with other
co-workers apart from the room of Mr. Macaoili and the members of his family. He stated that the
wristwatch worn by victim Tiu Heu was mortgaged to the latter by the former's friend named Raul
(pp. 5-11, TSN, August 20, 1982).

Prosecution witness, Sgt. Eduardo Marcelo of the PNP, Valenzuela, Metro Manila testified that he
conducted an investigation on the person of Rafael Olivares, Jr. at about 10:45 o'clock in the
407

morning of December 29, 1981. Sgt. Marcelo apprised him of his constitutional rights. When
informed, appellant Olivares, Jr. declined any assistance of a lawyer during the investigation
considering that he will tell the truth about the incident. Mr. Melchor Salle and the chief of Sgt.
Marcelo were present during the police investigations. Sgt. Marcelo prepared a statement (Exhibit B)
signed by appellant Olivares, Jr. relative to the investigation (pp. 4-11, TSN, October 8, 1982).

Prosecution witness Sika Chong testified that the victim Tiu Hu is his brother and other victim Zie
Sing Piu is his father. On December 26, 1981, the victims were residing inside the factory situated at
Gen. T. de Leon, Valenzuela, Metro Manila. Sika Chong did not witness the commission of the
crime. He personally knew the two (2) radio cassettes belong to his father as said items were his
birthday gifts sometime in 1977 (Exhibit C) and in 1980 (Exhibit D). He bought the cassettes (Sanyo
brand) from a store at Cartimar. The small cassettes costs him P700.00 and the big radio at
P800.00. Along with the said items, he also bought five (5) tapes (Exhibits E, E-1 to E-4) (pp. 5-14,
TSN, March 4, 1983).

Prosecution witness Ong Tian Lay testified that victim Zie Sing Piu is his father and victim Tiu Hu is
his brother. The victims were at the time of thier death engaged in sago and plastic business. When
they ceased operation in the sago business, they engaged in plastic manufacturing until the time of
thier death. He spent more than P40,000.00 for the funeral expenses of the victims and although the
total receipts from Funeraria Paz amounted only to P13,000.00, he also spent other expenses
totalling P40,000.00 (pp. 3-8, TSN, April 22, 1983). On further direct examination, Ong Tian Lay
testified that he saw the publication about the death of his father and brother at the police
department of Valenzuela, Metro Manila. He was able to get a clipping of the publication (Exhibit F).
He could not remember the names of the newspaper where the victims' death were published but
could remember that the incident was published in at least three (3) newspapers, one (1) in the
Chinese language and the two (2) in the English language (pp. 4-13, TSN, June 29, 1983).

Prosecution witness Narciso Gador, factory worker of Cardinal Plastics, testified that the factory is
owned by Ka Tiong Sy. He knew that the father of his employer is already dead as well his brother.
He knew appellant Danilo Arellano because the latter is a former laborer of Cardinal Plastics. He
only came to the person of appellant Olivares, Jr. after the incident. He saw appellants between the
hours of 9:00 o'clock and 10:00 o:clock in the evening of December 25, 1981 inside the Delia's
restaurant located at BBB, Valenzuela, Metro Manila. Narciso Gador and his companions arrived,
they ordered beer while seated at another table. They left the restaurant between the hours of 9:00
o'clock and 10:00 o'clock in the evening of December 25, 1981 ahead of appellants. (pp. 3-6, TSN,
June 15, 1983).

Dr. Rodolfo Lizondra conducted the autopsy of the cadaver of the victims. He prepared a Necropsy
Report on victim Tiu Heo Hu (Exhibits G, G-1, G-2) and similar report on victim Sy Sing Kiaw
(Exhibits H-H-1 to H-3) (Decision, Jan. 30, 1987, p. 4.   *
1

For the death of the two victims and the loss of some items, appellants were charge with the complex crime of
"robbery with double homicide" under the following informations:

That on or about the 26th day of December 1981, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the said accused Rafael Olivarez, Jr.
y Jaba and Danilo Arellano y Montinol, conspiring and confederating together and mutually helping
each other, did then and there wilfully, unlawfully and feloniously, with intent of again and by means
of force, violence and intimidation upon the persons of Tiu Hu and Zie Sing Piu alias "Sy Sing Kiaw"
take, rob and carry away with them cash in the amount of P1,800.00 two (2) radio cassettes marked
"Sanyo", one (1) wrist watch marked "Citron" and five (5) tape recorder cassettes, belongings to Tiu
Hu, to the damage and prejudice of the latter in the sum of more than P1,800.00; and that by reason
or on the occasion (sic) of the said robbery and for the purpose of enabling them to take, rob and
carry away the said amount of P1,800.00, two (2) radio cassettes, one (1) wrist watch and five (5)
tape recorder cassettes, the herein accused, in pursuance of their conspiracy, did then and there
willfully, unlawfully and feloniously, with evidence (sic) premeditation and treachery and taking
advantage of their superior strenght, attack, assault and use personal violence on the said Tiu Hu
and Zie Sing Piu alias "Sy Sing Kiaw", thereby inflicting fatal physical injuries which directly caused
the death of the said Tiu Hu and Sing Piu alias "Sy Sing Kiaw".

That in the commission of the said crime, other aggravating circumstances of nocturnity and unlawful
entry were present. 2

After the trial, the lower court rendered a decision dated Janaury 30, 1987 convicting appellants of the crime
charged, sentence them to suffer the death penalty and to indemnify the victim' heirs. The dispositive portion of the
trial court's decision reads:
408

In view of the foregoing circumstancial evidence and not mainly on the basis of the extrajudicial
confession, the Court finds both accused guilty beyond reasonable doubt of the crime of Robbery
with Double Homicide and sentences them to suffer the penalty imposed by law is death on 2
counts, and to indemnify the heirs of the victim in the sum of P60.000.00 and to pay the cost.

SO ORDERED. 3

On direct appeal to this Court, appellants, who are imprisoned, seek their acquittal on the ground that their guilt was
not proven by the prosecution beyond reasonable doubt. Alternatively, they argued that in case their conviction is
sustained, the death penalty should not be imposed on them in the light of the 1987 Constitution.

In the course of the elevation of the records, the Court found that the transcript of stenographic notes (TSN) for the
November 12, 1982  hearing was missing. When the whereabouts of the said TSN could not be traced despite
4

diligent efforts and after disciplinary measures were imposed on some court personnel, the counsels of both parties
were ordered to submit their respective manifestation if said TSN may be dispensed with or a retaking of the
testimony of the witness should instead be made.  The Office of the Solicitor General (OSG) agreed to dispense with
5

the TSN.  Counsel for appellants (Atty. Escolastico R. Viola), who failed to comply with the order, was penalized with
6

fine and later ordered arrested byt this Court.  Thereafter, the Court appointed the Public Attorney's Office
7

(PAO) to represent appellants.  The PAO made a similar manifestation as the OSG did with respect to the
8

TSN. 9

Upon a thorough review of the records of the case, appellants' conviction cannot stand for reasons which
were not discussed or even mentioned by appellants' appointed counsel. The PAO, as the duly designated
government agency to represent and render legal services to pauper litigants who cannot hire their own
counsel, should have exerted more effort on this case. Its pleadings filed before this court could hardly be
considered as the product of an advocate who has the responsibility to serve his client with competence
and diligence.   The preparation of his case is a duty the lawyer owes not only to his client whose property,
10

money and above all life and liberty he is bound to protect. It is also a duty he owes to himself, to his own
integrity and self-respect at the bar. Nonetheless, the Court is not powerless to address and consider
unassigned issues and relevant facts and law that may affect the merits and justifiable disposition of the
case.

Initially, the categorization by the prosecution of the crime of robbery with double homicide is erroneous
because the word "homicide" in Article 294 of the Revised Penal Code (RPC) should be taken in its generic
sense.  absorbing not only acts which results in death (such as murder) but also all other acts producing
11

anything short of death (such as physical injuries) committed during the robbery.  and regardless of the
12

multiplicity of the victim which is only considered as an aggravating circumstances.  The indictable offense
13

is still the complex crime of robbery with homicide (which is its proper nomenclature), the essential
elements of which are:

a.) the taking of personal property with the use of violence or intimidation
against a person;

b.) the property thus taken belongs to another;

c.) the taking is characterized by intent to gain or animus lucrandi;

d.) on the occasion of the robbery or by reason thereof, the crime of homicide
which is therein used in a generic sense, was
committed.  14

In this case, there were no eyewitnesses to the killing and robbery and; thus, no direct evidence points to
appellants criminal liability. The prosecution's principal evidence against them is based solely on the
testimony of the police officers who arrested, investigated and subsequently took their confession. Such
evidence when juxtaposed with appellants' constitutional rights concerning arrests and the taking of
confessions leads to a conclusion that they cannot he held liable fort the offense charged despite the
inherent weakness of their defenses of denial and alibi, not because they are not guilty but because the
evidence adduced against them are inadmissible to sustain a criminal conviction.

First, appellants were arrested without a valid warrant of arrest and their arrest cannot even be justified
under any of the recognized exceptions for a valid warrantless arrest mentioned in Section 6, (now section
5) Rule 113 of the Rules on Criminal Procedure, which prior to its amendment in 1998  provides: 15

Arrest without warrant; when lawful. — A peace officer or private person may, without a
warrant, arrest a person:
409

a) when the person to be arrested has committed, is actually committing, or is

about to commit an offense in his presence;

b) when the offense has in fact been committed, and he has reasonable ground
to believe that the person to be arrested has committed it;

c) when the person to be arrested is a prisoner who has escaped from a penal
establishment or/place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.

None of the foregoing exceptions for a valid warrantless arrest concurs herein. At the time appellants were
apprehended, two days had already lapsed after the discovery of the crime — they were not doing nor had
just done any criminal act. Neither were they caught in flagrante delicto or had escaped from confinement.
Probably aware of the illegality of the arrest they made the arresting officers testified that appellants were
merely invited to the police precinct. Such invitation, however when construed in the light of the
circumstances is actually in the nature of an arrest designed for the purpose of conducting an
interrogation.  Mere invitation is covered by the proscription on a warrantless arrest because it is intended
16

for no other reason than to conduct an investigation. Thus, pursuant to Section 4(2), Article IV of the 1973
Constitution which was in effect at that time, "any evidence" obtained in violation of their right under
Section 3, Article IV (pertaining to invalid warrantless arrests)  "shall be inadmissible for any purpose in
17

any
proceeding."  By virtue of said constitutional protection any evidence obtained, including all the things and
18

properties alleged to be stolen by appellants which were taken by the police from the place of the illegal
arrest cannot be used as evidence for their conviction. In the same manner, all the products of those illegal
arrest cannot be utilized to sustain any civil liability that they may have incurred by reason of their acts.
This is the clear mandate of the Constitution when it provides that those illegally obtained evidence being
"the fruits of the poisonous tree" are "inadmissible for any purpose in any proceeding". The foregoing
constitutional protection on the inadmissibility of evidence (which are the product of an illegal search and
arrest) known as the eclusionary rule, applies not only to criminal cases but even extends to civil,
administrative and any other form of proceedings. No distinction is made by the Constitution; this Court
ought not to distinguish.

Even assuming arguendo that by entering a plea without first questioning the legality of their arrest,
appellants are deemed to have waived any ojection concerning their arrest:  yet the extrajudicial confession
19

of appellant Olivares, Jr. on which the prosecution relies, is likewise inadmissible in evidence. Under the
Constitution, any person under investigation for the commission of an offense shall have the right, among
other to have a counsel,  which right can be validly waived. In this case, the said confession was obtained
20

during custodial investigation but the confessant was not assisted by counsel. His manifestation to the
investigating officer that he did not need the assistance of counsel does not constitute a valid waiver of his
right within the contemplation of our criminal justice system. This notwithstanding the fact that the 1973
Constitution does not state that a waiver of the right to counsel to be valid must be made with the
assistance or in the presence of counsel. Although this requisite concerning the presence of counsel
before a waiver of the right to counsel can be validly made is enshrined only in the 1987 Constitution, which
further requires that the waiver must also be in writing,  yet jurisprudence is replete even during the time of
21

appellants arrest where it has been categorically ruled that a waiver of the constitutional right to counsel
shall not be valid when the same is made without the presence or assistance of counsel.  Consequently,
22

the valid waiver of the right to counsel during custodial investigation makes the uncounselled confession,
whether verbal or non-verbal,  obtained in violation thereof as also "inadmissible in evidence"  under
23 24

Section 20, Article IV of the 1973 Constitution  which provides:

25

. . . . Any person under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used aginst him. Any
confession obtained in violation of this section shall be inadmissible in evidence. (emphasis
supplied).

Under the present laws, a confession to be admissible must be: 26

1.) express and categorical; 27

2.) given voluntarily,  and intelligently where the accused realizes the legal
28

significance of his act; 29

3.) with assistance of competent and independent counsel; 30

410

4.) in writing; and in the language known to and understood by the

confessant;  and
31

5 signed, or if the confessant does not know how to read and write
thumbmarked by him. 32

In this case, the absence of the third requisite above makes the confession inadmissible. The
purpose of providing counsel to a person under custodial investigation is to curb the uncivilized
practice of extracting confession even by the slightest coercion  as would lead the accused to admit
33

something false.  What is sought to be avoided is the "evil of extorting from the very mouth of the
34

person undergoing interrogation for the commission of an offense, the very evidence with which to
prosecute and thereafter convict him.  These constitutional guarantees have been made available to
35

protect him from the inherently coercive psychological, if not physical atmosphere of such
investigation.  In any case, said extrajudicial confession of one accused may not be utilized against
36

a co-accused unless they are repeated in open court or when there is an opportunity to cross-
examine the other on his extrajudicial statements. It is considered hearsay as against said accused
under the rule on res enter alios acta rule, which ordains that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another. 37

Aware of the abuses committed by some investigating and police agencies on a criminal suspect to
get leadings confessions, information and evidence just so they can claim to have speedily resolved
a crime and fulfilled their duty, all at the expense of the basic human rights guaranteed by the
Constitution the Court cannot turn a blind eye by disregarding the constitutional rights accorded to
every accused and tolerate official abuse. The presumption that a public officer had regularly
performed his official duty,  which is only a matter of procedure, cannot prevail over the
38

presumption of innocence stated in the highest law of the land — the Constitution. As a contract
between and among the people, the provisions of the Constitution cannot just be taken lightly.

With the inadmissibility of the material circumstancial evidence which were premised on the likewise
extrajudicial confession upon which both the prosecution and the lower court relied to sustain
appellants' conviction the remaining circumstances cannot produce a logical conclusion to
establish their guilt. In order to sustain a conviction based on circumstancial evidence, it is
necessary that the same satisfies the following elements:

1. there is more than one circumstances;

2. the facts from which the inferences are derived are proven; and

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

beyond reasonable doubt. 39

Simply put for circumstancial evidence to be sufficient to support a conviction, all circumstances
must be consistent with each other consistent with the hypothesis that the accused is guilty, and at
the same time incosistent with the hypothesis that he is innocent and with every other rational
hypothesis except that the guilt. 40

The findings of the trial, to wit:

Both accused are barriomates from Iloilo which means that there is a common factor for
them to come together and act on a plan hatched by them during a drinking spree. It would
not be remote for Melchor Sali who was questioned by the police and on whose statement
the police made a start to investigate, would be a part of the plan to rob two or three weeks
before the incident, because he is also a barriomate of the two accused. The truth of the
testimony of Narciso Gador that both accused were seen by him on Christmas night at
Delia's restaurant between 9:00 and 10:00 o'clock at night which is corroborated in the
statement of Rafael Olivarez, Jr. is not remote and is more credible than the defense (sic)
alibi of the Olivarez brothers that they were together sleeping in an employer's house.
Another matter to consider was the failure of Danilo Arellano to report for work after the
killing that was from December 26, 1981 until he was arrested. His having left his place of
employment and residence without explanation is an evidence of flee from the scene of the
crime. Flee without anyone pursuing is an indication of guilt. Another ciscumstantial
evidence showing that the crime was perpretrated by both accused was the recovery of the
radio cassettes, tapes and wrist watch by Cpl. Juan Tomas who testified that the place were
recovered was pointed to by Danilo Arellano (TSN Nov. 17, 1982, p. 4). These stolen articles
having been recently stolen and their whereabouts being known to Danilo Arellano raises the
presumption that he was the one who took the same with intent to gain from their rightful
owner. 41
411

cannot entirely be considered because some of the circumstancial evidence relied upon by the trial
court were, at the risk of being repetitive, based on the inadmissible extrajudicial confession. The
facts which became known only by virtue of the extrajudicial confession pertains to how the victims
were killed, how appellants gained entrance into the premises, and how the alleged stolen properties
were found in the house where one of them was arrested. Without the foregoing facts a combination
of the remainder of the circumstancial evidence cannot sustain a conviction beyond the shadow of
reasonable doubt: hence, the absence of the third requisite. Forthwith the prosecution failed to
discharge its burden of proof and consequently to rebut with the required quantum of evidence  the 42

presumption of innocence  fundamentally enjoyed by both appellants. For it is a basic evidentiary

43

rule in criminal law that the prosecution has the onus probandi of establishing the guilt of the
accused. El incumbit probatio non qui negat. He who asserts — not he who denies — must prove.
Likewise, it is settled that conviction must rest on the weakness of the defense but on the strength
of the prosecution.  Accordingly, circumstancial evidence with has not been adequately established
44

cannot, by itself, be the basis of conviction. 45

WHEREFORE, appellants' conviction is herein REVERSED and both are ACQUITTED for the crime charged.
The person detaining them is ordered to IMMEDIATELY RELEASE appellants UNLESS they are held for
some other lawful cause.

SO ORDERED.

Melo, Puno and Mendoza, JJ., concur.

1. Rule 130 Section 34 – Similar Acts of Evidence [[112

G.R. Nos. 92961-64 September 1, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
BENJAMIN C. MAGPAYO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Fortunato F.L. Viray for accused-appellant.

BIDIN, J.:

Appellant Benjamin C. Magpayo was charged with Rape, Robbery, Robbery with Hold-up and Forcible Abduction
with Rape before the Regional Trial Court of Malabon in four (4) separate complaints and informations allegedly
committed as follows:

Criminal Case No. 6436 (RAPE)

That on or about the 10th day of April, 1988, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd
designs, and by means of force and intimidation, willfully, unlawfully, and feloniously did, then and
there, have sexual intercourse with the undersigned complainant, (Lilibeth Bobis) against her will, a
minor who is under 11 years old.

CONTRARY TO LAW. (Rollo, p. 8)

Criminal Case No. 6437 (ROBBERY)

That on or about the 10th day of April, 1988, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of the Honorable, the above-named accused with intent to
gain, by means of force, violence and intimidation and without the consent of the owner, did, then
and there, willfully, unlawfully and feloniously take, rob and divest one LILIBETH BOBIS y
BUGAYONG of her cash money amounting to P27.00; to the damage and prejudice of the said
LILIBETH BOBIS y BUGAYONG in the aforementioned amount of P27.00.

CONTRARY TO LAW. (Rollo, p. 9)

412

Criminal Case No. 6438 (ROBBERY WITH HOLD-UP)

That on or about the month of February, 1988, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent
to gain by means of force, violence and intimidation and without the consent of the owner, did, then
and there, willfully, unlawfully and feloniously take, rob and divest one JACQUILINE YUTUC-JAIME
of her gold erring (sic) and gold ring, worth P1,000.00; to the damage and prejudice of the said
JACQUILINE YUTUC-JAIME.

CONTRARY TO LAW. (Rollo, p.10)

Criminal Case No. 6443 (FORCIBLE ABDUCTION WITH RAPE)

That sometime during the month of November 1987, in the Municipality of Navotas, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, take the
person of MARA N. CHICO, who is under 12 years of age, at knife point to a vacant lot where the
said accused did, then the there, willfully, unlawfully and feloniously, by means of force and
intimidation have carnal knowledge with the undersigned complainant against her will and consent.

CONTRARY TO LAW. (Rollo, p. 11)

Upon arraignment, appellant entered a plea of not guilty to all the charges. After trial, he was found guilty of all the
offenses charged in a joint decision rendered by the trial court, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. In Criminal Case No. 6436, finding accused Benjamin C. Magpayo guilty beyond reasonable
doubt of the crime of Rape and sentences him to suffer the penalty of reclusion perpetua, to
indemnify Lilibeth Bobis in the amount of P30,000.00 as moral damages and to pay the costs;

2. In Criminal Case No. 6437, finding accused Benjamin C. Magpayo guilty beyond reasonable
doubt of the crime of Robbery and sentences him to an indeterminate penalty of one (1) year, seven
(7) months and eleven (11) days of prision correccional, as minimum, to six (6) years, one (1) month
and eleven (11) days of prision mayor, as maximum, to indemnify Lilibeth Bobis in the amount of
P26.00 and to pay the costs;

3. In Criminal Case No. 6438, finding accused Benjamin C. Magpayo guilty beyond reasonable
doubt of the crime of Robbery and sentences him to an indeterminate penalty of one (1) year, seven
(7) months and eleven (11) days of prision correccional, as minimum, to six (6) years, one (1) month
and eleven (11) days of prision mayor, as maximum, to indemnify Jacquiline Yutuc Jaime in the
amount of P1,000.00 and to pay the costs; and

4. In Criminal Case No. 6443, finding accused Benjamin C. Magpayo guilty beyond reasonable
doubt of the complex crime of Forcible Abduction with Rape, as defined and penalized under Articles
335 and 342, in relation to Article 48 of the Revised Penal Code and sentences him to suffer the
penalty of reclusion perpetua, to indemnify Mara Chico in the amount of P30,000.00 as moral
damages and to pay the costs.

SO ORDERED. (Rollo, p. 98)

Appellant appeals from the aforementioned joint decision of the court a quo and assigns the following as errors:

THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT
IN CRIMINAL CASE NOS. 6436-MN, 6347-MN, 6438-MN AND 6443-MN, DESPITE ABSENCE OF
PROOF THAT HE IS THE PERPETRATOR OF THE CRIMES CHARGED.

II

THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF ROBBERY IN CRIMINAL CASE

NOS. 6437 AND 6438 NOTWITHSTANDING FAILURE OF THE PROSECUTION TO ESTABLISH
THE ESSENTIAL ELEMENTS OF THE OFFENSE, ASSUMING ARGUENDO, THAT APPELLANT
IS THE PERPETRATOR THEREOF.

III
413

THE TRIAL COURT ERRED IN APPLYING SECTION 34, RULE 130 OF THE REVISED RULES ON
EVIDENCE IN CONVICTING APPELLANT.

IV

THE TRIAL COURT ERRED IN AWARDING MORAL DAMAGES AND COSTS

NOTWITHSTANDING ABSENCE OF CLEAR AND CONVINCING PROOF THAT HE IS GUILTY OR
THE PERPETRATOR OF THE CRIMES CHARGED. (Appellant's Brief, p.11)

The facts of the cases involved in this appeal are summarized by the Solicitor General as follows:

Criminal Cases 6436 and 6437-MN

At 9:30 in the morning of April 10, 1988, the 10-year old complainant Lilibeth Bobis, went to the
Malabon market to get money from her parents to buy milk for her younger sister. After receiving
P26.00 from them, she proceeded to the store near their house but before reaching it, she paused in
front of Betsy's Restaurant near the municipal building. There she was approached by appellant,
who accused her of involvement in a theft of coffee. Lilibeth denied the accusation but appellant told
her that the thief had a tattoo on the back (tsn, July 25, 1988, pp. 2-3). Appellant then demanded
threateningly that she go with him as they would look at some boxes and broken bottles, and for her
to tell fully that she had nothing to do with the theft.

They proceeded to the San Bartolome Church, which they circled twice, and then entered the
cemetery beside the church. Once inside, Lilibeth, upon the prodding of appellant, raised her blouse
to show that she had no tattoo. But appellant said: "Ano ang gusto mo, kakantutin ka o makakauwi
ka ng buhay." For fear of her life, Lilibeth pleaded with appellant not to kill her. Then appellant
removed his shorts and inserted his organ into her mouth while she was seated on the ground. He
removed Lilibeth's shorts and panty and she was made to sit on a bench. Appellant parted her legs
and inserted his organ into hers while he was in a standing position.

After his coitus with her, appellant took the P26.00 of Lilibeth and warned her to keep quiet as he
was not alone and that she should not leave until he has gotten out of the cemetery. Lilibeth told
appellant to leave and that she would not complain to the police (Ibid., pp. 4-7).

When she was certain that appellant had already left, Lilibeth put on her clothing and went back to
her mother at the market, to whom she told that she was raped. Thereafter, both of them informed
her father of the matter and they all proceeded to the police station, where they were advised to go
to the National Bureau of Investigation (NBI) to have Lilibeth examined (Ibid., p. 8).

Upon examination by Dr. Roberto V. Garcia of the NBI at 1:05 PM on the same day, the following
findings were revealed:

Labia majora, gaping. Labia minora, coaptated. Fourchette, tense. Vestibular

mucosa, contused. Hymen originally annular, moderately tall and thick, with healing
complete laceration at 3:00; deep laceration at 9:00; and superficial laceration at 7:00
o'clock positions, edges of these are edematous, with fibrin formation, and bleeding
on slight manipulation. Hymenal orifice, admits a tube, 2.0 cm. in diameter, with
marked resistance. Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:

1. No evident sign of any extragenital physical injury noted on the body of the subject
at the time of examination.

2. Healing hymenal lacerations present, consistent with sexual intercourse about the
time of commission. (Exhs. "D", "D"-2) (Record, p. 47)

Lilibeth also have a description of the rapist to the NBI artist, who, on the basis thereof, made a
sketch (Record, p. 52) of the rapist's face, a copy of which was given by her father, Wilfredo Bobis,
to the Malabon Police.

On May 22, 1988, Mr. Bobis was informed that the alleged rapist had been arrested in connection
with another case and was being detained at the police station. Lilibeth and her father immediately
went to the station where she positively identified appellant as her rapist, after referring to the shape
of his nose as "matangos" and the eyes as "singkit". On the same day, Lilibeth was also investigated
and she executed a sworn statement (Record, p. 44).
414

Criminal Case No. 6438 (For Robbery Hold-Up)

Sometime in February, 1988, private complainant Jacquiline Yutuc Jaime, then 8 years old, was
walking alone on Rivera Street in Malabon, Metro Manila, when she was accosted by appellant who
accused her of stealing a cart. Despite her denials, appellant insisted that they go to the police
station, and Jacquiline consented. Instead, she was brought to the cemetery beside San Bartolome
Church where she was divested of her gold earrings and a ring with red stone, valued at P1,000.00,
given by her father as a birthday gift. Thereafter, appellant told her to go home (tsn, January 16,
1989, pp. 2-4). Upon arriving home, she told her parents about the incident, after which they
immediately went to the police authorities to report the matter.

On May 22, 1988, she and her mother Emmanuela Yutuc were fetched by the Malabon Police as
appellant had just been arrested in connection with another robbery case. At the police station,
Jacquiline positively identified appellant as the one who took her jewelry. On the same day, she
executed a sworn statement (tsn, April 17, 1989, pp. 4-7; Record, p. 41).

Criminal Case No. 6443-MN (For Forcible Abduction with Rape)

At 10:30 in the morning of November 20, 1987, then 11-year old Mara N. Chico, herein private
complainant, was with her younger brother Daniel in front of King's Store at the Malabon Central
Market, upon instruction of their mother to buy "sago". At the said place, they were approached by
appellant, who asked her if she was involved in a theft of Nescafe coffee, and to which she
answered in the negative. Appellant thereafter asked her if she knew someone by the name of
Neneng, and when she answered in the affirmative, appellant suddenly poked a sharp instrument at
her neck and forced her and Daniel to go with him (tsn, December 12, 1988, pp. 2-3).

The three then boarded a pedicab and alighted somewhere in Dagat-Dagatan, Navotas, Metro
Manila. They walked to a grassy portion where Daniel was told by appellant to stay at a corner, while
appellant brought Mara to another portion with "talahib" growth, about four meters away. Appellant
then laid her on the ground and removed her shorts and panty, after which he removed his shorts
and brief, placed himself on top of Mara, and inserted his organ into hers. Mara cried out because of
the pain. Thereafter, appellant left the place (Ibid., pp. 3-5).

Mara and Daniel then ran towards a nearby motorshop where they told the owner that they were
lost. The motorshop owner asked jeepney driver to take them back to the market, from where they
were able to get home. Mara then told her mother what happened (Ibid., pp. 6-7), and both went to
the police station of Malabon where they were advised to go to the NBI for examination. The medical
examination conducted by Dr. Louella I. Mario at 4:00 PM of the same day revealed the following
findings:

Pubic hair, no growth. Labia Majora and minora, slightly gaping. Fourchette, tense.
Vestibular mucosa, congested. Hymen, thin, narrow, with fresh lacerations, complete
at 2:00 o'clock and 9:00 o'clock positions and compound at 6:00 o'clock position
extending to the fossa navicularis, edges bleeding profusely. Hymenal orifice,
originally annular, admits a tube, 2.5 cm. in diameter with moderate resistance.
Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:

1. The above-described extragenital physical injury was noted on the body of the
subject at the time of examination.

2. Genital findings compatible with sexual intercourse with man on or about the
alleged date of commission. (Record, p. 38)

Mara also gave a description of the rapist to an NBI artist who drew the suspect's face. She likewise
executed a sworn statement of the incident (Record, p. 36). On May 22, 1988, appellant was
arrested in connection with another crime and, while being detained at the Malabon Police Station,
he was positively identified by Mara as the one who abused her (tsn, December 12, 1988, p. 8).
(Appellee's Brief, pp. 5-13)

In offenses involving rape, this Court has set three (3) basic guiding principles in reviewing such cases: (1) an
accusation for rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though
innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two (2) persons are usually
involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the
prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the
evidence for the defense (People v. Casinillo, 213 SCRA 777 [1992]; People v. Calixtro, 193 SCRA 303 [1991]).
415

In other words in resolving whether or not rape was committed, the evidence for conviction must be clear and
convincing to overcome the constitutional presumption of innocence (People v. Tiwaken, 213 SCRA 701 [1992]).

Appellant vehemently questions the trial court's decision finding him guilty beyond reasonable doubt because the
prosecution witnesses allegedly failed to positively identify him. He avers that when he was arrested to answer for
an alleged wrongdoing on May 22, 1988, complainants were hesitant to point at him and kept on looking at their
parents.

Under the circumstances, the Court is of the opinion that the lingering shock caused by such harrowing experience
at the hands of appellant could have caused the minor complainants to hesitate in directly identifying him. Hence,
the fact that complainants kept on looking at their parents is of no moment. They were simply scared, looked at their
parents for assurance, and such initial hesitation could by no means indicate that complainants were guilty of
fabrication.

Although Lilibeth Bobis admitted that she was not able to immediately identify the appellant at the police station after
his arrest, she declared that she thought it over very carefully if the appellant was indeed the offender (TSN,
December 15, 1988, p. 11). The crime was committed on April 10, 1988 or one (1) month before Lilibeth Bobis was
again confronted with the man who had sexually abused her.

Appellant points out, however, that his actual physical features vary with the sketches prepared by the NBI artists
based on the description of the offender given by complainants Bobis and Chico (Exhs. 1 and 2). But this is beside
the point. Given the immaturity of complainants, it is of course natural that the sketches of appellant based on the
descriptions given by them would somehow differ with appellant's actual physical features.

What is important is that Bobis remembered the square shape of appellant's face, his eyes to be "singkit" and his
nose as "matangos" (TSN, December 15, 1989, pp. 11-15). Indeed, familiarity with the physical features, particularly
those of the face, is actually the best way to identify the person (People v. Reception, 198 SCRA 670 [1991]).

Appellant tries to convince Us that the respective testimonies of the three complainants identifying his as the guilty
party stemmed from their being influenced or conditioned by the police authorities to believe that he was the person
guilty of the offenses charged; and thus making it appear that the authorities were able to have solved the crimes
reported (Appellant's Brief, pp. 28-29).

It is an oft-repeated rule that police officers are presumed to have performed their duties regularly and in the
absence of any evidence to the contrary, their testimonies are entitled to full faith and credit (People v. Tubora, 212
SCRA 32 [1992]. There being not a scintilla of evidence to prove ill-motive on the part of the police officers in the
instant cases, their testimonies are to be respected.

Appellant also argues that the prosecution failed to establish the essential elements of robbery since no evidence
was offered by the prosecution to prove that violence or intimidation was inflicted upon complainants.

We disagree. While it is true that complainant Yutuc testified that the man who took her jewelry did not force or hurt
her and just asked for her earrings and ring (TSN, February 27, 1989, pp. 5-6), this does not preclude the findings of
the trial court that robbery with intimidation was committed. Intimidation is a relative term, just like force and
violence, depending on the age, size and strength of the parties and their relationship with each other (People
v. Alvarez, 213 SCRA 722 [1992]; People v. Natan, 193 SCRA 355 [1991]). The offended parties in these cases are
of tender ages — all below twelve years of age.

In accordance with the findings of the court a quo appellant had imputed on Lilibeth Bobis and Jacquiline Yutuc, the
commission of the crime of theft which must have inspired fear in their young minds, prompting them to obey the
former and not to resist when the appellant deprived them of their personal property, particularly Lilibeth, who also
lost her virginity to appellant (Rollo, p. 96; Joint Decision, p. 7).

With regard to the crime of Forcible Abduction with Rape committed against the person of 11-year old Mara Chico,
appellant claims that the testimony of complainant Chico should not have been considered by the trial court since it
was not corroborated by Chico's younger brother and the pedicab driver.

We find appellant's contention unmeritorious. It is well settled that the testimony of a single witness, free from any
signs of impropriety or falsehood, is sufficient to convict an accused, even if uncorroborated. In the instant case, the
testimonies of eight-year old Daniel and the pedicab driver would have been merely corroborative. Furthermore,
there is no showing that the privilege to present Chico's brother and the pedicab driver was withheld from appellant.
In any event, the prosecution has the prerogative to present as many witnesses it deems proper and the non-
presentation of some does not militate against the State for the number of such witnesses is addressed to the sound
discretion of the prosecuting officers.

Thus, the testimony of Mara Chico, if positive, reasonable and credible, is sufficient to support a conviction
especially if her testimony bears the earmarks of truth and sincerity and had been delivered spontaneously,
416

naturally and in a straightforward manner (People v. Javier, 182 SCRA 830 [1990]). Corroborative evidence is
necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that his
observation had been inaccurate (People v. Dela Cruz, 207 SCRA 632 [1992]).

In the present case, such criteria were more than met by the testimony of the young and innocent victim who could
not have possibly concocted her testimony. Where the victims are of tender years, "there is a marked receptivity on
its (the Court's) part to lend credence to their version of what transpired," a matter that is not to be wondered at,
since the State, as parens patriae, is under the obligation to minimize the risk of harm to those who, because of
their minority are not yet able to fully protect themselves (People v. Cabodac, 208 SCRA 787 [1992] citing People v.
Baylon, 57 SCRA 114 [1974]).

Indeed, it is inconceivable for a parent of a child of tender age to fabricate a rape charge, subject her daughter to
physical examination and embarrassment of a public trial which, if not true, would taint her reputation for the rest of
her life. Moreover, no woman especially of tender age would concoct a story of defloration, allow an examination of
her private parts and thereafter pervert herself by being subjected to a public trial if she was not motivated solely by
a desire to have the culprit apprehended and punished (People v. Yambao, 193 SCRA 571 [1991]).

Just as unavailing is appellant's defense of alibi. He claims that he was at home at Pilapil, Tondo, Manila on
November 20, 1987 with his common-law wife and her three minor children. During those days when the crimes
charged were committed, appellant denies having gone to Malabon.

However, appellant failed to show that it was impossible for him to be in the crime scene at the time the said crimes
were committed. In order to be given full faith and credit, alibi must be clearly established and must not leave any
room for doubt as to its plausibility and verity (People v. Simon, 209
SCRA 148 [1992]). Indeed, appellant even admitted that he was familiar with San Bartolome Church in Malabon
(TSN, September 4, 1989, p. 7) and further testified that he used to reside in Longos, Dagat-Dagatan and was
arrested near the said church on May 22, 1988 on account of having taken the wristwatch of an eleven year old girl
(Ibid., pp. 7 & 9).

It has been repeatedly held that for alibi to prosper, it is not enough to prove that the appellant was somewhere else
when the crime was committed, but must likewise demonstrate that he could not have been physically present at the
place of the crime or its immediate vicinity at the time of its commission (People v. Ocimar, 212 SCRA 646 [1992]).

Appellant also assails the application of the doctrine of res inter alios acta (Sec. 34, Rule 130 of the Revised Rules
of Evidence) allegedly because the similarity of the acts involved (i.e., molestation) was not sufficiently established.

After careful review of the records before us, we hold that the trial court committed no error in applying the exception
to the above doctrine. The Rules provide:

Sec. 34. Similar acts as evidence. — Evidence that one did or did not a certain thing at one time is
not admissible to prove that he did or did not do the same or similar thing at another time; but it may
be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or
usage, and the like (Emphasis supplied.)

As a rule, evidence is not admissible which shows or tends to show, that the accused in a criminal case has
committed a crime wholly independent of the offense for which he is on trial. It is not competent to prove that he
committed other crimes of a like nature for the purpose of showing that he committed the crime charged in the
complaint or information.

An exception to this rule is when such evidence tends directly to establish the particular crime, and it is usually
competent to prove the motive, the intent, the absence of mistake or accident, a common scheme or plan embracing
the commission of two or more crimes so related to each other that proof of one tends to establish the other, or the
identity of the person charged with the commission of the crime on trial.

In the case at bar, evidence was introduced in Criminal Case No. 6443 (Forcible Abduction with Rape) committed by
appellant against 11-year old Mara N. Chico on November 20, 1987, not as evidence of similar acts to prove that on
April 10, 1988, the said appellant also committed a similar act of rape (and robbery) against the person of 10-year
old Lilibeth Bobis (Criminal Case No. 6436). These offenses are separate crimes and are the subject of separate
complaints and proofs though jointly tried. Hence, the evidence in one was not offered and admitted to prove the
other but only to show the plan, scheme or modus operandi of the offender.

As aptly noted by the trial court:

It is to be observed that in all the above-entitled cases, the modus operandi of the offender is that of
approaching young girls of not more than twelve years of age, and taking advantage of their
innocence, imputed to them the commission of a crime and brought them to an isolated place where
the offenses charged were committed. These young girls narrated in detail in a clear and convincing
417

manner what the offender did to them and likewise positively identified said offender as herein
accused during the investigation at the Malabon Police Station on May 22, 1988 immediately after
the arrest of the accused, as well as during the trial. Thus, Section 34, Rule 130 of the Revised
Rules of Evidence provides that evidence that one did or did not do a certain thing at one time may
be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or
usage and the like. (Rollo, p. 28; Joint Decision, p. 6)

Appellant concludes that the prosecution failed to establish his guilt beyond reasonable doubt. It is well-settled that
for a conviction to occur, absolute certainty of guilt is not demanded. Only moral certainty as to the presence of the
elements constituting the offense, as well as to the identity of the offender, is required; in short, what is needed is
that degree of proof which produces conviction in an unprejudiced mind (People v. Casinillo, supra). The
conscience must be satisfied that upon the accused could be laid the responsibility for the offense charged: that not
only did he perpetrate the act but, that it amounted to a crime (People v. Ramos, 162 SCRA 804 [1988]).

In the present case, We see no cogent reason to depart from the ruling of the trial court. The prosecution has
satisfactorily established beyond reasonable doubt that appellant was the author of the crimes charged in the
aforementioned informations. Appellant should not be allowed to escape the punishment he deserves for his bestial
acts. As this Court ruled in People v. Desuyo (164 SCRA 210 [1988]):

Defilers of woman are an especially despicable ilk of evil men, and more so those who would inflict
their lasciviousness upon innocent and defenseless children. They are filthier than the slime where
they belong. Whatever punishment is imposed on them can never expiate their loathsome offense,
for which forgiveness itself from a mortal court, at least, would be a sin.

WHEREFORE the appealed judgment is hereby AFFIRMED. Costs against appellant.

SO ORDERED.

Feliciano, Romero, Melo and Vitug, JJ., concur.

G.R. Nos. 92961-64 September 1, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. BENJAMIN C. MAGPAYO, accused-
appellant.
FACTS:

Appellant Benjamin C. Magpayo was charged with Rape, Robbery, Robbery with Hold-up and
Forcible Abduction with Rape before the Regional Trial Court of Malabon in four (4) separate
complaints and informations allegedly committed. He was charged for the (1) rape of a minor, Lilibeth
Bobis, on April 10, 1988; (2) robbery of the Lilibeth’s cash money on the same date; (3) robbery with
hold-up on an 8-year-old Jacquiline Yutuc-Jaime of her earrings and gold ring on February 1988; and
(4) forcible abduction with rape of Mara N. Chico on November 1987.

Magpayo entered a plea of not guilty to all charges. However, after trial, he was found guilty of all
offenses charged in a joint decision rendered by the trial court.

In the first case of rape, victim Lilibeth was able to provide a description of her rapist to the NBI artist,
who, on the basis thereof, made a sketch of the rapist’s face. She also clearly identified the accused
as her rapist, after referring to the shape of his nose as “matangos” and the eyes as “singkit”, in the
police station. Simarly on the case for forcible abduction with rape, the victim Mara also gave a
description to an NBI artist who drew the suspect’s face. On May 22, 1998, the victims Lilibeth, Mara
and Jacquiline (case for robbery hold-up) were able to positively identify the appellant as the
perpetrator of the crimes when the latter was arrested by the police and brought to the police station.

Appellant vehemently questions the trial court’s decision finding him guilty beyond reasonable doubt
because the prosecution witnesses allegedly failed to positively identify him. He avers that when he
was arrested to answer for an alleged wrongdoing on May 22, 1988, complainants were hesitant to
point at him and kept on looking at their parents.

ISSUE: WHETHER OR NOT THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY
BEYOND REASONABLE DOUBT IN THE FOUR CHARGES, DESPITE ABSENCE OF PROOF
THAT HE IS THE PERPETRATOR OF THE CRIMES CHARGED.
418

RULING: NO.

Under the circumstances, the Court is of the opinion that the lingering shock caused by such
harrowing experience at the hands of appellant could have caused the minor complainants to hesitate
in directly identifying him. Hence, the fact that complainants kept on looking at their parents is of no
moment. They were simply scared, looked at their parents for assurance, and such initial hesitation
could by no means indicate that complainants were guilty of fabrication.

Although Lilibeth Bobis admitted that she was not able to immediately identify the appellant at the
police station after his arrest, she declared that she thought it over very carefully if the appellant was
indeed the offender. The crime was committed on April 10, 1988 or one (1) month before Lilibeth
Bobis was again confronted with the man who had sexually abused her.

Appellant points out, however, that his actual physical features vary with the sketches prepared by
the NBI artists based on the description of the offender given by complainants Bobis and Chico. But
this is beside the point. Given the immaturity of complainants, it is of course natural that the sketches
of appellant based on the descriptions given by them would somehow differ with appellant’s actual
physical features.

What is important is that Bobis remembered the square shape of appellant’s face, his eyes to be
“singkit” and his nose as “matangos”. Indeed, familiarity with the physical features, particularly those
of the face, is actually the best way to identify the person (People v. Reception, 198 SCRA 670
[1991]).

JUDGMENT OF TRIAL COURT AFFIRMED.

1. Rule 130 Section 48 – Opinion Rule

NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON. MANUEL D. VICTORIO, as

Presiding Judge of RTC-Rosales, Pangasinan, Branch 53, and JUAN SIM, Respondents.

Quisumbing, Torres & Evangelista for Petitioner.

Bince, Oficiana & Dancel for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT

PRIVILEGE; RATIONAL BEHIND THE RULE. — This rule on the physician-patient privilege is intended
to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts,
circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for
the general interest of the community.

2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. — Since the object of the privilege is to protect the
patient, it may be waived if no timely objection is made to the physician’s testimony.

3. ID.; ID.; ID.; ID.; ID.; REQUISITES. — In order that the privilege may be successfully claimed,
the following requisites must concur: "1. the privilege is claimed in a civil case; 2. the person against
whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; 3.
such person acquired the information while he was attending to the patient in his professional
capacity; 4. the information was necessary to enable him to act in that capacity; and 5. the
information was confidential, and, if disclosed, would blacken the reputation (formerly character) of
the patient."cralaw virtua1aw library

4. ID.; ID.; ID.; ID.; CONDITIONS. — These requisites conform with the four (4) fundamental
conditions necessary for the establishment of a privilege against the disclosure of certain
419

communications, to wit: "1. The communications must originate in a confidence that they will not be
disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance
of the relation between the parties. 3. The relation must be one which in the opinion of the
community ought to be sedulously fostered 4. The injury that would inure to the relation by the
disclosure of the communications must be greater than the benefit thereby gained for the correct
disposal of litigation."
cralaw virtua1aw library

5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. — The physician may be considered to
be acting in his professional capacity when he attends to the patient for curative, preventive, or
palliative treatment. Thus, only disclosures which would have been made to the physician to enable
him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized
that "it is the tenor only of the communication that is privileged. The mere fact of making a
communication, as well as the date of a consultation and the number of consultations, are therefore
not privileged from disclosure, so long as the subject communicated is not stated." cralaw virtua1aw library

6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO CLAIMS PRIVILEGED
COMMUNICATIONS MUST PROVE REQUISITES THEREOF. — One who claims this privilege must prove
the presence of these aforementioned requisites.

7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; INFORMATION

GATHERED IN PRESENCE OF THIRD PARTIES, NOT PRIVILEGED. — There is authority to the effect
that information elicited during consultation with a physician in the presence of third parties removes
such information from the mantle of the privilege: "Some courts have held that the casual presence
of a third person destroys the confidential nature of the communication between doctor and patient
and thus destroys the privilege, and that under such circumstances the doctor may testify. Other
courts have reached a contrary result." cralaw virtua1aw library

8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. — while it may be true that
counsel for the petitioner opposed the oral request for the issuance of a subpoena ad testificandum
to Dr. Acampado and filed a formal motion for the quashal of the said subpoena a day before the
witness was to testify, the petitioner makes no claim in any of her pleadings that her counsel had
objected to any question asked of the witness on the ground that it elicited an answer that would
violate the privilege, despite the trial court’s advise that said counsel may interpose his objection to
the testimony "once it becomes apparent that the testimony, sought to be elicited is covered by the
privileged communication rule." The particular portions of the stenographic notes of the testimony of
Dr. Acampado quoted in the petitioner’s Petition and Memorandum, and in the private respondent’s
Memorandum, do not at all show that any objections were interposed. Even granting ex gratia that
the testimony of Dr. Acampado could be covered by the privilege, the failure to seasonably object
thereto amounted to a waiver thereof.

DECISION

DAVIDE, JR., J.:

This petition brings into focus the rule on the confidentiality of the physician-patient relationship.
Petitioner urges this Court to strike down as being violative thereof the resolution of public
respondent Court of Appeals in C.A.-G.R. SP No. 16991 denying due course to a petition to annul the
order of the trial court allowing a Psychiatrist of the National Mental Hospital to testify as an expert
witness and not as an attending physician of petitioner.

The parties are in agreement as to the following facts: chanrob1es virtual 1aw library

Petitioner and private respondent are lawfully married to each other.

On 25 November 1987, private respondent filed with Branch 53 of the Regional Trial Court (RTC) of
Pangasinan a petition for annulment of such marriage on the ground that petitioner has been
allegedly suffering from a mental illness called schizophrenia "before, during and after the marriage
and until the present." After the issues were joined and the pre-trial was terminated, trial on the
merits ensued. Private respondent presented three (3) witnesses before taking the witness stand
himself to testify on his own behalf. On 11 January 1989, private respondent’s counsel announced
that he would present as his next witness the Chief of the Female Services of the National Mental
420

Hospital, Dr. Lydia Acampado, a Doctor of Medicine who specializes in Psychiatry. Said counsel
forthwith orally applied for the issuance of a subpoena ad testificandum requiring Dr. Acampado to
testify on 25 January 1989. Petitioner’s counsel opposed the motion on the ground that the
testimony sought to be elicited from the witness is privileged since the latter had examined the
petitioner in a professional capacity and had diagnosed her to be suffering from schizophrenia. Over
such opposition, the subpoena was issued on 12 January 1989. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On 24 January 1989, petitioner’s counsel filed an urgent omnibus motion to quash the subpoena and
suspend the proceedings pending resolution of the motion.

Before Dr. Acampado took the witness stand on 25 January 1989, the court heard this urgent
motion. Movant argued that having seen and examined the petitioner in a professional capacity, Dr.
Acampado is barred from testifying under the rule on the confidentiality of a physician-patient
relationship. Counsel for private respondent contended, however, that Dr. Acampado would be
presented as an expert witness and would not testify on any information acquired while attending to
the petitioner in a professional capacity. The trial court, per respondent Judge, denied the motion and
allowed the witness to testify. Dr. Acampado thus took the witness stand, was qualified by counsel
for private respondent as an expert witness and was asked hypothetical questions related to her field
of expertise. She neither revealed the illness she examined and treated the petitioner for nor
disclosed the results of her examination and the medicines she had prescribed.

Since petitioner’s counsel insisted that the ruling of the court on the motion be reduced to writing,
respondent Judge issued the following Order on the same date: jgc:chanrobles.com.ph

"In his omnibus motion filed with the Court only yesterday, January 24, 1989, petitioner seeks to
prevent Dr. Lydia Acampado from testifying because she saw and examined respondent Nelly Lim in
her professional capacity perforce her testimony is covered by the privileged (sic) communication
rule.

Petitioner contends that Dr. Acampado is being presented as an expert witness and that she will not
testify on any information she acquired in (sic) attending to Nelly Lim in her professional capacity.

Based on the foregoing manifestation of counsel for petitioner, the Court denied the respondent’s
motion and forthwith allowed Dr. Acampado to testify. However, the Court advised counsel for
respondent to interpose his objection once it becomes apparent that the testimony sought to be
elicited is covered by the privileged communication rule.

On the witness box, Dr. Acampado answered routinary (sic) questions to qualify her as an expert in
psychiatry; she was asked to render an opinion as to what kind of illness (sic) are stelazine tablets
applied to; she was asked to render an opinion on a (sic) hypothetical facts respecting certain
behaviours of a person; and finally she admitted she saw and treated Nelly Lim but she never
revealed what illness she examined and treated her (sic); nor (sic) the result of her examination of
Nelly Lim, nor (sic) the medicines she prescribed.

WHEREFORE, the omnibus motion dated January 19, 1989 is hereby DENIED." 1

On 3 March 1989, petitioner filed with the public respondent Court of Appeals a petition 2
for certiorari and prohibition, docketed therein as C.A.-G.R. SP No. 16991, to annul the aforesaid
order of respondent Judge on the ground that the same was issued with grave abuse of discretion
amounting to lack of jurisdiction, and to prohibit him from proceeding with the reception of Dr.
Acampado’s testimony. chanrobles.com : virtual law library

On 18 September 1989, the Court of Appeals promulgated a resolution 3 denying due course to the
petition on the ground that "the petitioner failed in establishing the confidential nature of the
testimony given by or obtained from Dr. Acampado when she testified on January 25, 1989." Hence,
the respondent Judge committed no grave abuse of discretion. In support thereof, the respondent
Court discussed the conditions which would render as inadmissible testimonial evidence between a
physician and his patient under paragraph (c), Section 24, Rule 130 of the Revised Rules of Court
and made the following findings: jgc:chanrobles.com.ph

"The present suit is a civil case for annulment of marriage and the person whose testimony is sought
to be stopped as a privileged communication is a physician, who was summoned by the patient in her
professional capacity for curative remedy or treatment. The divergence in views is whether the
information given by the physician in her testimony in open court on January 25, 1989 was a
privileged communication. We are of the opinion that they do not fall within the realm of a privileged
421

communication because the information were (sic) not obtained from the patient while attending her
in her professional capacity and neither were (sic) the information necessary to enable the physician
to prescribe or give treatment to the patient Nelly Lim. And neither does the information obtained
from the physician tend to blacken the character of the patient or bring disgrace to her or invite
reproach. Dr. Acampado is a Medical Specialist II and in-charge (sic) of the Female Service of the
National Center for Mental Health a fellow of the Philippine Psychiatrist Association and a Diplomate
of the Philippine Board of Psychiatrists. She was summoned to testify as an expert witness and not as
an attending physician of petitioner.

After a careful scrutiny of the transcript of Dr. Acampado’s testimony, We find no declaration that
touched (sic) or disclosed any information which she has acquired from her patient, Nelly Lim, during
the period she attended her patient in a professional capacity. Although she testified that she
examined and interviewed the patient, she did not disclose anything she obtained in the course of
her examination, interview and treatment of her patient. Given a set of facts and asked a
hypothetical question, Dr. Acampado rendered an opinion regarding the history and behaviour of the
fictitious character in the hypothetical problem. The facts and conditions alleged in the hypothetical
problem did not refer and (sic) had no bearing to (sic) whatever information or findings the doctor
obtained from attending the (sic) patient. A physician is not disqualified to testify as an expert
concerning a patient’s ailment, when he can disregard knowledge acquired in attending such patient
and make answer solely on facts related in (sic) the hypothetical question. (Butler v. Role, 242 Pac.
436; Supreme Court of Arizona Jan. 7, 1926). Expert testimony of a physician based on hypothetical
question (sic) as to cause of illness of a person whom he has attended is not privileged, provided the
physician does not give testimony tending to disclose confidential information related to him in his
professional capacity while attending to the patient. (Crago v. City of Cedar Rapids, 98 NW 354, see
Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).

The rule on privilege (sic) communication in the relation of physician and patient proceeds from the
fundamental assumption that the communication to deserve protection must be confidential in their
origin. Confidentiality is not to be blindly implied from the mere relation of physician and patient. It
might be implied according to circumstances of each case, taking into consideration the nature of the
ailment and the occasion of the consultation. The claimant of the privilege has the burden of
establishing in each instance all the facts necessary to create the privilege, including the confidential
nature of the information given." 4

Her motion to reconsider the resolution having been denied, petitioner took this recourse under Rule
45 of the Rules of Court. In her view, the respondent Court of Appeals "seriously erred" : chanrob1es virtual 1aw library

"I.

. . . in not finding that all the essential elements of the rule on physician-patient privileged
communication under Section 21, Rule 130 of the Rules of Court (Section 24, Rule 130 of the Revised
Rules of Evidence) exist in the case at bar.

II.

. . . in believing that Dr. Acampado ‘was summoned as an expert witness and not as an attending
physician of petitioner.’

III.

. . . in concluding that Dr. Acampado made ‘no declaration that touched (sic) or disclosed any
information which she has acquired from her patient, Nelly Lim, during the period she attended her
patient in a professional capacity.’

IV.

. . . in declaring that ‘the petitioner failed in establishing the confidential nature of the testimony
given by or obtained from Dr. Acampado.’" 5

We gave due course to the petition and required the parties to submit their respective Memoranda 6
after the private respondent filed his Comment 7 and the petitioner submitted her reply 8 thereto.
422

The parties subsequently filed their separate Memoranda.

The petition is devoid of any merit. Respondent Court of Appeals committed no reversible error in its
challenged resolution.

The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence which reads: jgc:chanrobles.com.ph

"SECTION 24. Disqualification by reason of privileged communication. — The following persons

cannot testify as to matters learned in confidence in the following cases: chanrob1es virtual 1aw library

x          x           x

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

This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of Court with
two (2) modifications, namely: (a) the inclusion of the phrase "advice or treatment given by him,"
and (b) substitution of the word reputation for the word character. Said Section 21 in turn is a
reproduction of paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court with a modification
consisting in the change of the phrase "which would tend to blacken" in the latter to "would blacken."
9 Verily, these changes affected the meaning of the provision. Under the 1940 Rules of Court, it was
sufficient if the information would tend to blacken the character of the patient. In the 1964 Rules of
Court, a stricter requirement was imposed; it was imperative that the information would blacken
such character. With the advent of the Revised Rules on Evidence on 1 July 1989, the rule was
relaxed once more by the substitution of the word character with the word reputation. There is a
distinction between these two concepts." ‘Character’ is what a man is, and ‘reputation’ is what he is
supposed to be in what people say he is.’Character’ depends on attributes possessed, and
‘reputation’ on attributes which others believe one to possess. The former signifies reality and the
latter merely what is accepted to be reality at present." 10

This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential
disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the witness stand, to
the end that the physician may form a correct opinion, and be enabled safely and efficaciously to
treat his patient. 11 It rests in public policy and is for the general interest of the community. 12

Since the object of the privilege is to protect the patient, it may be waived if no timely objection is
made to the physician’s testimony. 13

In order that the privilege may be successfully claimed, the following requisites must concur: jgc:chanrobles.com.ph

"1. the privilege is claimed in a civil case;

2. the person against whom the privilege is claimed is one duly authorized to practice medicine,
surgery or obstetrics;

3. such person acquired the information while he was attending to the patient in his professional
capacity;

4. the information was necessary to enable him to act in that capacity; and

5. the information was confidential, and, if disclosed, would blacken the reputation (formerly
character) of the patient." 14

These requisites conform with the four (4) fundamental conditions necessary for the establishment of
a privilege against the disclosure of certain communications, to wit: jgc:chanrobles.com.ph

"1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the
relation between the parties.
423

3. The relation must be one which in the opinion of the community ought to be sedulously fostered

4. The injury that would inure to the relation by the disclosure of the communications must be
greater than the benefit thereby gained for the correct disposal of litigation." 15

The physician may be considered to be acting in his professional capacity when he attends to the
patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have
been made to the physician to enable him "safely and efficaciously to treat his patient" are covered
by the privilege. 16 It is to be emphasized that "it is the tenor only of the communication that is
privileged. The mere fact of making a communication, as well as the date of a consultation and the
number of consultations, are therefore not privileged from disclosure, so long as the subject
communicated is not stated." 17

One who claims this privilege must prove the presence of these aforementioned requisites. 18

Our careful evaluation of the submitted pleadings leads Us to no other course of action but to agree
with the respondent Court’s observation that the petitioner failed to discharge that burden. In the
first place, Dr. Acampado was presented and qualified as an expert witness. As correctly held by the
Court of Appeals, she did not disclose anything obtained in the course of her examination, interview
and treatment of the petitioner; moreover, the facts and conditions alleged in the hypothetical
problem did not refer to and had no bearing on whatever information or findings the doctor obtained
while attending to the patient. There is, as well, no showing that Dr. Acampado’s answers to the
questions propounded to her relating to the hypothetical problem were influenced by the information
obtained from the petitioner. Otherwise stated, her expert opinion excluded whatever information or
knowledge she had about the petitioner which was acquired by reason of the physician-patient
relationship existing between them. As an expert witness, her testimony before the trial court cannot
then be excluded. The rule on this point is summarized as follows: chanrobles virtual lawlibrary

"The predominating view, with some scant authority otherwise, is that the statutory physician-patient
privilege, though duly claimed, is not violated by permitting a physician to give expert opinion
testimony in response to a strictly hypothetical question in a lawsuit involving the physical mental
condition of a patient whom he has attended professionally, where his opinion is based strictly upon
the hypothetical facts stated, excluding and disregarding any personal professional knowledge he
may have concerning such patient. But in order to avoid the bar of the physician-patient privilege
where it is asserted in such a case, the physician must base his opinion solely upon the facts
hypothesized in the question, excluding from consideration his personal knowledge of the patient
acquired through the physician and patient relationship. If he cannot or does not exclude from
consideration his personal professional knowledge of the patient’s condition he should not be
permitted to testify as to his expert opinion." 19

Secondly, it is quite clear from Dr. Acampado’s testimony that the petitioner was never interviewed
alone. Said interviews were always conducted in the presence of a third party, thus: jgc:chanrobles.com.ph

"Q I am asking you, doctor, whom did you interview?

A I interviewed the husband first, then the father and after having the history, I interviewed the
patient, Nelly.

Q How many times did Juan Sim and Nelly Lim go to your office?

A Now, the two (2) of them came three (3) times. As I have stated before, once in the month of April
of 1987 and two (2) times for the month of June 1987, and after that, since July of 1987, it was the
father of Nelly, Dr. Lim, who was bringing Nelly to me until November of 1987.

Q Now, Dr. Lim is a fellow physician?

A Yes, I understand.

Q Was there anything that he told you when he visited with you in a clinic?

A I would say that there was none. Even if I asked information about Nelly, I could not get anything
from Dr. Lim.

Q Now, when Dr. Lim and his daughter went to your clinic, was there any doctor who was also
424

present during that interview?

A No, sir, I don’t remember any." 20

There is authority to the effect that information elicited during consultation with a physician in the
presence of third parties removes such information from the mantle of the privilege: jgc:chanrobles.com.ph

"Some courts have held that the casual presence of a third person destroys the confidential nature of
the communication between doctor and patient and thus destroys the privilege, and that under such
circumstances the doctor may testify. Other courts have reached a contrary result." 21

Thirdly, except for the petitioner’s sweeping claim — that" (T)he information given by Dr. Acampado
brings disgrace and invite (sic) reproach to petitioner by falsely making it appear in the eyes of the
trial court and the public that the latter was suffering from a mental disturbance called schizophrenia
— which caused, and continues to cause, irreparable injury to the name and reputation of petitioner
and her family," 22 — which is based on a wrong premise, nothing specific or concrete was offered to
show that indeed, the information obtained from Dr. Acampado would blacken the former’s
"character" (or "reputation"). Dr. Acampado never disclosed any information obtained from the
petitioner regarding the latter’s ailment and the treatment recommended therefor. chanrobles.com : virtual law library

Finally, while it may be true that counsel for the petitioner opposed the oral request for the issuance
of a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the quashal of the said
subpoena a day before the witness was to testify, the petitioner makes no claim in any of her
pleadings that her counsel had objected to any question asked of the witness on the ground that it
elicited an answer that would violate the privilege, despite the trial court’s advise that said counsel
may interpose his objection to the testimony "once it becomes apparent that the testimony, sought
to be elicited is covered by the privileged communication rule." The particular portions of the
stenographic notes of the testimony of Dr. Acampado quoted in the petitioner’s Petition 23 and
Memorandum, 24 and in the private respondent’s Memorandum, 25 do not at all show that any
objections were interposed. Even granting ex gratia that the testimony of Dr. Acampado could be
covered by the privilege, the failure to seasonably object thereto amounted to a waiver thereof.

WHEREFORE, the instant petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.

Bidin, Romero and Melo, JJ., concur.

Gutierrez, Jr., J., is on official leave.

Nelly Lim vs Court of Appeals Case Digest

In order that the disqualification by reason of physician-patient privilege be successfully  claimed,
the following requisites should concur: (1) the privilege is claimed in a civil case; (2) the person
against whom the privilege is claimed is one duly authorized to practice medicine, surgery or
obstetrics; (3) such person acquired the information while he was attending to the patient in his
professional capacity; (4) the information was necessary to enable him to act in that capacity; (5)
the information was confidential and if disclosed, would blacken the reputation of the patient.

Facts:

Juan filed a petition for annulment of his marriage with Nelly on the ground that the latter has been allegedly
suffering from a mental illness called schizophrenia "before, during and after the marriage and until the present."
During trial, Juan's counsel announced that he would present as his next witness Dr. Lydia Acampado, a Doctor of
Medicine who specializes in Psychiatry. Said counsel forthwith orally applied for the issuance of a subpoena ad
testificandum. Nelly's counsel opposed the motion on the ground that the testimony sought to be elicited from the
425

witness is privileged since the latter had examined the Nelly in a professional capacity and had diagnosed her to be
suffering from schizophrenia. Juan's counsel contended, however, that Dr. Acampado would be presented as an
expert witness and would not testify on any information acquired while attending to Nelly in a professional capacity.
The trial court denied the motion and allowed the witness to testify. Dr. Acampado thus took the witness stand, was
qualified as an expert witness and was asked hypothetical questions related to her field of expertise. She neither
revealed the illness she examined and treated Nelly for nor disclosed the results of her examination and the
medicines she had prescribed.

Issues:

1. Was the information given by the physician in her testimony in open court a privileged communication?

2. Was there a waiver of the privilege?

Held:

1. No. The physician may be considered to be acting in his professional capacity when he attends to the patient for
curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to
enable him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized that "it is
the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date
of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject
communicated is not stated." One who claims this privilege must prove the presence of these aforementioned
requisites.

Dr. Acampado was presented and qualified as an expert witness. She did not disclose anything obtained in the course
of her examination, interview and treatment of the petitioner; moreover, the facts and conditions alleged in the
hypothetical problem did not refer to and had no bearing on whatever information or findings the doctor obtained
while attending to the patient. There is, as well, no showing that Dr. Acampado’s answers to the questions
propounded to her relating to the hypothetical problem were influenced by the information obtained from the
petitioner. Otherwise stated, her expert opinion excluded whatever information or knowledge she had about the
petitioner which was acquired by reason of the physician-patient relationship existing between them . As an
expert witness, her testimony before the trial court cannot then be excluded.

2. Yes. While it may be true that counsel for the petitioner opposed the oral request for the issuance of a subpoena ad
testificandum to Dr. Acampado and filed a formal motion for the quashal of the said subpoena a day before the
witness was to testify, the petitioner makes no claim in any of her pleadings that her counsel had objected to any
question asked of the witness on the ground that it elicited an answer that would violate the privilege, despite the
trial court’s advise that said counsel may interpose his objection to the testimony "once it becomes apparent that the
testimony, sought to be elicited is covered by the privileged communication rule." The particular portions of the
stenographic notes of the testimony of Dr. Acampado quoted in the petitioner’s Petition and Memorandum, and in
the private respondent’s Memorandum, do not at all show that any objections were interposed. Even granting ex
gratia that the testimony of Dr. Acampado could be covered by the privilege, the failure to seasonably object
thereto amounted to a waiver thereof. (Nelly Lim vs. CA,  G.R. No. 91114. September 25, 1992)
426

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOERAL GALLENO, accused-appellant. GR No.

123546 July 2, 1998

FACTS: Evelyn Garganera, 5 years old, and Eleazar, 3 years old, was left under the care and custody of their
uncle, Emetario Obligar, and aunt, Penicola Obligar. On August 16, 1994, Emetario and Penicola left their
residence to work at sugarcane plantation owned by Magdalena Dasibar. The only persons left in

the house were niece Evelyn and nephew Eleazar. According to the prosecution, appellant took advantage of
the situation by sexually molesting Evelyn. As Evelyn was only five-years old while appellant was fully-grown
man, the penetration caused the child's vagina to bleed, making her cry in pain. On the other hand, Galleno
denied the allegations and presented his own version of the story. According to him, he was merely playing
with the two children. He cajoled Evelyn by throwing her up and down, his right hand holding the child and his
left hand covering her vagina. Upon lifting up the child the first time, his left ring finger was accidentally inserted
into the vagina of child since his fingernail was long and the child was not wearing any underwear.
Consequently, Evelyn began to cry because her vagina started to bleed. The trial court did not accord
credence to the version of the defense, and thus convicted him of rape. The case has been elevated to the
Supreme Court for automatic review, and one of the contentions of the accused-appellant Galleno was that his
testimony should have been admitted by the trial court. ISSUE: Whether or not the testimony of the accused is
admissible in evidence. RULING: The testimony of Joeral Galleno is inadmissible. Section 4, Rule 128 of the
Rules of Court provides that "evidence must have such a relation to the fact in issue as to induce belief in its
existence or nor-existence." This simply means that relevancy is determinable by the rules of logic and human
experience. There is no precise and universal test of relevancy provided by law. However, the determination of
whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised
according to the teachings of logic and everyday experience. There is no explanation how the left ring finger
(allegedly with long fingernail) of accusedappellant penetrated the victim's vagina by a depth of one fourth of
an inch. Accused-appellant likewise failed to explain why after injuring Evelyn, he left her in the company of an
even younger child, the victim's 3-year old brother. He did not even make an effort to immediately inform
Emeterio and Penicola of what happened. Instead, he went home and kept mum about the incident. All of
these loopholes are palpable and manifest, and clearly work against the credibility of accused-appellant's story
on which his defense is based.

E vidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence.
Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish
the probability or improbability of the fact in issue. (Sec. 4 Rule 128)

G.R. No. 123546 July 2, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

JOERAL GALLENO, accused-appellant.

PER CURIAM:

What could be more compelling than deciding a case which involves the sexual abuse of a five-year old child?
Equally important is the fact that the case before us involves the highest penalty imposable by law. Being the
guardian of the most fundamental liberties of every citizen, the Court must pass upon every intricate detail of the
case at bar to determine whether or not accused-appellant committed the gruesome act imputed against him.

Accused-appellant Joeral Galleno seeks reversal of the judgment of Branch 14 of the Regional Trial Court of the 6th
Judicial Region stationed in Roxas City, relying on the defense of denial. Since the case involves the death penalty,
the matter has been elevated to this Court for automatic review.

Accused-appellant was charged in an Information docketed as Criminal Case No. C-4629 for the crime of Statutory
Rape, reading as follows:
427

The undersigned Assistant Provincial Prosecutor, upon prior authority and approval of the Provincial
Prosecutor, and the original complaint filed by the guardian of the offended party, accuses JOERAL
GALLENO of the crime of STATUTORY RAPE, committed as follows:

That on or about 5:00 o'clock in the afternoon of August 16, 1994, at Brgy. Balighot, Maayon, Capiz,
and within the jurisdiction of this Court, the said accused did, then and there, wilfully and feloniously,
and without the permission of anyone, enter the house of EVELYN OBLIGAR, a five-year old child,
and succeeded in having carnal knowledge of her thereby inflicting upon the latter a vaginal
laceration which caused continuous bleeding and her admission of five (5) days at the Roxas
Memorial Hospital.

CONTRARY TO LAW.

(p. 9, Rollo.)

Accused-appellant entered a plea of not guilty. Thereafter, trial on the merits ensued, resulting in a judgment of
conviction, the dispositive portion of which reads:

IN THE LIGHT OF THE FOREGOING ESTABLISHED FACTS, the Court finds accused JOERAL
GALLENO GUILTY beyond reasonable doubt under Section 11 of Republic Act No. 7659 amending
Article 335 of the Revised Penal Code.

Accordingly, accused JOERAL GALLENO is sentenced to suffer the supreme penalty of DEATH and
to indemnify the victim Evelyn Obligar Garganera the sum of FIFTY THOUSAND (P50,000.00)
PESOS.

Let this DECISION serve as clear signal, warning the perverts, the misguided elements of our
society, especially their lackadaisical parents in their innate moral obligation and responsibility in
educating their children that in this corner of the world the wheels of justice is not asleep and its
unforgiving hands and watchful eyes are as vigilant as ever.

(pp. 44-45, Rollo.)

In flashback, let us visualize the events.

Evelyn Obligar Garganera is the 5-year old daughter of Rosita Obligar Garganera who had to leave the province to
find work in Manila after separating from her husband. Evelyn, together with her younger brother, 3-year old
Eleazar, was thus left under the care and custody of their uncle, Emeterio Obligar, and aunt, Penicola Obligar.

Less than a kilometer away from their place of residence lived accused-appellant, 19-year old Joeral Galleno,
known well to Evelyn's family due to his frequent visits at the Obligars' abode as he was paying court to Emeterio's
eldest child, Gina.

On August 16, 1994, Emeterio and Penicola left their residence to work at the sugarcane plantation owned by
Magdalena Dasibar. Their three children had all earlier left for school. The only persons left in the house were niece
Evelyn and nephew Eleazar.

At around 4 o'clock in the afternoon, accused-appellant was on his way to his Lola Esing to have his pants tailored.
Since it was drizzling, he passed by the Obligars' residence and found the two children left to themselves. The
prosecution and the defense presented conflicting versions on what occurred at said residence. However, the result
is undisputed. Evelyn sustained a laceration in her vagina which resulted in profuse, and to our mind, life-
threatening bleeding due to her tender age.

The prosecution's version of what took place at the Obligars' residence is based on the testimony of Evelyn herself,
her uncle Emeterio, and the doctors who examined and treated her. The Solicitor General summarized the same in
this wise:

2. Appellant took advantage of the situation by sexually molesting Evelyn. After lowering her shorts,
he made Evelyn sit on his lap, facing him. Then he forcibly inserted his penis into her vagina. As
Evelyn was only five-years old while appellant was a fully-grown man, the penetration caused the
child's vagina to bleed, making her cry in pain. (pp. 10-11 and 18-25, tsn, Garganera, January 10,
1995).

3. Appellant tried to stop the bleeding by applying, with his finger, the sap of "madre de cacao"
leaves on her vagina. Unsuccessful in his attempt, he left Evelyn grimacing and crying in pain. (pp.
14-15, tsn, Garganera, January 10, 1995; pp. 6-7, tsn, Obligar, February 7, 1995).
428

4. Shortly, Emeterio and Penicola came home from work. The spouses were laborers in a sugarcane
plantation about two kilometers away from their house. They arrived to find Evelyn crying. Emeterio
noticed that there was blood in Evelyn's dress and she was pressing a rug against her genital organ.
(pp. 11-12, tsn, Obligar, January 10, 1995; pp. 8-9, tsn, Obligar, February 7, 1995).

5. Emeterio asked Evelyn what happened but she did not answer. Emeterio spread the child's legs
and saw that her vagina had been lacerated and blood was oozing therefrom. He summoned a
"quack" doctor who applied herbal medicine on Evelyn's vagina but this did not stop the bleeding.
(pp. 12-14, tsn, Obligar, January 12, 1995).

6. The following day, August 17, 1994, Emeterio brought Evelyn to the clinic of Dr. Alfonso D.
Orosco, the Rural Health Physician of Maayon, Capiz. Dr. Orosco reported, upon examining Evelyn,
that he found (1) clotted blood, about 1 centimeter in diameter, in her vaginal opening, and (2) a
vaginal laceration, measuring 1.0 centimeter x 0.5 centimeter, between the 3:00 o'clock and 6:00
o'clock position. He also affirmed that Evelyn's vaginal laceration could have been caused by a blunt
instrument inserted into the vagina, that it was possible that a human penis in full erection had been
forcibly inserted into her vagina and that a human penis in full erection is considered a blunt
instrument. (pp. 4-7, tsn, Orosco, November 28, 1994; p. 14, tsn, Obligar, January 12, 1995).

7. While he was examining Evelyn, Dr. Orosco asked Evelyn what caused her injuries. The child told
him that a penis was inserted into her vagina and that its insertion caused her pain. (pp. 9-10, 14
and 18-19, tsn, Orosco, November 28, 1994).

8. Since his clinic lacked the proper medical facilities needed to treat Evelyn, Dr. Orosco, after
dressing the victim's wound which continued to bleed, advised Emeterio and Penicola to bring the
child to the hospital for further medical treatment (p. 8, tsn, Orosco, November 28, 1994; pp. 14-16,
tsn, Obligar, January 12, 1995).

9. On August 18, 1994, Emeterio brought Evelyn to the Roxas Memorial General Hospital where she
was examined by resident physician Dr. Ma. Lourdes Lañada, Dr. Lañada, upon examining Evelyn,
found that "there was a 3 cm. lacerated wound at the left anterior one-third of the vagina" and "the
presence of about 10-15 cc of blood" at the vaginal vault. Dr. Lañada recommended that Evelyn be
admitted for confinement in the hospital because the wound in her vagina, which was still bleeding,
had to be repaired. Due to financial constraints, Evelyn was not admitted into the hospital that day
and went home with Emeterio to Barangay Balighot. (pp. 6-8, tsn, Lañada January 4, 1995; pp. 15-
16, tsn, Obligar, January 12, 1995).

10. Upon her examination of the victim on August 18, 1994, Dr. Lañada opined that "a lot of things
will cause the lacerated wound in the vagina." (p. 9, tsn, Lañada, January 4, 1995). According to Dr.
Lañada, the vaginal laceration may be caused (1) by trauma to the area, when a girl falls and hits
her genital area on a blunt instrument; (2) by medical instrumentation, like the insertion of a
speculum into the vagina; or (3) by the insertion of a blunt foreign object into the vagina, like a finger
of a penis of a man in full erection. (pp. 8-10, tsn, Lañada, January 4, 1995).

11. On August 19, 1994, Emeterio brought Evelyn back to the Roxas Memorial General Hospital
where she was attended to by Dr. Machel Toledo, the resident physician on duty, who found blood
clots and minimal bleeding in the genital area. Dr. Toledo ". . . pack(ed) the area to prevent further
bleeding and (he) . . . admitted the patient for possible repair of that laceration and blood transfusion
because she has anaemia 2ndary to bleeding." Two hundred five (255) cc of blood was transfused
to Evelyn and she was given antibiotics to prevent infection. However, she was no longer operated
on because the laceration had healed. Five days later, Evelyn was discharged and sent home with
medication. (pp. 11-13, 17 and 26, tsn, Toledo, December 2, 1994).

12. Upon his examination of Evelyn on August 19, 1994, Dr. Toledo disclosed that the child suffered
severe compound laceration which could have been caused by a normal and fully developed penis
of a man in a state of erection that was forcibly inserted into her vagina and that the insertion caused
her vagina to hemorrhage which thus required the transfusion of 255 cc of blood. (pp. 14-16 and 26,
tsn, Toledo, December 2, 1994).

13. Prior to her confinement in the Roxas Memorial General Hospital on August 19, Emeterio and
Penicola Obligar brought Evelyn to the Maayon Police Station on August 18, 1994, where they
reported the crime to SPO1 Paulino Durana. That same day, appellant was apprehended in a house
near the Balighot Elementary School and brought to the police station. (pp. 17-19, tsn, Obligar,
January 12, 1995; pp. 5-9, 16-17 and 21, tsn, Durana, January 16, 1995).

(pp. 164-171, Rollo.)
429

Denial is presented as the defense. Accused-appellant testified that when he arrived at the Obligar residence that
afternoon of August 16, 1994, he found the two children, Evelyn and Eleazar (also referred to in the record as Pilfo).
While seated at the balcony, accused-appellant was approached by Evelyn, who knew him (tsn, April 5, 1995, pp. 5
and 8). He cajoled her by throwing her up and down, his right hand holding the child and his left hand covering her
vagina (Ibid., p. 21). Upon lifting up the child the first time, his left ring finger was accidentally inserted into the
vagina of the child since his fingernail was long and the child was not wearing any underwear. Consequently, Evelyn
began to cry because her vagina started to bleed. Upon seeing this, he immediately went down the house and got
some bark or leaves of a madre de cacao tree and applied the sap on the child's wound. The bleeding ceased and
Evelyn stopped crying. Thereafter, accused-appellant went home. (Ibid., pp. 9-10).

Accused-appellant further testified that on August 18, 1994, at around 9 o'clock in the morning, he was arrested. On
the same day, Emeterio Obligar asked him to admit the offense so that he could be released the next day, but
accused-appellant did not do so (Ibid., pp. 26-27).

Accused-appellant's father Raul Galleno was also called to the witness stand and he testified that he learned about
the arrest of his son on August 18, 1994 (tsn, May 12, 1995 p. 6). The following day, he went to the house of the
Obligars to ask Evelyn what happened to her. The child allegedly answered that a finger was accidentally inserted
into her genital organ, but that Penicola who was then present, butted into the conversation and told Raul Galleno
that the penis of accused-appellant was likewise inserted (Ibid., p. 8).

The trial court did not accord credence to the version of the defense, pointing out in its decision that accused-
appellant's defense of denial hinged on the argument that the statement of Evelyn as to how she sustained her
vaginal laceration was a mere concoction and a plain distortion of facts by her guardian. The trial court called this a
"desperate attempt of the defense to becloud the charge of rape."

The trial court believed and accepted the testimony of Police Officer Paulino Durana that during the interrogation of
Evelyn which he conducted at the PNP Station of Maayon, Emeterio and Penicola Obligar did not interfere with the
responses of Evelyn, although, true enough, it was difficult to obtain answers from her because of her tender age.

The trial court deemed the following circumstances significant in finding accused-appellant culpable:

1. Accused-appellant failed to explain how his left ring finger accidentally came in contact with Evelyn's vagina,
while in the process of throwing her up and down. Besides, the prosecution was able to establish that Evelyn was
wearing shorts. And assuming for the sake of argument that Evelyn was not wearing any pants or underwear at that
time, accused-appellant failed to explain how his finger could possibly penetrate the victim's vagina by about one-
fourth of an inch (p. 23, tsn, April 5, 1995).

2. After satisfying his lust, accused-appellant left the victim with her 3-year old brother, in pain and bleeding.

3. Evelyn's statement given to Dr. Ma. Lourdes Lañada, the physician who examined her at the Roxas Memorial
General Hospital, that it was accused-appellant's finger which injured her, was a consequence of the victim's
confusion.

4. The formal offer of settlement made by accused-appellant's father Raul Galleno militates against the cause of the
defense.

Hence, the instant appeal and review, with accused-appellant assigning the following errors:

THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONIES
OF THE MEDICAL DOCTORS WHEN THE SAME FAILED TO CONCLUSIVELY AND
SUFFICIENTLY ESTABLISH THE CAUSE OF THE LACERATION IN THE OFFENDED PARTY'S
VAGINA

THE TRIAL COURT SHOWED MANIFEST BIAS THEREBY DEPRIVING THE ACCUSED-
APPELLANT TO A FAIR AND IMPARTIAL TRIAL AND DISREGARDED THE RIGHT OF THE
ACCUSED TO BE PRESUMED INNOCENT, WHEN HE ACTIVELY PARTICIPATED IN THE
CROSS EXAMINATION OF THE ACCUSED

THE TRIAL COURT ERRED IN NOT DECLARING THE WARRANTLESS ARREST OF THE
ACCUSED AS UNJUSTIFIED

THE TRIAL COURT ERRED IN INTERPRETING THE FINANCIAL ASSISTANCE EXTENDED BY

THE PARENTS OF THE ACCUSED TO THE OFFENDED PARTY AS AN IMPLIED ADMISSION OF
GUILT.

(pp. 81-82, Rollo.)
430

One can not escape the feeling of utmost compassion for any rape victim, and more especially so for a 5-year old
statutory rape victim. However, in our consideration of the matter before us, we set aside emotion and observe
impartiality and coldness in drawing conclusions.

Under the first assigned error, accused-appellant contends that the testimony of the three expert witnesses
presented by the prosecution, namely, Dr. Alfonso Orosco, Dr. Ma. Lourdes Lañada, and Dr. Machael Toledo, which
convinced the trial court that rape was committed against the offended party, is not impeccable considering that they
found that there was no presence of spermatozoa, and that they were not sure as to what caused the laceration in
the victim's vagina; that Dr. Lañada herself testified that Evelyn told her that it was the finger of accused-appellant
which caused the laceration. In addition, accused-appellant banks on the victim's testimony on cross-examination,
that it was the finger of accused-appellant which caused the laceration; and that she even disclosed this to accused-
appellant's father, Raul Galleno.

We are not persuaded.

As a general rule, witnesses must state facts and not draw conclusions or give opinions. It is the court's duty to draw
conclusions from the evidence and form opinions upon the facts proved (Francisco, Pleadings and Trial Practice,
Vol. 1, 1989 ed., pp. 889-890). However, conclusions and opinions of witnesses are received in many cases, and
are not confined to expert testimony, based on the principle that either because of the special skill or expert
knowledge of the witness, or because of the nature of the subject matter under observation, or for other reasons,
the testimony will aid the court in reaching a judgment (Ibid., p. 886).

In the case at bar, the trial court arrived at its conclusions not only with the aid of the expert testimony of doctors
who gave their opinions as to the possible cause of the victim's laceration, but also the testimony of the other
prosecution witnesses, especially the victim herself. In other words, the trial court did not rely solely on the testimony
of the expert witnesses. Such expert testimony merely aided the trial court in the exercise of its judgment on the
facts. Hence, the fact that the experts enumerated various possible causes of the victim's laceration does not mean
that the trial court's inference is wrong.

The absence of spermatozoa in the victim's vagina does not negate the conclusion that it was his penis which was
inserted in the victim's vagina (People vs. Cañada, 253 SCRA 277 [1996]). In rape, the important consideration is
not the emission of semen but the penetration of the female genitalia by the male organ (People vs. Dones, 254
SCRA 696 [1996]). Verily, it is entirely probable that climax on the part of accused-appellant was not reached due to
the cries of pain of the victim and the profuse bleeding of her vagina.

As regards the inconsistencies in Evelyn's declarations, particularly as to what really caused the laceration, we are
convinced that the child, due to her tender age, was just confused. This is best exemplified by the testimony of Dr.
Lourdes Lañada on cross-examination, as follows:

Q Now, Doctor, at the time that you conducted your examination, you were aware
that this child was only five years old?

A Yes, sir.

Q And at that tender age, Doctor, is it possible that the child may not know the
difference or distinction between fingers of the hands and a finger protruding
between the legs of a person?

A Yes, sir, it is possible.

Q So that it is possible, Doctor, that the child may have referred to a finger that is
between the legs?

WITNESS

You mean the penis?

PROSECUTOR OBIENDA

Yes.

WITNESS

It is possible.

(tsn, p. 27 March 30, 1995.)

431

Of vital consideration and importance too is the unreliability, if not the outright incredulity of the version of accused-
appellant which is not in accord with ordinary human experience. We thus can not help expressing sentiments
similar to those of the trial court when it said:

The contention of accused Joeral Galleno raises serious doubts to his credibility. He failed to explain
how his ring finger accidentally came in contact with the genitalia of Evelyn, while in the process of
throwing her up and down, when it was established by the prosecution that at that time Evelyn was
wearing shorts. Even assuming "ex gratia argumente" that Evelyn was pantyless, how could it be
possible for his finger to penetrate the vagina for about one-fourth of an inch . . . when she was in
shorts. The Supreme Court, in People vs. Fulgencio Baquiran, 20 SCRA 451, (held that) evidence,
to be believed must not only proceed from the mouth of a credible witness, but it must be credible in
itself. Human perception can be warped by the impact of events and testimony colored by the
unconscious workings of the mind. No better test has yet been found to measure the value of a
witness' testimony than its conformity to the knowledge and common experience of mankind.

(pp. 42-43, Rollo.)

Sec. 4, Rule 128 of the Rules of Court provides that "(e)vidence must have such a relation to the fact in issue as to
induce belief in its existence or non-existence." This simply means that relevancy is determinable by the rules of
logic and human experience (Regalado, Remedial law Compendium, Vol. II, 1988 ed., p. 434). There is no precise
and universal test of relevancy provided by law. However, the determination of whether particular evidence is
relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and
everyday experience (Sibal and Salazar; Compendium on Evidence, 1995 ed., p. 6, citing Alfred Asmore Pope
Foundation vs. New York 138 A. 444, 106 Conn. 432).

There is no explanation how the left ring finger (allegedly with a long fingernail) of accused-appellant penetrated the
victim's vagina by a depth of one fourth of an inch. Admittedly, accused-appellant's right hand held the child while
his left hand supposedly held her in the vagina area. Why would he hold the child's vagina if his only intention was
to frolic and kid around with her?

Accused-appellant likewise failed to explain why after injuring Evelyn (and after applying to the wound the sap
of madre de cacao), he left her in the company of an even younger child, the victim's 3-year old brother. He did not
even make an effort to immediately inform Emeterio and Penicola of what had happened. Instead, he went home
and kept mum about the incident.

Accused-appellant also said that after the alleged accident, before going home, he removed Eleazar's shorts and
put them on Evelyn. Assuming this to be true, this only shows that the child was still bleeding. Why then would he
leave the child considering that there was no adult to attend to her? Significantly, his act of immediately leaving the
place, when considered in the light of the other evidence, reflects his fear because of what he had done. The
proverb "the wicked fleeth even when no man pursueth, but the innocent are as bold as a lion" was correctly
adopted by the trial court in drawing its conclusions.

All of these loopholes are palpable and manifest, and clearly work against the credibility of accused-appellant's story
on which his defense is based.

Besides, the trial court's conclusions find support in the testimony of accused-appellant's own witness, Dr. Lourdes
Lañada (who was earlier presented during the trial as a prosecution witness), who testified that a laceration is
caused by a blunt instrument and that a fingernail is not a blunt but a sharp instrument (tsn, pp. 32-33, March 30,
1995).

As regards accused-appellant's argument that the victim's testimony is just a concocted story of what really
happened, we apply the rule that the revelation of an innocent child whose chastity was abused deserves full
credence (People vs. Cagto, 253 SCRA 455 [1996]). We likewise consider the fact that her uncle and aunt, virtually
her foster parents, themselves support her story of rape. It is unnatural for a parent to use her offspring as an
engine of malice, especially if it will subject a daughter to embarrassment and even stigma (People vs.
Dones, supra.).

Accused-appellant's father, Raul Galleno, tried to destroy the credibility of Evelyn when he took the stand and
testified that the child disclosed to him that it was accused-appellant's finger which was inserted into her vagina.
Nevertheless, this testimony cannot prevail over the testimony of the victim, to wit:

FISCAL OBIENDA

Q You said that Joeral Galleno the accused in this case hurt you while you were in
the farm, can you tell the Honorable Court which part of your body was hurt by Joeral
Galleno?
432

A (Witness pointing to her vagina)

Here.

Q When you said you were hurt did you bleed?

WITNESS

A Yes, Sir.

FISCAL OBIENDA

Q What was used by Joeral Galleno in hurting your sexual organ?

A His (Pitoy). Penis.

COURT

Make the translation of "Pitoy" into Penis. Do you agree that the translation of Pitoy is
Penis in English?

ATTY. DISTURA

Agreeable, Your Honor.

FISCAL OBIENDA

Q What did Joeral Calleno do with his Pitoy (Penis) to your vagina (Putay)?

A It was inserted (ginsulod) to my vagina (Putay).

Q When Joeral Galleno inserted his penis (Pitoy) to your vagina (Putay), that was the
reason why it bleed?

A Yes, sir.

Q And it was very painful?

A Yes, Sir.

Q And you cried because of the pain?

A Yes, Sir.

FISCAL OBIENDA

Q And you were brought to the Doctor and admitted to the hospital because of that?

A Yes, Sir.

(tsn, pp. 10-12, January 10, 1995.)

Under the second assigned error, accused-appellant alleges that he was deprived of a fair and impartial trial since
the trial court showed bias by discounting his testimony, and by actually participating in the cross-examination of
accused-appellant.

We recently pronounced in People vs. Malabago (265 SCRA 198 [1996]) that a judge may properly intervene in the
presentation of evidence to expedite and prevent unnecessary waste of time and clarify obscure and incomplete
details after the witness has given direct testimony. And such discretion to question witnesses in order to clear
obscurities in their testimony cannot be assailed as a specie of bias.

Of course, we are aware of Rule 3.06 of the Code of Judicial Conduct provides:
433

While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly
intervene in the presentation of evidence during the trial, it should always be borne in mind that
undue interference may prevent the proper presentation of the cause or the ascertainment of truth.

And there is undoubtedly undue interference if the judge extensively propounds questions to the witnesses which
will have the effect of or will tend to build or bolster the case for one of the parties. We have, however, carefully
examined the record and transcript of stenographic notes of the instant case. The trial court judge, the Honorable
Salvador S. Gubaton, did propound questions but this was done only for clarification purposes and not to build the
case for one of the parties. For instance, accused-appellant, in his brief, refers to the questions propounded by the
trial court on his act of cajoling the child. A perusal of the line of questioning referred to hardly shows bias on the
part of the trial court, but pure clarification.

In the third assigned error, accused-appellant questions the validity of his arrest.

It is settled jurisprudence that any objection involving a warrant of arrest or procedure in the acquisition by the court
of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is
deemed waived (People vs. Lopez, Jr., 245 SCRA 95 [1995]). An accused should question the validity of his arrest
before he enters his plea in the trial court (Filoteo, Jr. vs. Sandiganbayan, 263 SCRA 222 [1996]). He is estopped
from questioning any defect in the manner of his arrest if he fails to move for the quashing of the information before
the trial court (People vs. Compil, 244 SCRA 135 [1995]) or if he voluntarily submits himself to the jurisdiction of the
court by entering a plea and by participating in the trial (People vs. De Guzman, 224 SCRA 93 [1993]; People vs.
Lopez, Jr., supra).

It does not appear in the record that accused-appellants raised this matter before entering his plea of "not guilty" to
the charge (pp. 63 & 67, Record). Further, this issue was not even touched during the trial.

Lastly, accused-appellant, in his fourth assigned error, argues that the trial court misinterpreted the financial
assistance extended by his parents as an attempt to settle the case. Accused-appellant even banks on the alleged
close relationship between Emeterio Obligar and Raul Galleno as compadres, and the fact that Emeterio borrowed
forty pesos from Raul Galleno, despite the fact that Emeterio already knew that accused-appellant caused the
laceration in Evelyn's vagina.

Accused-appellant also draws attention to two incidents involving alleged financial assistance extended by Raul
Galleno to the spouses Emeterio and Penicola Obligar. First, Emeterio Obligar, whom Raul Galleno said is
his compadre, borrowed P40.00 for fare going to Roxas City where Evelyn was confined. Second, on August 20,
1994, Raul Galleno and his wife and one of the brothers of Penicola Obligar went to Roxas Memorial General
Hospital. There he gave P400.00 financial assistance to Penicola Obligar. Raul Galleno later admitted that the sum
of P440.00 was returned to him by the spouses. Accused-appellant insists that these offers of financial assistance
were not attempts at an amicable settlement but were prompted out of a sincere desire on the part of Raul Galleno
to help the offended party.

We find no merit in me above-stated argument. It may be inferred that Raul Galleno wanted to settle the case by
offering an amount to the spouses Obligar, to wit:

Q Now, according to you, you were paid in the amount of Four Hundred Pesos
(P400.00) then you expected your Comareng Pening as financial assistance to
Evelyn Garganera, isn't it?

A Yes, Your Honor.

Q How long after August 19, 1994, that your Comareng Pening returned to you the
amount of Four Hundred Pesos (P400.00)?

A A week after when Evelyn had already checked up from the hospital.

Q It was given by you or as voluntary financial assistance, why did you receive the
amount or the payment returned to that amount of Four Hundred Pesos (P400.00)?

A That was telling me that they refused already for the settlement of the case.

Q And that is why they returned the amount of Four Hundred Pesos (P400.00).

(tsn, pp. 29-30, May 12, 1995.)

From the above-stated clarificatory questions by the trial court, it may be gleaned that Raul Galleno no longer had
any interest in aiding the victim when he found that the Obligar spouses would still pursue the case against his son,
434

accused-appellant, and hence he found that his offer for settlement was unavailing. Hence, on this point we likewise
agree with the trial court when it took the financial assistance to mean an act of settling the case. This act does
manifest a father's attempt to rescue his guilty son from sure incarceration.

The nightmare that was forced into the tender mind of 5-year old Evelyn Obligar Garganera may unfortunately haunt
her all her life. Justice may not be able to save her from this nightmare but it can calm and assure her that her
tormentor and abuser shall undoubtedly face retribution.

Four members of the Court — although maintaining their adherence to the separate opinions expressed in People
vs. Echegaray (G.R. No. 117472, February 7, 1997) that Republic Act No. 7659, insofar as it prescribes the death
penalty is unconstitutional — nevertheless submit to the ruling of the Court, by a majority vote, that the law is
constitutional and that the death penalty should accordingly be imposed.

WHEREFORE, finding the conviction of accused-appellant justified by the evidence on record, the assailed decision
is hereby AFFIRMED in toto.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon
finality of this decision, let the record of the case be forthwith forwarded to the Office of the President for the
possible exercise of the pardoning power.

SO ORDERED.

Rule 130 Section 49 – Opinion of Expert Witness

G.R. No. 132607 May 5, 1999

CEBU SHIPYARD AND ENGINEERING WORKS, INC., petitioner,

vs.
WILLIAM LINES, INC. and PRUDENTIAL GUARANTEE and ASSURANCE COMPANY, INC., respondents.

PURISIMA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court seeking a reversal of the
decision of the Court of Appeal  which affirmed the decision of the trial court of origin finding the petitioner herein,
1

Cebu Shipyard and Engineering Works, Inc. (CSEW) negligent and liable for damages to the private respondent,
William Lines, Inc., and to the insurer, Prudential Guarantee Assurance Company, Inc.

The antecedent facts that matter are as follows:

Cebu Shipyard and Engineering Works, Inc. (CSEW) is a domestic corporation engaged in the business of dry-
docking and repairing of marine vessels while the private respondent, Prudential Guarantee and Assurance, Inc.
(Prudential), also a domestic corporation is in the non-life insurance business.

William Lines, Inc. (plaintiff below) is in the shipping business. It the owner of M/V Manila City, a luxury passenger-
cargo vessel, which caught fire and sank on February 16, 1991. At the time of the unfortunate occurrence sued
upon, subject vessel was insured with Prudential for P45,000,000.00 pesos for hull and machinery. The Hull Policy
included an "Additional Perils (INCHMAREE)" Clause covering loss of or damage to the vessel through the
negligence of, among others, ship repairmen. The Policy provided as follows:

Subject to the conditions of this Policy, this insurance also covers loss of or damage to Vessel
directly caused by the following:

xxx xxx xxx

Negligence of Charterers and/or Repairers, provided such Charterers and/or Repairers are not an
Assured hereunder.

xxx xxx xxx

435

provided such loss or damage has not resulted from want of due diligence by the Assured, the
Owners or Managers of the Vessel, of any of them Masters, Officers, Crew or Pilots are not to be
considered Owners within the meaning of this Clause should they hold shares in the Vessel.  2

Petitioner CSEW was also insured by Prudential for third party liability under a Shiprepairer's Legal Liability
Insurance Policy. The policy was for P10 million only, under the limited liability clause, to wit:

7. Limit of Liability

The limit of liability under this insurance, in respect of any one accident or series of accidents, arising
out of one occurrence, shall be [P10 million], including liability for costs and expense which are
either:

(a) incurred with the written consent of the underwriters hereon, or

(b) awarded against the Assured. 3

On February 5, 1991, William Lines, Inc. brought its vessel, M/V Manila City, to the Cebu Shipyard in Lapulapu City
for annual dry-docking and repair.

On February 6, 1991, an arrival conference was held between representatives of William Lines, Inc. and CSEW to
discuss the work to be undertaken on the M/V Manila City.

The contracts, denominated as Work Orders, were signed thereafter, with the following stipulations:

10. The Contractor shall replace at its own work and at its own cost any work or material which can
be shown to be defective and which is communicated in writing within one (1) month of redelivery of
the vessel or if the vessel was not in the Contractor's Possession, the withdrawal of the Contractor's
workmen, or at its option to pay a sum equal to the cost of such replacement at its own works. These
conditions shall apply to any such replacements.

11. Save as provided in Clause 10, the Contractor shall not be under any liability to the Customer
either in contract or for delict or quasi-delict or otherwise except for negligence and such liability
shall itself be subject to the following overriding limitations and exceptions, namely:

(a) The total liability of the Contractor to the Customer (over and above the liability to
replace under Clause 10) or of any sub-contractor shall be limited in respect of any
defect or event (and a series of accidents arising out of the same defect or event
shall constitute one defect or event) to the sum of Pesos Philippine Currency One
Million only.

(b) In no circumstance whatsoever shall the liability of the Contractor or any Sub-
Contractor include any sum in respect of loss of profit or loss of use of the vessel or
damages consequential on such loss of use

xxx xxx xxx

20. The insurance on the vessel should be maintained by the customer and/or owner of the vessel
during the period the contract is in effect. 4

While the M/V Manila City was undergoing dry-docking and repairs within the premises of CSEW, the master,
officers and crew of M/V Manila City stayed in the vessel using their cabins as living quarters. Other employees
hired by William Lines to do repairs and maintenance work on the vessel were also present during the dry-docking.

On February 16, 1991, after subject vessel was transferred to the docking quay, it caught fire and sank, resulting to
its eventual total loss.

On February 21, 1991, William Lines, Inc. filed a complaint for damages against CSEW, alleging that the fire which
broke out in M/V Manila City was caused by CSEW's negligence and lack of care.

On July 15, 1991 was filed an Amended Complaint impleading Prudential as co-plaintiff, after the latter had paid
William Lines, Inc. the value of the hull and machinery insurance on the M/V Manila City. As a result of such
payment Prudential was subrogated to the claim of P45 million, representing the value of the said insurance it paid.

On June 10, 1994, the trial court a quo came out with a judgment against CSEW, disposing as follows:
436

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant,
ordering the latter.

1. To pay unto plaintiff Prudential Guarantee and Assurance Inc., the subrogee, the amount of Forty-
five Million (P45 million) Pesos, with interest at the legal rate until full payment is made.

2. To pay unto plaintiff, William Lines, Inc., the amount of Fifty-six Million Seven Hundred Fifteen
Thousand (P56,715,000.00) Pesos representing loss of income of M/V MANILA CITY, with interest
at the legal rate until full payment is made.

3. To pay unto plaintiff, William Lines, Inc. the amount of Eleven Million (P11 million) as payment, in
addition to what it received from the insurance company to fully cover the injury or loss, in order to
replace the M/V MANILA CITY, with interest at the legal rate until full payment is made;

4. To pay unto plaintiff, William Lines, Inc. the sum of Nine Hundred Twenty-Seven Thousand Thirty-
nine (P927,039.00) Pesos for the loss of fuel and lub (sic) oil on board the vessel when she was
completely gutted by fire at defendant, Cebu Shipyard's quay, with interest at the legal rate until full
payment is made;

5. To pay unto plaintiff, William Lines, Inc. the sum of Three Million Fifty-four Thousand Six Hundred
Seventy-seven Pesos and Ninety-five centavos (P3,054.677.95) as payment for the spare parts and
materials used in the M/V MANILA CITY during dry-docking with interest at the legal rate until full
payment is made;

6. To pay unto plaintiff William Lines, Inc., the sum of Five Hundred Thousand (P500,000 00) Pesos
in moral damages;

7. To pay unto plaintiff, William Lines, Inc. the amount of Ten Million (P10,000.000.00) Pesos in
attorney's fees; and to pay the costs of this suit.

CSEW (defendant below) appealed the aforesaid decision to the Court of Appeals. During the pendency of the
appeal, CSEW and William Lines presented a "Joint Motion for Partial Dismissal" with prejudice, on the basis of the
amicable settlement inked between Cebu Shipyard and William Lines only.

On July 31, 1996, the Court of Appeals ordered the partial dismissal of the case insofar as CSEW and William Lines
were concerned.

On September 3, 1997, the Court of Appeals affirmed the appealed decision of the trial court, ruling thus:

WHEREFORE, the judgment of the lower court ordering the defendant, Cebu Shipyard and
Engineering Works, Inc. to pay the plaintiff Prudential Guarantee and Assurance, Inc., the subrogee,
the sum of P45 Million, with interest at the legal rate until full payment is made, as contained in the
decision of Civil Case No. CEB-9935 is hereby AFFIRMED.

With the denial of its motion for reconsideration by the Court of Appeal's Resolution dated February 13, 1998,
CSEW found its way to this court via the present petition, contending that:

I. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT CSEW

HAD "MANAGEMENT AND SUPERVISORY CONTROL" OF THE M/V MANILA CITY AT THE TIME
THE FIRE BROKE OUT.

II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN APPLYING THE DOCTRINE

OF RES IPSA LOQUITUR AGAINST CSEW.

III THE COURT OF APPEALS RULING HOLDING CSEW NEGLIGENT AND THEREBY LIABLE
FOR THE LOSS OF THE M/V MANILA CITY IS BASED FINDINGS OF FACT NOT SUPPORTED
BY EVIDENCE.

IV THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING CSEW'S

EXPERT EVIDENCE AS INADMISSIBLE OR OF NO PROBATIVE VALUE.

V THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT

PRUDENTIAL HAS THE RIGHT OF SUBROGATION AGAINST ITS OWN INSURED.

VI ASSUMING ARGUENDO THAT PRUDENTIAL HAS THE RIGHT OF SUBROGATION AND

THAT CSEW WAS NEGLIGENT IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE
437

SHIPREPAIR CONTRACTS. THE CONTRACTUAL PROVISIONS LIMITING CSEW'S LIABILITY

FOR NEGLIGENCE TO A MAXIMUM OF P 1 MILLION IS NOT VALID, CONTRARY TO THE
APPLICABLE RULINGS OF THIS HONORABLE COURT.

Petitioner's version of the events that led to the fire runs as follows:

On February 13, 1991, the CSEW completed the drydocking of M/V Manila City at its grave dock. It
was then transferred to the docking quay of CSEW where the remaining repair to be done was the
replating of the top of Water Ballast Tank No. 12 (Tank Top No. 12) which was subcontracted by
CSEW to JNB General Services. Tank Top No. 12 was at the rear section of the vessel, on level with
the flooring of the crew cabins located on the vessel's second deck.

At around seven o'clock in the morning of February 16, 1991, the JNB workers trimmed and cleaned
the tank framing which involved minor hotworks (welding/cutting works). The said work was
completed at about 10:00 a.m. The JNB workers then proceeded to rig the steel plates, after which
they had their lunch break. The rigging was resumed at 1:00 p.m.

While in the process of rigging the second steel plate, the JNB workers noticed smoke coming from
the passageway along the crew cabins. When one of the workers, Mr. Casas, proceeded to the
passageway to ascertain the origin of the smoke, he noticed that smoke was gathering on the ceiling
of the passageway but did not see any fire as the crew cabins on either side of the passageway
were locked. He immediately sought out the proprietor of JNB, Mr. Buenavista, and the Safety officer
CSEW, Mr. Aves, who sounded the fire alarm. CSEW's fire brigade immediately responded as well
as the other fire fighting units in Metro Cebu. However, there were no WLI representative, officer or
crew to guide the firemen inside the vessel.

Despite the combined efforts of the firemen of the Lapulapu City Fire Department, Mandaue Fire
Cordova Fire Department, Emergency Rescue Unit Foundation, and fire brigade of CSEW, the fire
was not controlled until 2:00 a.m., of the following day, February 17, 1991.

On the early morning of February 17, 1991, gusty winds rekindled the flames on the vessel and fire
again broke out. Then the huge amounts of water pumped into the vessel, coupled with the strong
current, caused the vessel to tilt until it capsized and sank.

When M/V Manila City capsized, steel and angle bars were noticed to have been newly welded
along the port side of the hull of the vessel, at the level of the crew cabins. William Lines did not
previously apply for a permit to do hotworks on the said portion of the ship as it should have done
pursuant to its work order with CSEW. 5

Respondent Prudential, on the other hand, theorized that the fire broke out in the following manner:

At around eleven o'clock in the morning of February 16, 1991, the Chief Mate of M/V Manila City was
inspecting the various works being done by CSEW on the vessel, when he saw that some workers of
CSEW were cropping out steel plates Tank Top No. 12 using acetylene, oxygen and welding torch.
He also observed that the rubber insulation wire coming out of the air-conditioning unit was already
burning, prompting him to scold the workers.

At 2:45 in the afternoon of the same day, witnesses saw smoke coming from Tank No. 12. The
vessel's reeferman reported such occurence to the Chief Mate who immediately assembled the crew
members to put out the fire. When it was too hot for them to stay on board and seeing that the fire
cannot be controlled, the vessel's crew were forced to withdraw from CSEW's docking quay.

In the morning of February 17, 1991, M/V Manila City sank. As the vessel was insured with
Prudential Guarantee, William Lines filed a claim for constructive loss, and after a thorough
investigation of the surrounding circumstances of the tragedy, Prudential Guaranteed found the said
insurance claim to be meritorious and issued a check in favor of William Lines in the amount of P 45
million pesos representing the total value of M/V Manila City's hull and machinery insurance. 6

The petition is unmeritorious.

Petitioner CSEW faults the Court of Appeals for adjudging it negligent and liable for damages for the respondents,
William Lines, Inc., and Prudential for the loss of M/V Manila City. It is petitioner's submission that the finding of
negligence by the Court of Appeals is not supported by the evidence on record, and contrary to what the Court of
Appeals found, petitioner did not have management and control over M/V Manila City. Although it was brought to
the premises of CSEW for annual repair, William Lines, Inc. retained control over the vessel as the ship captain
remained in command and the ship's crew were still present. While it imposed certain rules and regulations on
William Lines, it was in the exercise of due diligence and not an indication of CSEW's exclusive control over subject
438

vessel. Thus, CSEW maintains that it did not have exclusive control over the M/V Manila City and the trial court and
the Court of Appeals erred in applying the doctrine of res ipsa loquitur.

Time and again, this Court had occasion to reiterate the well-established rule that factual findings by the Court of
Appeals are conclusive on the parties and are not reviewable by this Court. They are entitled to great weight and
respect, even finality, especially when, as in this case, the Court of Appeals affirmed the factual findings arrived at
by the trial court.   When supported by sufficient evidence, findings of fact by the Court of Appeals affirming those of
7

the trial court, are not to be disturbed on appeal. The rationale behind this doctrine is that review of the findings of
fact of the Court of Appeals is not a function that the Supreme Court normally undertakes. 8

Here, the Court of Appeals and the Cebu Regional Trial Court of origin are agreed that the fire which caused the
total loss of subject M/V Manila City was due to the negligence of the employees and workers of CSEW. Both courts
found that the M/V Manila City was under the custody and control of petitioner CSEW, when the ill-fated vessel
caught fire. The decisions of both the lower court and the Court of Appeals set forth clearly the evidence sustaining
their finding of actionable negligence on the part of CSEW. This factual finding is conclusive on the parties. The
court discerns no basis for disturbing such finding firmly anchored on enough evidence. As held in the case
of Roblett Industrial Construction Corporation vs. Court of Appeals, "in the absence of any showing that the trial
court failed to appreciate facts and circumstances of weight and substance that would have altered its conclusion,
no compelling reason exists for the Court to impinge upon matters more appropriately within its province. 9

Furthermore, in petitions for review on certiorari, only questions of law may be put into issue. Questions of fact
cannot be entertained. The finding of negligence by the Court of Appeals is a question which this Court cannot look
into as it would entail going into factual matters on which the finding of negligence was based. Such an approach
cannot be allowed by this Court in the absence of clear showing that the case falls under any of the exceptions   to 10

the well-established principle.

The finding by the trial court and the Court of Appeals that M/V Manila City caught fire and sank by reason of the
negligence of the workers of CSEW, when the said vessel was under the exclusive custody and control of CSEW is
accordingly upheld. Under the circumstances of the case, the doctrine of res ipsa loquitur applies. For the doctrine
of res ipsa loquitur to apply to a given situation, the following conditions must concur (1) the accident was of a kind
which does not ordinarily occur unless someone is negligent; and (2) that the instrumentality or agency which
caused the injury was under the exclusive control of the person charged with negligence.

The facts and evidence on record reveal the concurrence of said conditions in the case under scrutiny. First, the fire
that occurred and consumed M/V Manila City would not have happened in the ordinary course of things if
reasonable care and diligence had been exercised. In other words, some negligence must have occurred. Second,
the agency charged with negligence, as found by the trial court and the Court of Appeals and as shown by the
records, is the herein petitioner, Cebu Shipyard and Engineering Works, Inc., which had control over subject vessel
when it was docketed for annual repairs. So also, as found by the regional trial court, "other responsible causes,
including the conduct of the plaintiff, and third persons, are sufficiently eliminated by the evidence.  11

What is more, in the present case the trial court found direct evidence to prove that the workers and/or employees of
CSEW were remiss in their duty of exercising due diligence in the care of subject vessel. The direct evidence
substantiates the conclusion that CSEW was really negligent. Thus, even without applying the doctrine of res ipsa
loquitur, in light of the direct evidence on record, the ineluctable conclusion is that the petitioner, Cebu Shipyard and
Engineering Works, Inc., was negligent and consequently liable for damages to the respondent, William Lines, Inc.

Neither is there tenability in the contention of petitioner that the Court of Appeals erroneously ruled on the
inadmissibility of the expert testimonies it (petitioner) introduced on the probable cause and origin of the fire.
Petitioner maintains that the Court of Appeals erred in disregarding the testimonies of the fire experts, Messrs.
David Grey and Gregory Michael Southeard, who testified on the probable origin of the fire in M/V Manila City.
Petitioner avers that since the said fire experts were one in their opinion that the fire did not originate in the area of
Tank Top No. 12 where the JNB workers were doing hotworks but on the crew accommodation cabins on the
portside No. 2 deck, the trial court and the Court of Appeals should have given weight to such finding based on the
testimonies of fire experts; petitioner argues.

But courts are not bound by the testimonies of expert witnesses. Although they may have probative value, reception
in evidence of expert testimonies is within the discretion of the court. Section 49, Rule 130 of the Revised Rules of
Court, provides:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is shown to possess, may be received in evidence.

The word "may" signifies that the use of opinion of an expert witness as evidence is a prerogative of the
courts. It is never mandatory for judges to give substantial weight to expert testimonies. If from the facts and
evidence on record, a conclusion is readily ascertainable, there is no need for the judge to resort to expert
opinion evidence. In the case under consideration, the testimonies of the fire experts were not the only
439

available evidence on the probable cause and origin of the fire. There were witnesses who were actually on
board the vessel when the fire occurred. Between the testimonies of the fire experts who merely based their
findings and opinions on interviews and the testimonies of those present during the fire, the latter are of
more probative value. Verily, the trial court and the Court of Appeals did not err in giving more weight to said
testimonies.

On the issue of subrogation, petitioner contends that Prudential is not entitled to be subrogated to the rights of
William Lines, Inc., theorizing that (1) the fire which gutted M/V Manila City was an excluded risk and (2) it is a co-
assured under the Marine Hull Insurance Policy.

It is petitioner's submission that the loss of M/V Manila City or damage thereto is expressly excluded from the
coverage of the insurance because the same resulted from "want of due diligence by the Assured, Owners or
Managers" which is not included in the risks insured against. Again, this theory of petitioner is bereft of any factual
or legal basis. It proceeds from a wrong premise that the fire which gutted subject vessel was caused by the
negligence of the employees of William Lines, Inc. To repeat, the issue of who between the parties was negligent
has already been resolved against Cebu Shipyard and Engineering Works, Inc. Upon proof of payment by
Prudential to William Lines, Inc. the former was subrogated to the right of the latter to indemnification from CSEW.
As aptly ruled by the Court of Appeals, the law on the manner is succinct and clear, to wit:

Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the
insurance company for the injury or loss arising out of the wrong or breach of contract complained of
the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the
person who has violated the contract. If the amount paid by the insurance company does not fully
cover the injury or loss the aggrieved party shall be entitled to recover the deficiency from the person
causing the loss or injury. 
12

Thus, when Prudential, after due verification of the merit and validity of the insurance claim of William Lines, Inc.,
paid the latter the total amount covered by its insurance policy, it was subrogated to the right of the latter to recover
the insured loss from the liable party, CSEW.

Petitioner theorizes further that there can be no right of subrogation as it is deemed a co-assured under the subject
insurance policy. To buttress its stance that it is a co-assured, petitioner placed reliance on Clause 20 of the Work
Order which states:

20 The insurance on the vessel should be maintained by the customer and/or owner of the vessel
during the period the contract is in effect. 
13

According to petitioner, under the aforecited clause, William Lines, Inc., agreed to assume the risk of loss of
the vessel while under dry-dock or repair and to such extent, it is benefited and effectively constituted as a
co-assured under the policy.

This theory of petitioner is devoid of sustainable merit. Clause 20 of the Work Order in question is clear in the sense
that it requires William Lines to maintain insurance on the vessel during the period of dry-docking or repair.
Concededly, such a stipulation works to the benefit of CSEW as the ship repairer. However, the fact that CSEW
benefits from the said stipulation does not automatically make it as a co-assured of William Lines. The intention of
the parties to make each other a co-assured under an insurance policy is to be gleaned principally from the
insurance contract or policy itself and not from any other contract or agreement because the insurance policy
denominates the assured and the beneficiaries of the insurance. The hull and machinery insurance procured by
William Lines, Inc. from Prudential named only "William Lines, Inc." as the assured. There was no manifestation of
any intention of William Lines, Inc. to constitute CSEW as a co-assured under subject policy. It is axiomatic that
when the terms of a contract are clear its stipulations control.   Thus, when the insurance policy involved named
14

only William Lines, Inc. as the assured thereunder, the claim of CSEW that it is a co-assured is unfounded.

Then too, in the Additional Perils Clause of the same Marine Insurance Policy, it is provided that:

Subject to the conditions of this Policy, this insurance also covers loss of or damage to vessel
directly caused by the following:

xxx xxx xxx

Negligence of Charterers and/or Repairers, provided such Charterers and/or Repairers are not an
Assured hereunder   (emphasis supplied).
15

As correctly pointed out by respondent Prudential, if CSEW were deemed a co-assured under the policy, it would
nullify any claim of William Lines, Inc. from Prudential for any loss or damage caused by the negligence of CSEW.
Certainly, no shipowner would agree to make a shiprepairer a co-assured under such insurance policy; otherwise,
440

any claim for loss or damage under the policy would be invalidated. Such result could not have been intended by
William Lines, Inc.

Finally, CSEW argues that even assuming that it was negligent and therefore liable to William Lines Inc., by
stipulation in the Contract or Work Order its liability is limited to One Million (P1,000,000.00) Pesos only, and
Prudential a mere subrogee of William Lines, Inc., should only be entitled to collect the sum stipulated in the said
contract.

Although in this jurisdiction, contracts of adhesion have been consistently upheld as valid per se; as binding as an
ordinary contract, the Court recognizes instances when reliance on such contracts cannot be favored especially
where the facts and circumstances warrant that subject stipulations be disregarded.   Thus, in ruling on the validity
16

and applicability of the stipulation limiting the liability of CSEW for negligence to One Million (P1,000,000.00) Pesos
only, the facts and circumstances vis-a-vis the nature of the provision sought to be enforced should be considered,
bearing in mind the principles of equity and fair play.

It is worthy to note that M/V Manila City was insured with Prudential for Forty Five Million (P45,000,000.00) Pesos.
To determine the validity and sustainability of the claim of William Lines, Inc., for a total loss, Prudential conducted
its own inquiry. Upon thorough investigation by its hull surveyor, M/V Manila City was found to be beyond
economical salvage and repair.   The evaluation of the average adjuster also reported a constructive total
17

loss.   The said claim of William Lines, Inc., was then found to be valid and compensable such that Prudential paid
18

the latter the total value of its insurance claim. Furthermore, it was ascertained that the replacement cost of the
vessel (the price of a vessel similar to M/V Manila City), amounts to Fifty Million (P 50,000,000.00) Pesos. 19

Considering the aforestated circumstances, let alone the fact that negligence on the part of petitioner has been
sufficiently proven, it would indeed be unfair and inequitable to limit the liability of petitioner to One Million Pesos
only. As aptly held by the trial court, "it is rather unconscionable if not overstrained." To allow CSEW to limit its
liability to One Million Pesos notwithstanding the fact that the total loss suffered by the assured and paid for by
Prudential amounted to Forty Five Million (P45,000,000.00) Pesos would sanction the exercise of a degree of
diligence short of what is ordinarily required because, then, it would not be difficult for petitioner to escape liability by
the simple expedient of paying an amount very much lower than the actual damage or loss suffered by William
Lines, Inc.

WHEREFORE, for want of merit, the petition is hereby DENIED and the decision, dated September 3, 1997, and
Resolution, dated February 13, 1998, of the Court of Appeals AFFIRMED. No pronouncement as to costs. 1âwphi1.nêt

SO ORDERED.

Romero, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.

G.R. No. 132607,5 May 1999, 306 SCRA 762

FACTS:

William Lines, Inc. brought its vessel M/V Manila City to the Cebu Shipyard and Engineering Works, Inc (CSEW) in
Lapulapu City for annual dry-docking and repair. Subject vessel was insured with Prudential Guarantee for
P45,000,000.00 for hull and machinery. The Hull Policy included an “Additional Perils” clause covering loss of or
damage to the vessel through the negligence of, among others, ship repairmen. CSEW was also insured by
Prudential Guarantee for third party liability under s Shiprepairs Legal Liability Insurance Policy for P10,000,000.00
only.

After subject vessel was transferred to the docking quay, it caught fire and sank, resulting to its eventual total loss.
William Lines, Inc. filed a complaint for damages against CSEW, alleging that the fire which broke out in M/V Manila
City was caused by CSEW’s negligence and lack of care. An amended complaint, impleading Prudential Guarantee
as co-plaintiff, was filed after the latter had paid William Lines, Inc. the value of the hull and machinery insurance of
M/V Manila City. RTC ruled that the cause of the fire was through the negligence of CSEW. CA affirmed the
appealed decision.

ISSUE:

Whether or not Prudential has the right of subrogation against its own insured.
Whether or not the parties intended for them to be a co-assured in the insurance policy.

RULING:
441

The petition is unmeritorious. Upon proof of payment by Prudential Guarantee to William Lines, the former was
subrogated to the right of the latter to indemnification from CSEW. Thus, when Prudential, after due verification of
the merit and validity of the insurance claim of William Lines, paid the latter the total amount covered by its
insurance policy, it was subrogated to the right of the latter to recover the insured loss from CSEW, the liable party.

A stipulation in the work order that requires William Lines to maintain insurance on the vessel during the period of
dry-docking or repair, works to the benefit of CSEW. However, the fact that CSEW benefits from the said stipulation
does not automatically make it as a co-assured of William Lines. The hull and machinery insurance procured by
William Lines, Inc. from Prudential named only “William Lines, Inc.” as the assured. Thus, when the insurance policy
involved named only William Lines, Inc. as the assured thereunder, the claim of CSEW that it is a co-assured is
unfounded.

1. Rule 130 Section 51 – Character Evidence

People v. Soliman (101 SCRA 767)

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. GERONIMO SOLIMAN Y BUENAVENTURA alias

EMONG and SOFRONIO PALIN Y PAZ alias POLONIO, Defendants-Appellants. G.R. No. L-9723, June 28,
1957

FACTS: At around 2:00 o’clock in the morning of April 29, 1955, the victim, Ernesto Basa, was sleeping in a
pushcart along with Ernesto Balaktaw who was also sleeping in a box near the pushcart. After a short while,
Balaktaw saw accused-appellants, Geronimo Soliman and Sofronio Palin, approached Basa, stabbed the latter
with a balisong many times then, immediately ran away. Balaktaw brought Basa to the police station then
subsequently to the hospital but the latter was pronounced dead. Soliman and Palin were charged with murder
and were sentenced to suffer the extreme penalty of death. The two interposed self-defense as their main
argument. Soliman insisted that he and the deceased, Basa, had a fight and in the course of which he stabbed
the latter. The conviction was based mainly on the testimony of the eyewitness, Balaktaw, along with some
circumstantial evidence. The court found his testimony credible because it was supported by the findings of Dr.
Mariano Lara who conducted the autopsy on the body of the deceased especially with regard to the nature of
the wounds suffered by the victim. The wounds were inflicted while the deceased was in a lying position,
contrary to accused-appellants contention that the same were due to the struggle between Soliman and the
deceased. However, the defense impugns the credibility of the eyewitness, Balaktaw, due to his prior criminal
conviction. It also alleges that the deceased had a violent and quarrelsome character.

ISSUES: 1. Whether or not Ernesto Balaktaw’s prior criminal conviction is a ground to disqualify him as a
witness in this case; and 2. Whether or not Ernesto Basa’s violent character may be taken as evidence to
prove the probability or improbability of the crime charged. RULING: No, the fact that a person has been
previously convicted of a crime does not necessarily disqualify him as a witness for he may still prove to be a
truthful one. Anent the second issue, although good or bad character may tend to prove the probability or
improbability of the offense charged, the same rule does not apply in cases of murder where the killing is
committed through treachery and premeditation, as in this case. The proof of such character may be allowed
only in homicide cases to show that it has produced a reasonable belief of imminent danger in the mind of the
accused and a justifiable conviction that a prompt defensive action is necessary. This rule does not apply to
cases of murder. Nevertheless, while the evidence is sufficient to convict both appellants of the crime charged,
some members of the Court have expressed doubt in the propriety of imposing the extreme penalty of death.
Thus, the Court resolved to impose the penalty of reclusion perpetua.

G.R. No. L-9723             June 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GERONIMO SOLIMAN Y BUENAVENTURA alias EMONG and SOFRONIO PALIN Y
PAZ alias POLONIO, defendants-appellants.

Office of the Solicitor General Ambrosio Padilla and Solicitor Federico V. Sian for appellee.
Cipriano Azada and Buenaventura Evangelista for appellants.

BAUTISTA ANGELO, J.:
442

Appellants were charged with murder before the Court of First Instance of Manila and were sentenced each to suffer
the extreme penalty of death, to indemnify the heirs of the deceased in the sum of P6,000, and to pay the costs. By
operation of law, the case was brought before this Court for review.

In the morning of April 29, 1955, at about 2 o'clock, while Ernesto Basa was sleeping in a pushcart placed along the
sidewalk of Sto. Cristo Street near the southeast corner of that street and Azcarraga, Manila, and Ernesto Balaktaw
was also sleeping on a box situated near the pushcart, with their heads opposite each other, Balaktaw was
awakened when someone kicked his hand. Upon awakening, Balaktaw saw Sofronio Palin proceed toward the head
of Ernesto Basa and hold the latter by the shoulder at which moment his companion Geronimo, Soliman
approached Ernesto Basa and stabbed him many times with a balisong. Thereafter, the assailants ran away.

Balaktaw took Basa to a calesa and proceeded to a police outpost at the corner of Azcarraga and Elcano Streets
and reported the incident to Patrolman Tolentino. The patrolman boarded the calesa and directed the driver to
proceed to Mary Johnston Hospital. From there, the three transferred to an ambulance and proceeded to the North
General Hospital where Basa was treated, but he expired in the morning of the same day. At 4 o'clock in the
afternoon, Dr. Mariano Lara, Chief Medical Examiner of the Manila Police Department, made an autopsy of the
deceased and found that the cause of death is as follows: "Profuse exsanguinating hemorrhage (only 850 cc.
recovered) and shock due to multiple (7) stab wounds, two (2) being fatal, piercing the pyloric portion of the
stomach, duodenum, jejunum, hepatic flexure of colon and right kidney."

Appellant Soliman testified that prior to the present incident, or on April 21, 1955, the deceased tried to borrow his
pushcart and, as he was not able to lend it to him, the deceased boxed him and as a consequence, he suffered
physical injuries; that incident was settled amicably on the same day by the companions of the deceased; that on
another occasion the beat up Soliman with an iron pipe and the latter had to undergo medical treatment; that in the
night of April 29, 1955, after he had eaten in Folgueras St., he proceeded to a truck by the United Bus Line of which
he was a watchman; that while he was passing Sto. Cristo Street, the deceased called him and asked for a drink;
that he told the deceased he had no money, but the deceased forced him to give him money and even boxed him;
that because the deceased had three companions, he pulled out his knife and upon seeing this, the three
companions ran away; that he and the deceased fought in the course of which he stabbed him; that while they were
fighting, one Sofronio Palin came and separated them; and that when they were separated Palin advised him to
surrender to the police, so he went home and asked his brothers to accompany him to the Meisic Station.

Appellant Palin merely corroborated the testimony of his co-accused by declaring that while he was eating at a
restaurant at the corner of Sto. Cristo and Azcarraga Streets in the morning in question, he saw Soliman and the
deceased grappling with each other; that he tried to separate them and succeeded in doing so; that after the two
were separated, he asked Soliman to surrender and the latter heeded his advice.

The two appellants are charged with a very serious crime as in fact they were sentenced to the extreme penalty of
death. It is therefore important that we scrutinize carefully the evidence on which the conviction is made to depend.
In this case, we notice that the conviction is mainly predicated on the testimony of one eyewitness supported by
some circumstantial evidence. This witness is Ernesto Balaktaw. Whether this witness has told the truth or not in
narrating the aggression which led to the death of the victim, much depends upon the degree of his credibility. As
usual, this is the function of the trial court. Because of its opportunity to observe the conduct, demeanor and manner
of testifying of the witness, the trial court is in a better position to pass upon and gauge their credibility.

In this respect, we notice that the trial court has been most careful in taking notice not only of the conduct of the
witness during the trial, but of other extraneous matters that may help in reaching a correct conclusion. The Court
found the testimony of Balaktaw worthy of credence not only because it is in part corroborated by the testimony of
appellant Soliman himself who admitted having inflicted the wounds that caused the death of the victim, (although
by way of self-defense) but also because it is supported by the nature of the wounds as found by Dr. Lara in his
autopsy. Thus, in brushing aside the defense of appellant Soliman because the same runs counter to the nature and
character of the wounds inflicted on the deceased, the court said:

The contention of the defense that the wounds were inflicted while the deceased Ernesto Basa was
struggling or grappling with Geronimo is believed by the testimony of the medical examiner and by the
nature and character of the wounds on the body of the deceased, as may be seen in Exhibits D, D-1, D-2
and D-3. An examination of the pictures of the deceased as appears in Exhibits D-1 and D-2, especially the
wound that appears a little above the duodenum, shows clearly that the wounds were inflicted when the
deceased was in a lying position as testified to by witness for the prosecution, Ernesto Balaktaw. The
wounds that may be seen under the left armpit of the deceased could not have been possibly inflicted if the
deceased was in lying position with his hand extended upwards in self-defense.

On the other hand, the trial court made also careful observation of the conduct and demeanor of the two accused
during the trial and in this respect made the following observation:

During the course of the hearing, in order to give every iota of evidence its proper probatory value, the Court
had paid special attention to the manner in which the accused and the witnesses testified, as well as their
443

general appearance. The accused Soliman is a well-built man, robust and apparently strong. The accused
Palin is a little bigger than the other accused and of stronger physique. The deceased, as it appears from
the pictures, while he may be slightly higher in stature than the accused Soliman, has a thinner constitution
and much smaller than the accused Palin. Judging these two accused from the manner they testified in
court, their apparent indifference to all the court proceedings in spite of the seriousness of the crime charged
against them, and the manner of testifying in short, curt and confused manner, convinced this Court that
they gave little importance to the case against them and to the proceeding in court.

The defense, however, claims that the testimony of Ernesto Balaktaw should not be given credit because it is self-
contradictory and inconsistent with the testimony of Pat. Tolentino and Det. Senen. But, aside from the fact that the
alleged contradictions refer to unimportant details or circumstances, they can be explained and reconciled. This was
done by the Solicitor General in his brief. After going over the explanation and reconciliation made by this official, we
are satisfied that the alleged contradictions or inconsistencies cannot destroy the credibility of the witness.

An important flaw pointed out by the defense refers to the manner the witness identified the two defendants. It is
claimed that when this witness was made to identify accused Soliman he pointed to accused Palin and when he was
asked to identify the latter, he pointed to the former. And he also committed a mistake in designating the nicknames
of the two accused.

While it is true that at the start of his testimony this witness was confused in identifying the accused by their names,
however, when he was asked by the court immediately thereafter to put his hands on each of them, he was able to
identify them correctly. The court then made the following observation:

Witness identified both accused. At the time when he pointed to the accused he apparently made a mistake
may be due to the fact that the accused were both seated together and when he pointed to the accused he
might have been out of big sense of direction. (pp. 2-3, t.s.n., Lloren.)

The defense also claims that the trial court erred in not granting its motion for new trial based on newly discovered
evidence which consists of the criminal record of prosecution witness Ernesto Balaktaw. This claim is untenable. In
the first place, the criminal record of Balaktaw cannot be considered as newly discovered evidence because the
same was available to the defense much prior to the trial of this Case. It appears that said record can be obtained
from the Criminal Identification Section of the Manila Police Department for, with the exception of one conviction
rendered on September 1, 1955, all the other convictions and charges date as far back as January 19, 1955,
months prior to the trial of the instant case. In the second place, the fact that a person has been previously
convicted of a crime does not necessarily disqualify him as a witness for he may still prove to be a truthful one..

The claim that the trial court also erred in not allowing the defense to prove that the deceased had a violent,
quarrelsome or provocative character cannot also deserved consideration. While good or bad character may be
availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule
123), such is not necessary in crime of murder where the killing is committed through treachery premeditation. The
proof of such character may only be allowed in homicide cases to show "that it has produced a reasonable belief of
imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was
necessary." (Moran Comments on the Rules of Court, 1952 ed, Vol. 3, 126.) This rule does not apply to cases of
murder.

While the Court is the opinion that the evidence is sufficient to convict both appellants of the crime charged, some
members however expressed doubt as to propriety of imposing the extreme penalty and so, for lack of the
necessary number of votes, the Court has resolved to impose upon them the penalty of reclusion perpetua.

WHEREFORE, the decision appealed from is modified in the sense of imposing upon appellants merely the penalty
of reclusion perpetua, affirming the decisions in all other respects, with costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix,
JJ., concur.

1. Rule 130 Section 1 – Object as evidence

G.R. Nos. 96123-24 March 8, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO MANALO Y CABISUELAS, accused-appellant.
444

The Solicitor General for plaintiff-appellee.

Cesar D. Cabral for accused-appellant.

MELO, J.:

Accused-appellant Rodolfo Manalo prays for the reversal of the judgment of the Regional Trial Court of the Fourth
Judicial Region (Branch 31, City of San Pablo) in Criminal Cases No. 2740-SP and 2741-SP, which pronounced him
guilty beyond reasonable doubt of two separate counts of Murder and sentenced him in each case to suffer the
penalty of reclusion perpetua and to separately indemnify the heirs of the two victims in the sum of P30,000.00, to
pay P5,215.40 as actual damages to Marcelo Bonilla, the father and father-in-law, respectively, of the victims
Warlito Bonilla and Carlito Diomampo, and to pay the costs of suit (p. 116, Rollo).

On March 9, 1982, two separate amended informations were filed by San Pablo Assistant City Fiscal Lourdes M.
Escondo charging accused-appellant with the crime of Murder committed as follows:

AMENDED INFORMATION

That on or about November 29, 1981, in the City of San Pablo, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, with treachery
and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot one
WARLITO BONILLA with an unlicensed pistolized Colt Caliber .45, with Serial No. 362134, with
which the accused was then conveniently provided, thereby inflicting mortal wound upon the person
of said Warlito Bonilla which caused his immediate death.

CONTRARY TO LAW

AMENDED INFORMATION

That on or about November 29, 1981, in the City of San Pablo, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the accused above named, with intent to kill, with treachery
and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot one CARLITO
DIOMAMPO with an unlicensed pistolized Colt Caliber .45, with Serial No. 362134, with which the
accused was then conveniently provided, thereby inflicting mortal wound upon the person of said
Carlito Diomampo which caused his immediate death.

CONTRARY TO LAW. (pp. 38-39, Rollo)

When arraigned, accused-appellant entered a plea of not guilty to both charges and after trial on the merits, the trial
court handed down its verdict in this wise.

WHEREFORE, in view of the foregoing facts and circumstances, this court, after a careful study of
the evidence adduced in each of the two above-entitled cases, hereby finds the accused herein,
RODOLFO MANALO Y CABISUELAS, guilty beyond reasonable doubt of the crime of MURDER in
each of the two above-entitled cases, committed in relation to a violation of Presidential Decree No.
1728 and, in accordance with provisions both of the Revised Penal Code and of Article III, Section
19(l) of the 1987 Constitution of the Republic of the Philippines, hereby sentences him to suffer the
penalty of imprisonment, consisting of RECLUSION PERPETUA, in each of the two above-entitled
cases with all accessory penalties in connection therewith, which shall be served by him in
accordance with law, and hereby orders him to indemnify the heirs of the deceased victim Carlito
Diomampo in the amount of Thirty Thousand Pesos (P30,000.00), Philippine Currency, as well as
the heirs of the deceased victim Warlito Bonilla in a similar amount and to pay the amount of Five
Thousand Two Hundred Fifteen Pesos and Forty Centavos (P5,215.40), Philippine Currency, as
actual damages, to Marcelo Bonilla, the father and father-in-law of the deceased victims Warlito
Bonilla and Carlito Diomampo, respectively, without subsidiary imprisonment, however, in case of
insolvency; and to pay the costs of suit in each of the two above-entitled cases.

The period of preventive imprisonment undergone by the accused shall be credited in the service of
his sentence in accordance with Article 29 of the Revised Penal Code as amended by Republic Act
No. 6127.

SO ORDERED. (p. 116, Rollo)

Accused-appellant urges reversal upon the following assigned errors:

445

The trial court erred in giving undue weight and credence to the uncorroborated, unreliable and
unbelievable testimony of prosecution witness Carlos Lacbay which was belied by no less than
another prosecution witness Dr. Francisco Perez, an unbiased and very credible witness.

II

The trial court erred in overlooking a vital fact that there is no physical evidence that appellant fired a
gun.

III

The trial court erred in convicting accused-appellant. (p. 6, Appellant's Brief, ff. p. 141, Rollo)

The People's version is summarized by the Solicitor General, thus:

At about 5:00 p.m. of November 29, 1981, witness Carlos Lacbay, a forty-eight year old sales agent
of TL Marketing Corporation and a resident of Barangay San Rafael, San Pablo City, visited Carlito
Diomampo at the latter's house at Villa Antonio Subdivision, San Pablo City . . . They partook of
some wine and camote and conversed about the motorcycle which Diomampo was interested in
buying [and after] about two (2) hours, Lacbay decided to leave. Diomampo and his brother-in-law,
Warlito Bonilla, offered to accompany him home. Thereupon, Lacbay rode on and drove his office
service motorcycle while Diomampo and Bonilla rode in tandem on their own motorcycle with
Diomampo driving it. (tsn, July 27, 1982, pp. 3-8).

Upon their arrival at Barangay San Rafael, San Pablo City, at about 7 p.m., Lacbay parked his
motorcycle in front of the Barleta Engineering Rebuilder Shop and unloaded the camote he brought
along with him. Diomampo and Bonilla likewise parked their own motorcycle in front of the said shop.
While they were thus parking, appellant Rodolfo Manalo, Lacbay's neighbor and co-resident of the
same barangay and also an acquaintance of Diomampo and Bonilla, arrived and invited Diomampo
and Bonilla to his house for a drink of wine to which the two (2) acceded after insisting that Lacbay
would go, as he did, with them. (Ibid., pp. 8-13)

From Barleta Engineering Rebuilder Shop along the highway, they walked along a pathway to the
house of appellant in the following order, namely: Diomampo and Bonilla were ahead, followed by
appellant who was, in turn, followed by Lacbay at about one (1) step behind, passing one (1) house
before reaching appellant's house. (Ibid).

After Diomampo and Bonilla entered the house of appellant and were about to reach the interior
portion thereof, appellant, who was then at the doorway followed behind by Lacbay, suddenly and
without any warning shot Diomampo once on the head and then Bonilla also once on the temple at a
distance of about three (3) meters from behind, with a .45 caliber pistol with a magazine. Diomampo
and Bonilla fell down to the floor dead. Thereafter, appellant again fired one more [shot] at
Diomampo. Lacbay who was standing a meter behind appellant, was so shocked that he was unable
to move. Appellant told him that he shot Diomampo and Bonilla because Diomampo had
impregnated his daughter, Dina Manalo. Thereafter, appellant asked Lacbay to dig but the latter
refused. Thereupon, appellant warned him not to leave the place as he (appellant) would look for
somebody to do the digging, then left. (Ibid., pp. 17-19).

After appellant left him, Lacbay walked toward the place where his motorcycle and Diomampo's
motorcycle were parked. As he neared the said place, he saw appellant with Edelito Batralo, another
neighbor, returning. Lacbay surreptitiously pushed his motorcycle away without starting its engine
and rushed home. (Ibid., pp. 20-22).

The medico-legal examination conducted by Dr. Francisco Perez, City Health Officer of San Pablo
City, an the bodies of Diomampo and Bonilla which were dug from a shallow pit under the
"banggerahan" of appellant's house on December 1, 1981 revealed that both deceased sustained
gunshot wounds caused by a .45 caliber gun, described as follows: Diomampo — a gunshot wound,
1 cm. in diameter, circular in shape, with smudge and located on the upper eyelid, directed
posteriorly, piercing the brain through the orbital fossa, fracturing the occipital bone of the skull, with
the slug embedded under the skin with pieces of bone fragments; as well as a closed, depressed
comminuted fracture of the maxilla on the left side of the face (Exhibit "B"); Bonilla — a gunshot
wound, 0.9 cm. in diameter, located on the right tempo-parietal region, directed obliquely and
posteriorly towards the left, piercing the brain, fracturing the occipito-parietal region, skull, left, with
the slug embedded under the skin (Exhibit "F"). Both slugs were extracted by Dr. Perez and were
determined to be as those fired from a .45 caliber gun. The
446

proximate cause of death of each of two (2) victims was due to shock and hemorrhage secondary to
the gunshot wound. (tsn, May 2, 1983, pp. 11-18, 30). (pp. 3-8, Appellee's Brief, ff. 153, Rollo).

On the other hand, the defense maintains that accused-appellant is not responsible for the treacherous acts, but
that rather, he is just an unwilling witness to the horrible event perpetrated by persons unknown to him. Accused-
appellant asseverates that on that fateful day, after attending a meeting at the Iglesia ni Cristo chapel, he went
home and saw two unknown men in front of his house. One of them asked him if he was Ma Rody and accused-
appellant answered in the affirmative. The two then requested permission to stay for a while to wait for somebody. A
few moments later, prosecution witness Carlos Lacbay together with Carlito Diomampo and Warlito Bonilla, arrived
on board two motorcycles. Carlito and Warlito approached appellant and the two unknown persons as Lacbay left
saying "You two, stay there and I will bring this motorcycle home."

Carlito, upon seeing the two unknown persons, sort of greeted them saying, "Boss", to which one of the two
unknown persons retorted, "Boss Ka ng Boss, busisi Ka namang putang-ina mo", at the same time striking Carlito's
face. After Carlito fell on his back the man who struck him drew a gun from his waist and shot Carlito. Warlito rushed
to Carlito but he was blocked by the other unknown man who boxed him on the face. Warlito fell and while in the act
of rising and "trying to draw something from his waist", he was shot on the face by the other unknown man.
Afterwards, the two unknown men asked accused-appellant whether he had a spade, and answering in the
negative, he was ordered to look for one. When accused-appellant returned with a spade, the two men inquired
where they could dig and accused-appellant pointed to a place under his "banggerahan". The two men started
digging but not before telling accused-appellant to keep watch as somebody might arrive. About an hour later, the
two men dumped the dead bodies of Carlito and Warlito into the hole they dug. They then brought accused-
appellant towards the highway and told him not tell anyone about the incidents, otherwise his life and those of his
children will be in jeopardy. (pp. 11-12, Appellant's Brief, ff. p. 141, Rollo.)

We have examined with care the evidentiary record and We find that the same supports the judgment of the trial
court.

Under his first assigned error, accused-appellant tries to make capital out of the discrepancy between Lacbay's
testimony and the necropsy report and testimony of the City Health Officer concerning the distance and the manner
in which the victims were shot. Lacbay stated that accused-appellant was more or less three meters away from the
victims when he fired at them from behind. Dr. Francisco Perez, on the other hand, testified that the assailant could
not have been farther than eighteen inches owing to the gunpowder smudge found on the wound of Carlito
Diomampo. Dr. Perez also claimed that the victims sustained frontal gunshot wounds indicating that they were shot
while facing their assailant.

Accused-appellant is clutching at reeds. The variance in the distance from which the victims were shot is
insignificant and does not take into account that even as Lacbay said that accused-appellant was 3 meters away
from his victims when he fired, the distance would be considerably lessened because of the arm extension when he
fired. Then too, the relative positions of accused-appellant and the victims need not necessarily be directly
contradictory, one following the others according to Lacbay, and the victims facing accused-appellant according to
accused-appellant using the statement of Dr. Perez that the victims sustained frontal gunshot wounds. It could very
well have been that the dramatis personae were following each other, but that as accused-appellant shot Diomampo
and Bonilla, they turned towards or had their faces turned towards accused-appellant. This could very well have
been the case especially in regard to Bonilla the second victim, for his natural reaction after accused-appellant fired
the first time at Bonilla was to look at the direction from which the shot was fired.

In any event, Lacbay's emphatic and positive identification of accused-appellant as the gunman deserves full merit
and weight despite any supposed inconsistency (People vs. Mesias, 199 SCRA 20 [1991]). Verily, establishing the
identity of the malefactor through the testimony of witnesses, is the heart and cause of the prosecution. All other
matters, albeit of considerable weight and importance, generally assume lesser consequence, and in this regard,
the identification by Lacbay of accused-appellant as the gunman is positive and unshakeable.

The second assigned error would stress the alleged absence of physical evidence showing that accused-appellant
fired a gun. To this, We need only remark that such circumstance neither proves his innocence as well. In fact, even
if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that
he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when
the hands are washed before the test (People vs. Talingdan, 191 SCRA 333 [1990]; People v. Roallos, 113 SCRA
584 [1982]). The Court has even recognized the great possibility that there will be no paraffin traces on the hand if,
as in the instant case, the bullet was fired from a .45 Caliber pistol (People vs. Rebullar, 188 SCRA 838 [1990]).

In answer to accused-appellant's last assigned error, which really is only a conclusion on his part, We find the
observations of the trial court persuasive and well-taken, portions of which are worth quoting, thus:

CARLOS LACBAY, who is the principal witness for the prosecution, has positively identified in court
the accused herein as the sole perpetrator of the killing of Carlito Diomampo and Warlito Bonilla. He
447

had vividly testified in court on the time, the place and the manner how said killings were perpetrated
by the accused . . .

. . . Lacbay, being a neighbor of the accused, can never be said to be a prejudiced or biased
witness. The accused himself testified that he does not know of any reason why Carlos Lacbay
testified against him inasmuch as, prior thereto, he never had any misunderstanding with him
whatsoever. While it might be contended that there was a little delay on the part of Carlos Lacbay in
reporting the aforestated killings to the police authorities concerned . . . he sufficiently explained this
by stating that because he was shocked, confused, and fearful . . . he had to wait and consult his
"bilas" who was then a member of the Philippine Marines.

xxx xxx xxx

. . . the accused executed an extrajudicial statement . . . (Exh. "I-17") wherein he admitted the
killings but sought to justify his acts by alleging that one of the victims Carlito Diomampo tried to
abuse his daughter. On direct testimony, however, . . . the accused testified that he did not shoot the
victims but there were two unidentified men who came to his place and were the ones responsible
for the killings. The accused has, thus, adopted two postures which are irreconcilable. The accused,
when he made a complete turnabout from his earlier statement given to the police, renders himself
totally incredible considering that his inconsistency was on a very material point which is actually the
heart of the case. The accused, by his own acts, rendered himself unworthy of credit and belief.

xxx xxx xxx

In the several letters (Exhs. "JJ" and "KK") sent by the accused to Mr. Marcelo Bonilla, the accused
has repeatedly begged Mr. Bonilla to agree to the amount of P14,000.00 which he was offering as a
settlement for the death of the two victims.

xxx xxx xxx

The accused, in his letter to Asst. City Fiscal Escondo . . . requested said Asst. Fiscal not to charge
him for Murder but only for Homicide because according to him, he did not have any intention to kill
the victims but was prompted to do so only because of circumstances beyond his control.

xxx xxx xxx

In one of the letters of the accused to Mr. Bonilla . . . he is asking for forgiveness for the offenses he
had committed. Again, We submit that when a person asks for forgiveness, then he is admitting that
he has committed something wrong . . . (pp. 104-105; 107; 109-110, Rollo)

Finally, one cannot but express wonder, if not bewilderment at the tale under which accused-appellant seeks
shelter. He presents the story of two persons, conveniently unknown to him and unseen by any other, doing the
slaying. The story is not even believable fiction. For who are the assailants who would, while waiting for their victims,
station themselves in front of the house not of the victims but of one whom they were not even sure would at that
precise moment be visited by the victims. And these killers would then ask the homeowner (accused-appellant) if he
is Ma Rody — thereby not even attempting to hide their identities but on the contrary, impressing into the memory of
a witness their faces. Further, they would, after killing the victims in front of accused-appellant, tarry around, ask
accused-appellant to obtain a shovel, dig at a place — under accused-appellant's "banggerahan" — which accused-
appellant inexplicably offered. Surely, these are not the acts of assassins, who, strangers as they are in the place,
would naturally seek protection under that very same anonymity, and not allow time for other persons to recognize
them and later identify them. The story of accused-appellant is nothing but an unbelievable concoction.

In view of overwhelming evidence supporting the trial court's judgment of conviction, We cannot reverse the same.
However, the civil indemnity should be increased to P50,000, conformably with current jurisprudence.

WHEREFORE, except for the slight modification whereby the civil indemnity to be paid by accused-appellant to
each set of heirs of the two victims is increased to Fifty Thousand Pesos (P50,000.00), the decision under review is
hereby AFFIRMED.

SO ORDERED.

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

Gutierrez, Jr., J., is on leave.

People v. Manalo
448

G.R.Nos. 96123-24 March 8, 1993

Melo, J.:

Object Evidence

Facts:

1. Accused Rolando Manalo for shooting one Warlito Bonillo and one Carlito Diomampo with an unlicensed pistol Colt
Caliber .45.

2. The conviction was the result of the filing of two (2) amended informations. The accused pleaded not guilty. After trial
on the merits the accused was found guilty beyond reasonable doubt of the crime of murder in relation to PD 1728.

3. Witness Carlos Lacbay narrated that at about 5PM of Nov. 29, 1989 he visited one of the victims, Diomampo, in the
latter's house where they conversed over some wine and camote regarding the latter's interest in buying a motorcycle.
After 2 hours, witness Lacbay decided to leave, while Diomampo and a brother-in-law offered to accompany him home.
After this, Lacbay rode on his service motorcycle while Diomampo and the other person (Bonilla) rode in tandem in their
own motocycle.

4. When the group arrived at Bgy. San Rafael in San Pablo City at about 7 pm, and parked their motorcycles, accused
Manalo (an acquaintance of both victims) arrived and invited the victims to his house for some drinks. The two acceded
after insisting that Lacbay would go as he did, with them. As they were walking to accused house, Bonilla and
Diamampao walked ahead, with accused following close by and Lacbay behind the latter.

5. After the victims entered the house of accused, the latter suddenly drew a .45 Caliber gun and shot Diomampo once
in the head and then Bonilla on the temple about 3 meters from behind. Both died immediately, nevertheless, accused
fired another shot at Diomampo. Lacbay who saw everything was so shocked. The accused told him that he shot both
because Diomampo had impregnated his daughter, Dina Manalo. After this, accused asked Lacbay to dig, to which the
latter refused. Finally, accused asked him not to leave the place as he would look for someone to do the digging. Lacbay
took this chance to flee the scene. Subsequently, both the bodies of Bonilla and Diomampo were found buried in a
shallow pit under the 'banggerahan' of accused' house.

6. The defense maintains the innocence of Manalo, arguing that he is merely a witness to the crime perpetrated by two
unknown assailants. According to the defense' version of the story, it was these two unknown persons who killed both
victims. Accordingle, the assailants were already waiting in the area for Bonilla and Diomampo, then thereafter shot
them.

RULING:
449

The court had examined the evidence and it found that it supported the judgement of the lower court.The accused
banks on the alleged absence of physical evidence showing that accused fired a gun. The court held that this
circumstance did not prove his innocence since even if a paraffin test would yield a negative result, it is still possible for
one to have fired a gun and washed his hands thereafter.The court also recognized the great possibility that there will be
no paraffin traces left in the hands when a bullet was fired from a .45 Caliber pistol, as held in the case of People vs.
Rebullar (188 SCRA 838).

Finally, the lone witness to the crime, Lacbay has positively identified Manalo as the sole perpetrator of the killing.
Lacbay can never be said to be a prejudiced witness since he had no other motive nor misunderstanding to maliciously
testify against Manalo. The little delay in reporting the killings to the authorities was due to the shock, confusion and
fear of Lacbay and that he had to wait ans consult with a relative who was a member of the Philippine marines.

More importantly, the accused Manalo has executed an extrajudicial statement admitting the killings but which he later
on withdrew during the trial. Accused adopted two irreconciliable stands that is actually the heart of the case, rendering
him unworthy of credit and belief. Accused also wrote several letters, one to Mr. Marcela Bonilla offering money as
settlement for the death of the two victims and then to Fiscal Escondo requesting him no to charge murder but only
homicide as he had no intention to kill the victims. In one of these letters, he even asked forgiveness for the crime he
had committed.

G.R. No. 188976               June 29, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
JAKAR MAPAN LE y SUBA and RODEL DEL CASTILLO y SACRUZ, Accused-Appellants.

DECISION

VELASCO, JR., J.:

This is an appeal from the March 31, 2009 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 03019 entitled
People of the Philippines v. Jakar Mapan Le y Suba alias "Ankaw" and Rodel Del Castillo y Sacruz alias "Rodel"
which affirmed the Decision of the Regional Trial Court (RTC) Branch 154 in Pasig City in Criminal Case No. 13644-
D for Violation of Section 5 in relation to Section 26 of Republic Act (RA) 9165 or the Comprehensive Dangerous
Drugs Act of 2002. Accused-appellants were sentenced to life imprisonment.

The Facts

An Information charged accused-appellants as follows:

On or about July 27, 2004, in Pasig City and within the jurisdiction of this Honorable Court, the accused, conspiring
and confederating together, and both of them mutually helping and aiding one another, not being lawfully authorized
by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO1 Richard N. Noble, a
police poseur-buyer, one (1) heat-sealed transparent plastic sachet, containing two (2) grams of white crystalline
substance, which were found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation
of the said law.1

During their arraignment, accused-appellants both gave a negative plea.

At the trial, the prosecution presented the following witnesses: PO2 Richard Noble (PO2 Noble) and PO1 Melvin
Mendoza (PO1 Mendoza). The defense offered the testimonies of accused-appellants and Norhaya Mapan Le,
Mapan Le’s daughter.

Version of the Prosecution

According to PO2 Noble, the Pasig City Police Station received information at around 9:00 on the evening of July
27, 2004 from a confidential informant (CI) that a certain "Ankar" and "Rodel" were selling shabu in Bolante, Palatiw
450

in Pasig City. He noticed that the two men tagged in the information were included in their drug watch list. Their
office thus prepared a pre-operation report (Exhibit "B") and coordinated with the Philippine Drug Enforcement
Agency (PDEA) (Exhibit "B-1"). Police Inspector Castillo organized a buy-operation and designated PO2 Noble as
the poseur-buyer. PO2 Noble placed his initials "RN" on the buy-bust money (Exhibits "E" and "F") consisting of two
(2) Php100 bills. PO2 Noble, PO1 Mendoza and their colleagues then headed for the target area in two (2)
unmarked vehicles. They reached the place at around 9:50pm and walked to the place of "Ankar" and "Rodel."
Once the latter were spotted, the CI talked to "Ankar" and introduced PO2 Noble as a regular shabu buyer. When
"Ankar" asked PO2 Noble how much he wanted to purchase, he replied by giving "Ankar" the Php200 marked
money. "Ankar" then instructed "Rodel" to give PO2 Noble a plastic sachet. PO2 Noble examined the contents of
the plastic bag and proceeded to scratch his head to mark the consummation of the drug transaction. Upon seeing
the pre-arranged signal from PO2 Noble, back-up operative PO2 Mendoza rushed to the scene. PO2 Noble
arrested "Rodel" while PO2 Mendoza arrested "Ankar," who attempted to flee. PO2 Mendoza retrieved the buy-bust
money from "Ankar" while PO2 Noble marked the plastic sachet received from "Rodel." 2

PO1 Melvin Mendoza corroborated PO2 Noble’s testimony. He testified that he followed PO2 Noble and the CI at a
distance of around 10 to 15 meters. He observed the men talking with "Ankar," with "Rodel" handing something to
"Ankar" afterwards. "Ankar" then handed the object to PO2 Noble. PO2 Mendoza did not see what the object was
from where he was situated. When he saw PO2 Noble brush his hair with his hand he joined PO2 Noble in arresting
"Rodel" and "Ankar," with PO2 Noble informing the men of their violation. PO2 Noble then placed markings on the
plastic sachet that was sold. The men were then brought to the police station for further investigation. 3 The two were
subsequently identified as Jakar "Ankar" Mapan Le (Le) and Rodel Del Castillo (Del Castillo).

Version of the Defense

On the witness stand, Le testified that he was a vendor of slippers and socks at the Pasig Market. On the evening of
July 27, 2004, he was inside his house with his family. While they were watching television someone suddenly
kicked the door of their house. Four male strangers then entered without warning and frisked him. They found
nothing on his person. He asked if they had a warrant and they answered that they did not. Still they brought him
outside and boarded him in a red car. He was told that they were taking him to their office. 4

According to Le, Del Castillo5 lived five houses away from him. He only knew Del Castillo by face and only found out
his name when he arrived at the Parancillo Police Station, where Del Castillo was in handcuffs. Le recounted that a
police officer named Noble demanded PhP 10,000 from Mapan for his freedom. Le answered that he did not have
money, to which Noble said, "tutuluyan kita." Le was jailed when he could not comply with Noble’s demand.

Del Castillo testified that on the night of the buy-bust operation, he was on his way home from work as a kargador in
the market. He stopped by a deep-well pump in front of Le’s house in order to wash his hands. Several police
officers approached him while he was washing his hands. He was asked if he knew who Ankar was. He replied in
the negative. Afterwards, he noticed that three of the police officers went inside Le’s house while the rest remained
outside. He left soon after. After taking only a few steps, PO2 Noble called Del Castillo back and asked him if he
knew Le. He replied that he did not. He was boarded in a car, with Le following suit three minutes later. The two
were brought to Rizal Medical Center where they were made to sign a document. They were not brought to the
crime laboratory for drug testing but were instead escorted to the Parancillo police station. 6
1avvphi1

Del Castillo narrated that the police insisted he knew who Le was. He denied this and was brought to a bathroom
where he was beaten up.7

Norhaya Mapan Le (Norhaya) corroborated her father’s testimony. She said she was watching television with her
parents when four men barged into their house on July 27, 2007 at around 10 to 11pm. They were armed men in
civilian clothing who announced that they were police officers. They instructed her family not to move. The men
searched their house and did not find anything. She saw them frisk her father and handcuff him. Later, their
neighbors told them that the police officers were from Parancillo and that they should follow her father to the police
station. 8

At the police station, Norhaya and her family begged Police Officer Noble to set her father free because he was
innocent. The policeman instructed them to pay Php10,000.00 for the release of Le. When they told Noble they
could not produce the amount, they were advised to return when they had the payment. 9

In addition, Norhaya testified that she did not know her father’s co-accused Rodel Del Castillo prior to the alleged
buy-bust operation. She told the court that her father left their house on July 27, 2004 to sell slippers and socks at
the market and returned home before 8pm and did not leave their house anymore. 10

The Ruling of the Trial Court

Finding all of the elements of a valid buy-bust operation present, the RTC convicted accused-appellants of the crime
charged. The trial court also noted that the requirements prescribed by RA 9165 on coordination with PDEA were
complied with. The defense’s claim of extortion was not given credence as it was found to be a vain attempt by
451

accused-appellants to show motive on the part of the police officers even if the former had no visible means of
income.

The dispositive portion of the RTC Decision11 reads:

WHEREFORE, premises considered, judgment is hereby rendered in finding the accused JAKAR MAPAN LE and
RODEL DEL CASTILLO GUILTY beyond reasonable doubt of violation of Section 5, Article II of RA 9165 (sale of
dangerous drugs) and each of them is sentenced to suffer the penalty of LIFE IMPRISONMENT. Each of them is
also ordered to pay a fine of P1,000,000.00. x x x

SO ORDERED.

Accused-appellants appealed their conviction before the CA. They averred that their guilt was not proven beyond
reasonable doubt. There were material inconsistencies and contradictions in the prosecution witnesses’ testimonies,
such as PO2 Noble and PO1 Mendoza’s version of how the buy-bust operation was conducted. The defense also
emphasized that the prosecution failed to (1) present the person who delivered the subject shabu to the crime
laboratory, thus creating a missing link in the chain of custody; and (2) make an inventory and take photographs of
the confiscated shabu in the presence of accused-appellants, a media representative, and an elected public official
as required by RA 9165.

The Ruling of the Court of Appeals

The CA12 affirmed the appealed RTC decision. The alleged inconsistent statements made by prosecution witnesses
were not material enough to overturn the trial court’s findings and did not delve into the elements of the crime
charged. As to the chain of custody rule, the appellate court ruled that what was most important was that the
prosecution showed that the identity and integrity of the shabu was preserved.

Accused-appellants seasonably filed their Notice of Appeal of the appellate court’s Decision.

On, September 23, 2009, this Court required the parties to submit supplemental briefs, if they so desire. The parties
manifested that they were adopting their arguments contained in their respective briefs earlier filed with the Court.

The Issue

WHETHER THE COURT OF APPEALS ERRED IN FINDING ACCUSED-APPELLANTS GUILTY BEYOND

REASONABLE DOUBT.

Reiterating their arguments, accused-appellants maintain that the prosecution witnesses’ testimonies on how the
buy-bust operation occurred were completely different from each other. The non-presentation of the marked money
the team used is also questioned. The prosecution’s evidence is likewise attacked for having a missing link in the
chain of custody of over the subject shabu and for non-compliance with Sec. 21 of RA 9165 as well as its
Implementing Rules and Regulations (IRR). The defense further argues that no justifiable reason was offered for
such non-compliance.

The Office of the Solicitor General (OSG), on the other hand, argues on behalf of the People that the prosecution
was able to prove the identity of the seized shabu. They label as immaterial whether it was Le or Castillo who gave
the shabu to PO2 Noble. In their view, the non-presentation of the marked money does not create a hiatus in the
evidence of the prosecution as the sale of the shabu was adequately proven and the shabu itself was presented
before the court. In addition, they point out that the photocopies of the marked money were presented, identified,
and not objected to.

On the matter of extortion, the OSG contends that no proof was shown by the defense to overcome the presumption
of regularity in the performance of official duties enjoyed by the buy-bust operation team’s members.

The Ruling of This Court

We affirm accused-appellant’s conviction.

Elements of the Crime

Accused-appellants are charged with violating Section 5 of RA 9165, which reads:

Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from
Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another,
452

distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

The essential elements that must be established in prosecuting a case of illegal sale of shabu are: (1) the identity of
the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and the
payment therefor.13 What is material is proof that the transaction actually took place, along with the presentation in
court of the illegal substance which constitutes the corpus delicti of the crime. 14

In the instant case, the aforementioned elements were established by the prosecution. Le received Php200 from
poseur-buyer PO2 Noble in exchange for a plastic sachet handed to him by Del Castillo. PO2 Noble wrote his initials
on the seized item. The plastic sachet’s contents were then subjected to a laboratory examination and tested
positive for shabu. The alleged inconsistencies cited by the defense do not materially affect the credibility of the
prosecution’s witnesses. As the OSG correctly pointed out, the inconsistencies were too trivial to merit
consideration. What is important is that the elements of the crime were established by both the oral and object
evidence presented in court.

Accused-appellants’ argument on the failure to present the marked money in court is not only without merit but
baseless. Two (2) One hundred peso (Php100) bills were presented as evidence as the buy-bust money used and
marked as Exhibits "E" and "F." Moreover, the presentation of buy-bust money is not required by law or
jurisprudence. Its non-presentation is not fatal to the case for the prosecution. The marked money used in the buy-
bust operation is not indispensable but merely corroborative in nature. 15

Chain of Custody

We likewise affirm the findings of both lower courts on the issue of chain of custody. What is important is the
preservation of the identity and integrity of the seized shabu.

RA 9165 provides the procedure for buy-bust operations:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative
examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the
forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject
item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not allow the completion of testing within the time frame,
a partial laboratory examination report shall be provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification
shall be issued on the completed forensic laboratory examination on the same within the next twenty-four
(24) hours;

(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular
inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous
drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or
laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the
destruction or burning of the same, in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the
manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided,
That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for
legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained;
453

(5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject
item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the
court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a
minimum quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the
above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender
or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her
counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question,
the Secretary of Justice shall appoint a member of the public attorney's office to represent the former;

(7) After the promulgation and judgment in the criminal case wherein the representative sample/s was
presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case
and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for
proper disposition and destruction within twenty-four (24) hours from receipt of the same; xxx

To summarize, we ruled in People v. Camad, 16 that there are links that must be established in the chain of custody in
a buy-bust situation, viz: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused
by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for
laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic
chemist to the court.

In the instant case, the links in the chain are the following:

(1) At the scene of the buy-bust operation, Castillo handed the plastic sachet to PO2 Noble, who
immediately marked it with his initials;

(2) The plastic sachet was brought to the laboratory for examination per Request for Laboratory Examination
(Exhibit "A") signed by Police Inspector Earl B. Castillo;

(3) According to Physical Science Report No. D-0670-04E (Exhibit "B") prepared by Forensic Chemist
Lourdeliza Gural Cejes, the two (2) grams inside the seized sachet tested positive for shabu.

Non-compliance with Sec. 21 does not render an accused’s arrest illegal or the items seized/confiscated from him
inadmissible.17 The requirements under RA 9165 and its IRR are not inflexible. What is essential is "the preservation
of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of
the guilt or innocence of the accused."18 The prosecution in this case was able to preserve the integrity and the
evidentiary value of the shabu seized from accused-appellants. The records show that there was substantial
compliance with the requirements of RA 9165. We thus hold that the chain of custody requirements were met in the
instant case.

Presumption of Regularity

Likewise undeserving of credence is the allegation of frame-up. Accused-appellants did not present any evidence of
extortion on the part of the buy-bust team. Neither were they able to show any effort in correcting a wrong
supposedly committed against them by filing the appropriate administrative and criminal charges against the police
officers who arrested them. Unless there is clear and convincing evidence that the members of the buy-bust team
were inspired by any improper motive or were not properly performing their duty, their testimonies on the buy-bust
operation deserve full faith and credit. 19 We therefore uphold the presumption that the members of the buy bust team
performed their duties in a regular manner. Their testimonies as prosecution witnesses are entitled to full faith and
credit.

Penalty Imposed

RA 9165 prescribes the penalty of life imprisonment to death and a fine ranging from PhP 500,000 to PhP 10 million
for a violation of Sec. 5 of the same law. Having been sentenced to life imprisonment and to pay a fine of PhP 1
million each, accused-appellants’ imposed penalties should be affirmed as these are within the range provided by
law.

WHEREFORE, the appeal is DENIED. Accordingly, the CA’s March 31, 2009 Decision in CA-G.R. CR-H.C. No.
03019 is AFFIRMED IN TOTO. Costs against accused-appellants.

SO ORDERED.
454

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

G.R. No. 181494               March 17, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MONALYN CERVANTES y SOLAR, Accused-Appellant.

DECISION

VELASCO, JR., J.:

This is an appeal from the Decision dated July 19, 2007 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
00476 which affirmed the April 23, 2004 Decision in Criminal Case No. 00-181929 of the Regional Trial Court
(RTC), Branch 53 in Manila. The RTC found accused-appellant Monalyn Cervantes guilty beyond reasonable doubt
of violation of Section 15, Article III of Republic Act No. (RA) 6425 or the Dangerous Drugs Act of 1972, as
amended.

The records show the following facts:

In an Information dated April 7, 2000, accused-appellant and three others were charged with violation of Sec. 15,
Art. III of RA 6425 (selling or distributing a regulated drug), allegedly committed as follows:

That, on or about April 5, 2000, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court,
accused ISIDRO ARGUSON y ARENDELA, @ Tisoy, MONALYN [CERVANTES] y SOLAR @ Mona, WILSON DEL
MONTE @ Wilson and RICHARD REQUIZ @ Richard, conspiring, confederating and mutually helping one another,
acting in common accord, did then and there, willfully, unlawfully and feloniously, for the amount of FIVE HUNDRED
THOUSAND (P500,000.00) PESOS, Philippine Currency, sell, deliver and give away to a poseur-buyer, FOUR
HUNDRED SEVENTY THREE POINT SEVENTY SIX (473.76) GRAMS OF METHAMPHETAMINE
[HYDROCHLORIDE], commonly known as shabu, a regulated drug, without authority of law or the corresponding
license therefor.

CONTRARY TO LAW.1

Accused-appellant and her co-accused pleaded not guilty to the charge. In the ensuing trial, the prosecution
presented in evidence the oral testimonies of William Todavia, PO3 Reynaldo Ramos of the Philippine National
Police Regional Office IV (PNP R-IV), and P/Sr. Inspector Lorna Tria, a forensic chemical officer of the same
regional office.

The People’s version of the incident, as summarized by the CA in the decision now on appeal, is as follows:
455

On April 5, 2000, the Regional Special Operations Group IV (RSOG-IV), based at Camp Vicente Lim in Calamba,
Laguna, received a tip from a deep penetration agent (DPA) about a group of drug traffickers led by Isidro Arguson
operating in Cavite. Acting on this bit of information, a team led by SPO2 Geronimo Pastrana, PO3 Ramos, and
PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted at Arguson’s rest house in Barangay
Lambingan, Tanza, Cavite.2 Upon arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as poseur-
buyers, were introduced by the DPA to Arguson as the buyers of PhP 500,000 worth of shabu, simultaneously
showing him a bundle of money. Since Arguson did not have enough supply of shabu in the premises, he instructed
the would-be-buyers to follow him to Pasay City. For the purpose, he hired a vehicle owned by Todavia.

At about three o’clock in the afternoon of that day, in front of the McDonald’s branch in P. Ocampo St., Pasay
City,3 Arguson instructed the would-be-buyers to wait for someone who will come out from the nearby Estrella St.
Very much later, accused-appellant emerged from Estrella St. and approached PO3 Ramos to check if he still had
the money. After being shown the money bundle, accused-appellant left, only to return a few minutes later this time
with Arguson, Wilson Del Monte, who was holding a black plastic bag, and Richard Requiz. Arguson then took from
Del Monte the bag, later found to contain 473.76 grams of shabu packed in six small self-sealing transparent bags,
and handed it to PO2 Balosbalos, who in turn gave him the bundle of boodle money. Finally, PO3 Ramos gave the
pre-arranged signal to indicate the consummation of the drug deal and introduced himself as policeman. Accused-
appellant and her scampering companions were later arrested and brought to and booked at Camp Vicente Lim.

The black plastic bag containing the six small self-sealing bags of white crystalline substance was likewise taken to
Camp Vicente Lim where PO3 Ramos prepared the booking sheets and arrest reports and the request for a
qualitative analysis of the seized items. Regional Crime Laboratory Office IV Chief Inspector (C/I) Mary Jean
Geronimo then conducted the standard physical and chemical examinations on the specimen referred to her.

On April 6, 2000, C/I Geronimo prepared and completed Chemistry Report No. D-115800 on the crystalline
substance. Per her report, the substance tested positive for methamphetamine hydrochloride or shabu.

Apart from the witnesses’ affidavits and other documents, the prosecution, in the hearing of March 4, 2002, offered
in evidence the following exhibits,4 inclusive of its sub markings, which, as may be expected, were objected to by the
defense: (a) Exhibit "B" – Chemistry Report No. D-115800 prepared by C/I Geronimo; (b) Exhibit "C" –
Memorandum of RSOG-IV dated April 5, 2000 to the Chief, Laboratory Service, requesting for qualitative analysis of
the contents of the six transparent plastic bags; (c) Exhibits "D" and "D-1" to "D-6" – Black plastic bag with
markings; and six (6) self-sealing transparent bags allegedly containing the confiscated shabu; and (d) Exhibit
"F" – Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3 Ramos as witnesses.

The CA decision likewise summarized the defense’s account of what purportedly transpired, to wit:

Accused-appellant testified that after she did laundry works at her house in Estrella Street near F.B. Harrison on
April 4, 2000, her youngest child asked her to go to [McDonald’s], Vito Cruz branch, to buy ice cream. When they
arrived thereat at about 4:30 in the afternoon, there was a commotion going on in front of the restaurant. She then
saw a woman who alighted from a nearby van and pointed her out to her companions, one of whom [was] an old
man boarded her inside the van causing her to lose hold of her child. Thereafter, two (2) younger male persons,
whom she later came to know as DEL MONTE and REQUIZ, were also boarded into the same van. They were
taken to a cemetery where another vehicle came and took them to Camp Vicente Lim, where she allegedly met
ARGUSON for the first time.

On the other hand, accused DEL MONTE testified that he was a parking boy around Vito Cruz and that on the day
in question, while he was watching a vehicle near [McDonald’s], Vito Cruz branch, a commotion happened near his
post. As he moved backward from where he stood, he was suddenly approached by a policeman who arrested him
and boarded him inside a vehicle together with CERVANTES and REQUIZ, whom he did not know prior to that
incident.

For his part, accused REQUIZ testified that on the date and time in question, he was riding a borrowed bicycle on
his way to the Cultural Center, passing by F.B. Harrison St., when he bumped a parked van, wherefrom a man
alighted and cursed him, saying "pulis ako wag kang aalis dyan[!] " The man left and when he returned, accused
CERVANTES was with him. Thereafter, he was boarded into the van together with the other accused. 5

While not stated in the CA decision, Del Monte testified, like accused-appellant, that he was taken to a cemetery
somewhere in Cavite where the arresting officers lingered for an hour before bringing him to Camp Vicente
Lim.6 These testimonies remained uncontroverted. Arguson died during the course of the trial resulting in the
dismissal of the case against him.7

On April 23, 2004, the RTC rendered judgment acquitting Del Monte and Requiz but finding accused-appellant guilty
as charged and meting upon her the penalty of reclusion perpetua. The fallo of the RTC Decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

456

1. Finding accused MONALYN CERVANTES Y SOLAR GUILTY beyond reasonable doubt of violation of Sec. 15,
Article III, of Republic Act No. 6425 as amended, and is sentenced to Reclusion Perpetua and to pay a fine in the
amount of Php500,000.00; and

2. Finding the prosecution’s evidence insufficient to prove the guilt of accused WILSON DEL MONTE and RICHARD
REQUIZ beyond reasonable doubt, and who are hereby ACQUITTED.

SO ORDERED.8

On May 18, 2004, accused-appellant filed a Notice of Appeal, pursuant to which the RTC forwarded the records of
the case to this Court.

Conformably with People v. Mateo, 9 the Court directed the transfer of the case to the CA where it was docketed as
CA-G.R. CR-H.C. No. 00476. Before the appellate court, accused-appellant urged her acquittal on the ground of
"insufficiency of evidence," particularly stating that the "forensic chemist who actually conducted the laboratory
examination on the specimens allegedly recovered from the accused was not presented in court x x x [and] hence,
there was no clear identification of the contents of the confiscated sachets." 10

By its Decision11 dated July 19, 2007, the CA, finding the elements necessary for the prosecution of illegal sale of
drugs12 to have sufficiently been satisfied and the identification of accused-appellant having been established,
affirmed her conviction.

The CA rejected accused-appellant’s lament about one Inspector Tria testifying on the chemistry report she did not
prepare. As the appellate court stressed, C/I Geronimo’s forensic report "carries the presumption of regularity in the
performance of official functions [and] the entries thereon x x x are prima facie evidence of the facts therein stated."
The CA added the observation that absent any evidence overturning the presumption of regularity in the
performance of official functions, the probative value and admissibility of the forensic report prepared by C/I
Geronimo, who had resigned from the service, must be upheld even if she did not personally testify in court.

On August 17, 2007, accused-appellant filed a Notice of Appeal of the CA affirmatory decision.

On March 24, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties
manifested their willingness to submit the case on the basis of the records already submitted, thus veritably
reiterating their principal arguments raised in the CA, which on the part of accused-appellant would be:

THE [CA] GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED
DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION.

For its part, the People, thru the Office of the Solicitor General, counters that the prosecution has established that
the buy-bust transaction took place, has identified accused-appellant and her complicity in Arguson’s illegal trade,
and has presented the corpus delicti, as evidence.

The Court’s Ruling

After a circumspect study, the Court resolves to acquit accused-appellant, considering certain circumstances
engendering reasonable doubt as to her guilt.

We start off with the most basic, the testimony of the prosecution’s principal witness, PO3 Ramos, who identified
accused-appellant and described her role in the conspiracy to sell shabu. In the witness box, PO3 testified that, after
being told by Arguson to wait for someone who will come out from the street whence Arguson would enter, accused-
appellant emerged from said street, checked on the purchase money, asked the operatives to wait, and later re-
appeared. What happened next is captured by the following answers of PO3 Ramos to the prosecutor’s questions:

Q: What did you see when Cervantes already returned? A: When Monalyn return the one holding the plastic bag
was Wilson, sir.

Q: Wilson? A: Yes, sir, together with Richard, Wilson, Arguson, they were four (4).

Atty. Cruz: Your honor, may we move to strike that out x x x.

Fiscal Formoso: That’s part of the answer x x x now, when all these accused here return with Monalyn Cervantes,
what happen[ed]?

A: Arguson took the plastic bag from Wilson, sir and handed it to Balosbalos, Balosbalos gave Arguson the boodle
money while I flash the signal x x x then we apprehended them. 13
457

As may be noted, PO3 Ramos categorically stated that Del Monte was among the four who emerged with Arguson
from a street. Without hesitation, PO3 Ramos pointed to Del Monte as the one holding the plastic bag allegedly
containing the prohibited substance until Arguson took it from him and handed it over to PO2 Balosbalos. There is
no suggestion that accused-appellant, while at the crime scene, ever handled the merchandise or its container. Yet,
the trial court acquitted Requiz and Del Monte, but convicted accused-appellant, stating: "Clearly, accused Monalyn
Cervantes’ complicity with accused Isidro Arguson in the sale of shabu has been established by the testimony of
PO3 Ramos."14 But two paragraphs later, the RTC went on to write:

x x x While PO3 Ramos testified that the bag was initially held by accused Del Monte and then taken from him by
accused Arguson, there is no other evidence which can support the charge of conspiracy with Arguson and
Cervantes x x x. The court does not find the evidence sufficient to pass the test of moral certainty to find accused
Del Monte liable as charged. Even if PO3 Ramos saw him to have held the bag for Arguson, it could have been
possible that he was merely asked by Cervantes or Arguson to carry the bag. 15

Before us then is a situation where two persons––accused-appellant, a laundry woman; and Del Monte, a car park
boy, in the company of the ostensible pusher, Arguson, during the actual buy bust––are being indicted, on the basis
alone of the testimony of a witness, with confederating with each and several others to sell shabu. The overt acts
performed by accused-appellant, as indicia of conspiracy, consisted of allegedly verifying whether the poseur-buyer
still had the purchase money, disappearing from the scene and then coming back with the principal player. On the
other hand, Del Monte came accompanying Arguson carrying the drug-containing plastic bag no less. As between
the two acts performed, carrying the bag would relatively have the more serious implication being in itself a
punishable act of possession of regulated drugs. Both offered the defenses of denial and instigation, each testifying
that they just happened to be near or passing by McDonald’s at about 4:30 in the afternoon of April 4, 2000 when
they were apprehended. But the trial court, in its observation that "it could have been possible that [Del Monte] was
merely asked by x x x Arguson to carry the bag," extended to Del Monte the "benefit of the doubt," a benevolence
denied to accused-appellant without so much of an acceptable explanation. Any reasonable mind might ask: Why
the contrasting treatment? Why consider PO3 Ramos as a highly credible eyewitness as against accused-appellant,
but an unreliable one as against Del Monte, when both accused are complete strangers to the policeman?

To paraphrase an unyielding rule, if the inculpatory testimony is capable of two or more explanations, one consistent
with the innocence of the accused persons and the other consistent with their guilt, then the evidence does not fulfill
the test of moral certainty and is not sufficient to support a conviction. 16

But even if we were to cast aside the foregoing equipoise rule, a reversal of the appealed decision is indicated on
another but more compelling ground. We refer to the postulate that the prosecution, having failed to positively and
convincingly prove the identity of the seized regulated substance, is deemed to have also failed to prove beyond
reasonable doubt accused-appellant’s guilt. We shall explain.

In every prosecution for illegal sale of dangerous drug, what is crucial is the identity of the buyer and seller, the
object and its consideration, the delivery of the thing sold, and the payment for it. Implicit in these cases is first and
foremost the identity and existence, coupled with the presentation to the court of the traded prohibited substance,
this object evidence being an integral part of the corpus17 delicti18 of the crime of possession or selling of
regulated/prohibited drug.19 There can be no such crime when nagging doubts persist on whether the specimen
submitted for examination and presented in court was what was recovered from, or sold by, the
accused.20 Essential, therefore, in appropriate cases is that the identity of the prohibited drug be established with
moral certainty. This means that on top of the key elements of possession or sale, the fact that the substance
illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be
established with the same degree of certitude as that needed to sustain a guilty verdict. And as we stressed
in Malillin v. People, the "chain of custody requirement performs this function in that it ensures that unnecessary
doubts concerning the identity of the evidence are removed." 21 So it is that in a slew of cases the Court has
considered the prosecution’s failure to adequately prove that the specimen submitted for laboratory examination
was the same one supposedly seized from the offending seller or possessor as ground for acquittal. 22

Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002, or the "Guidelines on the Custody and
Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory
Equipment," defines "chain of custody," thusly:

"Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled
chemicals x x x from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of seized item shall include the identity
and signature of the person who held temporary custody of the seized item, the date and time when such transfer of
custody [was] made in the course of safekeeping and use in court as evidence, and the final disposition. 23

As a mode of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.
In context, this would ideally include testimony about every link in the chain, from the seizure of the prohibited drug
up to the time it is offered into evidence, in such a way that everyone who touched the exhibit would describe how
458

and from whom it was received, where it was and what happened to it while in the witness’ possession, the
condition in which it was received, and the condition in which it was delivered to the next link in the chain. 24 The
need for the punctilious observance of the chain-of-custody process in drug-related cases is explained in Malillin in
the following wise:

While testimony about a perfect chain is not always the standard because it is almost always impossible to
obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence
is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or
when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is
susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit’s
level of susceptibility to fungibility, alteration or tampering––without regard to whether the same is advertent or
otherwise not––dictates the level of strictness in the application of the chain of custody rule.

xxxx

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to
scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eyes to the
likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have
been tampering, alteration or substitution of substances from other cases––by accident or otherwise––in which
similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in
authenticating the same, a standard more stringent than that applied to cases involving objects which are readily
identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient
completeness if only to render it improbable that the original item has either been exchanged with another or been
contaminated or tampered with.25 (Emphasis added.)

As the Court distinctly notes in this case, of the individuals who came into direct contact with or had physical custody
of the seized regulated items, only PO3 Ramos testified for the specific purpose of identifying the evidence. In the
witness box, however, he did not indicate how he and his companions, right after the buy bust, handled the seized
plastic bag and its contents. He did not name the duty desk officer at Camp Vicente Lim to whom he specifically
turned over the confiscated bag and sachets at least for recording. What is on record is Exhibit "C," which, as earlier
described, is a memorandum26 PO3 Ramos prepared27 dated April 5, 2000 from the RSOG-IV Director to the Chief,
PNP R-IV Crime Laboratory Service, submitting for qualitative analysis the white crystalline substance confiscated
by the buy-bust group. Needless to stress, the unnamed person who delivered the suspected shabu and the
recipient of it at the laboratory were no-show in court to testify on the circumstances under which they handled the
specimen or whether other persons had access to the specimen before actual testing. And C/I Geronimo, the
analyzing forensic chemist, was not also presented. Then, too, no one testified on how the specimen was cared
after following the chemical analysis. As the Court observed aptly in People v. Ong, "[T]hese questions should be
answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. Otherwise,
the prosecution cannot maintain that it was able to prove the guilt of appellants beyond reasonable doubt." 28

It cannot be overemphasized that Inspector Tria was really not part of the custodial chain. And she did not as she
could not, even if she wanted to, testify on whether or not the specimen turned over for analysis and eventually
offered in court as exhibit was the same substance received from Arguson.

Given the foregoing perspective, it is fairly evident that the police operatives trifled with the procedures in the
custody of seized prohibited drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA 9165, i.e., the
apprehending officer/team having initial custody and control of the drug shall:

immediately after seizure and confiscation, physically inventory and photograph the [drug] in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof. 29

In this case, no physical inventory was made and no photograph taken nor markings made on the seized articles at
the crime scene. PO3 Ramos admitted as much, thus:

Q. Now, you were able to arrest all the accused here, after their arrest, what did you do? A. After informing their
rights and the reason why we arrest them we brought them immediately to our office in Canlubang.

xxxx

Q. Now, what about this Shabu, who was in possession of this Shabu x x x when you left the place and proceeded
to Canlubang? A. PO2 Balosbalos, sir.

xxxx
459

Q. Now, when you reach your office, what did you do there? A. I made the booking sheet and I requested for their
medical/physical examination x x x.30

Just as clear is the fact that the exacting chain of custody rule was not observed. Withal, there is no reasonable
assurance that no tampering or substitution occurred between the time the police seized the black bag in P.
Ocampo St. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang,
Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the
seized items. The prosecution cannot, thus, rightfully assert that the six sachets seized from Arguson were the very
same objects tested by C/I Geronimo and offered in court in proving the corpus delicti.

Adding a negative dimension to the prosecution’s case is the non-presentation of C/I Geronimo and the presentation
in her stead of Inspector Tria to testify on the chemical report C/I Geronimo prepared. While Inspector Tria can
plausibly testify on the fact that C/I Geronimo prepared the chemical report in the regular course of her duties, she,
Inspector Tria, was incompetent to state that the specimen her former colleague analyzed was in fact shabu and
was the same specimen delivered to the laboratory for chemical analysis.

To be sure, the Court, notably in People v. Bandang, has held that the non-presentation of the forensic chemist in
illegal drug cases is an insufficient cause for acquittal. In it, the accused persons were convicted of illegal sale of
shabu even if the forensic chemist who prepared the corresponding laboratory report was not presented. Thus, we
wrote:

x x x In People vs. Uy, we ruled that a forensic chemist is a public officer and as such, his report carries the
presumption of regularity in the performance of his function and duties. Corollarily, under Section 44 of Rule 130, x x
x entries in official records made in the performance of official duty are prima facie evidence of the facts therein
stated. Omero’s reports that the seven sachets of white crystalline substance were "positive for methylamphetamine
hydrochloride" or shabu are, therefore, conclusive in the absence of evidence proving the contrary, as in this case. 1avvphi1.zw+

Second, it must be stressed that Atty. Enriquez raises his objection to the Initial Laboratory Report and Chemistry
Report No. D-1585-00 only now. He should have objected to their admissibility at the time they were being offered.
Otherwise, the objection shall be considered waived and such evidence will form part of the records of the case as
competent and admissible evidence. The familiar rule in this jurisdiction is that the admissibility of certain documents
x x x cannot be raised for the first time on appeal.31 (Emphasis added.)

It should be pointed out, however, that the Bandang ruling was cast against a different backdrop where: (1) the
seized crystalline substance was the same item examined and tested positive for shabu and presented in court,
implying that the identity and integrity of prohibited drug was safeguarded throughout, a circumstance not obtaining
in this case; (2) there was a compelling reason for not presenting the examining forensic chemist, i.e., the parties
stipulated that the confiscated seven plastic bags have been identified and examined and that the chemist stated in
his report that the substance is positive for shabu. In this case, C/I Geronimo’s resignation from the service is not,
standing alone, a justifying factor for the prosecution to dispense with her testimony; and (3) accused Bandang, et
al. did not raise any objection to the chemical report during trial, unlike here where accused-appellant objected to
Inspector Tria’s competency to testify on the Geronimo chemical report.

At any rate, Inspector Tria’s testimony on, and the presentation of, the chemistry report in question only established,
at best, the existence, due execution, and authenticity of the results of the chemistry analysis. 32 It does not prove
compliance with the requisite chain of custody over the confiscated substance from the time of seizure of the
evidence. In this regard, the Court in effect stated in Malillin that unless the state can show by records or testimony
that the integrity of the evidence has not been compromised by accounting for the continuous whereabouts of the
object evidence at least between the time it came into the possession of the police officers until it was tested in the
laboratory,33 then the prosecution cannot maintain that it was able to prove the guilt of the accused beyond
reasonable doubt. So it was that in People v. Kimura the Court said that in establishing the corpus delicti, proof
beyond reasonable doubt demands that "unwavering exactitude" 34 be observed, a demand which may be addressed
by hewing to the chain-of-custody rule. Evidently, the prosecution has not proved that the substance seized in front
of the McDonald’s was the same substance adduced in evidence as an indispensable element of corpus delicti of
the crime, which failure produces a serious doubt as to accused-appellant’s guilt. 35

Both the trial and appellate courts made much of the presumption of regularity in the performance of official
functions both with respect to the acts of PO3 Ramos and other PNP personnel at Camp Vicente Lim. To a point,
the reliance on the presumptive regularity is tenable. This presumption is, however, disputable and may be
overturned by affirmative evidence of irregularity or failure to perform a duty; 36 any taint of irregularity vitiates the
performance and negates the presumption. And as earlier discussed, the buy bust team committed serious lapses in
the handling of the prohibited item from the very start of its operation, the error of which the PNP R-IV command
later compounded. The Court need not belabor this matter anew.

Lest it be overlooked, the presumption of regularity in the performance of official duty always yields to the
presumption of innocence and does not constitute proof beyond reasonable doubt. 37 We held in one case:
460

The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-
appellant’s conviction because, "[f]irst, the presumption is precisely just that—a mere presumption. Once challenged
by evidence, as in this case, x x x [it] cannot be regarded as binding truth. Second, the presumption of regularity in
the performance of official functions cannot preponderate over the presumption of innocence that prevails if not
overthrown by proof beyond reasonable doubt." 38

For failure then of the prosecution to establish the guilt of accused-appellant beyond reasonable doubt, she must
perforce be exonerated from criminal liability. The facts and the law of the case call for this kind of disposition.

But a final consideration. The Court is cognizant of the campaign of the police and other drug enforcement agencies
against the growing drug menace in the country. Unfortunately, their best efforts, particularly successful honest-to-
goodness buy-bust operations, sometimes still end up in the acquittal of illegal drug manufacturers, distributors,
pushers and/or lesser players, even when nabbed in flagrante, simply because drug enforcement operatives tend to
compromise the integrity and evidentiary worth of the seized illegal items. This aberration is oftentimes in turn
attributable to the unfamiliarity of police operatives of extant rules and procedures governing the custody, control,
and handling of seized drugs. This is, thus, an opportune time to remind all concerned about these rules and
procedures and the guiding jurisprudence. And to put things in the proper perspective, non-compliance with the
legal prescriptions of the Dangerous Drugs Act, as amended, is, as we made abundantly clear in People v.
Sanchez, not necessarily fatal to the prosecution of drug-related cases; that police procedures may still have some
lapses. These lapses, however, must be recognized, addressed, and explained in terms of their justifiable grounds,
and the integrity and evidentiary value of the evidence seized must be shown to have been preserved by the
apprehending officer or team.

To be forewarned is to be forearmed.

WHEREFORE, the CA Decision dated July 19, 2007 in CA-G.R. CR-H.C. No. 00476, affirming that of the RTC,
Branch 53 in Manila which found her guilty of violating Sec. 15, Art. III of RA 6425 and imposed upon her the
penalty of reclusion perpetua and a fine of PhP 500,000, is hereby REVERSED and SET ASIDE. Accused-appellant
Monalyn Cervantes y Solar is ACQUITTED on the ground of reasonable doubt and is accordingly immediately
RELEASED from custody unless she is being lawfully held for some lawful cause.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action
taken hereon within five (5) days from receipt of this Decision.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
461

REYNATO S. PUNO
Chief Justice

G.R. Nos. 76649-51 August 19, 1988

20TH CENTURY FOX FILM CORPORATION, petitioner,

vs.
COURT OF APPEALS, EDUARDO M. BARRETO, RAUL SAGULLO and FORTUNE LEDESMA, respondents.

Siguion Reyna, Montecillo & Ongsiako Law Office for petitioner.

B.C. Salazar & Associates for respondents.

GUTIERREZ, JR., J.:

The petitioner questions the application of the constitutional provision against illegal searches and seizures to raids conducted in connection with the government's
anti-film piracy campaign. The main issue hinges on whether or not the judge properly lifted the search warrants he issued earlier upon the application of the
National Bureau of Investigation on the basis of the complaint filed by the petitioner.

In a letter-complaint dated August 26, 1985, petitioner 20th Century Fox Film Corporation through counsel sought
the National Bureau of Investigation's (NBI) assistance in the conduct of searches and seizures in connection with
the latter's anti-film piracy campaign. Specifically, the letter-complaint alleged that certain videotape outlets all over
Metro Manila are engaged in the unauthorized sale and renting out of copyrighted films in videotape form which
constitute a flagrant violation of Presidential Decree No. 49 (otherwise known as the Decree on the Protection of
Intellectual Property).

Acting on the letter-complaint, the NBI conducted surveillance and investigation of the outlets pinpointed by the
petitioner and subsequently filed three (3) applications for search warrants against the video outlets owned by the
private respondents. The applications were consolidated and heard by the Regional Trial Court of Makati, Branch
132.

On September 4, 1985, the lower court issued the desired search warrants.

Armed with the search warrants, the NBI accompanied by the petitioner's agents, raided the video outlets and
seized the items described therein. An inventory of the items seized was made and left with the private respondents.

Acting on a motion to lift search warrants and release seized properties filed by the private respondents, the lower
court issued an order dated October 8, 1985, lifting the three (3) search warrants issued earlier against the private
respondents by the court. The dispositive portion of the order reads:

WHEREFORE, the Court hereby orders that Search Warrants Nos. SW- 85-024; issued against
Eduardo M. Barreto of the Junction Video, etc., Paranaque, Metro Manila; SW No. 85-025, issued
against Raul M. Sagullo of South Video Bug Center, Inc., etc., also of No. 5355 Pres. Avenue BF
Homes, Parañaque, Metro Manila; and SW No. 85-026, issued against Fortune A. Ledesma of Sonix
Video Services of San Antonio Plaza, Forbes Park, Makati, Metro Manila, be lifted.

Consequently, the articles listed in the returns of the three search warrants which could not be a
basis of any criminal prosecution, now in the possession of the National Bureau of Investigation
which under the law must be delivered to this Court, but which the NBI failed to do, are hereby
ordered to be returned to their owners through their lawyer, Atty. Benito Salazar or his agents or
representatives, against proper receipt, to be forwarded to this Court for record purposes, as proof
that said properties have been returned to the possession of the rightful owners." (p. 34, Rollo)

The lower court denied a motion for reconsideration filed by the petitioner in its order dated January 2, 1986.

The petitioner filed a petition for certiorari with the Court of Appeals to annul the October 8, 1985 and January 2,
1986 orders of the lower court. The petition was dismissed.

Hence, this petition.

The main issue hinges on the meaning of "probable cause" within the context of the constitutional provision against
illegal searches and seizures (Section 3, Article IV, 1973 Constitution, now, Section 2, Article Ill, 1987 Constitution.
462

The petitioner maintains that the lower court issued the questioned search warrants after finding the existence of a
probable cause justifying their issuance. According to the petitioner, the lower court arrived at this conclusion on the
basis of the depositions of applicant NBI's two witnesses which were taken through searching questions and
answers by the lower court.

Section 2, Article III of the present Constitution which substantially reproduces Section 3, Article IV of the 1973
Constitution on illegal searches and seizures provides:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to
his person, papers and effects. We have explained in the case of People v. Burgos (144 SCRA 1) citing Villanueva
v. Querubin (48 SCRA 345) why the right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also looked upon
as a recognition of a constitutionally protected area, primarily one's home, but not necessarily
thereto confined. (Cf. Hoffa v. United States, 385 US 293 119661) What is sought to be guarded is a
man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his
individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind
of objects he wants around him. There the state, however powerful, does not as such have access
except under the circumstances above noted, for in the traditional formulation, his house, however
humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf
Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 630
[1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme
Court [1966]), could fitly characterize constitutional right as the embodiment of a "spiritual concept:
the belief that to value the privacy of home and person and to afford its constitutional protection
against the long reach of government is no less than to value human dignity, and that his privacy
must not be disturbed except in case of overriding social need, and then only under stringent
procedural safeguards."(ibid, p. 74).

The government's right to issue search warrants against a citizen's papers and effects is circumscribed by the
requirements mandated in the searches and seizures provision of the Constitution.

In the case of Burgos, Sr. v. Chief of Staff, AFP (133 SCRA 800), we defined probable cause for a valid search "as
such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the objects sought in connection with the offense are in the place sought to be
searched." This constitutional provision also demands "no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be justified" in order to convince the judge,
not the individual making the affidavit and seeking the issuance of the warrant, of the existence of a probable cause.
(Alvarez v. Court of First Instance, 64 Phil. 33; Burgos, Sr. v. Chief of Staff, AFP, supra).

In the instant case, the lower court lifted the three questioned search warrants against the private respondents on
the ground that it acted on the application for the issuance of the said search warrants and granted it on the
misrepresentations of applicant NBI and its witnesses that infringement of copyright or a piracy of a particular film
have been committed. Thus the lower court stated in its questioned order dated January 2,1986:

According to the movant, all three witnesses during the proceedings in the application for the three
search warrants testified of their own personal knowledge. Yet, Atty. Albino Reyes of the NBI stated
that the counsel or representative of the Twentieth Century Fox Corporation will testify on the video
cassettes that were pirated, so that he did not have personal knowledge of the alleged piracy. The
witness Bacani also said that the video cassettes were pirated without stating the manner it was
pirated and that it was Atty. Domingo that has knowledge of that fact.

On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated tapes was from
master tapes allegedly belonging to the Twentieth Century Fox, because, according to him, it is of
his personal knowledge.

At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino Reyes testified that
when the complaint for infringement was brought to the NBI, the master tapes of the allegedly
pirated tapes were shown to him and he made comparisons of the tapes with those purchased by
their man Bacani. Why the master tapes or at least the film reels of the allegedly pirated tapes were
463

not shown to the Court during the application gives some misgivings as to the truth of that bare
statement of the NBI agent on the witness stand. "

Again as the application and search proceedings is a prelude to the filing of criminal cases under PD
49, the copyright infringement law, and although what is required for the issuance thereof is merely
the presence of probable cause, that probable cause must be satisfactory to the Court, for it is a
time- honored precept that proceedings to put a man to task as an offender under our laws should
be interpreted in strictissimi juris against the government and liberally in favor of the alleged
offender.

xxx xxx xxx

This doctrine has never been overturned, and as a matter of fact it had been enshrined in the Bill of
Rights in our 1973 Constitution.

So that lacking in persuasive effect, the allegation that master tapes were viewed by the NBI and
were compared to the purchased and seized video tapes from the respondents' establishments, it
should be dismissed as not supported by competent evidence and for that matter the probable
cause hovers in that grey debatable twilight zone between black and white resolvable in favor of
respondents herein.

But the glaring fact is that 'Cocoon,' the first video tape mentioned in the search warrant, was not
even duly registered or copyrighted in the Philippines. (Annex C of Opposition p. 152 record). So,
that lacking in the requisite presentation to the Court of an alleged master tape for purposes of
comparison with the purchased evidence of the video tapes allegedly pirated and those seized from
respondents, there was no way to determine whether there really was piracy, or copying of the film
of the complainant Twentieth Century Fox." (pp. 37-39, Rollo)

xxx xxx xxx

The lower court, therefore, lifted the three (3) questioned search warrants in the absence of probable cause that the
private respondents violated P.D. 49. As found out by the court, the NBI agents who acted as witnesses did not
have personal knowledge of the subject matter of their testimony which was the alleged commission of the offense
by the private respondents. Only the petitioner's counsel who was also a witness during the application for the
issuance of the search warrants stated that he had personal knowledge that the confiscated tapes owned by the
private respondents were pirated tapes taken from master tapes belonging to the petitioner. However, the lower
court did not give much credence to his testimony in view of the fact that the master tapes of the allegedly pirated
tapes were not shown to the court during the application.

All these factors were taken into consideration by the lower court when it lifted the three questioned search
warrants. There is no truth, therefore, to the petitioner's allegation that the lower court based its January 2, 1986
order only "on the fact that the original or master copies of the copyrighted films were not presented during the
application for search warrants, thus leading it to conclude that it had been "misled by the applicant and his
witnesses." (p. 17, Rollo)

The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied,
was necessary for the validity of search warrants against those who have in their possession the pirated films. The
petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be
necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause
exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or
copied tapes were necessarily reproduced from master tapes that it owns.

The application for search warrants was directed against video tape outlets which allegedly were engaged in the
unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49.

The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated
works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare
them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an
unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be
established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted
films cannot serve as basis for the issuance of a search warrant.

Furthermore, we note that the search warrants described the articles sought to be seized as follows:

xxx xxx xxx

xxx xxx xxx

464

c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners,

accessories, equipments and other machines used or intended to be used in the
unlawful reproduction, sale, rental/lease distribution of the above-mentioned video
tapes which she is keeping and concealing in the premises above-described." (p. 26,
Rollo)

In the case of Burgos v. Chief of Staff, AFP supra, we stated:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally objectionable is
that they are in the nature of general warrants. The search warrants describe the articles sought to
be seized in this wise:

l] All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets, tables
communications/recording equipment, tape recorders, dictaphone and the like used and/or
connected in the printing of the 'WE FORUM' newspaper and any and all
document/communications, letters and facsimile of prints related to "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and

3] Motor vehicles used in the distribution/circulation of the 'WE FORUM and other subversive
materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969;

3] A delivery truck with Plate No. NBS 542;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665;and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong
Silang."

In Stanford v. State of Texas (379 U.S. 476,13 L ed 2nd 431), the search warrant which authorized
the search for 'books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the operations of the
Community Party in Texas," was declared void by the U.S. Supreme Court for being too general. In
like manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or
otherwise' have been held too general, and that portion of a search warrant which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General
Statutes [the statute dealing with the crime of conspiracy]"' was held to be a general warrant, and
therefore invalid (68 Am. Jur. 2d., pp. 736-737). The description of the articles sought to be seized
under the search warrants in question cannot be characterized differently. (at pp. 814-815)

Undoubtedly, a similar conclusion can be deduced from the description of the articles sought to be confiscated
under the questioned search warrants.

Television sets, video cassette recorders, reminders and tape cleaners are articles which can be found in a video
tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles and
appliances are generally connected with, or related to a legitimate business not necessarily involving piracy of
intellectual property or infringement of copyright laws. Hence, including these articles without specification and/or
particularity that they were really instruments in violating an Anti-Piracy law makes The search warrant too general
which could result in the confiscation of all items found in any video store. In fact, this actually happened in the
instant case. Thus, the lower court, in its questioned order dated October 8, 1985 said:

Although the applications and warrants themselves covered certain articles of property usually found
in a video store, the Court believes that the search party should have confined themselves to articles
that are according to them, evidence constitutive of infringement of copyright laws or the piracy of
intellectual property, but not to other articles that are usually connected with, or related to, a
legitimate business, not involving piracy of intellectual property, or infringement of copyright laws. So
that a television set, a rewinder, and a whiteboard listing Betamax tapes, video cassette cleaners
video cassette recorders as reflected in the Returns of Search Warrants, are items of legitimate
465

business engaged in the video tape industry, and which could not be the subject of seizure, The
applicant and his agents therefore exceeded their authority in seizing perfectly legitimate personal
property usually found in a video cassette store or business establishment." (p. 33, Rollo)

All in all, we find no grave abuse of discretion on the part of the lower court when it lifted the search warrants it
earlier issued against the private respondents. We agree with the appellate court's findings to the effect that:

An assiduous examination of the assailed orders reveal that the main ground upon which the
respondent Court anchored said orders was its subsequent findings that it was misled by the
applicant (NBI) and its witnesses 'that infringement of copyright or a piracy of a particular film have
been committed when it issued the questioned warrants.' Stated differently, the respondent Court
merely corrected its erroneous findings as to the existence of probable cause and declared the
search and seizure to be unreasonable. Certainly, such action is within the power and authority of
the respondent Court to perform, provided that it is not exercised in an oppressive or arbitrary
manner. Indeed, the order of the respondent Court declaring the existence of probable cause is not
final and does not constitute res judicata.

A careful review of the record of the case shows that the respondent Court did not commit a grave
abuse of discretion when it issued the questioned orders. Grave abuse of discretion' implies such
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words, where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or
to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.' But far from
being despotic or arbitrary, the assailed orders were motivated by a noble desire of rectifying an
error, much so when the erroneous findings collided with the constitutional rights of the private
respondents. In fact, the petitioner did not even contest the righteousness and legality of the
questioned orders but instead concentrated on the alleged denial of due process of law." (pp. 44-45,
Rollo)

The proliferation of pirated tapes of films not only deprives the government of much needed revenues but is also an
indication of the widespread breakdown of national order and discipline. Courts should not impose any unnecessary
roadblocks in the way of the anti-film piracy campaign. However, the campaign cannot ignore or violate
constitutional safeguards. To say that the problem of pirated films can be solved only by the use of unconstitutional
shortcuts is to denigrate the long history and experience behind the searches and seizures clause of the Bill of
Rights. The trial court did not commit reversible error.

WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution of the Court of Appeals
are AFFIRMED.

SO ORDERED.

20th Century Fox Film v. Court of Appeals, G.R. Nos. 76649-51, August 19,
1988

DECISION
(3rd Division)

GUTIERREZ, JR., J.:

I.      THE FACTS

Petitioner 20th Century Fox Film Corporation sought the assistance of the NBI in conducting searches and
seizures in connection with the NBI’s anti-film piracy campaign. Petitioner alleged that certain videotape outlets all
over Metro Manila are engaged in the unauthorized sale and renting out of copyrighted films in violation of PD No.
49 (the old Intellectual Property Law).
466

The NBI conducted surveillance and investigation of the outlets pinpointed by the petitioner and
subsequently filed three (3) applications for search warrants against the video outlets owned by the private
respondents.  The lower court issued the desired search warrants. The NBI, accompanied by the petitioner's agents,
raided the video outlets and seized the items described in the three warrants.

Private respondents later filed a motion to lift the search warrants and release the seized properties, which
was granted by the lower court. Petitioner’s motion for reconsideration was denied by the lower court. The CA
affirmed the trial court.

II.    THE ISSUE

Did the judge properly lift the search warrants he issued earlier?

III.   THE RULING

[The Court DISMISSED the petition and AFFIRMED the questioned decision and resolution of the CA.]

YES, the judge properly lifted the search warrants he issued earlier.

The lower court lifted the three (3) questioned search warrants in the absence of probable cause that the
private respondents violated P.D. 49. NBI agents who acted as witnesses during the application for search warrant
did not have personal knowledge of the subject matter of their testimony, which was the alleged commission of the
offense of piracy by the private respondents. Only the petitioner’s counsel who was also a witness during the
application stated that he had personal knowledge that the confiscated tapes owned by the private respondents
were pirated tapes taken from master tapes belonging to the petitioner. The lower court lifted the warrants, declaring
that the testimony of petitioner’s counsel did not have much credence because the master tapes of the allegedly
pirated tapes were not shown to the court during the application.

The presentation of the master tapes of the copyrighted films, from which the pirated films were allegedly
copied, was necessary for the validity of search warrants against those who have in their possession the pirated
films. The petitioner's argument to the effect that the presentation of the master tapes at the time of application may
not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable
cause exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that
duplicate or copied tapes were necessarily reproduced from master tapes that it owns.

The essence of a copyright infringement is the similarity or at least substantial similarity of the purported
pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to
compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an
unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be
established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted
films cannot serve as basis for the issuance of a search warrant.

[G.R. No. 111267. September 20, 1996.]

COLUMBIA PICTURES ENTERTAINMENT, INC., MGM ENTERTAINMENTS CO., ORION

PICTURES CORPORATION, PARAMOUNT PICTURES CORP., UNIVERSAL CITY STUDIOS,
INC., THE WALT DISNEY COMPANY and WARNER BROTHERS, INC., Petitioners, v.
467

HONORABLE COURT OF APPEALS, 14TH DIVISION and JOSE B. JINGCO of SHOWTIME

ENTERPRISES, INC., Respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSE, ONLY THE SOLICITOR

GENERAL IS AUTHORIZED TO BRING OR DEFEND ACTIONS ON BEHALF OF THE PEOPLE OR THE
REPUBLIC OF THE PHILIPPINES ONCE THE CASE IS BROUGHT BEFORE THE SUPREME COURT OR THE
COURT OF APPEALS; EXCEPTION. — From the records it is clear that, as complainants, petitioners
were involved in the proceedings which led to the issuance of Search Warrant No. 23. In People v.
Nano, the Court declared that while the general rule is that it is only the Solicitor General who is
authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once
the case is brought before this Court or the Court of Appeals, if there appears to be grave error
committed by the judge or a lack of due process, the petition will be deemed filed by the private
complainants therein as if it were filed by the Solicitor General. In line with this ruling, the Court
gives this petition due course and will allow petitioners to argue their case against the questioned
order in lieu of the Solicitor General.

2. ID.; ID.; SEARCH AND SEIZURE; SEARCH WARRANT; PRESENTATION OF THE MASTER TAPES OF
THE PIRATED FILMS IS NOT AN ABSOLUTE REQUIREMENT FOR THE WARRANT TO ISSUE. — In fine,
the supposed pronunciameto in said case regarding the necessity for the presentation of the master
tapes of the copyrighted films for the validity of search warrants should at most be understood to
merely serve as a guidepost in determining the existence of probable cause in copyright infringement
cases where there is doubt as to the true nexus between the master tape and the pirated copies. An
objective and careful reading of the decision in said case could lead to no other conclusion than that
said directive was hardly intended to be a sweeping and inflexible requirement in all or similar
copyright infringement cases. Judicial dicta should always be construed within the factual matrix of
their parturition, otherwise a careless interpretation thereof could unfairly fault the writer with the
vice of overstatement and the reader with the fallacy of undue generalization. . . It is evidently
incorrect to suggest, as the ruling in 20th Century fox may appear to do, that in copyright
infringement cases, the presentation of master tapes of the copyrighted films is always necessary to
meet the requirement of probable cause and that, in the absence thereof, there can be no finding of
probable cause for the issuance of a search warrant. It is true that such master tapes are object
evidence, with the merit that in this class of evidence the ascertainment of the controverted fact is
made through demonstrations involving the direct use of the senses of the presiding magistrate.
(City of Manila v. Cabangis, 10 Phil. 151 [1908]; Kabase v. State, 31 Ala. App. 77, 12 So. 2nd, 758,
764). Such auxiliary procedure, however, does not rule out the use of testimonial or documentary
evidence, depositions, admissions or other classes of evidence tending to prove the factum
probandum, (See Phil. Movie Workers Association v. Premiere Productions, Inc., 92 Phil. 843 [1953])
especially where the production in court of object evidence would result in delay, inconvenience or
expenses out of proportion to its evidentiary value. (See 3 Jones on Evidence, Sec. 1400)." cralaw virtua1aw library

3. ID.; ID.; ID.; ID.; REQUIREMENTS FOR VALID ISSUANCE THEREOF. — The instant case also
differs from 20th Century Fox in that what herein private respondent put in issue was the application
of the ruling in that case, not the conduct of Judge Flor in the issuance of Search Warrant No. 23.
From the records, it is clear that Judge Flor observed all the requirements necessary before the
search warrant was issued: he heard the testimonies and studied the deposition of the witnesses for
the petitioners, namely, Ms. Rebecca Benitez-Cruz, Ms. Analie I. Jimenez and the VRB’s Intelligence
Officer, Alfredo G. Ramos on the existence of probable cause before issuing the warrant. Under Sec.
3 and 4, Rule 126 of the Rules of Court, the requirements for the issuance of a valid search warrant
are: "Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined by the judge or such other
responsible officer authorized by law after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
things to be seized. Sec. 4. Examination of complainant; record. — The judge must, before issuing
the warrant, personally examine in the form of searching questions and answers, in writing and
under oath the complainant and any witnesses he may produce on facts personally known to them
and attach to the record their sworn statements together with any affidavits submitted." Having
satisfied these requirements, Judge Flor committed no grave abuse of discretion in issuing the
warrant.

4. ID.; ID.; ID.; ID.; REQUIREMENT FOR SPECIFICITY; WHEN SATISFIED. — "A search warrant may
be said to particularly describe the things to be seized when the description therein is as specific as
468

the circumstances will ordinarily allow (People v. Rubio, 57 Phil. 384); or when the description
expresses a conclusion of fact — not of law — by which the warrant officer may be guided in making
the search and seizure (idem., dissent of Abad Santos, J.); or when the things described are limited
to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Ruled
126, Revised Rules of Court). . . If the articles desired to be seized have any direct relation to an
offense committed, the applicant must necessarily have some evidence, other than those articles, to
prove the said offense; and the articles subject of search and seizure should come in handy merely to
strengthen such evidence. . ." cralaw virtua1aw library

5. STATUTORY CONSTRUCTION; JUDICIAL INTERPRETATION; BECOMES A PART OF THE LAW AS OF

THE DATE WHEN THE LAW WAS ORIGINALLY PASSED; EXCEPTION. — "Mindful as we are of the
ramifications of the doctrine of stare decisis and the rudiments of fair play, it is our considered view
that the 20th Century Fox ruling cannot be retroactively applied to the instant case to justify the
quashal of Search Warrant No. 87-053. Herein petitioners’ consistent position that the order of the
lower court of September 5, 1988 denying therein defendants’ motion to lift the order of search
warrant was properly issued, there having been satisfactory compliance with the then prevailing
standards under the law for determination of probable cause, is indeed well taken. The lower court
could not possibly have expected more evidence from petitioners in their application for a search
warrant other than what the law and jurisprudence, then existing and judicially accepted, required
with respect to the finding of probable cause. . . It is consequently clear that a judicial interpretation
becomes a part of the law as of the date that law was originally passed, subject only to the
qualification that when a doctrine of this Court is overruled and a different view is adopted, and more
so when there is a reversal thereof, the new doctrine should be applied prospectively and should not
apply to parties who relied on the old doctrine and acted in good faith. (People v. Jabinal, L-30061,
February 27, 1974, 55 SCRA 607; Unciano Paramedical College, Inc., Et. Al. v. Court of Appeals, Et
Al., G.R. No. 100335, April 7, 1993, 221 SCRA 285; Tanada, Et. Al. v. Guigona, Jr., etc., Et Al., G.R.
No. 113888, August 19, 1994, 235 SCRA 507). To hold otherwise would be to deprive the law of its
quality of fairness and justice then, if there is no recognition of what had transpired prior to such
adjudication. (De Agbayani v. Philippine National Bank, Et Al., L-23127, April 29, 1971, 38 SCRA
429)."

DECISION

ROMERO, J.:

Petitioners Columbia Pictures Industries, Inc., MGM Entertainment Co., Orion Pictures Corporation,
Paramount Pictures Corp., Universal City Studies, Inc., the Walt Disney Company and Warner
Brothers, Inc. question the decision 1 of the Court of Appeals which affirmed the Order of the
Regional Trial Court of Pasig, Branch 168, the dispositive portion of which states: jgc:chanrobles.com.ph

"WHEREFORE, finding that the issuance of the questioned warrants was not supported by probable
cause, the ‘Urgent Motion (To Lift Search Warrant [No. 23] and for the Return of Seized Articles)’ is
hereby GRANTED.

Accordingly, the Videogram Regulatory Board (VRB) and/or any Police Agency or other
representatives of the VRB are hereby directed to return to the defendant/movant or his
representative all articles/items in their possession seized under and by virtue of Search Warrant No.
23.

SO ORDERED." cralaw virtua1aw library

The antecedent facts leading to the disputed Order are: chanrob1es virtual 1aw library

Alfredo G. Ramos, intelligence officer of the Videogram Regulatory Board (VRB), received information
that private respondent Jose B. Jinco had in his possession pirated videotapes, posters, advertising
materials and other items used or intended to be used for the purpose of sale, lease, distribution,
circulation or public exhibition of the said pirated videotapes. Ramos ascertained the information to
be true and filed a verified Application for Search Warrant dated July 28, 1986 with prayer for the
seizure of the properties described in the search warrant.

On the same date, a hearing was conducted by Judge Florentino A. Flor of the Regional Trial Court of
469

Pasig, Branch 168, wherein Ramos and his two witnesses, Analie Jimenez and Rebecca Benitez-Cruz
testified on the need for the issuance of search warrant.

On July 28, 1986, the prayer for the issuance of the search warrant was granted and, on the same
date, Search Warrant No. 23 was issued.

On June 2, 1987, private respondent filed a Motion to Quash Search Warrant No. 23 on the grounds
that the Search Warrant did not state a specific offense and that, even assuming it stated a specific
offense, it covered more than one specific offense. The VRB opposed the Motion to Quash stating that
Search Warrant No. 23 was issued for a single specific offense namely, violation of Section 56 and
other related sections of Presidential Decree No. 49 as amended by Presidential Decree No. 1988.

On September 30, 1987, the trial court denied the Motion to Quash finding that the Search Warrant
was issued for one specific offense. A Motion for Reconsideration was filed but the same was likewise
denied.

Private respondent then filed an Urgent Motion To Lift the Search Warrant and For the Return of the
Seized Articles alleging that Search Warrant No. 23 is a general warrant, and that it was issued
without probable cause.

On May 22, 1989, the assailed order was issued by Judge Benjamin V. Pelayo, now presiding over
Branch 168 of the Pasig RTC, granting the Motion to Quash and ordering the return of all seized
articles to private Respondent.

Petitioners appealed to the Court of Appeals, which affirmed the said Order in toto.

Hence, this petition.

In granting the Motion to Quash, the trial court relied on the Court’s ruling in 20th Century Fox Film
Corporation v. Court of Appeals, Et. Al. 2 which involved violation of Presidential Decree No. 49,
(otherwise known as the Decree on the Protection of Intellectual Property). In said case, video
outlets were raided pursuant to search warrants issued by the Regional Trial Court of Makati.
However, the search warrants were later lifted by the same court on the ground of lack of probable
cause because the master tapes of the alleged pirated tapes were never shown to the lower court.
The Court affirmed the lifting of the search warrants holding that the presentation of the master
tapes was necessary for the validity of the search warrants against those who have pirated films in
their possession.

When the trial court granted the Motion to Quash Search Warrant No. 23 on May 22, 1989, it used as
its justification the fact that, as the master copies were not presented to the court in its hearing of
July 28, 1986, there was no probable cause to issue the said warrant, based on the pronouncements
in 20th Century Fox.

Petitioners now question the retroactive application of the 20th Century Fox decision which had not
yet been promulgated in 1986 when the search warrant was issued. Petitioners further argue that,
contrary to the trial court’s finding, the search warrant was not a general warrant since the
description of the items to be seized was specific enough. It removed from the serving officer any
discretion as to which items to seize inasmuch as it described only those items which had a direct
relation to the offense for which the search warrant was issued.

The threshold issue that must first be determined is whether or not petitioners have the legal
personality and standing to file the appeal.

Private respondent asserts that the proceedings for the issuance and/or quashal of a search warrant
are criminal in nature. Thus, the parties in such a case are the "People" as offended party and the
accused. A private complainant is relegated to the role of a witness who does not have the right to
appeal except where the civil aspect is deemed instituted with the criminal case.

Petitioners, on the other hand, argue that as the offended parties in the criminal case, they have the
right to institute an appeal from the questioned order.

From the records it is clear that, as complainants, petitioners were involved in the proceedings which
led to the issuance of Search Warrant No. 23. In People v. Nano, 3 the Court declared that while the
general rule is that it is only the Solicitor General who is authorized to bring or defend actions on
behalf of the People or the Republic of the Philippines once the case is brought before this Court or
470

the Court of Appeals, if there appears to be grave error committed by the judge or a lack of due
process, the petition will be deemed filed by the private complainants therein as if it were filed by the
Solicitor General. In line with this ruling, the Court gives this petition due course and will allow
petitioners to argue their case against the questioned order in lieu of the Solicitor General.

As regards the issue of the validity of Search Warrant No. 23, there are two questions to be resolved:
first, whether the 20th Century Fox decision promulgated on August 19, 1988 is applicable to the
Motion to Quash Search Warrant No. 23 (issued on July 28, 1986).

We hold in the negative.

In the recent Columbia Pictures, Et. Al. v. Court of Appeals, Et. Al. 4 case which resolved the same
issue involving the same petitioners but with different respondents, the Court en banc held: jgc:chanrobles.com.ph

"Mindful as we are of the ramifications of the doctrine of stare decisis and the rudiments of fair play,
it is our considered view that the 20th Century Fox ruling cannot be retroactively applied to the
instant case to justify the quashal of Search Warrant No. 87-053. Herein petitioners’ consistent
position that the order of the lower court of September 5, 1988 denying therein defendants’ motion
to lift the order of search warrant was properly issued, there having been satisfactory compliance
with the then prevailing standards under the law for determination of probable cause, is indeed well
taken. The lower court could not possibly have expected more evidence from petitioners in their
application for a search warrant other than what the law and jurisprudence, then existing and
judicially accepted, required with respect to the finding of probable cause.

x          x           x

It is consequently clear that a judicial interpretation becomes a part of the law as of the date that law
was originally passed, subject only to the qualification that when a doctrine of this Court is overruled
and different view is adopted, and more so when there is a reversal thereof, the new doctrine should
be applied prospectively and should not apply to parties who relied on the old doctrine and acted in
good faith. (People v. Jabinal, L-30061, February 27, 1974, 55 SCRA 607; Unciano Paramedical
College, Inc., Et. Al. v. Court of Appeals, Et Al., G.R. No. 100335, April 7, 1993, 221 SCRA 285;
Tanada, Et. Al. v. Guingona, Jr., etc., Et Al., G.R. No. 113888, August 19, 1994, 235 SCRA 507). To
hold otherwise would be to deprive the law of its quality of fairness and justice then, if there is no
recognition of what has transpired prior to such adjudication. (De Agbayani v. Philippine National
Bank, Et Al., L-23127, April 29, 1971, 38 SCRA 429)." cralaw virtua1aw library

Likewise, the Court ruled therein that presentation of the master tapes in such cases is not an
absolute requirement for a search warrant to issue: jgc:chanrobles.com.ph

"More to the point, it is felt that the reasonableness of the added requirement in 20th Century Fox
calling for the production of the master tapes of the copyrighted films for determination of probable
cause in copyright infringement cases needs revisiting and clarification.

x          x           x

In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the
master tapes of the copyrighted films for the validity of search warrants should at most be
understood to merely serve as a guidepost in determining the existence of probable cause in
copyright infringement cases where there is doubt as to the true nexus between the master tape and
the pirated copies. An objective and careful reading of the decision in said case could lead to no other
conclusion than that said directive was hardly intended to be a sweeping and inflexible requirement
in all or similar copyright infringement cases. Judicial dicta should always be construed within the
factual matrix of their parturition, otherwise a careless interpretation thereof could unfairly fault the
writer with the vice of overstatement and the reader with the fallacy of undue generalization.

x          x           x

It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in
copyright infringement cases, the presentation of master tapes of the copyrighted films is always
necessary to meet the requirement of probable cause and that, in the absence thereof, there can be
no finding of probable cause for the issuance of a search warrant. It is true that such master tapes
471

are object evidence, with the merit that in this class of evidence the ascertainment of the
controverted fact is made through demonstrations involving the direct use of the senses of the
presiding magistrate. (City of Manila v. Cabangis, 10 Phil. 151 [1908]; Kabase v. State, 31 Ala. App.
77, 12 So. 2nd, 758, 764). Such auxiliary procedure, however, does not rule out the use of
testimonial or documentary evidence, depositions, admissions or other classes of evidence tending to
prove the factum probandum, (See Phil. Movie Workers Association v. Premiere Productions, Inc., 92
Phil. 843 [1953]) especially where the production in court of object evidence would result in delay,
inconvenience or expenses out of proportion to its evidentiary value. (See 3 Jones on Evidence, Sec.
1400)."cralaw virtua1aw library

The instant case also differs from 20th Century Fox in that what herein private respondent put in
issue was the application of the ruling in that case, not the conduct of Judge Flor in the issuance of
Search Warrant No. 23. From the records, it is clear that Judge Flor observed all the requirements
necessary before the search warrant was issued: he heard the testimonies and studied the
dispositions of the witnesses for the petitioners, namely Ms. Rebecca Benitez-Cruz, Ms. Analie I.
Jimenez and the VRB’s Intelligence Officer, Alfredo G. Ramos on the existence of probable cause
before issuing the warrant.

Under Sec. 3 and 4, Rule 126 of the Rules of Court, the requirements for the issuance of a valid
search warrant are: jgc:chanrobles.com.ph

"Sec. 3. Requisites for issuing search warrant.

A search warrant shall not issue but upon probable cause in connection with one specific offense to
be determined by the judge or such other responsible officer authorized by law after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized.

Sec. 4. Examination of complainant; record. —

The judge must, before issuing the warrant, personally examine in the form of searching questions
and answers, in writing and under oath the complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together with any
affidavits submitted." cralaw virtua1aw library

Having satisfied these requirements, Judge Floor committed no grave abuse of discretion in issuing
the warrant.

Private respondent contends that Search Warrant No. 23 also violates the constitutional requirements
of particularity of the description of the warrant, being a general warrant and thus, is null and void.

In several cases, this Court has held that: jgc:chanrobles.com.ph

"To be valid, a search warrant must be supported by probable cause to be determined by the judge
or some other authorized officer after examining the complainant and the witnesses he may produce.
No less important, there must a specific description of the place to be searched and the things to be
seized, to prevent arbitrary and indiscriminate use of the warrant. (Sec. 3, Art. IV, 1974
Constitutions, now Sec. 2, Art. III of the 1986 Constitution; Sec. 3, Rule 126 of the New Rules of
Court; Stonehill v. Diokno, 20 SCRA 383; Lime v. Ponce de Leon, 66 SCRA 299; Uy Kheytin v.
Villareal, 42 Phil. 886; People v. Veloso, 48 Phil. 169; People v. Rubio, 57 Phil. 384; Bache & Co.,
(Phil.) Inc. v. Ruiz, 37 SCRA 823; Roan v. Gonzales, 145 SCRA 687)." 5 (Emphasis supplied)

When may a search warrant be deemed to satisfy the legal requirements of specificity?

In Bache and Co., (Phil.) Inc. v. Ruiz, we said: jgc:chanrobles.com.ph

"A search warrant may be said to particularly describe the things to be seized when the description
therein is as specific as the circumstances will ordinarily allow (People v. Rubio, 57 Phil. 384); or
when the description expresses a conclusion of fact — not of law — by which the warrant officer may
be guided in making the search and seizure (idem., dissent of Abad Santos, J.); or when the things
described are limited to those which bear direct relation to the offense for which the warrant is being
issued (Sec. 2, Rule 126, Revised Rules of Court). . . . If the articles desired to be seized have any
direct relation to an offense committed, the applicant must necessarily have some evidence, other
than those articles, to prove the said offense; and the article subject of search and seizure should
come in handy merely to strengthen such evidence. . ." cralaw virtua1aw library
472

An examination of Search Warrant No. 23 shows that it was worded in such a manner that the
enumerated items to be seized bear a direct relation to the offense of violation of Sec. 56 of
Presidential Decree No. 49, as amended, which states: jgc:chanrobles.com.ph

"(1) Transfer or cause to be transferred, directly or indirectly any sound recording or motion picture,
or other audio-visual work that has been recorded on a phonograph record, disc, wire, tape, film or
other article on which sounds, motion pictures, or other audio visual works are recorded, with intent
to sell, lease, publicly exhibit or cause to be sold, leased or publicly exhibited, or to use or cause to
be used for profit, such article on which sounds, motion pictures, or other audio visual works are so
transferred, WITHOUT THE WRITTEN CONSENT OF HIS ASSIGNEE; or

(2) Sell, lease, distribute, circulate, exhibit, offer for sale, lease, distribution, or possess for the
purpose of sale, lease, distribution, circulation or public exhibition, any such article to which the
sounds, motion pictures or audio-visual recordings thereon have been so transferred, without the
written consent of the owner or his assignee; or

(3) Offer or make available for a fee, rental or any other form of compensation, directly or indirectly,
any equipment, machinery, paraphernalia or any material with the knowledge that such equipment,
machinery, paraphernalia or material, will be used by another to reproduce, without the consent of
the owners any phonograph record, disc, wire, tape film or other article on which sound, motion
pictures, or other audio-visual recordings may be transferred." cralaw virtua1aw library

In other words, it authorized only the seizure of articles used or intended to be used in the unlawful
sale, lease and other acts in violation of the said decree. The search warrant ordered the seizure of
the following properties: jgc:chanrobles.com.ph

"(a) Pirated video tapes of the copyrighted motion pictures/films the titles of which are mentioned in
the attached list;

(b) Posters, advertising leaflets, brochures, invoices, journals, ledgers, and books of accounts
bearing and/or mentioning the pirated films with titles (as per attached list);

(c) Television sets, video cassettes records, rewinders, tape head cleaners, accessories, equipment
and other machines and paraphernalia or material used or intended to be used in the unlawful sale,
lease, distribution, or possession for purpose of sale, lease, distribution, circulation or public
exhibition of the above-mentioned pirated video tapes which he is keeping and concealing in the
premises above-described." cralaw virtua1aw library

Clearly, the above items could not be anymore specific as the circumstances will allow since they are
all used or intended to be used in the unlawful sale or lease of pirated tapes. Therefore, the finding of
the appellate court that Search Warrant No. 23 is a "general" warrant is devoid of basis.

WHEREFORE, the assailed decision and resolution of respondent Court of Appeals, and necessarily
inclusive of the order of the trial court dated May 22, 1989, are hereby REVERSED and SET ASIDE.
The order of the trial court dated July 28, 1986 upholding the validity of Search Warrant No. 23 is
hereby REINSTATED.

Costs against private Respondent.

SO ORDERED.

Regalado, Puno and Torres, Jr., JJ., concur.

Mendoza, J., is on leave.

Endnotes:
473

G.R. No. 152950 August 3, 2006

PEOPLE OF THE PHILIPPINES, HON. LOURDES F. GATBALITE, Presiding Judge, Branch 56, Regional Trial
Court, Angeles City and ATTY. BENNIE NICDAO, Special Prosecutor, Special Operative Group, Economic
Intelligence & Investigation Bureau, Petitioners,
vs.
CHRISTOPHER CHOI, Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari 1 seeks the reversal of the decision 2 of the Court of Appeals (CA) dated April 10,
2002 in CA-G.R. SP No. 59587, the dispositive portion of which read:

WHEREFORE, the petition for certiorari and prohibition is GRANTED. Search Warrant No. 99-17 is
deemed NULL and VOID and SET ASIDE. Respondent ATTY. BENNY NICDAO is prohibited from using in
evidence the articles seized by virtue of Search Warrant No. 99-17 in Crim. Case No. I.S. No. 99-8116.
474

SO ORDERED. 3

The factual antecedents follow.

On April 27, 1999, Mario P. Nieto, Intelligence Operative of the Economic Intelligence and Investigation Bureau,
Department of Finance, applied for a search warrant with the Regional Trial Court (RTC) of Angeles City,
Pampanga, Branch 56, 4 against respondent Christopher Choi for violation of Section 168, paragraphs 2 and 3 (a)
and (c), in relation to Section 169 of RA 8293, 5 also known as the Intellectual Property Code. 6

After examination of the applicant and his witnesses, namely, Max Cavalera and David Lee Sealey, Judge Lourdes
F. Gatbalite issued Search Warrant No. 99-17 dated April 27, 1999 worded as follows:

TO ANY PEACE OFFICER:

G r e e t i n g s:

It appearing to the satisfaction of the undersigned, after examining under oath in the form of searching and probing
questions, the applicant, MARIO P. NIETO, Intelligence Operative, Economic Intelligence Investigation Bureau,
Department of Finance, and his witnesses Max Cavalera and David Lee Sealey that there are good and sufficient
reasons to believe that Christopher Choi of No. 25-13 Columbia Street, Carmenville Subd., Angeles City has in his
possession, control and custody [r]eams and packs of fake Marlboro Red Cigarettes, as well as cardboard cases of
fake Marlboro Red Cigarettes (each cardboard case contains two (2) [m]aster [c]ases of Marlboro and each [m]aster
case contains fifty (50) reams) being distributed, kept and sold thereat in violation of Section 168, par. 2 and 3 (a)
and (c) in relation to Section 169 of R.A. 8293;

You are hereby commanded to make an immediate search at anytime of the day or night of the above-premises and
forthwith seize and take possession of the aforedescribed items found at the residence/warehouse of Christopher
Choi at No. 25-13 Columbia Street, Carmenville Subd., Angeles City.

THEREFORE, seize and bring the said articles to the undersigned to be dealt with in accordance with law.

You are hereby further directed to submit a return within ten (10) days from today.

Given under my hand this 27th day of April, 1999 at Angeles City, Philippines. 7

The search was conducted on the same date. 8

On May 12, 1999, respondent filed a "motion to quash search warrant" 9 and a "supplemental motion to quash" 10 on
June 22, 1999. Both were denied by Judge Gatbalite in an order dated November 29, 1999. 11 Reconsideration was
likewise denied. 12

On June 19, 2000, respondent filed a petition for certiorari and prohibition 13 before the CA. He alleged that Judge
Gatbalite committed grave abuse of discretion in refusing to quash the search warrant, arguing that probable cause
was not sufficiently established as the examination conducted was not probing and exhaustive and the warrant did
not particularly describe the place to be searched. Respondent also prayed that Atty. Bennie Nicdao 14 be prohibited
from using as evidence the articles seized by virtue of the search warrant. This was granted by the CA in a decision
dated April 10, 2002.

According to the CA, in determining whether there was probable cause to believe that the cigarettes purchased by
Nieto were fake and in violation of RA 8293, 15 Judge Gatbalite failed to ask searching and probing questions of
witness David Lee Sealey. 16 The examination of Sealey went this way:

Court:

Q There was testimony here given by Mr. Mario Nieto and Max Cavalera, that fake Marlboro cigarettes bought by
them from Michael Chua, Christopher Choi and Johnny Chang were turned over to you for examination, is that
correct?

A Yes, your Honor.

Q After the same had been turned over to you, what did you do with the said merchandise, if you did anything?

A I examined the sample of cigarettes and their packaging bearing the Marlboro Trade Marks which were suspected
to be produc[ed] and manufactured by La Suerte or [with] the permission of Philip Morris.

Q What was the result of your examination?

475

A Based on the packaging of the packs, the color of the box and the printing on the front side of the packs and the
cigarettes themselves, I concluded that they are counterfeit or unauthorized product[s].

Q Do you have any knowledge of this person named Christopher Choi?

A None, your Honor.

Q There is an affidavit here marked as exhibit, executed by one David Lee Sealey, do you know this David Lee
Sealey?

A Yes, your Honor, I am the one.

Q Whose signature is this appearing on the printed name David Lee Sealey?

A This is my signature, your Honor.

Q Do you affirm and confirm other contents of this affidavit?

A Yes, your Honor.

Court:

That’s all. 17

In addition, the CA ruled that Judge Gatbalite committed grave abuse of discretion when she merely relied on the
conclusion of Sealey that the cigarettes he received from Nieto were fake. She should have at least required Sealey
to present the alleged fake Marlboro cigarettes and the genuine ones for comparison, instead of relying on his
testimony alone. The CA reasoned that this was an absolute requirement under the Supreme Court ruling in 20th
Century Fox Film Corporation v. Court of Appeals. 18

Hence, this petition.

The People of the Philippines aver that the CA erred in finding that Judge Gatbalite committed grave abuse of
discretion in issuing the search warrant allegedly because she failed to determine probable cause pursuant to
Sections 4 and 5 of Rule 126 of the Rules of Court. 19 The People assail the finding of the CA that, in issuing the
search warrant, Judge Gatbalite purportedly did not comply strictly with the requirement to determine the existence
of probable cause by personally examining the applicant and his witnesses through searching questions and
answers. The People also assert that the CA erred in applying the doctrine in 20th Century Fox Film
Corporation 20 since it had already been superseded by Columbia Pictures, Inc. v. Court of Appeals. 21

We rule for the People of the Philippines.

Sections 4 and 5 of Rule 126 state:

Sec. 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in
connection with one specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the Philippines.

Sec. 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in
the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their sworn statements, together with the
affidavits submitted.

According to the foregoing provisions, a search warrant can be issued only upon a finding of probable cause.
Probable cause means such facts and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in connection with the offense are in the
place sought to be searched. 22 The determination of the existence of probable cause requires the following:

(1) the judge must examine the complainant and his witnesses personally;

(2) the examination must be under oath and

(3) the examination must be reduced in writing in the form of searching questions and answers. 23
476

The searching questions propounded to the applicant and the witnesses depend largely on the discretion of the
judge. Although there is no hard-and-fast rule governing how a judge should conduct his examination, it is axiomatic
that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro-
forma. 24 The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent
and justification of the application. 25 The questions should not merely be repetitious of the averments stated in the
affidavits or depositions of the applicant and the witnesses. 26 If the judge fails to determine probable cause by
personally examining the applicant and his witnesses in the form of searching questions before issuing a search
warrant, grave abuse of discretion is committed. 27

The determination of probable cause does not call for the application of rules and standards of proof that a judgment
of conviction requires after trial on the merits. As the term implies, probable cause is concerned with probability, not
absolute or even moral certainty. The standards of judgment are those of a reasonably prudent man, not the
exacting calibrations of a judge after a full-blown trial. 28 No law or rule states that probable cause requires a specific
kind of evidence. No formula or fixed rule for its determination exists. 29 Probable cause is determined in the light of
conditions obtaining in a given situation. 30 The entirety of the questions propounded by the court and the answers
thereto must be considered by the judge. 31

In this case, aside from the testimony of Sealey, petitioner judge also heard the testimony of applicant Nieto:

Q: In connection with Search Warrant 99-17, are you the same Mario Nieto who is the applicant in this application
for search warrant filed today April 27, 1999?

A: Yes, your Honor.

Q: Do you know this Christopher Choi referred to herein?

A: Yes, your Honor.

Q: Why do you know him?

A: He was introduced to us by Michael Chua, your Honor.

Q: As what?

A: As the supplier for the goods.

Q: Subject of the application?

A: Yes, your Honor, in violation of Section 169 of R.A. 8293.

Q: How did you know him?

A: When I was conducting a test-buy operation against Mr. Michael Chua, Mr. Michael Chua told me that the bulk of
supply if we need more supply we can get from the source, a certain Christopher Choi, who lives in the same village
and who is actually the supplier for the entire region.

Q: Where did you see him. This Christopher Choi?

A: I went to his house, your Honor.

Q: Where?

A: At No. 25-13 Columbia St., Carmenville Subd., Angeles City, Pampanga.

Q: Upon arriving at the place what did you do?

A: Upon arriving at the place, your Honor, I introduced myself as the one who was referred by a certain Michael
Chua who is interested in buying the Marlboro cigarettes from him and he accommodated me and showed me the
sample that he has and I was able to procure the samples from him, the samples that like what we did to the others
were inspected by certain Mr. David Lee Sealey, the representative and authority from the Philip Morris.

Q: Did you actually buy those samples?

A: Yes, your Honor, I got the samples form Mr. Christopher Choi and I submitted them to Mr. David Lee Sealey.
477

Q: How many Marlboro cigarettes did you buy?

A: We bought only one ream, P17.00 per pack.

Q: Do you know from what particular place the house of Christopher Choi did he got (sic) those samples?

A: The volume stocks were found inside the house, they are almost everywhere in the house of Christopher Choi.

Q: There is a sketch here attached to your application, can you point it out here?

A: Yes, your Honor, at the warehouse, in the storage room as shown in the lay out of the house, it is adjacent to the
residential house as shown in the sketch.

Q: You went to the warehouse?

A: We were shown [the] entire area by the supplier, Christopher Choi. As a matter of fact he was trying to show us
how much volume he has and his capacity to supply. 32

Max Cavalera, a witness who accompanied Nieto during the "test-buy" operation, 33 also testified:

Q How about this Christopher Choi?

A As I’ve said earlier, he was one of those identified by the informant storing and selling counterfeit Marlboro
cigarettes, so on April 22, 1999 we conducted a surveillance and we were able to confirm that the said cigarettes
are being stored at the subject place.

Q At what place?

A At 25-13 Columbia St., Carmenville Subd., Angeles City. On April 23, 1999 at about 8:30 p.m., Mario Nieto and I
again went to the subject place to conduct a test-buy operation. [A]fter Mr. Choi had been convinced of our intention
to buy cigarettes from him, he brought us to his warehouse where he showed to us several cardboard cases of
Marlboro cigarettes. 34

Given the foregoing testimonies and applying the established standards in determining probable cause, we cannot
say that Judge Gatbalite committed grave abuse of discretion in issuing the search warrant. Her questions were
sufficiently probing, not at all superficial and perfunctory. The testimonies were consistent with each other and the
narration of facts was credible. The testimonies and other evidence on record constituted adequate bases to
establish probable cause that the alleged offense had been committed.

Since probable cause is dependent largely on the opinion and findings of the judge who conducted the examination
and who had the opportunity to question the applicant and his witnesses, 35 the findings of the judge deserve great
weight. The reviewing court can overturn such findings only upon proof that the judge disregarded the facts before
him or ignored the clear dictates of reason. 36 We thus find no reason to disturb Judge Gatbalite’s findings.

Furthermore, as correctly pointed out by petitioners, 20th Century Fox Film Corporation, insofar as it required the
presentation of the master tapes for comparison with the pirated copies for a search warrant to issue, had already
been superseded by Columbia Pictures, Inc. v. Court of Appeals:

More to the point, it is felt that the reasonableness of the added requirement in 20th Century Fox calling for the
production of the master tapes of the copyrighted films for determination of probable cause in copyright infringement
cases needs revisiting and clarification.

xxx xxx xxx

In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes
of the copyrighted films for the validity of search warrants should at most be understood to merely serve as a
guidepost in determining the existence of probable cause in copyright infringement cases where there is doubt as to
the true nexus between the master tape and the pirated copies. An objective and careful reading of the decision in
said case could lead to no other conclusion than that said directive was hardly intended to be a sweeping and
inflexible requirement in all or similar copyright infringement cases. Judicial dicta should always be construed
within the factual matrix of their parturition, otherwise a careless interpretation thereof could unfairly fault the writer
with the vice of overstatement and the reader with the fallacy of undue generalization.

xxx xxx xxx

478

It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in copyright
infringement cases, the presentation of master tapes of the copyrighted films is always necessary to meet
the requirement of probable cause and that, in the absence thereof, there can be no finding of probable
cause for the issuance of a search warrant. It is true that such master tapes are object evidence, with the merit
that in this class of evidence the ascertainment of the controverted fact is made through demonstrations involving
the direct use of the senses of the presiding magistrate. Such auxiliary procedure, however, does not rule out the
use of testimonial or documentary evidence, depositions, admissions or other classes of evidence tending to prove
the factum probandum, especially where the production in court of object evidence would result in delay,
inconvenience or expenses out of proportion to its evidentiary value.

xxx xxx xxx

Accordingly, to restrict the exercise of discretion by a judge by adding a particular requirement (the presentation of
master tapes, as intimated by 20th Century Fox) not provided nor implied in the law for a finding of probable cause
is beyond the realm of judicial competence or statesmanship. It serves no purpose but to stultify and constrict the
judicious exercise of a court’s prerogatives and to denigrate the judicial duty of determining the existence of
probable cause to a mere ministerial or mechanical function. There is, to repeat, no law or rule which requires that
the existence of probable cause is or should be determined solely by a specific kind of evidence. Surely, this could
not have been contemplated by the framers of the Constitution, and we do not believe that the Court intended the
statement in 20th Century Fox regarding master tapes as the dictum for all seasons and reasons in infringement
cases. 37 (emphasis supplied)

It is obvious that 20th Century Fox Film Corporation should not be applied to the present case since this involves the
offense of unfair competition and not copyright infringement. More importantly, as pronounced by the Court
in Columbia Pictures, Inc., the judge’s exercise of discretion should not be unduly restricted by adding a requirement
that is not sanctioned by law.

WHEREFORE, the petition is hereby GRANTED. The assailed decision of the Court of Appeals dated April 10, 2002
in CA-G.R. SP No. 59587 is REVERSED and SET ASIDE. Judgment is hereby rendered declaring Search Warrant
No. 99-17 as VALID.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

People vs. Choi, GR 152950, 3 August 2006

FACTS:

Mario P. Nieto, Intelligence Operative of the Economic Intelligence and Investigation Bureau, Department of Finance,
applied for a search warrant with the Regional Trial Court (RTC) against respondent Christopher Choi for violation of
Section 168, paragraphs 2 and 3 (a) and (c), in relation to Section 169 of RA 8293,5 also known as the Intellectual
Property. After examination of the applicant and her witnesses, Judge Gatbalite issued Search Warrant.

Respondent filed a “motion to quash search warrant” and a “supplemental motion to quash” but both were denied by
Judge Gatbalite. Respondent then filed a petition for certiorari and prohibition before the CA. He alleged that Judge
Gatbalite committed grave abuse of discretion in refusing to quash the search warrant, arguing that probable cause was
not sufficiently established as the examination conducted was not probing and exhaustive and the warrant did not
particularly describe the place to be searched. This was granted and according to the CA, in determining whether there
was probable cause to believe that the cigarettes purchased by Nieto were fake and in violation of RA 8293,15 Judge
Gatbalite failed to ask searching and probing questions of his witness. In addition, the CA ruled that Judge Gatbalite
committed grave abuse of discretion when she merely relied on the conclusion of one of the witnesses that the
cigarettes he received from Nieto were fake. She should have at least required the witness to present the alleged fake
Marlboro cigarettes and the genuine ones for comparison, instead of relying on his testimony alone.
479

ISSUE:

Whether or not Judge Gatbalite committed grave abuse of discretion in issuing the search warrant allegedly because she
failed to determine probable cause pursuant to Sections 4 and 5 of Rule 126 of the Rules of Court

RULING:

No, Judge Gatbalite did not commit grave abuse of discretion in issuing the search warrant.

A search warrant can be issued only upon a finding of probable cause. Probable cause means such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed
and that the objects sought in connection with the offense are in the place sought to be searched. The determination of
the existence of probable cause requires the following:

(1) the judge must examine the complainant and his witnesses personally;

(2) the examination must be under oath and

(3) the examination must be reduced in writing in the form of searching questions and answers.23

The searching questions propounded to the applicant and the witnesses depend largely on the discretion of the judge.
The determination of probable cause does not call for the application of rules and standards of proof that a judgment of
conviction requires after trial on the merits. As the term implies, probable cause is concerned with probability, not
absolute or even moral certainty. The standards of judgment are those of a reasonably prudent man, not the exacting
calibrations of a judge after a full-blown trial. No law or rule states that probable cause requires a specific kind of
evidence. No formula or fixed rule for its determination exists. Probable cause is determined in the light of conditions
obtaining in a given situation.

In the instant case, Judge Gatbalite’s questions were sufficiently probing, not at all superficial and perfunctory. The
testimonies were consistent with each other and the narration of facts was credible. The testimonies and other evidence
on record constituted adequate bases to establish probable cause that the alleged offense had been committed. Since
probable cause is dependent largely on the opinion and findings of the judge who conducted the examination and who
had the opportunity to question the applicant and his witnesses, the findings of the judge deserve great weight. The
reviewing court can overturn such findings only upon proof that the judge disregarded the facts before him or ignored
the clear dictates of reason.

G.R. No. 109775 November 14, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSE ENCARNACION MALIMIT alias "MANOLO", accused-appellant.

FRANCISCO, J.:

Appellant Jose Encarnacion Malimit, charged with   and convicted of the special complex crime of robbery with
1

homicide,   was meted by the trial court   the penalty of reclusion perpetua. He was also ordered to indemnify the
2 3

heirs of Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00) without subsidiary imprisonment in case of
insolvency, and to pay the cost.  4

In this appeal, appellant asks for his acquittal alleging that the trial court committed the following errors, to wit:

I
480

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF

THE PROSECUTION WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSED-
APPELLANT AS THE PERPETRATOR OF THE CRIME DESPITE THE FACT (SIC) THEY
REVEALED THEIR ALLEGED "KNOWLEDGE" OF TH6E CRIME MORE THAN FIVE MONTHS
AFTER THE INCIDENT.

II

THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS
ALTHOUGH THE CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN
VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED.

III

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE

OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.  5

The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by the evidence
on record:

On April 15, 1991, around 8:00 o'clock in the evening, [Onofre] Malaki was attending to his store.
Malaki's houseboy Edilberto Batin, on the other hand, was busy cooking chicken for supper at the
kitchen located at the back of the store (TSN, June 19, 199 (sic), p. 14).

Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase
chemical for his rice farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately
one hundred and fifty (150) meters distant from Malaki's store (Ibid., p. 24).

Meanwhile, Batin had just finished cooking and from the kitchen, he proceeded directly to the store
to ask his employer (Malaki) if supper is to be prepared. As Batin stepped inside the store, he was
taken aback when he saw appellant coming out of the store with a bolo (TSN, June 9, 1992, p. 14),
while his boss, bathed in his own blood, was sprawled on the floor "struggling for his life" (hovering
between life and death) (Ibid.).

Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose
Malimit (or "Manolo") rushing out through the front door of Malaki's store with a blood-stained bolo
(TSN, May 22, 1992, p. 29). Aided by the illumination coming from a pressure lamp ("petromax")
inside the store, Rondon clearly recognized Malimit (Ibid., p. 22).

Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June
9, 1992, p. 15). After a brief conversation, both Batin and Rondon rushed to the nearby house of
Malaki's brother-in-law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki.
Batin, along with Beloy, went back to the store. Inside, they saw the lifeless body of Malaki in a pool
of blood lying prostrate at the floor. Beloy readily noticed that the store's drawer was opened and
ransacked and the wallet of Malaki was missing from his pocket (Ibid., pp. 16-17).  6

In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio Rondon and
Edilberto Batin by pointing out their alleged delay in revealing what they knew about the incident. He posits that
while the crime took place on April 15, 1991, it was only on September 17, 1991 when these witnesses tagged him
as the culprit.

We find these contentions bereft of merit. Appellant haphazardly concluded that Rondon and Batin implicated the
appellant to this gruesome crime only on September 17, 1991. The aforementioned date however, was merely the
date   when Rondon and Batin executed their respective affidavits,   narrating that they saw the appellant on the
7 8

night of April 15, 1991 carrying a bolo stained with blood and rushing out of Malaki's store. As to appellant's claim of
delay, suffice it to state that extant from the records are ample testimonial evidence negating appellant's
protestation, to wit: (1) after having discovered the commission of the crime, Rondon and Batin immediately looked
for Eutiquio Beloy, Malaki's brother-in-law, and informed him that appellant was the only person they saw running
away from the crime scene;   (2) Beloy and Batin reported the crime with the CAFGU detachment in their barangay
9

where Batin declared that it was appellant who robbed Malaki on that fateful night;   and (3) Batin again made a
10

similar statement later at the Silago Police Station.

11

Next, appellant derided the non-presentation by the prosecution of the police blotter which could prove if appellant
was indeed implicated right away by Batin to the crime.  We do not believe, however, that it was necessary for the
12

prosecution to present as evidence a copy of the aforementioned police blotter. Neither was its non-presentation in
court fatal to the prosecution's case. Entries in the police blotter are merely corroborative evidence of the
uncontroverted testimony of Batin that he identified the appellant as the perpetrator of the crime before the Silago
481

police. As such, its presentation as evidence is not indispensable.   Besides, if appellant believed that he was not
13

identified therein, then he should have secured a copy thereof from the Silago Police Station and utilized the same
as controverting evidence to impeach Batin's credibility as witness.   Having failed to do so, appellant cannot now
14

pass the blame on the prosecution for something which appellant himself should have done.

Even assuming arguendo that Rondon and Batin identified the appellant only on September 15, 1991, or after the
lapse of five months from commission of the crime, this fact alone does not render their testimony less credible. The
non-disclosure by the witness to the police officers of appellant's identity immediately after the occurrence of the
crime is not entirely against human experience.   In fact the natural reticence of most people to get involved in
15

criminal prosecutions against immediate neighbors, as in this case,   is of judicial notice.   At any rate, the
16 17

consistent teaching of our jurisprudence is that the findings of the trial court with regard to the credibility of witnesses
are given weight and the highest degree of respect by the appellate court.   This is the established rule of evidence,
18

as the matter of assigning values to the testimony of witnesses is a function best performed by the trial court which
can weigh said testimony in the light of the witness" demeanor, conduct and attitude at the
trial.   And although the rule admits of certain exceptions, namely: (1) when patent inconsistencies in the statements
19

of witnesses are ignored by the trial court, or (2) when the conclusions arrived at are clearly unsupported by the
evidence,   we found none in this case.
20

In his second assignment of error, appellant asseverates that the admission as evidence of Malaki's
wallet   together with its contents, viz., (1) Malaki's residence certificate;   (2) his identification card;  and (3) bunch
21 22 23

of keys,   violates his right against self-incrimination.   Likewise, appellant sought for their exclusion because during
24 25

the custodial investigation, wherein he pointed to the investigating policemen the place where he hid Malaki's wallet,
he was not informed of his constitutional rights.

We are not persuaded. The right against self-incrimination guaranteed under our fundamental law finds no
application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United States,   ". . . is a prohibition of
26

the use of physical or moral compulsion, to extort communications from him . . ." It is simply a prohibition against
legal process to extract from the [accused]'s own lips, against his will, admission of his guilt.   It does not apply to
27

the instant case where the evidence sought to be excluded is not an incriminating statement but an object evidence.
Wigmore, discussing the question now before us in his treatise on evidence, thus, said:

If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal
utterances, but also for his physical control in whatever form exercise, then, it would be possible for
a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the
authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing
his possession and compelling the surrender of the evidential articles — a clear reduction ad
absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . .
but testimonial compulsion  28

Neither are we prepared to order the exclusion of the questioned pieces of evidence pursuant to the provision of the
Constitution under Article III, Section 12, viz:

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

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Sec. 17 hereof, shall be inadmissible

in evidence against him. (Emphasis ours.)

xxx xxx xxx

These are the so-called "Miranda rights" so oftenly disregarded by our men in uniform. However, infractions thereof
render inadmissible only the extrajudicial confession or admission made during custodial investigation. The
admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or
rules,   is not affected even if obtained or taken in the course of custodial investigation. Concededly, appellant was
29

not informed of his right to remain silent and to have his own counsel by the investigating policemen during the
custodial investigation. Neither did he execute a written waiver of these rights in accordance with the constitutional
prescriptions. Nevertheless, these constitutional short-cuts do not affect the admissibility of Malaki's wallet,
identification card, residence certificate and keys for the purpose of establishing other facts relevant to the crime.
Thus, the wallet is admissible to establish the fact that it was the very wallet taken from Malaki on the night of the
robbery. The identification card, residence certificate and keys found inside the wallet, on the other hand, are
admissible to prove that the wallet really belongs to Malaki. Furthermore, even assuming arguendo that these
pieces of evidence are inadmissible, the same will not detract from appellant's culpability considering the existence
of other evidence and circumstances establishing appellant's identity and guilt as perpetrator of the crime charged.
482

We, now come to appellant's third assignment of error where he demurs on the prosecution's evidence, contending
that they are insufficient to sustain his conviction.

Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a verdict of conviction
based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and
reasonable conclusion pinpointing the accused, to the exclusion of all the others, as the perpetrator of the crime.   In 30

order that circumstantial evidence may be sufficient to convict, the same must comply with these essential
requisites, viz., (a) there is more than one circumstance; (b) the facts from which the inferences are derived are
proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.   In this case, there were at least five (5) circumstances constituting an unbroken chain of events which by
31

their "concordant combination and cumulative effect", satisfy the requirements for the conviction of the
appellant,   specifically: (1) appellant was seen by Rondon and Batin, whose credibilities were untarnished, holding
32

a bolo in his right hand and rushing out of Malaki's store seconds prior to their discovery of the crime;   (2) Malaki
33

sustained multiple stab wounds   and he died of "cardiac arrest, secondary to severe external hemorrhage due to
34

multiple stab wounds",   (3) witness Elmer Ladica saw the appellant on August 6, 1991, accompanied by some
35

policemen, retrieve Malaki's wallet underneath a stone at the seashore in Barangay Hingatungan;   (4) appellant
36

himself admitted in his testimony that on August 6, 1991, he accompanied several policemen to the seashore where
he hid Malaki's wallet;   and (5) appellant's flight and his subsequent disappearance from Hingatungan immediately
37

after the incident.  38

On the other hand, appellant's version of the story does not inspire belief. He maintains that on that fateful night he
was in his house together with his wife. He claims that they had just arrived from a gambling spree allegedly in the
house of a certain Maui Petalcorin. Surprisingly, however, the defense did not bother to call appellant's wife to the
witness stand to corroborate appellant's alibi. Neither did it present as witness Maui Petalcorin, or any other person
who may have seen the appellant in the said place, if only to provide a semblance of truth to this assertion. As the
defense of alibi is weak in view of the positive identification of the appellant by the prosecution witnesses,   it 39

becomes weaker because of the unexplained failure of the defense to present any corroboration.   Furthermore,
40

proof that appellant was in his house when the crime was committed is not enough. Appellant must likewise
demonstrate that he could not have been physically present at the place of the crime or in its vicinity, at the time of
its commission.   In this case, appellant himself admitted that his house was just about eighty (80) meters away
41

from the house of

Malaki.   It was, therefore, not impossible for him to have been physically present at the place of the commission of
42

the crime, as in fact, no evidence to negate this possibility was ever adduced by him at the trial.

Appellant's insistence that he merely found Malaki's wallet by chance while gathering shells along the seashore, and
that he feared being implicated in the crime for which reason he hid the wallet underneath a stone, hardly inspires
belief. We are at a loss, just as the trial court was, as to why appellant should fear being implicated in the crime if
indeed he merely found Malaki's wallet by chance. No inference can be drawn from appellant's purported
apprehension other than the logical conclusion that appellant had knowledge of the crime. Besides, proof that
appellant is in possession of a stolen property gives rise to a valid presumption that he stole the same.  43

In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly convicted by the trial
court of the special complex crime of robbery with homicide, defined and penalized under Article 294, paragraph 1
of the Revised Penal Code.

WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ENCARNACION MALIMIT alias "MANOLO", accused-appellant.
G.R. No. 109775, THIRD DIVISION, November 14, 1996, FRANCISCO, J.

Nevertheless, these constitutional short-cuts do not affect the admissibility of Malaki's wallet, identification card,
residence certificate and keys for the purpose of establishing other facts relevant to the crime. Thus, the wallet is
admissible to establish the fact that it was the very wallet taken from Malaki on the night of the robbery. The
identification card, residence certificate and keys found inside the wallet, on the other hand, are admissible to prove
that the wallet really belongs to Malaki.

FACTS:

Appellant Jose Encarnacion Malimit, charged with and convicted of the special complex crime of robbery with homicide,
was meted by the trial court the penalty of reclusion perpetua. He was also ordered to indemnify the heirs of Onofre
Malaki the sum of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the cost. On April 15,
1991, around 8:00 o'clock in the evening, [Onofre] Malaki was attending to his store. Malaki's houseboy Edilberto Batin,
on the other hand, was busy cooking chicken for supper at the kitchen located at the back of the store. Soon thereafter,
483

Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase chemical for his rice farm. Rondon
came from his house, approximately 150 meters distant from Malaki's store. Meanwhile, Batin had just finished cooking
and from the kitchen, he proceeded directly to the store to ask his employer (Malaki) if supper is to be prepared. As
Batin stepped inside the store, he was taken aback when he saw appellant coming out of the store with a bolo, while his
boss, bathed in his own blood, was sprawled on the floor "struggling for his life" (hovering between life and death).
Rondon, who was outside and barely 5 meters away from the store, also saw appellant Jose Malimit (or "Manolo")
rushing out through the front door of Malaki's store with a blood-stained bolo. Aided by the illumination coming from a
pressure lamp ("petromax") inside the store, Rondon clearly recognized Malimit. Batin immediately went out of the
store to seek help. Outside the store, he met Rondon. After a brief conversation, both Batin and Rondon rushed to the
nearby house of Malaki's brother-in-law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki.
Batin, along with Beloy, went back to the store. Inside, they saw the lifeless body of Malaki in a pool of blood lying
prostrate at the floor. Beloy readily noticed that the store's drawer was opened and ransacked and the wallet of Malaki
was missing from his pocket.

ISSUE:

Whether or not the admission as evidence of Malaki's wallet together with its contents, viz., (1) Malaki's residence
certificate; (2) his identification card; and (3) bunch of keys, violates his right against self-incrimination.

RULING:

NO. The admission as evidence of Malaki's wallet together with its contents, viz., (1) Malaki's residence certificate; (2)
his identification card; and (3) bunch of keys, does not violate his right against self-incrimination. The right against self-
incrimination guaranteed under our fundamental law finds no application in this case. This right, as put by Mr. Justice
Holmes in Holt vs. United States, ". . . is a prohibition of the use of physical or moral compulsion, to extort
communications from him . . ." It is simply a prohibition against legal process to extract from the [accused]'s own lips,
against his will, admission of his guilt. It does not apply to the instant case where the evidence sought to be excluded is
not an incriminating statement but an object evidence. Wigmore, discussing the question now before us in his treatise
on evidence, thus, said: If, in other words (the rule) created inviolability not only for his [physical control of his] own
vocal utterances, but also for his physical control in whatever form exercise, then, it would be possible for a guilty
person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to
employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the
surrender of the evidential articles — a clear reduction ad absurdum. In other words, it is not merely compulsion that is
the kernel of the privilege, . . . but testimonial compulsion The admissibility of other evidence, provided they are
relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the
course of custodial investigation. Concededly, appellant was not informed of his right to remain silent and to have his
own counsel by the investigating policemen during the custodial investigation. Neither did he execute a written waiver
of these rights in accordance with the constitutional prescriptions. Nevertheless, these constitutional short-cuts do not
affect the admissibility of Malaki's wallet, identification card, residence certificate and keys for the purpose of
establishing other facts relevant to the crime. Thus, the wallet is admissible to establish the fact that it was the very
wallet taken from Malaki on the night of the robbery. The identification card, residence certificate and keys found inside
the wallet, on the other hand, are admissible to prove that the wallet really belongs to Malaki. Furthermore, even
assuming arguendo that these pieces of evidence are inadmissible, the same will not detract from appellant's culpability
considering the existence of other evidence and circumstances establishing appellant's identity and guilt as perpetrator
of the crime charged. Appellant's insistence that he merely found Malaki's wallet by chance while gathering shells along
the seashore, and that he feared being implicated in the crime for which reason he hid the wallet underneath a stone,
hardly inspires belief. The Court is at a loss, just as the trial court was, as to why appellant should fear being implicated
in the crime if indeed he merely found Malaki's wallet by chance. No inference can be drawn from appellant's purported
apprehension other than the logical conclusion that appellant had knowledge of the crime. Besides, proof that appellant
is in possession of a stolen property gives rise to a valid presumption that he stole the same. In fine, as the killing of
Malaki took place on the occasion of robbery, appellant was correctly convicted of the special complex crime of robbery
with homicide, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code.
484

G.R. No. 101584. April 7, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUCIANO JUMAMOY Y AÑORA, alias "JUNIOR", accused-appellant.

The Solicitor General for plaintiff-appellee.

Eladio M. Jala for accused appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACTS OF THE TRIAL COURT, ENTITLED TO
GREAT RESPECT. — The issue of credibility is to be resolved primarily by the trial court because it is in a better
position to decide the question, having heard the witnesses and observed their deportment and manner of testifying
during the trial. Thus, its findings on the matter of the credibility of witnesses are entitled to the highest respect and
will not be disturbed on appeal in the absence of any showing that it overlooked, misunderstood or misapplied some
facts or circumstances of weight or substance which would have affected the result of the case.

2. ID.; ID.; ID.; ABSENCE OF ILL MOTIVE BOLSTERS CREDIBILITY. — In the absence of evidence manifesting
any ill motive on the part of the witnesses for the prosecution, it logically follows that no such improper motive could
have existed and that, corollarily, their testimonies are worthy of full faith and credit. Indeed, if an accused had
nothing to do with the crime, it is against the natural order of events and of human nature and against the
presumption of good faith that a prosecution witness would falsely testify against the former.

3. ID.; CRIMINAL PROCEDURE; PRESENTATION OF WITNESSES FOR THE STATE, PREROGATIVE OF THE
PROSECUTION. — The prosecution's failure to present the other witnesses listed in the information did not
constitute, contrary to the contention of the accused, suppression of evidence. The prosecutor has the exclusive
prerogative to determine the witnesses to be presented for the prosecution.

4. ID.; EVIDENCE; NON-PRESENTATION OF CORROBORATIVE WITNESSES DOES NOT CONSTITUTE

SUPPRESSION OF EVIDENCE. — The non-presentation of corroborative witnesses would not constitute
suppression of evidence and would not be fatal to the prosecution's case.

5. ID.; ID.; CASES WHERE ADVERSE PRESUMPTION FROM NON-SUPPRESSION OF EVIDENCE NOT
APPLICABLE. — The adverse presumption from a suppression of evidence is not applicable when (1) the
suppression is not wilful; (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. Moreover, if the
accused believed that the failure to present the other witnesses was because their testimonies would be
unfavorable to the prosecution, he should have compelled their appearance, by compulsory process, to testify as his
own witnesses or even as hostile witnesses.

6. ID.; ID.; CREDIBILITY; NOT AFFECTED BY MINOR INCONSISTENCIES. — Discrepancies on minor matters do
not impair the essential integrity of the prosecution's evidence as a whole or detract from the witnesses' honesty.
These inconsistencies, which may be caused by the natural fickleness of memory, even tend to strengthen rather
than weaken the credibility of prosecution witnesses because they erase any suspicion of rehearsed testimony.
What is important is that the testimonies agree on the essential facts and that the respective versions corroborate
and substantially coincide with each other to make a consistent and coherent whole.

7. ID.; CRIMINAL PROCEDURE; REQUISITE FOR CONVICTION; PRODUCTION OF WEAPON USED, NOT A
CONDITION SINE QUA NON. — For conviction to lie, it is enough that the prosecution establishes by proof beyond
reasonable doubt that a crime was committed and that the accused is the author thereof. The production of the
weapon used in the commission of the crime is not a condition sine qua non for the discharge of such a burden for
the weapon may not have been recovered at all from the assailant.

8. ID.; EVIDENCE; CREDIBILITY; ALIBI; CANNOT PREVAIL POSITIVE IDENTIFICATION. — The defense of alibi
cannot prevail over the positive identification of the accused.

9. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; MEANS, METHODS OR FORM EMPLOYED

WHICH DIRECTLY AND SPECIALLY INSURED ITS COMMISSION; CASE AT BAR. — The killing was indeed
attended by the qualifying circumstance of treachery, which is duly alleged in the information. The mode, manner
and means of attack adopted by the accused insured the accomplishment of his purpose, i.e., the killing of the victim
without giving the latter any opportunity to defend himself or resist the attack. The firing of the gun at the victim was
so sudden and unexpected that the latter, who was unarmed, was caught totally unprepared to defend himself or
485

retaliate. There is treachery when the offender commits any of the crimes against persons employing means,
methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make.

10. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; MAY NOT BE INVOKED WHEN
OFFENSES PUNISHED BY DIFFERENT LAWS; CASE AT BAR. — The killing of a person with the use of an
unlicensed firearm may give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b)
the violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot
plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is
punished by a special law while the second — Murder or Homicide — is punished by the Revised Penal Code.

11. CRIMINAL LAW; PENALTIES; RECLUSION PERPETUA NOT THE SAME AS LIFE IMPRISONMENT. — The
words "or life imprisonment" following "reclusion perpetua" in the dispositive portion of the decision should be
deleted, for the latter is not the same as life imprisonment.

12. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH RAISED TO P50,000.00. — In line with the prevailing
jurisprudence, the indemnity awarded by the trial court should be increased from P30,000.00 to P50,000.00.

DECISION

DAVIDE, JR., J p:

Two (2) separate informations for "Murder" and "Qualified Illegal Possession of Firearm and Ammunitions (sic)"
were filed by the Office of the Provincial Fiscal of Bohol with the Regional Trial Court (RTC) of Tagbilaran City
against accused Luciano Jumamoy y Añora, alias Junior; they were docketed as Criminal Case No. 5064 and
Criminal Case No. 5065, respectively, and were raffled off to Branch 3 thereof.

The information for Murder reads:

"That on or about the 1st day of April, 1987, in barangay Poblacion, municipality of Inabanga, province of Bohol,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused without justifiable cause or
motive, with intent to kill, and with evident premeditation and treachery, did then and there willfully, unlawfully and
feloniously attack, assault, and shoot with the use of an unlicensed firearm one Rolando Miel without giving
opportunity to the latter to prepare for his defense, thereby inflicting upon the vital parts of the body of the latter,
serious physical injuries which caused his instantaneous death; to the damage and prejudice of the heirs of the
deceased.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, with the aggravating
circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the
commission of the crime.

City of Tagbilaran, August 14, 1987." 1

while that for Qualified Illegal Possession of Firearm and Ammunitions (sic) relates:

"That, on or about the 1st day of April, 1987, in barangay Poblacion, municipality of Inabanga, province of Bohol,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to possess a
firearm with ammunitions (sic), did then and there willfully, unlawfully and criminally keep, carry and have in his
possession, custody and control a (sic) gun still of unknown make and caliber, and at least three (3) rounds of live
ammunitions (sic), without first obtaining the necessary permit or license to possess the said firearm and
ammunitions (sic) or permit to carry the same from competent authorities, and which firearm was used by the said
accused in committing the crime of murder wherein the victim was one Rolando Miel; to the damage and prejudice
of the Republic of the Philippines.

Acts committed contrary to the provisions of Sec. 878 and 887 of the Administrative Code in relation to Sec. 2692, of
the same Code as amended by Republic Act No. 4 and as further amended by PD No. 1866.

City of Tagbilaran, August 14, 1987." 2

No bond was recommended in both cases for the temporary liberty of the accused.

Upon his arraignment on 10 December 1987, the accused entered a plea of not guilty in each case. 3

Upon motion of the prosecution, the two (2) cases were consolidated and jointly heard.
486

The prosecution presented Dr. Hector Enriquez, Bonifacio Ayag, Lino Gudes, Jr., Artemio Panganiban, Jr.
(Supervising Ballistician, NBI, Region VII), Alfredo Alforque, Sgt. Misericordio Sapong, Rodrigo Aparicio, Pfc.
Segundo Requirme and Felisa Miel as witnesses for its evidence in chief, and Leandro Tirol and Luisito dela Torre
for purposes of rebuttal. On the other hand, the defense presented the accused, Manuelito Cajes and Ramon
Micutuan as its witnesses for its evidence in chief, and the accused himself in surrebuttal.

After trial, the court a quo promulgated on 18 July 1991 its judgment, dated 27 June 1991, 4 finding the accused
guilty beyond reasonable doubt of the crimes charged. The dispositive portion of the decision reads:

"WHEREFORE, in view of the foregoing premises, this Court finds accused Luciano Jumamoy y Añora, alias Junior,
guilty beyond reasonable doubt for (sic) the crimes of Murder and Qualified Illegal Possession of Firearm and
Ammunitions (sic) in the foregoing Criminal Cases Nos. 5064 and 5065 and, consequently hereby imposes upon
him the penalty of reclusion perpetua or life imprisonment in each of the aforesaid criminal cases.

He is further ordered to indemnify the heirs of the deceased Rolando Miel by way of actual civil indemnity in the
amount of P7,800 (Exhibit C-1) and, further, the amount of P30,000 by way of moral damages.

Without pronouncement as to costs.

BE IT SO ORDERED." 5

The evidence for the prosecution, upon which the trial court based its decision, is summarized in the People's Brief
as follows:

"Appellant Luciano Jumamoy and the victim Rolando Miel were once friends and belonged to the same 'barkada'
until sometime in 1970 when the former was stabbed by the latter on his left forearm. As a result, appellant's left arm
was deformed, despite medical attendance, because the main vein of his left arm was severely cut. Since then the
two had not met each other, as the victim avoided appellant (sic) (p. 2, tsn, April 3, 1989).

In the evening of April 1, 1987, the victim and his younger brother Edgar, together with three other companions,
went to the Cultural Center of Inabanga, Bohol, where a 'disco' dance was being held in connection with the
commencement exercises of St. Paul Academy. However, upon reaching the premises of the Center, the victim's
brother and a companion stayed behind and sat on a concrete bench, as the victim and their other companions
proceeded (p. 2, tsn, Nov. 11, 1988; p. 4, tsn, June 26, 1990).

Upon reaching the Center, the victim and his companions joined three other members of their 'barkada' watching the
disco outside. The victim and three of his friends were leaning against a concrete post of the Center conversing and
watching the 'disco,' when all of a sudden appellant appeared in front obliquely to the right of the victim and fired
three (3) successive shots at the latter, who slumped and fell to the ground (pp. 2-7, tsn, July 6, 1988; pp. 2-5, tsn,
Nov. 11, 1988).

Thereafter, the people inside and outside the Center scampered for safety (p. 7, tsn, July 6, 1988; p. 5, tsn, Nov. 11,
1988). However, on his way to escape, appellant passed by the victim's brother Edgardo and a companion who
were then sitting on a bench about 60 meters away from the Center. When appellant got near the two, the former
poked his gun at the victim's brother, and uttered, 'Unsa, laban ka?' ('What now, are you taking sides?'). The two
remained silent, as appellant ran behind a house and into the 1-3, tsn, June 26, 1990).

Meanwhile, the victim's sister Zeny, who was then inside the Center, came to his (sic) brother's rescue. With the
help of other people, she brought her brother to a hospital, but the latter expired before arrival thereat (p. 9, tsn, July
6, 1988; pp 8-9, tsn, Nov. 11, 1988).

Dr. Hector Enriquez, who conducted an examination on the victim's cadaver, issued a Medico-Legal Report (Exhibit
"A"), wherein he described the four (4) gunshot wounds sustained by the victim. Although he found four (4) gunshot
wounds on the victim's body, Dr. Enriquez reported that it was possible that the victim was shot at only three (3)
times since the 4th wound on the right forearm was through and through; hence, the same bullet may have also
caused the 2nd wound which penetrated the 'subcostal margin, midclavicular line, right' (pp. 1-2, tsn, Feb. 24,
1978).

The doctor deduced that based in (sic) the locations of the wounds, the assailant must have been in front obliquely
to the right of the victim when the former shot the latter. He also opined that since he did not notice the presence of
powder burns on the victim and the downward trajectory of the bullets, the assailant must have been more than two
(2) feet away from, and taller or stood on a higher level than the victim. Furthermore, of the four (4) wounds
sustained by the victim, he considered wound No. 1 along the '7th ICS, anterior axillary line, right,' and wound No. 2
penetrating the 'subcostal margin, mid-clavicular line, right' as fatal, which caused the victim's death (pp. 2-3, Ibid.).
487

Dr. Enriquez also recovered from the victim's body one (1) slug (p. 3. Ibid.), which, when examined by the NBI
Supervising Ballistician of Region VII stationed at Cebu City, was found to have been fired from a .38-caliber
firearm, probably a homemade (paltik) firearm, caliber .38 (pp. 1-3, tsn, August 23, 1988).

Upon request, Sgt. Misericordio Sapong of the Bohol PC Command issued a certification (Exhibit "E") that appellant
was never issued a permit or license to possess or carry a firearm (p. 1, tsn, Nov. 11, 1988)." 6

The trial court disregarded the accused's defense of alibi. The latter testified that he had left Inabanga, Bohol for
Cebu City on 29 March 1987 to look for employment; he claims to have boarded a motor banca, the M/B Roxan,
which left for Cebu City from Buenavista, Bohol at 9:00 o'clock in the morning of that date. The motor banca
supposedly reached Cebu City at 11:00 o'clock on the same day. He recounts that he stayed in the house of a
friend, Feliciano Cenita, in Pasil, Cebu City from 1 April to 4 April 1987. While in Cebu City, he drove, as a reserve
driver, the passenger jeepney owned and driven by Cenita under the so-called boundary system. In the evening of 4
April 1987, Jumamoy avers that he took a boat, the M/V Sweet Roro, for Manila and stayed in the house of his
brother Abundio in Mandaluyong, Metro Manila. He stayed there for seven (7) months and departed for Inabanga
only upon hearing that he had been named a suspect in the killing of Rolando Miel; he arrived in Inabanga on 9
November 1987. 7

The accused did not, however, present Feliciano Cenita as a witness despite his (accused's) repeated manifestation
of his intention to do so and the court's liberality in granting his request for postponement for the said purpose.
Instead, "out of the blue, the accused . . . presented one Ramon Micutuan . . . to corroborate his claim that in the
evening of April 1, 1987, he was in Cebu City driving a passenger jeepney." 8 Commenting on the accused's
defense, the trial court declared:

"It is a well-settled rule that alibi as a defense is weak although the Courts should not take a negative attitude in
some cases as against the accused, if the defense of alibi reveals the truth. Alibi is also entitled to credit if the
accused is not positively identified by the prosecution witnesses. Moreover, the accused claiming alibi as a defense
must prove that it was impossible for him to be at the place at the time of the commission because he was
elsewhere during the incident.

The records in this case will show that at the time of the incident, at the time of the police investigation, during the
preliminary investigation before the Municipal Circuit Trial Court of Inabanga-Buenavista as well as in the trial
proper, the accused was positively identified by the prosecution witnesses.

It was established by the prosecution that the prosecution witnesses and the accused knew and were familiar with
each other from the time they attained the age of reason because they lived in adjacent barangays located in the
same municipality. It was also established by the prosecution that at the time of the incident there were several
'blinking' dancing lights at the cultural center because of the ongoing disco dance. In fact, there was another light —
an electric bulb of 25 watts — which was placed at the concrete post where the victim and some of the prosecution
witnesses were then leaning against. That electric bulb was very near to the victim and the accused at the time of
the incident.

During the hearing proper as well as during the investigation conducted by the police and before the municipal
circuit trial court during the preliminary investigation, all the prosecution eyewitnesses pointed without hesitancy to
the accused as the murderer of the victim, and during the trial before this Court there was not even one witness
wavered of (sic) his identification of the accused as the author of the crime.

To the mind of the Court, the accused's evidence of alibi cannot be believed, the same being clearly an afterthought
or afterwit because while the accused himself and his witness Manuelito Cajes positively declared during the
presentation of the defense evidence in chief that it was on March 29, 1987 that they were on board MB Roxan
together from Buenavista, Bohol, to Cebu City, the owner of the MB Roxan, Engr. Leandro Tirol, however, declared
on rebuttal that it was impossible for the accused to have boarded on the said vessel on March 29, 1987, that date
being a Sunday and that MB Roxan did not have any voyage from Buenavista, Bohol, to Cebu City on that date
because it was not legally authorized to do so. So that on surrebuttal, the accused conveniently changed the date
March 29, 1987 to probably March 30, 1987." 9

Accused thus appeals the said judgment of conviction 10 and in his Appellant's Brief, claims that the trial court
committed the following errors:

"I

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF
THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT IN THE TWO CASES.

II
488

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE TWO CRIMES OF
MURDER AND QUALIFIED ILLEGAL POSSESSION OF FIREARM AND SENTENCING HIM THE (sic) PENALTY
OF RECLUSION PERPETUA IN EACH OF THE SAID TWO CRIMES." 11

The assigned errors were discussed in eight (8) short paragraphs, to wit:

"Let us try to assess the testimonies of the alleged eyewitnesses of the prosecution.

Originally there were six (6) alleged eyewitnesses for the prosecution. Surprisingly, only three (3) took the witness
stand and testified. The suppression (sic) of the testimonies of the other three (3) alleged eyewitnesses raises some
doubts that their testimonies would mixed (sic) up the evidence for the prosecution.

The testimonies of the three (3) alleged eyewitnesses who actually testified were inconsistent with each other. Each
of the three witnesses presented different versions as to the source of light that lighted the place of the incident.
They were not united as to whether the place was sufficiently lighted that enabled (sic) them to identify the accused.

The inconsistencies of the three witnesses only prove that they are not telling the truth. They wanted to hide the
truth that the place of incident was dark, and they could not identify the person or persons who shot and killed the
victim.

Another doubtful testimony is about the description of the firearm allegedly used by the assailant. One witness said
that the firearm used by the accused was a short firearm, but on cross-examination the same witness declared that
he did not actually see the firearm. What he saw was the sparkling lights that came out from the barrel of the firearm
after it was fired (Page 4, TSN, August 24, 1988). If the witness saw the sparks, then the place must be dark.

Alfredo Alforque, one of the prosecution witnesses who claimed to have seen the shooting, made the following
doubtful testimonies (sic):

Q While in that position, you said Luciano Jumamoy suddenly appeared. From what direction did he come?

A From behind us, passing our right side walking towards Rolando Miel (Page 7, TSN, Oct. 4, 1988).

However, on cross-examination, he changed his answer when he made the following answer:

Q You did not notice immediately the accused when (sic) he suddenly arrived?

A I noticed him because he suddenly arrived from behind. He was running (Page 9, TSN, Oct. 4, 1988).

The serious and material inconsistencies of the testimonies of prosecution witnesses only proves (sic) that said
witnesses were lying. Their testimonies were all fabricated. They were planted witnesses. They have to testify
falsely in order to help the family of their fallen close friend.

On the other hand, the firearm alleged to have been used by the accused in killing the victim was not presented in
court during the trial. Its caliber and make was (sic) never established by sufficient evidence, so that there is no
basis to convict the accused for illegal (sic) possession of firearm."

It is at once obvious that the instant appeal is bereft of any merit. The accused's failure to point out to this Court,
with specific references to the transcripts of the stenographic notes of the testimonies of the witnesses, the so-called
inconsistencies committed by the three (3) prosecution witnesses, and to make statements of facts, though he
started the Appellant's Brief with the heading "Statement of Facts And of the Case," 12 betrays an honest realization
of the futility of this appeal and not merely the lack of diligence or zeal in the pursuit thereof which, incidentally, is
likewise eloquently evidenced therein.

The instant appeal rests principally on the issue of the credibility of the witnesses for the prosecution and, to a lesser
extent, on the alleged suppression of evidence and failure to present in evidence the firearm used by the accused.

It is settled that the issue of credibility is to be resolved primarily by the trial court because it is in a better position to
decide the question, having heard the witnesses and observed their deportment and manner of testifying during the
trial. Thus, its findings on the matter of the credibility of witnesses are entitled to the highest respect and will not be
disturbed on appeal in the absence of any showing that it overlooked, misunderstood or misapplied some facts or
circumstances of weight or substance which would have affected the result of the case. 13

We have carefully reviewed the records and the transcripts of the stenographic notes of the testimonies of the
witnesses and find nothing therein to warrant a reversal of the findings of fact of the trial court. The meticulous care
with which the court a quo summarized and analyzed, in its 31-page decision, the testimonies of the witnesses of
both parties during the direct and cross examinations attests to its impartial disposition of the cases in the light of
489

applicable jurisprudence. That the accused was positively identified by prosecution witnesses Lino Gudes, Alfredo
Alforque and Rodrigo Aparicio is beyond dispute. These three had known the accused long before the incident;
moreover, the place where the shooting took place, the cultural center, was sufficiently lighted. Nor was any motive
ascribed by the accused to these witnesses to show why they would falsely testify against him. In the absence of
evidence manifesting any ill motive on the part of the witnesses for the prosecution, it logically follows that no such
improper motive could have existed and that, corollarily, their testimonies are worthy of full faith and credit. 14
Indeed, if an accused had nothing to do with the crime, it is against the natural order of events and of human nature
and against the presumption of good faith that a prosecution witness would falsely testify against the former. 15

The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the
contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to determine the
witnesses to be presented for the prosecution. 16 If the prosecution has several eyewitnesses, as in the instant
case, the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof
necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses
may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-
presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the
prosecution's case. 17 Besides, there is no showing that the eyewitnesses who were not presented in court as
witnesses were not available to the accused. We reiterate the rule that the adverse presumption from a suppression
of evidence is not applicable when (1) the suppression is not wilful; (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. 18 Moreover, if the accused believed that the failure, to present the other witnesses was
because their testimonies would be unfavorable to the prosecution, he should have compelled their appearance, by
compulsory process, to testify as his own witnesses or even as hostile witnesses. 19

The claimed inconsistencies are on minor if not inconsequential or trivial, matters. Settled is the rule that
discrepancies on minor matters do not impair the essential integrity of the prosecution's evidence as a whole or
detract from the witnesses honesty. These inconsistencies which may be caused by the natural fickleness of
memory, even tend to strengthen rather than weaken the credibility of prosecution witnesses because they erase
any suspicion of rehearsed testimony. What is important is that the testimonies agree on the essential facts and that
the respective versions corroborate and Substantially coincide with each other to make a consistent and coherent
whole. 20

Nor can We agree with the accused that it was indispensable for the prosecution to introduce and offer in evidence
the firearm which was used in the killing of the victim. There is no law or rule of evidence which requires the
prosecution to do so; there is also no law which prescribes that a ballistics examination be conducted to determine
the source and trajectory of the bullets. For conviction to lie it is enough that the prosecution establishes by proof
beyond reasonable doubt that a crime was committed and that the accused is the author thereof. The production of
the weapon used in the commission of the crime is not a condition sine qua non for the discharge of such a burden
for the weapon may not have been recovered at all from the assailant. If the rule were to be as proposed by the
accused, many criminals would go scot-free and much injustice would be caused to the victims of crimes, their
families and society. In the instant case, it was established with moral certainty that the accused attacked, assaulted
and shot the victim Rolando Miel with an unlicensed firearm, thereby inflicting upon the latter multiple gunshot
wounds which caused his death. Such proof was all that was needed for the conviction of the accused.

Against the overwhelming evidence consisting of his positive identification as the author of Rolando Miel's death,
accused has nothing to offer but alibi. It is a fundamental judicial dictum that the defense of alibi cannot prevail over
the positive identification of the accused. 21 Besides, his alibi is obviously fabricated. He was caught lying through
his teeth when during rebuttal, it was shown through the testimony of Leandro Tirol, owner of the M/B Roxan, that
he (Jumamoy) could not have left — as he had vigorously insisted — on board the said vessel for Cebu City on 29
March 1987 because the same was not authorized by its franchise to travel on that day, a Sunday. In an effort to
dodge this fatal blow, the accused took the witness stand on surrebuttal to change the date of his supposed
departure to 30 March 1987. 22 Moreover, despite his assurances that he would present as his witness Feliciano
Cenita of Pasil, Cebu City — in whose house he allegedly stayed from 1 April to 7 April 1987 — for which reason the
trial court accommodated his requests for postponements, accused never did so. No acceptable explanation had
been offered to justify the failure of the said prospective witness to come to the rescue of the accused. Thus, the
inevitable conclusion is that either this Cenita is a fictitious person or that, if he exists, he was unwilling to support
the accused's claim of alibi. If the accused had gone to Cebu City at all, it must have been after the incident — not
to look for employment as he claimed, but to evade arrest. In fact, it appears that on 7 April 1987, he left for Manila.

The trial court correctly convicted the accused of Murder under Article 248 of the Revised Penal Code in Criminal
Case No. 5064. The killing was indeed attended by the qualifying circumstance of treachery, which is duly alleged in
the information. The mode, manner and means of attack adopted by the accused insured the accomplishment of his
purpose, i.e., the killing of the victim without giving the latter any opportunity to defend himself or resist the attack.
The firing of the gun at the victim was so sudden and unexpected that the latter, who was unarmed, was caught
totally unprepared to defend himself or retaliate. There is treachery when the offender commits any of the crimes
against persons employing means, methods or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the offended party might make. 23
490

Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866 penalizes, inter alia, the unlawful
possession of firearms or ammunition with reclusion temporal in its maximum period to reclusion perpetua.
However, under the second paragraph thereof, the penalty is increased to death if homicide or murder is committed
with the use of an unlicensed firearm. It may thus be loosely said that homicide or murder qualifies the offense
because both are circumstances which increase the penalty. It does not, however, follow that the homicide or
murder is absorbed in the offense. If this were to be so, an anomalous absurdity would result whereby a more
serious crime defined and penalized under the Revised Penal Code will be absorbed by a statutory offense, one
which is merely malum prohibitum. Hence, the killing of a person with the use of an unlicensed firearm may give rise
to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 248
(Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other;
stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special law while
the second — Murder or Homicide — is punished by the Revised Penal Code. 24 Considering, however, that the
imposition of the death penalty is prohibited by the Constitution, the proper imposable penalty would be the penalty
next lower in degree, or reclusion perpetua. 25

The trial court also correctly imposed the penalty of reclusion perpetua in Criminal Case No. 5065. However, the
words "or life imprisonment" following "reclusion perpetua" in the dispositive portion of the decision should be
deleted, for the latter is not the same as life imprisonment. 26

In line with the prevailing jurisprudence, the indemnity awarded by the trial court should be increased from
P30,000.00 to P50,000.00.

WHEREFORE, the Decision of Branch 3 of the Regional Trial Court of Tagbilaran City in Criminal Case No. 5064
and Criminal Case No. 5065 finding the accused LUCIANO JUMAMOY y AÑORA, alias "JUNIOR," guilty of the
crimes charged therein, is hereby AFFIRMED subject to the modification as to the indemnity which is increased from
P30,000.00 to P50,000.00 and the deletion of the words "life imprisonment" from the dispositive portion thereof.

Costs against the accused.

SO ORDERED.
491

G.R. No. 116794 June 23, 2000

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. HENRY FLORES Y TANDOG alias "Toto", Accused-Appellant.

DE LEON, JR., J.:

Before us on appeal is the Decision 1 of the Regional Trial Court of Caloocan City, Branch 120, in Criminal Case No. C-
45737 convicting herein appellant Henry T. Flores alias "Toto" of the crime of murder.

The appellant is charged with the crime of murder as defined and penalized under Article 248 of the Revised Penal Code
in an information which reads:

That on or about the 13th day of July 1993, in Kaloocan City, Metro Manila and within the jurisdiction of the Honorable
Court, the above-named accused, without any justifiable cause, with deliberate intent to kill with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously stab one NICANOR DOCTOLERO y SON with the
use of a knife on the left side of his body, resulting to the death of the latter.

CONTRARY TO LAW.

Upon being arraigned on January 19, 1994, the appellant, assisted by counsel, pleaded "Not guilty." Thereafter, trial on
the merits ensued.

It appears from the evidence adduced by the prosecution that on July 13, 1993 at around 9:30 o'clock in the evening,
private complainant Corazon Doctolero was tending her store beside their house in Barrio Libis, Baesa, Kaloocan City,
when she heard her husband, Nicanor Doctolero, shout "Akina ang kutsilyo, Son, sinaksak ako ni Toto", apparently
referring to herein appellant Henry Flores. Nicanor was only two (2) arm length away from their store and was then
watching bingo games when he was stabbed by appellant Toto. Corazon immediately looked out from the window of
her store and saw that Toto was armed with a knife and was embracing her husband from behind. Toto attempted to
stab Nicanor for the second time but the latter was able to parry the thrust. Toto ran away after he was kicked by
Nicanor. 2

Nicanor sustained a stab wound at the back on the left side of his body. He was initially brought to the Kalookan General
Hospital for treatment but was later on transferred to the Jose Reyes Memorial Hospital where he died six (6) days later.
Corazon stated that she spent P8,000.00 representing hospital expenses, P12,000.00 for the wake and P10,000.00 for
the burial of her husband. 3

Corazon disclosed that Toto is her brother-in-law. 4 She alleged that Toto felt very envious toward her husband
inasmuch as the latter was well-liked by his parents-in-law, a treatment denied to the appellant. 5

Dr. Ludivino J. Lagat, M.D., medico-legal specialist of the N.B.I., conducted post mortem examination on the body of the
victim, Nicanor Doctolero. The Autopsy Report No. N-93-1742 6 dated July 19, 1993 which was prepared by Dr. Lagat
and approved by Dr. Prospero A. Cabanayan, M.D., Chief, N.B.I. Medico-Legal Division, shows the following findings:

Cyanosis, lips and nailbeds.

Cut down, 2.5 cm., right arm.

Surgical incision. 3.0 cms., 6th intercostal space, anterior axillary line, left; 24.0 cm., abdomen, mid-line infected; 5.0 cm.,
left lower quadrant, abdomen.

Bedsore; 3.0 x 2.0 cm., right buttocks; 2.0 x 2.0 cm., in the back.
492

Stab wound, 2.0 cm., modified by healing, back, left posterior axillary line, 15.5 cm., from the posterior median line, level
of the 10th intercostal space, directed forward, downward and medially, involving the soft tissues, diaphragm, to the
peritoneal cavity, then to the spleen and stomach, thru and thru all sutured; with a depth of 15.0 cm.

Lungs: dull external surface, with pleural adhesion liver like consistency. Cut sections show grayish white consolidation.

Intestines, massive adhesion.

Other visceral organs, congested.

Stomach, empty.

Cause of Death: Hypostatic Pneumonia.

Dr. Ludivino Lagat testified that the victim sustained a fatal stab wound at the back on the left side of his body that
damaged his diaphragm, stomach and spleen. Without timely medical treatment, the victim would have died within the
date of the incident. Dr. Lagat observed the massive adhesion in the victim's intestine due to infection. The immediate
cause of death of the victim is hypostatic pneumonia brought about by prolonged bed rest and complications due to the
stab wound. 7

Appellant Henry Flores, alias Toto, denied any liability for the crime of murder charged in the information and
interposed the defense of alibi. He testified that he went to the house of his cousin, a certain Ate Sina, in Bagong Silang,
Kaloocan City, about two (2) weeks before July 13, 1993; and that while he was there, he helped his cousin in her
canteen. On July 13, 1993, he did not leave Bagong Silang and he worked in the canteen until 10:00 o'clock in the
evening. He later learned that he was implicated in the crime charged when he returned to his house in Barrio Libis,
Kaloocan City. 8

Toto claimed that he and the victim, Nicanor Doctolero, who was his "bilas", were best of friends. However, he did not
have harmonious relations with the family of his wife, Nancy Dolosa, for the reason that, according to them, he was
jobless. 9

After analyzing the evidence, the trial court rendered its decision, the dispositive portion of which, reads:

WHEREFORE, the prosecution evidence having established the guilt of the accused beyond reasonable doubt, the Court
hereby imposes the penalty of reclusion perpetua, as provided under Article 248 of the Revised Penal Code, and for the
accused to indemnify the heirs of the victim the sum of P50,000.00 for the death of Nicanor Doctolero, and the sum of
P30,000.00 for actual expenses incurred for the hospitalization, wake and burial.

SO ORDERED. 10

In his appeal, appellant Henry Flores raised the following assignment of errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCONSISTENT, CONFLICTING AND
UNCORROBATED TESTIMONY OF THE PRIVATE COMPLAINANT.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF MURDER DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

III

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE FAILURE
OF THE PROSECUTION TO PROVE ITS ATTENDANCE.

After a thorough review of the evidence on record, this Court finds the evidence in this case sufficient to establish the
liability of the appellant, Henry Flores, alias Toto, beyond reasonable doubt, for the death of Nicanor Doctolero. It is
493

settled that the testimony of a single witness, if credible and positive, is sufficient to produce a conviction. 11 Nicanor's
wife, Corazon, positively identified the appellant as the person who was embracing her husband from behind when she
looked out from the window of her store. Her attention was previously caught by Nicanor who asked her to give him
(Nicanor) a knife inasmuch as the appellant has stabbed him. Corazon witnessed the appellant while in the act of
delivering the second blow, with a knife, to her husband but which was parried by the latter. The appellant ran only after
he was kicked by the victim.

The trial court correctly found the testimony of Corazon to be more credible than that of the appellant. Corazon could
not have been mistaken as to the identity of the appellant, who is her brother-in-law, as the attacker of her husband.
Corazon was merely two (2) arms length away from the appellant and her husband during the stabbing incident which
happened near their store where a bingo game was being held.

On the other hand, the appellant interposed the defense of alibi. He claimed that he was helping his cousin Sina in her
canteen in Bagong Silang Kaloocan City on the date and time when the incident happened on July 13, 1993 at 9:30
o'clock in the evening. His uncorroborated defense of alibi cannot be given credence in view of the positive identification
by Corazon that he was the attacker of her husband, Nicanor. 12

In addition, Corazon seriously disputed the claim of the appellant that the victim was his friend and that the (appellant)
regarded Nicanor as his own relative. Corazon claimed that the appellant was deeply envious of her husband who was
well-liked by her family. She disclosed in court that the appellant attempted to stab her husband less than two (2) weeks
before the incident on July 13, 1993. The prosecution presented in evidence the entry 13 in the barangay blotter of
Barrio Libis, Kalookan City reflecting the complaint of the victim, Nicanor Doctolero, to the barangay authorities for the
earlier attempt on his life by the appellant Henry Flores, alias Toto, on July 4, 1993 at about 8:30 o'clock in the evening.
In effect, the said entry in the barangay blotter also belied the claim of the appellant that he had been staying with his
cousin in Bagong Silang, Kaloocan City two (2) weeks before Nicanor was stabbed on July 13, 1993.

However, the lower court erred in ruling that treachery attended the killing of the victim. It is jurisprudential rule that
the element of treachery which qualifies the offense to murder must be proved as clearly and as cogently as the crime
itself. 14 The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim,
depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself. 15
Where no particulars are shown as to the manner by which the aggression was commenced or how the act which
resulted in the death of the victim began and developed, treachery cannot be established from mere supposition, drawn
solely from circumstances prior to the killing. 16

A perusal of the post mortem report prepared by Dr. Ludivino J. Lagat, M.D. shows that the victim sustained one (1) stab
wound at the back on the left side of his body. It is not clear, however, how the said stab wound was inflicted by the
appellant on the victim. The evidence of the prosecution merely shows that Nicanor asked for a knife from his wife.
Corazon, who was then inside their store, inasmuch as he (victim) was stabbed by the appellant. When Corazon looked
out of the store window, she saw the appellant already embracing the victim from behind and was attempting to strike
another blow. The victim parried the second blow and kicked the appellant which caused the latter to run. Hence,
treachery cannot be appreciated due to the failure of the prosecution to establish the manner by which the appellant
inflicted the stab wound on the victim.

In view of the foregoing, the appellant is liable for the crime of homicide only under Article 249 of the Revised Penal
Code as a result of the death of the victim, Nicanor Doctolero. Evident premeditation cannot be appreciated as an
aggravating circumstances in this case for failure of the prosecution to adduce evidence to prove the same. Likewise,
there is no evidence on record to support the award of actual damages. Applying the Indeterminate Sentence Law, the
maximum of penalty to be imposed on the appellant shall be reclusion temporal in its medium period and the minimum
shall be within the range of the penalty next lower in degree, that is prision mayor.

WHEREFORE, the appealed decision of the Regional Trial Court of Kaloocan City, Branch 120, in Criminal Case No. C-
45737 is hereby MODIFIED. The appellant, Henry Flores, alias Toto, is hereby CONVICTED of the crime of homicide and
he is sentenced to suffer the indeterminate penalty of ten (10) years of prision mayor medium, as minimum, to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum and pay the heirs of the
deceased victim Nicanor Doctolero y Son, the sum of P50,000.00 by way of civil indemnity ex delicto.

SO ORDERED.
494

G. R. No. 121980 - February 23, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GONZALO PENASO @ "LULU", Accused-Appellant.
QUISUMBING, J.:

On appeal is the judgment of the Regional Trial Court of Tagbilaran City, Branch 1, in Criminal Case Nos. 6775, 6787,
6788, and 6789, promulgated on March 10, 1995, finding appellant Gonzalo Penaso guilty of rape in Criminal Case No.
6775, and imposing upon him the penalty of reclusion perpetua while acquitting him in the other cases. The fallo reads:

PREMISES CONSIDERED, in Criminal Case No. 6775, the Court finds the accused GONZALO PENASO guilty of the crime of
Rape punished under Article 335 of the Revised Penal Code and hereby sentences him to suffer an imprisonment of
Reclusion Perpetua, with the accessories of the law and to pay the cost(s).

The accused Gonzalo Penaso is hereby ordered to indemnify the complainant Basilisa Lacar the amount of Fifty
Thousand Pesos (P50,000.00) representing indemnity and moral damages, without subsidiary imprisonment in case of
insolvency.

It appearing that the accused Gonzalo Penaso has undergone preventive imprisonment he is entitled to the full time of
his preventive imprisonment to be deducted from his term of sentence if he has executed a waiver otherwise he will
only be entitled to 4/5 of the time he has undergone preventive imprisonment to be deducted from the term of
sentence if he has not executed a waiver.

In Criminal Cases Nos. 6787, 6788 and 6789 the accused Gonzalo Penaso is hereby ACQUITTED of the crimes charged,
with cost(s) de officio.

SO ORDERED.1

The facts of this case, as culled from the records, are as follows:

On April 16, 1990, private complainant, assisted by her mother Rosalina Lacar, filed with the 8th Municipal Circuit Trial
Court of Candijay-Anda, Bohol, a complaint for multiple rape, docketed as Criminal Case No. 372, stating:

That on the 16th of November 1989 at about 9:00 in the morning more or less, particularly in the house of the accused
Gonzalo Penaso, when I, the victim Basilisa Lacar was there to borrow a book from my classmate which (sic) is the
daughter of the accused, did then and there, willfully, unlawfully and felonuously (sic) with the use of superior strenght
(sic) and intimidation, pulled me forcibly and boxed my abdomen and once in the state of almost unconscious have
carnal knowledge and to the effect caused me to bleed for he had broken through my virginity, and threatens me of
killing if I tell of what had happened, to my parents, and repeated the same to my person with the same threats one
week after, and repeated on the third and fourth time on the month of January 1990 in the fear that he might kill me
once I told everything to my parents, and as a result of his devil(ish) act caused me to have an unwanted pregnancy of
an unwanted child, to the damage and prejudices to myself and to my parents.

ACT CONTRARY TO LAW.2

Following the preliminary investigation on April 25, 1990, the municipal circuit court issued an order for the arrest of the
accused who, by then, had left Bohol for Misamis Oriental.

Meanwhile, on July 10, 1990, appellant was arrested in Magsaysay, Misamis Oriental, for illegal possession of firearms.
Notwithstanding the warrant of arrest for rape against him, he posted bail for the case for which he was arrested, and
then he disappeared.

On July 16, 1990, private complainant gave birth to a baby boy.

495

In August 1990, private complainant filed three additional complaints for rape with the circuit court, docketed as
Criminal Case Nos. 397,3 398,4 and 399.5 These rapes allegedly took place in November and December 1989. She
likewise amended her complaint in Criminal Case No. 372, limiting it to just one charge of rape allegedly committed on
November 16, 1989.6

On August 27, 1990, the Provincial Prosecutor of Bohol filed an information for the first rape complained of, to wit:

That on or about the 16th day of November, 1989, in the municipality of Candijay, Province of Bohol, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused with lewd designs using force and
intimidation, did then and there willfully, unlawfully and feloniously succeed in having sexual intercourse with the
offended party one Basilisa Jugarap Lacar, a 15 years old girl, against her will and without her consent, to the damage
and prejudice of the offended party and her parents in the amount to proved during the trial.

Acts committed contrary to the provisions of Article 335 of the Revised Penal Code as amended by Republic Act(s) 2632
and 4111.7

The case was docketed as Criminal Case No. 6775 in the RTC of Tagbilaran City and raffled to Branch 1 of said court.

On September 3, 1990, the Provincial Prosecutor filed with the RTC three additional informations docketed as Criminal
Cases Nos. 6787, 6788, and 6789. Except as to the dates of the incidents complained of, the informations in these three
cases were virtually identical to the information in Criminal Case No. 6775.

On April 17, 1991, appellant was arrested in Magallanes, Agusan del Norte.

On May 5, 1991, appellant escaped from his police escort in Cebu City while being transported from Agusan del Norte to
Bohol.8

In March 1993, police operatives in Cagayan de Oro City finally apprehended appellant.

When arraigned, appellant pleaded not guilty to the four counts of rape. The cases were consolidated and trial on the
merits ensued. Appellant raised the defenses of denial and alibi.

After trial, the court summarized its factual findings as follows:

a) That on November 16, 1989 at 9:00 o'clock in the morning at the house of the accused Gonzalo Penaso (Criminal Case
No. 6775) the complainant Basilisa Lacar who was then fifteen years old knocked at the door of the house of the
aforementioned accused Gonzalo Penaso who opened the door and upon inquiry whether his daughter, who was a
classmate of complainant, was present which the latter told the complainant that her (sic) daughter was in the kitchen
when in fact and in truth his daughter was out;

b) That the accused Gonzalo Penaso forcibly pulled the complainant Basilisa Lacar and pushed her into the bamboo bed
and boxed the abdomen of the complainant Basilisa Lacar and subsequently took off her panty and inserted his penis
into the vagina of the complainant Basilisa Lacar causing it to bleed;

c) That the accused Gonzalo Penaso warned the complainant Basilisa Lacar not to report to her parents otherwise he
would kill her;

d) That the complainant reported the incident to her parents after the accused Gonzalo Penaso escaped to avoid being
arrested;

e) That the second, third and fourth rape incidents were committed in the same place in the vicinity of Cogtong
Elementaryhool;

f) The defense witnesses and the accused Gonzalo Penaso vehemently denied the rape charges and interposed the
defense that four men impregnated the complainant Basilisa Lacar;

g) The first charge of rape was committed at the house of the accused Gonzalo Penaso at Cogtong, Candijay, Bohol;

h) The second, third and fourth charges of rape were allegedly committed in the afternoon at the same premises near
the Cogtong Elementaryhool.9

The trial court convicted appellant in Criminal Case No. 6775 and sentenced him to reclusion perpetua.
496

Hence, this appeal with the sole assignment of error, as follows:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT GONZALO PENASO BEYOND REASONABLE DOUBT
OF THE CRIME OF RAPE.

In his brief, appellant assails the trial court for giving credence to private complainant's account and disregarding his
alibi. He submits that the rape charges against him are fabricated.

In rape cases the issue, more often than not, is the credibility of the victim. Rape is generally unwitnessed and very often
the victim is left to testify for herself. Her testimony is most vital and must be received with the utmost caution.10 When
a rape victim's testimony is straightforward, unflawed by any material or significant inconsistency, then it deserves full
faith and credit and cannot be discarded. Once found credible, her lone testimony is sufficient to sustain a conviction.11

In assessing the credibility of witnesses, we are guided by the following doctrinal principles:

(1) The reviewing court will not disturb the findings of the lower court unless there is a showing that it had overlooked,
misunderstood, or misapplied some fact or circumstance of weight and substance that could affect the results of the
case;

(2) The findings of the trial court respecting the credibility of witnesses are entitled to great respect and even finality as
it had the opportunity to examine their demeanor when they testified on the witness stand; and

(3) A witness who testified in clear, positive, and convincing manner and remained consistent on cross-examination, is a
credible witness.12

Applying these guidelines, we find no reason to disturb the trial court's assessment of private complainant's credibility.
Appellant has shown no reason whatsoever for us to doubt her testimony. The records show that private complainant
testified as to her ravishment in a categorical, straightforward, spontaneous, and frank manner. She positively identified
appellant as her rapist. She was consistent in her narration of how she was dragged inside appellant's house, boxed into
submission, and ravished.13 We find that private complainant did not waiver in her account of her harrowing experience
under intense and grueling cross-examination14 Absent any showing that the trial court's assessment of her credibility
was flawed, we are bound by its findings.15

We also note the finding of the trial court that:

. . . in the course of the first trial of the above-entitled Criminal Cases Nos. 6775, 6787, 6788 and 6789 the accused
Gonzalo Penaso was smiling while the complainant Basilisa Lacar cried and was seriously and emotionally disturbed (as)
characterized by anger as shown on her facial expression.16

A woman who says she has been raped, as a rule, says almost all that is necessary to signify that the crime has been
committed.17 More so, if she was crying throughout her testimony, for we have found the same to be a badge of
truthfulness.18

Appellant argues that he could not have raped complainant on November 16, 1989 at about 9:00 o'clock in the morning,
since the latter was attending classes at the Boholhool of Fisheries in Cogtong, Candijay, Bohol, while he was in Sun-oc,
Ubay, Bohol making banana chips. Inasmuch as they were in separate places, the rape could not have taken place. His
wife and another defense witness corroborated his testimony. The latter's testimony, was given scant consideration by
the trial court, as said witness admitted receiving one hundred pesos (P100.00) from appellant's wife before testifying.
Appellant further points to the testimony of his daughter, Jonalou Penaso, who was the victim's classmate, to the effect
that the victim was attending classes with her at the Bohol Fisherieshool at the time and date the rape took place, so it
was impossible for the victim to have been at his house at that time.

We find complainant's testimony credible, while appellant's defenses of alibi and denial are lacking in truth and candor.
Nothing is more settled in criminal law jurisprudence than that alibi and denial cannot prevail over the positive and
categorical testimony of the complainant.19 Alibi is an inherently weak defense, which is viewed with suspicion and
received with caution because it can easily be fabricated.20 Denial is an intrinsically weak defense which must be
buttressed with strong evidence of non-culpability to merit credibility.21 We find that despite his stance that several
persons watched him demonstrate how to cook banana chips in Ubay, Bohol in the morning of November 16, 1989,22
appellant failed to present any disinterested witness to support his claim. For alibi to prosper, it is not enough that
497

accused show he was elsewhere at the time the crime was committed, but there must also be clear and convincing proof
that it was impossible for him to be at the locus criminis at the time of its commission.23

With respect to the appellant's claim that the victim was attending her classes at the time she was raped, we note that
complainant's explanation that it was their vacant period,24 was not rebutted by the defense. All told, we see no reason
to depart from the rule that positive identification of the malefactor prevails over the defenses of alibi and denial.

Appellant insists that he did not get private complainant pregnant. He cites the testimony of defense witness Rafael
Libres, a classmate of the victim, to the effect that complainant admitted to him that appellant had not caused her
pregnancy. According to Libres, complainant identified either one Willy Guitano or a certain man from Sagumay,
Candijay, Bohol as the possible father of her child. Appellant also points an accusing finger at private complainant's
stepfather as a possible culprit. This attempt to impugn the victim's moral character by the appellant is self-serving and
supported by the evidence. Furthermore, the question of who sired the victim's child has no bearing here, for in rape
cases, the identity of the father of the victim's child is not an issue, pregnancy not being an element of the crime.25

In a last-ditch effort to win an acquittal, appellant asked for a DNA test or blood test.26 We find the motion futile. As
held in one case:

The issue of "DNA tests" as a more accurate and authoritative means of identification than eye-witness identification
need not be belabored. The accused were all properly and duly identified by the prosecution's principal witness. . . DNA
testing proposed by petitioners to have an objective and scientific basis of identification of "semen samples to compare
with those taken from the vagina of the victim" are thus unnecessary or are forgotten evidence too late to consider
now.27

Moreover, the records show that appellant escaped from his police escort while being transported to face charges, and
then remained at large for two years. His claims of abduction by the members of the New People's Army or by relatives
of the victim are both incredible and wanting in substantive proof, given his admission that he hid out for a while with a
relative in Metro Manila.28 Flight is an implied admission of guilt, and appellant's escape betrays both his guilt and his
desire to evade responsibility.29 A truly innocent person would naturally grasp the first available opportunity to defend
himself and assert his innocence as to the crime imputed to him.30

The prosecution has proved beyond reasonable doubt the pertinent elements of the felony of rape as defined and
penalized under Article 335 of the Revised Penal Code, namely: that appellant Gonzalo Penaso had carnal knowledge of
the victim against her will and through the use of force and intimidation. No reversible error can be attributed to the
trial court in finding appellant guilty of rape. Hence, his conviction must be upheld.

We note, however, that the trial court awarded only P50,000.00 as indemnity and moral damages. Pursuant to current
jurisprudence, the award of P50,000.00 as civil indemnity is mandatory upon the finding of the fact of rape.31 In
addition, moral damages amounting to P50,000.00 at the least should be imposed in rape cases involving young and
immature girls between the ages of thirteen and nineteen, without need of further proof.32

WHEREFORE, the appealed judgment of the court a quo finding appellant Gonzalo Penaso guilty beyond reasonable
doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the
MODIFICATION that CIVIL INDEMNITY in the amount of FIFTY THOUSAND PESOS (P50,000.00) and MORAL DAMAGES
also in the amount of FIFTY THOUSAND PESOS (P50,000.00) should be paid by appellant to private complainant, Basilisa
Lacar. Costs against appellant.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ADOVISO, defendant-appellant. GR Nos.

116196-97June 23, 1999

FACTS: At around 8:00 in the evening on February 18, 1990, Emeterio uttered that he had been shot. Their
son Bonifacio, who was living in an adjacent house, heard the gunshot and went to their front yard to
investigate. Bonifacio saw his father being shot by several persons from the outside, but he could only
recognize accused Pablo Adoviso since he was the only one not wearing a mask and that the light from the
gas lamp inside the camaligilluminated his face clearly. On the other hand, Bonifacio’s son Elmer rushed to his
grandfather’s house where he also saw several assailants shoot his cousin, Rufino. After seeing Elmer, the
gunmen fled the place. Both Emeterio and Rufino were taken to the hospital, but died soon thereafter. Trial
ensued, and the main witnesses presented were Bonifacio and Elmer. However, the accused claims that he
was not properly identified by said witnesses due to the darkness of the night. ISSUE: Whether or not the
accused had been properly identified. RULING: Yes. Visibility is indeed a vital factor in the determination of
498

whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when
conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the
identity of the malefactor should normally be accepted. Illumination produced by kerosene lamp or a flashlight
is sufficient to allow identification of persons. Wick lamps, flashlights, even moonlight or starlight may, in proper
situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that
ground unmeritorious. In this case, not one but two gas lamps illuminated the place the one placed inside the
camalig and that held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellants
contention therefore that one particular gas lamp could not have lighted the place because it was placed inside
a can is puerile. Further, the bamboo slats of the camalig could not have effectively obstructed the
eyewitnesses' view of appellant, considering that the slats were built four meters apart. Besides, it is the
natural reaction of relatives of victims to strive to observe the faces and appearance of the assailants, if not
ascertain their identities, and the manner in which the crime is committed. A relative will naturally be interested
in identifying the malefactor to secure his conviction to obtain justice for the death of his relatives. It must
remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had known him for ten
years, while Elmer had been acquainted with him for four years. Elmer recalled

that appellant used to join the rabuz at the barracks. Familiarity with appellants face and appearance
minimized if not erased the possibility that they could have been mistaken as to his identity. The case also
discussed the inadmissibility of polygraph tests in the Philippines. A polygraph is an electromechanical
instrument that simultaneously measures and records certain physiological changes in the human body that
are believed to be involuntarily caused by an examinees conscious attempt to deceive the questioner. The
theory behind a polygraph or lie detector test is that a person who lies deliberately will have a rising blood
pressure and a subconscious block in breathing, which will be recorded on the graph. However, American
courts almost uniformly reject the results of polygraph tests when offered in evidence for the purpose of
establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its
introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and
accurate means of ascertaining truth or deception. The rule is no different in this jurisdiction.

G.R. No. 116196 June 23, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PABLO ADOVISO, defendant-appellant.

KAPUNAN, J.:

Pablo Adoviso appeals from the Joint Judgment  of the Regional Trial Court of Camarines Sur  declaring him guilty
1 2

beyond reasonable doubt for two counts of Murder.

Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit (CAFGU), was originally charged
with four unidentified persons who have, however, remained at large. The information  charging appellant with the
3

Murder of Rufino Agunos under Criminal Case No. P-2079 alleges:

That on or about the 18th day of February 1990 at about 8:00 o'clock [sic] in the evening at Sitio
Tan-agan, Barangay Casugad, Municipality of Bula, Province of Camarines Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, while armed with assorted
long firearms, conspiring, confederating and mutually helping one another, with intent to kill and with
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shoot
one Rufino Agunos several times with said firearms hitting the latter on the different parts of his body
which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of
said Rufino Agunos.

That the crime complained of against the accused is not service connected.

ACTS CONTRARY TO LAW.

Except for the name of the victim, the information in Criminal Case No. P-2080 with respect to the killing of Emeterio
Vasquez, contains the same allegations. 4

Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case Nos. P-2079 and P-2080, the
prosecution presented their version of the events that transpired on the evening of February 18, 1990, as follows:
499

The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio Tan-agan, Barangay Casugad,
Bula, Camarines Sur. One of the houses was actually a camalig where they stored harvested rice. The spouses
preferred to live there because it was cooler. The living area of the camalig had walls of bamboo called salsag. This
area was elevated from the ground. Three steps led down to an awning (suyab) walled with bamboo slats. These
slats were placed horizontally approximately four to six inches apart. A portion of the awning was used as a kitchen
but another portion had a papag where the Vasquez' grandson, Rufino Agunos, son of their daughter Virginia,
would sleep whenever he tended the irrigation pump. The spouses son Bonifacio occupied the other house eight (8)
meters from the camalig with his own son Elmer.

At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was preparing coffee as his wife was about
to retire for the night. Their grandson Rufino had already gone to sleep in the papag. Anastacia had just finished
spreading the sleeping mat when she heard three or four gunshots. Emeterio then uttered that he had been shot.
Seeing Emeterio, Anastacia exclaimed, "Why should you not be hit when infact there are guns in front of you."
Anastacia saw the "protruding edge of the gun" on the wall near the stairs where Emeterio went down. A lamp near
the stairs where Emeterio drank coffee illuminated the camalig but Anastacia failed to recognize the persons who
fired their guns at her husband.

The Vasquez' son Bonifacio was in the bigger house when he heard the gunshots. Earlier that evening, Bonifacio
was talking to Rufino regarding the engine of the irrigation pump. Bonifacio was still talking when he noticed that
Rufino had fallen asleep, the latter's back against the bamboo wall. Bonifacio left Rufino snoring in the papag and
went to the other house. Only a minute had passed after he had gone up when Bonifacio heard the gunshots. He
and his 16-year-old son Elmer immediately went down the front yard to investigate.

Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From a distance of eight (8) meters,
Bonifacio saw Rufino, who was inside the camalig, being shot by several persons from the outside. Looking through
the bamboo slats of the camalig wall. Bonifacio recognized one of the assailants, with a large built and long hair, as
appellant Pablo Adoviso because of the gas lamp that was lighted inside the camalig. Of Rufino's assailants, only
appellant was not wearing a mask. Appellant was holding a long firearm wrapped inside a sack with its muzzle
protruding and directed where Rufino was sleeping. Appellant then fired hitting Rufino. At that moment, Bonifacio
heard his father Emeterio shout "Pino," (referring to his grandson Rufino) and saw his father go down the stairs
carrying a gas lamp. Appellant fired again, hitting Emeterio at the stomach.

For his part, Elmer, who rushed towards the camalig with his father Bonifacio, saw five (5) persons aiming their
firearms at the camalig. Except for appellant, each of these persons had a cover over their faces. Three (3) of them
were positioned in a ditch near the camalig while two (2) others were near its door. Elmer saw these five (5) persons
shoot his cousin Rufino who was lying down on the papag. Although his back was hit, Rufino was able to crawl
under the papag. Elmer's grandfather was also hit on the stomach but he managed to up the camalig. When
appellant and his companion by the camalig door saw Elmer, they fired at him then, with the three others at the
ditch, escaped to the banana plantation Elmer, on the other hand, fled towards the coconut plantation.

Upon returning to the camalig, Elmer saw his father carrying his grandfather Emeterio. He also found Rufino at the
foot of a coconut tree near the river, lying on his side with his body curled. Rufino told Elmer that he had been hit
and, when Elmer failed to locate his wound, Rufino took Elmer's hand and put it on his back. Elmer then moved
Rufino "sidewise." Upon returning to the camalig, Elmer carried his grandfather and bandaged his stomach with
diapers.

In the meantime, Bonifacio went to the municipal building of Bula to fetch the police. Inspector Antonio Lopez and
Senior Police Officer 1 Claro Ballevar returned to the scene of the crime with him. The police brought Emeterio and
Rufino to the municipal hall of Bula and then to the Bicol Regional Hospital. Both Emeterio and Rufino died early the
next morning.

The certification  dated March 7, 1990 and signed by Dr. Janice Nanette Estrada, resident physician of the Bicol
5

Regional Hospital in Naga City, states that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at the
inguinal area, the sacral area, the thigh and the abdomen. The wounds at the inguinal area and the thigh bore
contusion collars. The same physician certified that Emeterio Vasquez, 88 years of age, sustained seven (7)
gunshot wounds at the paraumbilical area, lumbar area, hypogastrium, anterior aspect of the right forearm,
anteromedial aspect of the right forearm, anteromedial aspect left arm and anterolateral aspect of the left arm. Four
(4) of these gunshot wounds had contusion collars — at the paraumbilical area, the hypogastrium, the right forearm
and the left arm.
6

Appellant Adoviso interposed alibi and denial as his defense.

Appellant claimed that he was a member of the CAFGU whose headquarters was located in Barangay Palsong,
Bula, Camarines Sur. At around 7:00 in the evening of February 18, 1990, he was in Sitio Durabod, Palsong, about
a kilometer away from the CAFGU headquarters. He, together with Francisco Bislombre, Benjamin Alina, Jr. and
PFC Antero Esteron, had some drinks in the store of Honoria Tragante until around 11:00 p.m.
500

Honoria Tragante and Francisco Bislombre corroborated appellant's alibi. Antero Esteron likewise testified that from
7:00 until past 11:00 that night of February 18, 1990, he and appellant had a drinking spree at the Tragante store.
He distinctly remembered that date because it was the fiesta of Balatan.

To support his denial appellant presented Lt. Antonio Lopez, the deputy chief of police and SPO2 Claro Ballebar of
the PNP Bula Police Station. Lopez identified a police certification  prepared by Pfc. Ramon N. Canabe to the effect
7

that the shooting incident was perpetrated "by unidentified armed men." Lopez said that he (Lopez) was one of
those who brought the victims to the hospital who were then still conscious. The victims told him that they did not
know who shot them or why they were shot.

SPO2 Claro Ballebar, however testified that in the follow-up investigation he conducted several days after the
incident, Bonifacio Vasquez revealed to him that he (Bonifacio) "vividly saw the incident and recognized" appellant
as one of the perpetrators of the crime and that the killings had some something to do with land dispute between
Bonifacio's parents and the Galicia family.

The defense also offered in evidence the testimony of Ernesto A. Lucena, Polygraph Examiner II of the National
Bureau of Investigation (NBI) in Manila, who conducted a polygraph test on appellant. In Polygraph Report No.
900175,   Lucena opined that appellants ''polygrams revealed that there were no specific reactions indicative of
8

deception to pertinent questions relevant" to the investigation of the crimes.

In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the police, he did not identify appellant
as one of the culprits because he was afraid of appellant who was a member of the CAFGU. Nevertheless,
Bonifacio did mention to the police that he recognized appellant as one of the perpetrators of the crime although he
told them that he did not recognize appellant's four (4) companions. He did not mention to Lopez and Canabe
appellant's identity because he was "confused" about what had happened in their house.

On March 25, 1994, the trial court rendered a Joint Judgment finding appellant guilty beyond reasonable doubt for
two (2) counts of murder and disposing of Criminal Case Nos. P-2079 and P-2080 as follows:

WHEREFORE, in view of all the foregoing, joint judgment is hereby rendered:

In Criminal Case No. P-2079, finding the accused PABLO ADOVISO guilty beyond reasonable doubt
of the crime of MURDER and imposing upon him the penalty of RECLUSION PERPETUA and to
pay the legal heirs of Rufino Agunos, consisting of the widow, Evelyn T. Agunos and their four (4)
children the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency;

In Criminal Case No. P-2080, likewise finding said accused PABLO ADOVISO guilty beyond
reasonable doubt of the crime of MURDER and imposing upon him another penalty of RECLUSION
PERPETUA and to pay the legal heirs of the late EMETERIO VASQUEZ, consisting of Anastacia
Vasquez and Bonifacio Vasquez, another sum of FIFTY THOUSAND PESOS (P50,000.00)
Philippine Currency with all the accessory penalties provided therefore in both cases and to pay the
costs in both instances.

SO ORDERED. 9

Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of
the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an "incredible"
story because it is "highly improbable" that they could have "distinctly and positively recognized accused-appellant
as one of the perpetrators of the crimes."   According to appellant, Bonifacio, who was in the dark portion of the yard
10

hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside
the camalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could
Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant
because of the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the
gas lamp carried by Elmer's grandfather was "a small can about two (2) inches tall and the wick is smaller than a
cigarette" and the lamp inside the camalig "was placed inside a bigger can so that the direction of the light
emanating therefrom was upwards and not sidewise."  11

Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the
perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not
appear to be biased, their assertion as to the identity of the malefactor should normally be accepted.   Illumination
12

produced by kerosene lamp or a flashlight is sufficient to allow identification of persons.   Wicklamps, flashlights,
13

even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the
credibility of witnesses solely on that ground unmeritorious. 14

In this case, not one (1) but two (2) gas lamps illuminated the place — the one placed inside the camalig and that
held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellant's contention therefore
that one particular gas lamp could not have lighted the place because it was placed inside a can is puerile. Besides,
501

Elmer was not describing either of the gas lamps during the incident. The defense counsel at the trial and
appellant's counsel misunderstood the testimonies of Elmer and his grandmother on that matter. Thus, Elmer
testified:

ATTY. CORTES:

Q Is it not that the lamp you said placed along the door, which is already marked as
lamp, is that not this lamp was placed inside a kerosene can as testified to by your
grandmother so that the cat could not cause it to fall?

A It was placed just on the floor not inside the can.  15
 (Emphasis supplied.)

For her part, Anastacia testified as follows.

ATTY. CORTES:

x x x           x x x          x x x

Q Because you were already about to retire, the doors and windows were already
closed, is that correct?

A Yes, sir.

Q That you also shut down or closed the light, is that correct?

A No, sir, we even placed the kerosene lamp inside a can.

Q You said, you placed the lamp inside a can so that the light is going up, is that
correct?

A Yes, sir.

Q So, the light was not illuminating sidewise because it was inside a can?

A When we left, I got the kerosene lamp and brought it with me.

ATTY. CORTES:

I think, the witness did not get the question right, Your Honor.

COURT:

Repeat the question.

ATTY. CORTES:

Q My question Madam Witness is, when you were about to retire?

A The lamp was placed on the floor where my husband was drinking coffee.

COURT :

Q Who are the persons you are referring to as having left when you placed the light
inside the can?

A My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio
and Rufino to the hospital.   (emphasis supplied).
16

Clearly then, the lamp inside the camalig was placed on the floor and a can was placed over it only after the incident
when Anastacia left with her son and the police to bring the victims to the hospital.

The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of appellant,
considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of relatives of victims to
strive to observe the faces and appearance of the assailants, if not ascertain their identities, and the manner in
which the crime is committed.   A relative will naturally be interested in identifying the malefactor to secure his
17
502

conviction to obtain justice for the death of his relative(s).   It must remembered that appellant was not a complete
18

stranger to the eyewitnesses. Bonifacio had known him for ten (10) years   while Elmer had been acquainted with
19

him for four (4) years. Elmer recalled that appellant used to join the rabuz at the barracks.   Familiarity with
20

appellant's face and appearance minimized if not erased the possibility that they could have been mistaken as to his
identity.

Appellant's allegation that it was "improbable" for him to have committed the crimes without a mask, unlike the other
participants, deserves scant consideration. It is not contrary to human experience for a person to commit a crime
before the very eyes of people who are familiar to them. Indeed, some may even take pride in their identification as
the perpetrator of a criminal act.

Appellant also considers as a "positive sign," Bonifacio's failure to immediately identify him as the perpetrator of the
crime to the police.   The delay in reporting his participation to the police was however sufficiently explained by
21

Bonifacio. Bonifacio was afraid of appellant since the latter was a member of the CAFGU and, as such, was
provided with a gun. He was also hesitant in identifying appellant immediately lest he got wind of his impending
arrest and posthaste escaped the clutches of the law. The failure of a witness to reveal at once the identity of the
accused as one of the perpetrators of the crime does not affect, much less, impair his credibility as a witness.   The22

general or common rule is that witnesses react to a crime in different ways.   There is no standard form of human
23

behavioral response to a strange, startling and frightful event, and there is no standard rule by which witnesses to a
crime must react.  24

There is no merit in appellant's contention that Bonifacio had a motive in implicating him. According to appellant,
Bonifacio suspected that he was hired by the Galicia family to kill Bonifacio's father who had earlier won in a land
dispute with the Galicias. It is irrelevant here to talk of motive on the part of Bonifacio inasmuch as to credible
witnesses had positively identified appellant as one of the participants in the killing of Emeterio Vasquez and Rufino
Agunos.

Appellant's alibi thus crumbles in the face of his positive identification as one of the perpetrators of the crimes.   For
25

an alibi to prosper, moreover, there must be proof that the defendant was not only somewhere else when the crime
was committed but that he could not be physically present at the place of the crime or its immediate vicinity at the
time of its commission.   Appellant did not prove the physical impossibility of his being in Sitio Tan-agan which is not
26

exactly remote from Sitio Palsong where he claimed to be when the incident happened. Both places are within the
Municipality of Bula. Appellant admitted that the distance between the two sitios could be negotiated in three hours
even without any means of transportation.   On the other hand, his alleged companion in Sitio Palsong, Antero
27

Esteron, testified that the distance could be traveled in thirty-five (35) minutes by "trimobile" or private vehicle. 28

Apart from the fact that appellant's alibi was inherently weak, he was not even sure where he was and who were his
companions at the time the crimes were committed. We quote the observation of the trial court on this point:

On the premise that the trial court rendered the judgment of conviction on the basis of "mere conjectures and
speculations,"   appellant argues that the negative result of the polygraph test should be given weight to tilt the
29

scales of justice in his favor.

A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological
changes in the human body that are believed to be involuntarily caused by an examinee's conscious attempt to
deceive the questioner.   The theory behind a polygraph or lie detector test is that a person who lie deliberately will
30

have rising blood pressure and a subconscious block in breathing, which will be recorded on the graph.   However,
31

American courts almost uniformly reject the results of polygraphs tests when offered in evidence for the purposes of
establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its
introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and
ascertaining truth or deception.   The rule is no different in this jurisdiction. Thus, in People v. Daniel,   stating that
32 33

much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has
not advanced any reason why this rule should not apply to him.

Appellant was therefore correctly adjudged guilty of two counts of Murder. Treachery qualified the killing to murder.
There is treachery when the offender commits any of the crimes against the 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 offended party might make.   In other words, there is treachery when the attack on an
34

unarmed victim who has not given the slightest provocation is sudden, unexpected and without warning.   The 35

victims in this case were totally unaware of an impending assault — Rufino was sleeping and Emetario was going
down the stairs when they were shot.

WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED. 1âwphi1.nêt

SO ORDERED.
503

[G.R. No. 110569. December 9, 1996.]

DIOSDADO MALLARI, Petitioner, v. THE HON. COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

FRANCISCO, J.:

Given credence by respondent Court of Appeals is the following narration of the factual antecedents
of this case by the People.

"Sometime on December 27, 1990, at around 2:30 p.m., Pat. Manipon and Pfc. Esguerra, who were
both then assigned at the Capas Police Station, received reliable information that appellant Diosdado
Mallari, who has a standing warrant of arrest in connection with Criminal Case No 471 for Homicide in
1989, was seen at Sitio 14, Sta. Rita, Capas, Tarlac (tsn, April 18, 1991, pp. 3-4; June 27, 1991, p.
3).

‘Immediately upon receipt of such information, Pfc. Manipon, accompanied by Pat. Esguerra and Pat.
Narciso Simbulan, with personal knowledge of the existence of a standing warrant of arrest against
appellant in connection with Criminal Case No. 471 for Homicide, immediately proceeded to Sitio 14,
Sta. Rita, Capas, Tarlac. Upon reaching the place, the arresting officers surrounded the house of
appellant, arrested him and told him to remain stationary. Thereupon, the arresting officers searched
him and found a homemade gun (paltik) with one M-16 live ammunition (tsn, April 18, 1991, pp. 5-
6, 8; June 27, 1991, pp. 3-5, 7).

‘Appellant was handcuffed and brought to the Capas Police Station where he was endorsed to the
chief investigator while the homemade gun and live ammunition were endorsed to the property
custodian. The incident was then entered in the police blotter after which the spot and investigation
reports were prepared (tsn, June, April 18, 1991, p. 5, 10; June 27, 1991, p. 6)." 1

After investigation, the petitioner was charged with the crime of Illegal Possession of Firearms and
Ammunition, and pleaded not guilty on arraignment. Trial on the merits ensued, after which, the
Regional Trial Court of Capas, Tarlac convicted petitioner of the crime charged, as follows: jgc:chanrobles.com.ph

"WHEREFORE, Accused Diosdado Mallari is hereby found guilty beyond reasonable doubt of the crime
of Illegal Possession of Firearms and Ammunitions and hereby sentences him to suffer an
indeterminate penalty of seventeen years, four months and one day as minimum to eighteen years
and eight months as maximum.

"Accused, who is a detention prisoner is given full credit for the period of his preventive
imprisonment, after compliance with Article 29 of the Revised Penal Code.

"SO ORDERED." 2

Assailed in this petition for review on certiorari is the decision of respondent Court of Appeals
affirming in toto the abovequoted decision of the trial court. In its decision, the Court of Appeals held
that the testimonies of the prosecution witnesses, Pfc. Manipon and Pat. Esguerra "unequivocally
proved that the handgun (paltik) and the live M-16 ammunition were recovered from the person of
the appellant (herein petitioner)." 3 The Court of Appeals further held that the search conducted on
the petitioner and the seizure of the subject firearm and ammunition were done on the occasion of a
lawful arrest as there was then an outstanding warrant for petitioner’s arrest in Criminal Case No.
471. 4 It likewise found that petitioner was arrested while committing the crime of illegal possession
of firearms in the presence of the police authorities. Thus, anent petitioner’s insistence that there
was no standing warrant for his arrest, thereby making the search and seizure invalid, the Court of
Appeals stated that, "under the prevailing factual milieu, even in the absence of a warrant, still
appellant’s arrest would fall squarely within the context of Rule 113, Sec. 5 (b), Rules of Court . . ." 5
which cites the instances when a warrantless arrest may be valid.

In seeking the reversal of his conviction, petitioner questions the factual finding of the Court of
504

Appeals that at the time of his arrest, there was a standing warrant against him in Criminal Case No.
471. Petitioner posits that the absence of the requisite warrant is fatal and renders the search and
seizure unlawful. Corollarily, the handling and ammunition seized from him are inadmissible in
evidence. Petitioner also contends that it was error for the Court of Appeals to conclude that the
search and seizure could be validly effected as it was done on the occasion of a lawful warrantless
arrest, particularly, while in the act of committing the crime of illegal possession of firearms in the
presence of the arresting officers. Finally, petitioner claims that even assuming that the handgun and
ammunition had in fact been found in his possession, the prosecution failed to prove that he had no
license therefor and absent this essential element of the crime of illegal possession of firearms, it was
manifest error for the Court of Appeals to uphold his conviction.

The threshold issue is factual: whether or not there indeed existed a standing warrant for the arrest
of the petitioner. At the outset, this Court reiterates the general rule that when supported by
substantial evidence, factual findings of the Court of Appeals are final and conclusive and may not be
reviewed on appeal. 6 A careful scrutiny of the records of the case at bench leads this Court to
concur with the Court of Appeals in its finding that when the petitioner was attested, there was then
a standing warrant of arrest against him in connection with Criminal Case No. 471. This fact is
manifest from the testimonies of the arresting officers which the defense failed to rebut during trial.

Pfc. Danilo Manipon: jgc:chanrobles.com.ph

"Q When you arrested Diosdado Mallari Mr. witness, were you carrying a warrant of arrest then?

A No, sir.

Q Neither you did not have with you a seize and search warrant and despite the fact that you have
no search and seize warrant you have still pursued in getting the ammunition you have just
mentioned, the home made gun and the live bullet?

A Yes, sir.

COURT: chanrob1es virtual 1aw library

You are referring to what case?

A Homicide, ma’am, Criminal Case No. 471.

COURT: chanrob1es virtual 1aw library

Alright.

Q Was the seizure of the home made gun related to the warrant of arrest being issued by this
honorable court with respect to criminal case No. 471?

COURT: chanrob1es virtual 1aw library

Will you clarify, I heard him saying that he did not have a warrant of arrest, is that correct?

A Yes. ma’am.

COURT: chanrob1es virtual 1aw library

What about with respect to Criminal Case No. 471 you do not have a warrant of arrest issued by this
court?

A There was. ma’am. I know that there was a warrant of arrest issued, that is why we proceeded to
Sitio 14, ma’am.

COURT: chanrob1es virtual 1aw library

Alright you proceeded to Sitio 14 because of the warrant of arrest issued by this court to apprehend
Diosdado Mallari in Criminal Case No. 471. is that correct?

A Yes ma’am. 7 [Emphasis supplied]

505

Pat. Jose Esguerra: jgc:chanrobles.com.ph

"Q Do you have with you at the time when you arrested or when you seized the gun and the live
ammunition, a search and seize warrant?

A None, your honor.

COURT: chanrob1es virtual 1aw library

Q Did you have with you the warrant of arrest you mentioned with respect to CR. No. 471?

A When we went to him, we did not have a warrant of arrest because we were in a hurry but when
we returned, we reached the warrant officer, your honor.

Q Where did you return?

A When we returned to the Capas Police Station there was the warrant officer already, your Honor.

Proceed.

ATTY. DULDULAO: chanrob1es virtual 1aw library

Q You said you did not bring the warrant of arrest when you arrested the accused how did you come
to know that Diosdado Mallari was indeed the accused despite the fact that you did not bring with
you the warrant of arrest then?

A When we went there. sir we did not have a warrant of arrest because we were in a hurry if we will
wait our warrant officer, we may not reach Diosdado Mallari but we know that he has a standing
warrant of arrest." 8 [Emphasis provided]

Further bolstering the arresting officers’ testimonies is the absence of any motive on their part to
falsely testify against the petitioner. And it has been repeatedly held that without proof of such
motive, law enforcers are, presumed to have regularly performed their duties. 9 Thus, absent strong
and convincing proof to the contrary, this Court is bound by the presumption that the arresting
officers were aware of the legal mandates in effecting an arrest and strictly complied with the same.

At this juncture, the Court would like to stress that this is not a case of a warrantless arrest but
merely an instance of an arrest effected by the police authorities without having the warrant in their
possession at that precise moment. Finding as it does, this Court deems it unnecessary to delve into
the applicability of Section 5, Rule 113 of the Rules of Court and on the merits of both the petitioner’s
and the Office of the Solicitor General’s arguments with respect thereto. The applicable provision is
not Section 5, Rule 118 of the Rules of Court on warrantless arrests, but Section 7, Rule 113 which
provides as follows: jgc:chanrobles.com.ph

"Sec. 8. Method of Arrest by officer by virtue of warrant. — When making an arrest by virtue of a
warrant the officer shall inform the person to be arrested of the cause of the arrest and the fact that
a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer
has opportunity so to inform him or when the giving of such information will imperil the arrest. The
officer need not have the warrant in his possession at the time of the arrest but after the arrest, if
the person arrested so requires, the warrant shall be shown to him as soon as practicable."
[Emphasis supplied]

The abovequoted rule clearly allows a police officer to effect arrest without the warrant in his
possession at the time of the arrest. Thus, appellant’s arrest being lawful, the search and seizure
made incidental thereto is likewise valid, albeit conducted without a warrant. 10 In the case of People
v. Acol, 11 where the unlicensed firearms were found when the police team apprehended the accused
for robbery and not for illegal possession of firearms and ammunition, this Court held that the
unlicensed firearms may be seized without the necessity of obtaining a search warrant. Expounding
thereon, it stated that: jgc:chanrobles.com.ph

". . . The illegality of the search is independent from the illegal possession of prohibited arms. The
illegality of the search did not make legal an illegal possession of firearms. When, in pursuing an
illegal action or in the commission of a criminal offense, the offending police officers should happen
to discover a criminal offense being committed by any person, they are not precluded from
performing their duties as police officers for the apprehension of the guilty and the taking of the
506

corpus delicti." 12

Finally, petitioner contends that the prosecution failed to discharge its burden of proving that he did
not have the requisite license for the firearm and ammunition found in his possession. Anent this
contention, the Office of the Solicitor General does not even attempt to point out any evidence on
record of petitioner’s non-possession of a license or permit for there really is no such evidence. It
relies on the theory that as the firearm involved is a homemade gun or "paltik" and is illegal per se, it
could not have been the subject of license. 13 This, according to the Solicitor General, dispenses with
the necessity of proving that petitioner had no license to possess the firearm. This is where the
prosecution’s case fails and miserably so. This Court has ruled that: jgc:chanrobles.com.ph

"We do not agree with the contention of the Solicitor General that since a paltik is a homemade gun,
is illegally manufactured as recognized in People v. Fajardo, and cannot be issued a license or permit,
it is no longer necessary to prove that it is unlicensed. This appears to be at first blush, a very logical
proposition. We cannot, however, yield to it because Fajardo did not say that paltiks can in no case
be issued a license or permit and that proof that a firearm is a paltik dispenses with proof that it is
unlicensed. 14

In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who
owned or possessed it does not have the corresponding license or permit to possess the same. 15
The latter is a negative fact which constitutes an essential ingredient of the offense of illegal
possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond
reasonable doubt. 16 In the case at bench the testimony of a representative of, or a certification
from the PNP (FEU) that petitioner was not a licensee of the said firearm would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession.
17 The absence of the foregoing is fatal to the prosecution’s case and renders petitioner’s conviction
erroneous.

True that in the case of People v. Mesal 18 , this Court dispensed with a certification from the
Firearms and Explosives Unit (FEU) of the Philippine National Police (PNP) to establish the alleged
lack of license or permit on the part of the accused-appellant to possess the M-14 rifle found in his
possession. This was, however, premised on the fact that: jgc:chanrobles.com.ph

"The records reveal that the allegation was successfully substantiated by other evidence which firmly
and undisputably established that accused-appellant did not have and could not possibly have, the
requisite license or authority to possess the M-14 rifle concerned. Technical Sgt. Alfredo Romasanta,
Supply Officer of the PC-INP 253rd PC Company, testified that the rifle concerned is the type of
weapon which only military men are authorized to possess . . ." 19

The above enunciated doctrine is not applicable to this case. The records are bereft of any evidence
similar to that offered by the prosecution in Mesal to prove that the petitioner "did not have and
could not possibly have" the requisite license or authority to possess the "paltik" and the M-16 live
ammunition

In view of the foregoing, the petition is hereby GRANTED and the assailed decision is REVERSED and
SET ASIDE. Petitioner Diosdado Mallari is hereby ACQUITTED for insufficiency of evidence and
ordered immediately released unless there are other legal grounds for his continued detention.

SO ORDERED.

Mallari, Sr. v. Court of Appeals

G.R. No. 128607, 31 January 2000, 324 SCRA 147

FACTS:

The passenger jeepney driven by Mallari Jr. and owned by Mallari Sr. collided with the delivery van of Bulletinalong
the National Highway in Brgy. San Pablo, Dinalupihan, Bataan. Mallari Jr. testified that he went to the leftlane of the
highway and overtook a Fiera which had stopped on the right lane. Before he passed by the Fiera, hesaw the van of
Bulletin coming from the opposite direction. It was driven by one Felix Angeles. The collisionoccurred after Mallari
Jr. overtook the Fiera while negotiating a curve in the highway. The impact caused thejeepney to turn around and
507

fall on its left side resulting in injuries to its passengers one of whom was Israel Reyeswho eventually died due to
the gravity of his injuries.

Claudia Reyes, the widow of Israel Reyes, filed a complaint for damages against Mallari Sr. and Mallari Jr., andalso
against Bulletin, its driver Felix Angeles, and the N.V. Netherlands Insurance Co. The complaint alleged thatthe
collision which resulted in the death of Israel was caused by the fault and negligence of both drivers of
thepassenger jeepney and the Bulletin Isuzu delivery van.

ISSUE:

WON Mallari Jr. and Mallari Sr. are liable for the death of Israel.

HELD:

Yes.The collision occurred immediately after Mallari Jr. overtook a vehicle in front of it while traversing a curve onthe
highway. This act of overtaking was in clear violation of Sec. 41, pars. (a) and (b), of RA 4136 as
amended,otherwise known as The Land Transportation and Traffic Code. A driver abandoning his proper lane for
thepurpose of overtaking another vehicle in an ordinary situation has the duty to see to it that the road is clear and
notto proceed if he cannot do so in safety. When a motor vehicle is approaching or rounding a curve, there is
specialnecessity for keeping to the right side of the road and the driver does not have the right to drive on the left
handside relying upon having time to turn to the right if a car approaching from the opposite direction comes into
view.

Mallari Jr. already saw that the Bulletin delivery van was coming from the opposite direction and failing toconsider
the speed thereof since it was still dark at 5:00 o’clock in the morning mindlessly occupied the left laneand overtook
2 vehicles in front of it at a curve in the highway. Clearly, the proximate cause of the collisionresulting in the death of
Israel was the sole negligence of the driver of the passenger jeepney, Mallari Jr., whorecklessly operated and drove
his jeepney in a lane where overtaking was not allowed by traffic rules. Under Art.2185 of the Civil Code, unless
there is proof to the contrary, it is presumed that a person driving a motor vehiclehas been negligent if at the time of
the mishap he was violating a traffic regulation. Mallaris failed to presentsatisfactory evidence to overcome this legal
presumption.

The negligence and recklessness of the driver of the passenger jeepney is binding against Mallari Sr.,
whoadmittedly was the owner of the passenger jeepney engaged as a common carrier, considering the fact that in
anaction based on contract of carriage, the court need not make an express finding of fault or negligence on the
partof the carrier in order to hold it responsible for the payment of damages sought by the passenger.

(See Arts. 1755,1756 and 1759 for the rationale of common carrier’s liability).

*Case digest by Hipolito R. Bael, LLB-III, Andres Bonifacio Law School, SY 2018-2019

G.R. No. 113026-27. July 2, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RICOLITO RUGAY

alias JUN,  accused-appellant,

ARVIL VILLALON, accused.

DECISION

KAPUNAN, J.:

Charged before the Regional Trial Court of Palawan and Puerto Princesa with
the killing of Ariel Mendoza were Ricolito Rugay and Arvil Villalon in an
information which reads as follows:

That on or about the 28th day of August, 1991, in the evening, at

Junction I, Puerto Princesa City, Philippines and within the jurisdiction
of this Honorable Court, the said accused with intent to kill, with
508

treachery and evident premeditation conspiring and confederating

together and mutually helping one another and while armed with knife
and gun, did then and there wilfully, unlawfully and feloniously assault,
attack, stab and shot therewith one Ariel Mendoza, thereby inflicting
upon him mortal wounds, which were the direct and immediate cause
of his death.1
cräläwvirtualibräry

In connection with said killing, accused Ricolito Rugay was charged with
violating the provisions of Presidential Decree No. 1866, thus:

That on or about the 28th day of August, 1991 in the evening, at Junction I,

Puerto Princesa City, Philippines and within the jurisdiction of this Honorable
Court, the said accused, did then and there wilfully, unlawfully and feloniously
have in his possession, custody and control one (1) handgun, without first
securing the necessary permit and/or license from the proper authorities to
possess the same which is in violation of Prs. Decree No. 1866.2 cräläwvirtualibräry

Upon arraignment on October 11, 1991, both accused entered a plea of not
guilty to the murder charge. Accused Ricolito Rugay, likewise, pleaded not
guilty to the charge of illegal possession of firearms. Joint trial commenced
thereafter.

The prosecutions version, as narrated by its principal witness, Jesus Madrid, is

as follows:

A detainee at the City Jail of Puerto Princesa City, Madrid claimed that he was
employed by a certain M/Sgt. Guba as an asset supplying information
concerning other drug users, that is, until his arrest and detention for
possession of marijuana on August 15, 1991.

On August 28, 1991, Guba allegedly negotiated with the city warden for
Madrids temporary release and engaged the latters services for surveillance
purposes.

At around 11:30 that evening, Madrid and his friend, Joy Cortez, were in front
of the Israel Motorworks, Junction I, Puerto Princesa, waiting for a tricycle. A
drunk, Arvil Villalon, walking in a zigzag manner, then passed by. After
walking some two (2) meters away from the couple, Villalon suddenly turned
back and kicked Madrid. Villalon then pulled out a fan knife and attempted to
stab the latter. Madrid sustained injuries on his right wrist and left palm as he
parried Villalons thrusts. While the stabbing incident was taking place, Ariel
Mendoza, a friend of Madrid, appeared from his house and came to help
Madrid. Mendoza chased Villalon as the latter ran towards the Mami House
across the road. Mendoza, however, was not able to overtake Villalon, for
Ricolito Rugay suddenly came out from the Mami House, pulled a gun from his
waist, and shot Mendoza. Mendoza fell face up. Villalon, who came out from
the Mami House together with Rugay, then stabbed Mendoza on the chest.
Rugay next turned his gun on Madrid, shot him twice and hit him on the left
foot. Rugay and Villalon then fled the scene aboard a tricycle.

Both accused interposed the defense of alibi. Ricolito Rugay testified that he
was at his parents-in-laws house in Magsaysay, Aborlan, Palawan, on the
509

evening of August 28, 1991. Rugay, his brother-in-law Blaire Sulpido, Artemio
Figueroa alias Jun Bicol, and a certain Pidong were then engaged in a drinking
session. The group finished drinking around 10:30 to 11:00 p.m. For his part,
accused Arvil Villalon claimed that he was in Taytay, Palawan from August 15
to August 28, 1991, working as the overseer of his fathers fishing boats.

Both accused admitted knowing each other but denied being together on the
date of the alleged incident. The accused also denied any acquaintance with
either Jesus Madrid or Ariel Mendoza. They disavowed any participation in the
latters death. Rugay also denied having possessed any firearm.

The accused presented two witnesses, Artemio Figueroa and Odilon Jaboli, to
corroborate their respective alibis.

Artemio Figueroa claimed that he was one of Rugays drinking buddies at the
night of the incident. A neighbor of Rugays parents-in-law, Figueroa was hired
by Rugay as a farmhand to till the latters one hectare farm. On the evening of
August 28, 1991, Rugay allegedly invited Figueroa for a drink at the house of
the accuseds parents-in-law. Figueroa, together with Rugay, Pedong Baang
and Rugays brother-in-law, stopped drinking at around 10:00 after which they
parted ways. During that time, Rugay supposedly never left the house.

Odilon Jaboli, a friend of the Villalon family, testified that on the day of the
alleged incident, Villalon was in the formers house where the Villalons usually
stayed whenever they were in Taytay. Jaboli allegedly saw him both during the
day and the evening of August 28, 1991.

The defense, likewise, offered in evidence the testimony of SPO4 Pedro Guba,
a member of the Philippine National Police currently assigned to the Narcotics
Command. Guba admitted utilizing Madrid as an asset to help pinpoint persons
dealing in prohibited drugs. After Madrids detention on August 15, 1991,
however, Guba ceased employing him as such. Guba denied having taken
Madrid out of jail on August 28, 1991, saying he had no authority to take the
latter in his custody.

Another defense witness, Ms. Aida Viloria-Magsipoc, a Forensic Chemist from

the National Bureau of Investigation (NBI), conducted a chemical examination
of the paraffin casts taken from the hands of the accused. She testified that
the diphenylamine test on said casts yielded negative results, indicating the
absence of nitrate specks on the hands of both accused.

On October 5, 1993, the Regional Trial Court3 rendered its decision, the

dispositive portion of which reads:

WHEREFORE AND IN VIEW OF THE FOREGOING CONSIDERATIONS,

JUDGMENT IS HEREBY RENDERED FINDING BOTH THE ACCUSED in Criminal
Case No. 9628 guilty beyond reasonable doubt of the crime of Murder as the
same is defined and penalized under the Revised Penal Code, sentencing both
accused to suffer the penalty of reclusion perpetua as well as to pay the cost.
They are furthermore ordered to indemnify the heirs of the deceased the sum
of Fifty Thousand (P50,000.00) Pesos as and for the death of the deceased as
510

well as the further sum of Fifty Thousand (P50,000.00) Pesos as and for moral
damages jointly and severally.

In Criminal Case No. 9627, judgment is hereby rendered finding the accused
Ricolito Rugay alias Jun Rugay guilty beyond reasonable double doubt of the
violation of P.D. No. 1866 sentencing said accused to suffer the penalty
of reclusion perpetua as well as to pay the costs.

SO ORDERED.4 cräläwvirtualibräry

Both accused appealed to this Court. However, accused Arvil Villalon later filed
a motion to withdraw his appeal,5 which was granted by the Court in its
Resolution of December 13, 1995,6 thus leaving accused Ricolito Rugay as the
lone appellant in this case.

After a careful study of the evidence on record, we find that the prosecution
failed to establish appellants guilt beyond reasonable doubt.

Appellants conviction was based mainly upon the testimony of Jesus Madrid.
The latter however admitted that he had been in detention at the Puerto
Princesa City Jail from August 15, 1991 up to and including the date of the
commission of the crime on February 28, 1991 for violation of the Dangerous
Drug Law, having been arrested for possession of marijuana. The Court,
therefore, entertains serious doubts regarding the opportunity by which this
supposed witness came to know of the facts to which he testified. In the
ordinary course of nature,7 Madrid could not have possibly witnessed the
events that transpired on the night of August 28, 1991 as he was in detention
at the Puerto Princesa City Jail. His assertion that in the evening of August 28,
1991 he was taken out of the jail and used for surveillance purposes by SPO4
Guba was belied by the latter who testified that after August 15, 1991, he no
longer utilized Madrid as an asset since Madrid was already in detention and
he (Guba) had no authority to place Madrid under his custody.8 cräläwvirtualibräry

Other than Madrids testimony, no evidence was presented to establish Rugays

presence at the scene of the crime. In this connection, it may be asked why
the prosecution did not present other eyewitnesses to the incident considering
the doubt that certainly could be genuinely raised as to Madrid being where he
was at the time of the shooting. The presence of other persons at the scene of
the crime is implicit in Madrids testimony relating to the events transpiring
after appellant shot him:

A I was brought by the people there to our house.

Q Were you brought to the hospital for medical treatment?

A Yes, maam.

Q How about Ariel Mendoza, what happened to him if any after he was shot
and stabbed?

A He was brought to the hospital immediately, maam.

511

Q By whom?

A By the people from the Mami House.9 cräläwvirtualibräry

Yet, none of the people there or those from the Mami House was ever
presented by the prosecution as witnesses to the killing of Ariel Mendoza, or
even to confirm Madrids presence at Junction I, Puerto Princesa. Neither was
Joy Cortez, Madrids supposed 1322companion and probably the only other
witness to the incident, called upon by the prosecution to testify.10 cräläwvirtualibräry

Madrid was allegedly stabbed by Arvil Villalon and, thereafter, shot by Ricolito
Rugay, resulting in injuries to his hands and left foot. No medical certificate,
however, was shown, nor any doctor, nurse or medical attendant presented to
prove that Madrid was treated for said injuries. Neither was there any proof
that the scars on his hands, which he exhibited to the trial court, were inflicted
by a fan knife or that they were sustained on the alleged date.

It is true that the accuseds defense is inherently weak, grounded as it is on

alibi. Nevertheless, the conviction of the accused must rest not on the
weakness of the defense but on the strength of the prosecutions
evidence.11 Considering the circumstances of this case, the Court is left with no
alternative but to acquit appellant Ricolito Rugay of Murder for the failure of
the prosecution to prove his guilt beyond reasonable doubt.

The Court, likewise, acquits appellant of the charge of Illegal Possession of

Firearms. To warrant conviction for illegal possession of firearms, the
prosecution must prove: (1) the existence of the subject firearm, and (2) the
fact that the accused who owned or possessed it does not have the
corresponding license or permit to possess the same.12 cräläwvirtualibräry

The prosecution attempted to prove the second element by presenting a

certification13 from the Philippine National Police to the effect that said office
ha(d) no available information regarding any license issued to Rugay.

The prosecution nevertheless failed to establish the first element. No firearm

was presented in evidence. Moreover, Madrid testified that appellant used a
short gun.14 According to Ms. Aida Viloria-Magsipoc, the NBI Forensic Chemist,
a short barreled firearm, as approved to one with a long barrel, would deposit
more gunpowder nitrates on the subject.15 Logically, the use of a short-
barreled gun increases the probability that the paraffin tests would yield
positive results. Yet, the paraffin tests yielded exactly the opposite. While a
negative result on a paraffin test is not conclusive proof that appellant did not
fire a gun,16 such fact, if considered with the other circumstances of this case,
may be taken as an indication of his innocence.17 In criminal cases, every
circumstance favoring the innocence of the accused must be duly taken into
account.18cräläwvirtualibräry

Finally, the Court notes that the conviction of appellants co-accused, Arvil
Villalon, rests on the same evidence used to convict appellant. The Court finds
that such evidence does not prove beyond reasonable doubt either of the
accuseds guilt. The acquittal of Ricolito Rugay should also benefit Arvil Villalon,
the withdrawal of the latters appeal notwithstanding.19 cräläwvirtualibräry
512

WHEREFORE, the decision appealed from is hereby REVERSED. Ricolito

Rugay and Arvil Villalon are hereby ACQUITTEDof Murder. Ricolito Rugay is,
likewise, ACQUITTEDof violation of Presidential Decree No. 1866. Their
immediate release from confinement is hereby ordered unless they are
detained for some other lawful cause.

SO ORDERED.

1. Rule 130 Section 3 – Best Evidence Rule

2. G.R. No. 150206               March 13, 2009

3. Heirs of TEOFILO GABATAN, namely: LOLITA GABATAN, POMPEYO GABATAN, PEREGRINO

GABATAN, REYNALDO GABATAN, NILA GABATAN AND JESUS JABINIS, RIORITA GABATAN
TUMALA and FREIRA GABATAN, Petitioners,
vs.
Hon. COURT OF APPEALS and LOURDES EVERO PACANA, Respondents.

4. D E C I S I O N

5. LEONARDO-DE CASTRO, J.:

6. Assailed and sought to be set aside in the instant petition for review on certiorari are the Decision 1 dated
April 28, 2000, and Resolution2 dated September 12, 2001 of the Court of Appeals (CA), in CA G.R. CV No.
52273. The challenged Decision affirmed the decision3 of the Regional Trial Court (RTC) of Cagayan de Oro
City, Branch 19, dated October 20, 1995 in Civil Case No. 89-092, an action for Recovery of Property and
Ownership and Possession, thereat commenced by respondent Lourdes Evero Pacana against petitioners,
heirs of Teofilo Gabatan, Jesus Jabinis and Catalino Acantilado.

7. Subject of the present controversy is a 1.1062 hectare parcel of land, identified as Lot 3095 C-5 and situated
at Calinugan, Balulang, Cagayan de Oro City. This lot was declared for taxation in the name of Juan
Gabatan. In the complaint before the RTC, respondent alleged that she is the sole owner of Lot 3095 C-5,
having inherited the same from her deceased mother, Hermogena Gabatan Evero (Hermogena).
Respondent further claimed that her mother, Hermogena, is the only child of Juan Gabatan and his wife,
Laureana Clarito. Respondent alleged that upon the death of Juan Gabatan, Lot 3095 C-5 was entrusted to
his brother, Teofilo Gabatan (Teofilo), and Teofilo’s wife, Rita Gabatan, for administration. It was also
claimed that prior to her death Hermogena demanded for the return of the land but to no avail. After
Hermogena’s death, respondent also did the same but petitioners refused to heed the numerous demands
to surrender the subject property. According to respondent, when Teofilo and his wife died, petitioners Jesus
Jabinis and Catalino Acantilado took possession of the disputed land despite respondent’s demands for
them to vacate the same.

8. In their answer, petitioners denied that respondent’s mother Hermogena was the daughter of Juan Gabatan
with Laureana Clarito and that Hermogena or respondent is the rightful heir of Juan Gabatan. Petitioners
maintained that Juan Gabatan died single in 1934 and without any issue and that Juan was survived by one
brother and two sisters, namely: Teofilo (petitioners’ predecessor-in-interest), Macaria and Justa. These
siblings and/or their heirs, inherited the subject land from Juan Gabatan and have been in actual, physical,
open, public, adverse, continuous and uninterrupted possession thereof in the concept of owners for more
than fifty (50) years and enjoyed the fruits of the improvements thereon, to the exclusion of the whole world
including respondent. Petitioners clarified that Jesus Jabinis and Catalino Acantilado have no interest in the
subject land; the former is merely the husband of Teofilo’s daughter while the latter is just a caretaker.
Petitioners added that a similar case was previously filed by respondent against Teofilo’s wife, Rita Vda. de
Gabatan, on February 21, 1978, docketed as Civil Case No. 5840 but the case was dismissed on May 3,
1983 for lack of interest. Finally, petitioners contended that the complaint lacks or states no cause of action
or, if there was any, the same has long prescribed and/or has been barred by laches.

9. On June 20, 1989, the complaint was amended wherein the heirs of Teofilo were individually named, to wit:
Lolita Gabatan, Pompeyo Gabatan, Peregrino Gabatan, Reynaldo Gabatan, Nila Gabatan and Jesus
Jabinis, Riorita Gabatan Tumal and Freira Gabatan.

10. On July 30, 1990, petitioners filed an amended answer, additionally alleging that the disputed land was
already covered by OCT No. P-3316 in the name of the heirs of Juan Gabatan represented by petitioner
Riorita Gabatan (Teofilo’s daughter).
513

11. On October 20, 1995, the RTC rendered a decision in favor of respondent, the dispositive portion of which
reads:

12. WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, declaring
the plaintiff the owner of Lot No. 3095 C-5 situated at Calinugan, Balulang, Cagayan de Oro City; and
ordering the defendants represented by Riorita Gabatan Tumala to RECONVEY Original Certificate of Title
No. P-3316 in favor of plaintiff Lourdes Evero Pacana, free of any encumbrance; ordering the defendants to
pay ₱10,000.00 by way of moral damages; ₱10,000.00 as Attorney’s fees; and ₱2,000.00 for litigation
expenses.

13. SO ORDERED.4

14. Aggrieved, petitioners appealed to the CA whereat their recourse was docketed as CA-G.R. CV No. 52273.

15. On April 28, 2000, the CA rendered the herein challenged Decision affirming that of the RTC. Dispositively,
the Decision reads:

16. WHEREFORE, premises considered, the questioned decision of the lower court dated October 20, 1995 is
hereby AFFIRMED. With costs against appellants.

17. SO ORDERED.

18. Discounting petitioners’ argument that respondent is not related to Juan Gabatan, the CA declared that
respondent’s claim of filiation with Juan Gabatan was sufficiently established during trial. Thus, the CA
echoed a long line of jurisprudence that findings of fact of the trial court are entitled to great weight and are
not disturbed except for cogent reasons, such as when the findings of fact are not supported by evidence.

19. The CA likewise gave weight to the Deed of Absolute Sale5 executed by Macaria Gabatan de Abrogar,
Teofilo, Hermogena and heirs of Justa Gabatan, wherein Hermogena was identified as an heir of Juan
Gabatan:

20. x x x HERMOGENA GABATAN, of legal age, married, Filipino citizen and presently residing at Kolambugan,
Lanao del Norte, Philippines, as Heir of the deceased, JUAN GABATAN; x x x.

21. To the CA, the Deed of Absolute Sale on July 30, 1966 containing such declaration which was signed by
Teofilo and the latter’s nearest relatives by consanguinity, is a tangible proof that they acknowledged
Hermogena’s status as the daughter of Juan Gabatan. Applying Section 38, Rule 130 6 of the Rules of Court
on the declaration against interest, the CA ruled that petitioners could not deny that even their very own
father, Teofilo formally recognized Hermogena’s right to heirship from Juan Gabatan which ultimately
passed on to respondent.

22. As to the issue of prescription, the CA ruled that petitioners’ possession of the disputed property could not
ripen into acquisitive prescription because their predecessor-in-interest, Teofilo, never held the property in
the concept of an owner. lawphil.net

23. Aggrieved, petitioners are now with this Court via the present recourse principally contending that the CA
committed the following reversible errors:

24. FIRST ERROR: The lower court erred in not declaring that Juan Gabatan died single and without issue;

25. SECOND ERROR: The lower court erred in declaring the plaintiff-appellee (respondent) as the sole and
surviving heir of Juan Gabatan, the only child of a certain Hermogena Clareto "GABATAN";

26. THIRD ERROR: The lower court erred in declaring that a certain Hermogena Clareto "GABATAN" is the
child and sole heir of Juan Gabatan;

27. FOURTH ERROR: The lower court erred in failing to appreciate by preponderance of evidence in favor of
the defendants-appellants (petitioners) claim that they and the heirs of Justa and Macaria both surnamed
Gabatan are the sole and surviving heirs of Juan Gabatan and, therefore, entitled to inherit the land subject
matter hereof;

28. FIFTH ERROR: The lower court erred in not declaring that the cause of action of plaintiff-appellee
(respondent) if any, has been barred by laches and/or prescription. 7

29. Before proceeding to the merits of the case, we must pass upon certain preliminary matters.
514

30. In general, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the
Rules of Court. Questions of fact cannot be the subject of this particular mode of appeal, for this Court is not
a trier of facts.8 It is not our function to examine and evaluate the probative value of the evidence presented
before the concerned tribunal upon which its impugned decision or resolution is based. 9 1avvphi1

31. However, there are established exceptions to the rule on conclusiveness of the findings of fact by the lower
courts, such as (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2)
when the inference made is manifestly mistaken; (3) when there is grave abuse of discretion; (4) when the
judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in
making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court;
(8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when
the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. 10

32. Moreover, our rules recognize the broad discretionary power of an appellate court to waive the lack of
proper assignment of errors and to consider errors not assigned. Thus, the Court is clothed with ample
authority to review rulings even if they are not assigned as errors in the appeal in these instances: (a)
grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as
errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not
assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and
complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice;
(d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of
record having some bearing on the issue submitted which the parties failed to raise or which the lower court
ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f)
matters not assigned as errors on appeal but upon which the determination of a question properly assigned,
is dependent. 11

33. In the light of the foregoing established doctrines, we now proceed to resolve the merits of the case.

34. The respondent’s main cause of action in the court a quo is the recovery of ownership and possession of
property. It is undisputed that the subject property, Lot 3095 C-5, was owned by the deceased Juan
Gabatan, during his lifetime.12 Before us are two contending parties, both insisting to be the legal heir(s) of
the decedent.

35. Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be made in
the proper special proceedings in court, and not in an ordinary suit for recovery of ownership and
possession of property. This must take precedence over the action for recovery of possession and
ownership. The Court has consistently ruled that the trial court cannot make a declaration of heirship in the
civil action for the reason that such a declaration can only be made in a special proceeding. Under Section
3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which a party sues another
for the enforcement or protection of a right, or the prevention or redress of a wrong while a special
proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is then
decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the
petitioners here are seeking the establishment of a status or right. 13

36. In the early case of Litam, et al. v. Rivera,14 this Court ruled that the declaration of heirship must be made in
a special proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio v. Court
of Appeals15 where the Court held:

37. xxx where despite the pendency of the special proceedings for the settlement of the intestate estate of the
deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which they claimed that they were the
children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half
share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil
case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question
were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to
this Court, we ruled that ‘such declarations (that Marcosa Rivera was the only heir of the decedent) is
improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special
Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the
presentation of the project of partition.

38. In the more recent case of Milagros Joaquino v. Lourdes Reyes, 16 the Court reiterated its ruling that matters
relating to the rights of filiation and heirship must be ventilated in the proper probate court in a special
proceeding instituted precisely for the purpose of determining such rights. Citing the case of Agapay v.
Palang,17 this Court held that the status of an illegitimate child who claimed to be an heir to a decedent’s
515

estate could not be adjudicated in an ordinary civil action which, as in this case, was for the recovery of
property.

39. However, we are not unmindful of our decision in Portugal v. Portugal-Beltran, 18 where the Court relaxed its
rule and allowed the trial court in a proceeding for annulment of title to determine the status of the party
therein as heirs, to wit:

40. It appearing, however, that in the present case the only property of the intestate estate of Portugal is the
Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding
which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only
impractical; it is burdensome to the estate with the costs and expenses of an administration proceeding. And
it is superfluous in light of the fact that the parties to the civil case – subject of the present case, could and
had already in fact presented evidence before the trial court which assumed jurisdiction over the case upon
the issues it defined during pre-trial.

41. In fine, under the circumstances of the present case, there being no compelling reason to still subject
Portugal’s estate to administration proceedings since a determination of petitioners’ status as heirs could be
achieved in the civil case filed by petitioners (Vide Pereira v. Court of Appeals, 174 SCRA 154 [1989];
Intestate Estate of Mercado v. Magtibay, 96 Phil. 383 [1955]), the trial court should proceed to evaluate the
evidence presented by the parties during the trial and render a decision thereon upon the issues it defined
during pre-trial, x x x. (emphasis supplied)

42. Similarly, in the present case, there appears to be only one parcel of land being claimed by the contending
parties as their inheritance from Juan Gabatan. It would be more practical to dispense with a separate
special proceeding for the determination of the status of respondent as the sole heir of Juan Gabatan,
specially in light of the fact that the parties to Civil Case No. 89-092, had voluntarily submitted the issue to
the RTC and already presented their evidence regarding the issue of heirship in these proceeding. Also the
RTC assumed jurisdiction over the same and consequently rendered judgment thereon.

43. We GRANT the petition.

44. After a meticulous review of the records of this case, we find insufficient and questionable the basis of the
RTC in conferring upon respondent the status of sole heir of Juan Gabatan.

45. Respondent, in asserting to be entitled to possession and ownership of the property, pinned her claim
entirely on her alleged status as sole heir of Juan Gabatan. It was incumbent upon her to present
preponderant evidence in support of her complaint.

46. Under the Civil Code, the filiation of legitimate children is established by any of the following:

47. ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register,
or by an authentic document or a final judgment.

48. ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the
continuous possession of status of a legitimate child.

49. ART. 267. In the absence of a record of birth, authentic document, final judgment or possession of status,
legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws.

50. Here, two conflicting birth certificates19 of respondent were presented at the RTC. Respondent, during her
direct testimony, presented and identified a purported certified true copy of her typewritten birth certificate
which indicated that her mother’s maiden name was "Hermogena Clarito Gabatan." Petitioners, on the other
hand, presented a certified true copy of respondent’s handwritten birth certificate which differed from the
copy presented by respondent. Among the differences was respondent’s mother’s full maiden name which
was indicated as "Hermogena Calarito" in the handwritten birth certificate.

51. In resolving this particular issue, the trial court ruled in this wise:

52. The parties are trying to outdo with (sic) each other by presenting two conflicting Certificate (sic) of Live Birth
of plaintiff herein, Lourdes Evero Pacana, which are Exhibit "A" for the plaintiff and Exhibit "1" for the
defendants. Which of this (sic) is genuine, and which is falsified. These (sic) issue is crucial and requires
serious scrutiny. The Court is of the observation that Exhibit "A" for the plaintiff which is a certified true copy
is in due form and bears the "as is and where is" rule. It has the impression of the original certificate. The
forms (sic) is an old one used in the 1950’s. Her mother’s maiden name appearing thereof is Hermogina
(sic) Clarito Gabatan. While Exhibit "1", the entries found thereof (sic) is handwritten which is very unusual
and of dubious source. The form used is of latest vintage. The entry on the space for mother’s maiden name
516

is Hermogena Calarito. There seems to be an apparent attempt to thwart plaintiff’s mother filiation with the
omission of the surname Gabatan. Considering these circumstances alone the Court is inclined to believe
that Exhibit "A" for the plaintiff is far more genuine and authentic certificate of live birth. 20

53. Having carefully examined the questioned birth certificates, we simply cannot agree with the above-quoted
findings of the trial court. To begin with, Exhibit A, as the trial court noted, was an original typewritten
document, not a mere photocopy or facsimile. It uses a form of 1950’s vintage 21 but this Court is unable to
concur in the trial court’s finding that Exhibit 122 was of a later vintage than Exhibit A which was one of the
trial court’s bases for doubting the authenticity of Exhibit 1. On the contrary, the printed notation on the
upper left hand corner of Exhibit 1 states "Municipal Form No. 102 – (Revised, January 1945)" which makes
it an older form than Exhibit A. Thus, the trial court’s finding regarding which form was of more recent
vintage was manifestly contradicted by the evidence on record. No actual signature appears on Exhibit A
except that of a certain Maximo P. Noriga, Deputy Local Civil Registrar of the Office of the Local Civil
Registrar, Cagayan de Oro City, who purportedly certified on July 6, 1977 that Exhibit A was a true copy of
respondent’s birth certificate. The names of the attendant at birth (Petra Sambaan) and the local civil
registrar (J.L. Rivera) in 1950 were typewritten with the notation "(Sgd.)" also merely typewritten beside their
names. The words "A certified true copy: July 6, 1977" above the signature of Maximo P. Noriga on Exhibit
A appear to be inscribed by the same typewriter as the very entries in Exhibit A. It would seem that Exhibit A
and the information stated therein were prepared and entered only in 1977. Significantly, Maximo P. Noriga
was never presented as a witness to identify Exhibit A. Said document and the signature of Maximo P.
Noriga therein were identified by respondent herself whose self-serving testimony cannot be deemed
sufficient authentication of her birth certificate.

54. We cannot subscribe to the trial court’s view that since the entries in Exhibit 1 were handwritten, Exhibit 1
was the one of dubious credibility. Verily, the certified true copies of the handwritten birth certificate of
respondent (petitioners’ Exhibits 1 and 8) were duly authenticated by two competent witnesses; namely,
Rosita Vidal (Ms. Vidal), Assistant Registration Officer of the Office of the City Civil Registrar, Cagayan de
Oro City and Maribeth E. Cacho (Ms. Cacho), Archivist of the National Statistics Office (NSO), Sta. Mesa,
Manila. Both witnesses testified that: (a) as part of their official duties they have custody of birth records in
their respective offices,23 and (b) the certified true copy of respondent’s handwritten birth certificate is a
faithful reproduction of the original birth certificate registered in their respective offices. 24 Ms. Vidal, during
her testimony, even brought the original of the handwritten birth certificate before the trial court and
respondent’s counsel confirmed that the certified true copy (which was eventually marked as Exhibit 1) was
a faithful reproduction of the original.25 Ms. Vidal likewise categorically testified that no other copy of
respondent’s birth certificate exists in their records except the handwritten birth certificate. 26 Ms. Cacho, in
turn, testified that the original of respondent’s handwritten birth certificate found in the records of the NSO
Manila (from which Exhibit 8 was photocopied) was the one officially transmitted to their office by the Local
Civil Registry Office of Cagayan de Oro.27 Both Ms. Vidal and Ms. Cacho testified and brought their
respective offices’ copies of respondent’s birth certificate in compliance with subpoenas issued by the trial
court and there is no showing that they were motivated by ill will or bias in giving their testimonies. Thus,
between respondent’s Exhibit A and petitioners’ Exhibits 1 and 8, the latter documents deserve to be given
greater probative weight.

55. Even assuming purely for the sake of argument that the birth certificate presented by respondent (Exhibit A)
is a reliable document, the same on its face is insufficient to prove respondent’s filiation to her alleged
grandfather, Juan Gabatan. All that Exhibit A, if it had been credible and authentic, would have proven was
that respondent’s mother was a certain "Hermogena Clarito Gabatan." It does not prove that same
"Hermogena Clarito Gabatan" is the daughter of Juan Gabatan. Even the CA held that the conflicting
certificates of live birth of respondent submitted by the parties only proved the filiation of respondent to
Hermogena.28

56. It was absolutely crucial to respondent’s cause of action that she convincingly proves the filiation of her
mother to Juan Gabatan. To reiterate, to prove the relationship of respondent’s mother to Juan Gabatan, our
laws dictate that the best evidence of such familial tie was the record of birth appearing in the Civil Register,
or an authentic document or a final judgment. In the absence of these, respondent should have presented
proof that her mother enjoyed the continuous possession of the status of a legitimate child. Only in the
absence of these two classes of evidence is the respondent allowed to present other proof admissible under
the Rules of Court of her mother’s relationship to Juan Gabatan.

57. However, respondent’s mother’s (Hermogena’s) birth certificate, which would have been the best evidence
of Hermogena’s relationship to Juan Gabatan, was never offered as evidence at the RTC. Neither did
respondent present any authentic document or final judgment categorically evidencing Hermogena’s
relationship to Juan Gabatan.

58. Respondent relied on the testimony of her witnesses, Frisco Lawan, Felicisima Nagac Pacana and Cecilia
Nagac Villareal who testified that they personally knew Hermogena (respondent’s mother) and/or Juan
Gabatan, that they knew Juan Gabatan was married to Laureana Clarito and that Hermogena was the child
517

of Juan and Laureana. However, none of these witnesses had personal knowledge of the fact of marriage of
Juan to Laureana or the fact of birth of Hermogena to Juan and Laureana. They were not yet born or were
very young when Juan supposedly married Laureana or when Hermogena was born and they all admitted
that none of them were present at Juan and Laureana’s wedding or Hermogena’s birth. These witnesses
based their testimony on what they had been told by, or heard from, others as young children. Their
testimonies were, in a word, hearsay.

59. Other circumstances prevent us from giving full faith to respondent’s witnesses’ testimonies. The records
would show that they cannot be said to be credible and impartial witnesses. Frisco Lawan testified that he
was the son of Laureana by a man other than Juan Gabatan and was admittedly not at all related to Juan
Gabatan.29 His testimony regarding the relationships within the Gabatan family is hardly reliable. As for
Felicisima Nagac Pacana and Cecilia Nagac Villareal who are children of Justa Gabatan Nagac, 30 this Court
is wary of according probative weight to their testimonies since respondent admitted during her cross-
examination that her (respondent’s) husband is the son of Felicisima Nagac Pacana. 31 In other words,
although these witnesses are indeed blood relatives of petitioners, they are also the mother and the aunt of
respondent’s husband. They cannot be said to be entirely disinterested in the outcome of the case.

60. Aside from the testimonies of respondent’s witnesses, both the RTC and the CA relied heavily on a
photocopy of a Deed of Absolute Sale32 (Exhibit H) presented by respondent and which appeared to be
signed by the siblings and the heirs of the siblings of Juan Gabatan. In this document involving the sale of a
lot different from Lot 3095 C-5, "Hermogena Gabatan as heir of the deceased Juan Gabatan" was indicated
as one of the vendors. The RTC deemed the statement therein as an affirmation or recognition by Teofilo
Gabatan, petitioners’ predecessor in interest, that Hermogena Gabatan was the heir of Juan Gabatan. 33 The
CA considered the same statement as a declaration against interest on the part of Teofilo Gabatan. 34

61. However, the admission of this Deed of Absolute Sale, including its contents and the signatures therein, as
competent evidence was vigorously and repeatedly objected to by petitioners’ counsel for being a mere
photocopy and not being properly authenticated. 35 After a close scrutiny of the said photocopy of the Deed of
Absolute Sale, this Court cannot uphold the admissibility of the same.

62. Under the best evidence rule, when the subject of inquiry is the contents of a document, no evidence shall
be admissible other than the original document itself. 36 Although the best evidence rule admits of exceptions
and there are instances where the presentation of secondary evidence would be allowed, such as when the
original is lost or the original is a public record, the basis for the presentation of secondary evidence must
still be established. Thus, in Department of Education Culture and Sports v. Del Rosario, 37 we held that a
party must first satisfactorily explain the loss of the best or primary evidence before he can resort to
secondary evidence. A party must first present to the court proof of loss or other satisfactory explanation for
non-production of the original instrument.

63. In the case at bar, a perusal of the transcript of the testimony of Felicisima Nagac Pacana (who identified the
photocopy of the Deed of Absolute Sale) plainly shows that she gave no testimony regarding the
whereabouts of the original, whether it was lost or whether it was recorded in any public office.

64. There is an ostensible attempt to pass off Exhibit H as an admissible public document. For this, respondent
relied on the stamped notation on the photocopy of the deed that it is a certified true xerox copy and said
notation was signed by a certain Honesto P. Velez, Sr., Assessment Officer, who seems to be an officer in
the local assessor’s office. Regarding the authentication of public documents, the Rules of Court 38 provide
that the record of public documents, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having legal custody of the record, or by his
deputy.39 The attestation of the certifying officer must state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be. 40

65. To begin with, no proof whatsoever was presented by respondent that an original of Exhibit H was registered
or exists in the records of the local assessor’s office. Furthermore, the stamped certification of Honesto P.
Velez is insufficient authentication of Exhibit H since Velez’s certification did not state that Exhibit H was a
true copy from the original. Even worse, Velez was not presented as a witness to attest that Exhibit H was a
true copy from the original. Indeed, it is highly doubtful that Velez could have made such an attestation since
the assessor’s office is not the official repository of original notarized deeds of sale and could not have been
the legal custodian contemplated in the rules.

66. It is the notary public who is mandated by law to keep an original of the Deed of Absolute Sale in his notarial
register and to forward the same to the proper court. It is the notary public or the proper court that has
custody of his notarial register that could have produced the original or a certified true copy thereof. Instead,
the Deed of Absolute Sale was identified by Felicisima Nagac Pacana who, despite appearing to be a
signatory thereto, is not a disinterested witness and as can be gleaned from her testimony, she had no
personal knowledge of the preparation of the alleged certified true copy of the Deed of Absolute Sale. She
did not even know who secured a copy of Exhibit H from the assessor’s office. 41 To be sure, the roundabout
518

and defective manner of authentication of Exhibit H renders it inadmissible for the purpose it was offered, i.e.
as proof that Teofilo Gabatan acknowledged or admitted the status of Hermogena Gabatan as heir of Juan
Gabatan.

67. Even if we are to overlook the lack of proper authentication of Exhibit H and consider the same admissible, it
still nonetheless would have only provided proof that a certain Hermogena Gabatan was the heir of Juan
Gabatan. Exhibit H does not show the filiation of respondent to either Hermogena Gabatan or Juan
Gabatan. As discussed above, the only document that respondent produced to demonstrate her filiation to
"Hermogena Gabatan" (respondent’s Exhibit A) was successfully put in doubt by contrary evidence
presented by petitioners.

68. As for the issue of laches, we are inclined to likewise rule against respondent. According to respondent’s
own testimony,42 Juan Gabatan died sometime in 1933 and thus, the cause of action of the heirs of Juan
Gabatan to recover the decedent’s property from third parties or to quiet title to their inheritance accrued in
1933. Yet, respondent and/or her mother Hermogena, if they were truly the legal heirs of Juan Gabatan, did
not assert their rights as such. It is only in 1978 that respondent filed her first complaint to recover the
subject property, docketed as Civil Case No. 5840, against Rita Gabatan, the widow of Teofilo
Gabatan.43 However, that case was dismissed without prejudice for failure to prosecute. 44 Again, respondent
waited until 1989 to refile her cause of action, i.e. the present case. 45 She claimed that she waited until the
death of Rita Gabatan to refile her case out of respect because Rita was then already old. 46

69. We cannot accept respondent’s flimsy reason. It is precisely because Rita Gabatan and her contemporaries
(who might have personal knowledge of the matters litigated in this case) were advancing in age and might
soon expire that respondent should have exerted every effort to preserve valuable evidence and speedily
litigate her claim. As we held in Republic of the Philippines v. Agunoy: "Vigilantibus, sed non dormientibus,
jura subveniunt, the law aids the vigilant, not those who sleep on their rights…[O]ne may not sleep on a right
while expecting to preserve it in its pristine purity." 47

70. All in all, this Court finds that respondent dismally failed to substantiate, with convincing, credible and
independently verifiable proof, her assertion that she is the sole heir of Juan Gabatan and thus, entitled to
the property under litigation. Aggravating the weakness of her evidence were the circumstances that (a) she
did not come to court with clean hands for she presented a tampered/altered, if not outright spurious, copy of
her certificate of live birth and (b) she unreasonably delayed the prosecution of her own cause of action. If
the Court cannot now affirm her claim, respondent has her own self to blame.

71. WHEREFORE, the petition is GRANTED. The Court of Appeals’ Decision in CA-G.R. CV No. 52273,
affirming the decision of the Regional Trial Court in Civil Case No. 89-092, is hereby REVERSED and SET
ASIDE. The complaint and amended complaint in Civil Case No. 89-092 are DISMISSED for lack of merit.

72. SO ORDERED.

73. TERESITA J. LEONARDO-DE CASTRO

Associate Justice
519

G.R. No. 171702               February 12, 2009

MANILA MINING CORPORATION, Petitioner,

vs.
MIGUEL TAN, doing business under the name and style of MANILA MANDARIN MARKETING, Respondent.

DECISION

QUISUMBING, J.:

Assailed in this petition for review on certiorari are the Decision 1 dated December 20, 2005 and the
Resolution2 dated February 24, 2006 of the Court of Appeals in CA-G.R. CV No. 84385. The Court of Appeals had
affirmed the Decision3 dated October 27, 2004 of the Regional Trial Court (RTC), Branch 55, Manila, in Civil Case
No. 01-101786.

The facts of the case are as follows:

Miguel Tan, doing business under the name and style of Manila Mandarin Marketing, was engaged in the business
of selling electrical materials.

From August 19 to November 26, 1997, Manila Mining Corporation (MMC) ordered and received various electrical
materials from Tan valued at ₱2,347,880. MMC agreed to pay the purchase price within 30 days from delivery, or be
charged interest of 18% per annum, and in case of suit to collect the same, to pay attorney’s fees equal to 25% of
the claim.4

MMC made partial payments in the amount of ₱464,636. But despite repeated demands, it failed to give the
remaining balance of ₱1,883,244, which was covered by nine invoices. 5

On September 3, 2001, Tan filed a collection suit against MMC at the Manila RTC. 6

After Tan completed presenting evidence, MMC filed a Demurrer to Evidence. 7 On December 18, 2003, the RTC
issued an Order, denying the demurrer and directing MMC to present evidence. 8

MMC offered as sole witness Rainier Ibarrola, its accountant from year 2000 to 2002. Ibarrola confirmed that it was
standard office procedure for a supplier to present the original sales invoice and purchase order when claiming to be
paid. He testified that the absence of stamp marks on the invoices and purchase orders negated receipt of said
documents by MMC’s representatives.9

On rebuttal, Tan presented Wally de los Santos, his sales representative in charge of MMC’s account. De los
Santos testified that he delivered the originals of the invoices and purchase orders to MMC’s accounting
department. As proof, he showed three customer’s acknowledgment receipts bearing the notation:

I/We signed below to signify my/our receipt of your statement of account with you for the period and the amount
stated below, together with the corresponding original copies of the invoices, purchase order and requisition slip
attached for purpose of verification, bearing acknowledgment of my/our receipt of goods. 10

On October 27, 2004, the RTC ruled for Tan. Its ruling stated as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff, and against the
defendant, ordering the defendant to pay the principal amount of ONE MILLION EIGHT HUNDRED EIGHTY-
THREE THOUSAND TWO HUNDRED FORTY-FOUR PESOS (₱1,883,244.00), with interest thereon at the rate of
eighteen [percent] (18%) per annum starting after thirty (30) days from each date of delivery of the merchandise sold
until finality hereof, and thereafter, at the rate of twelve percent (12%) per annum, and the further sum equal to
[twenty five percent] (25%) of the principal amount as liquidated damages.

SO ORDERED.11
520

On November 30, 2004, MMC moved for reconsideration, but its motion was denied by the RTC in an Order dated
January 5, 2005.

On appeal, the Court of Appeals affirmed the RTC’s decision. The decretal portion of the Court of Appeals Decision
dated December 20, 2005 reads:

WHEREFORE, premises considered, the appeal is DENIED. The Decision of the RTC dated October 27, 2004 is
hereby AFFIRMED.

SO ORDERED.12

Hence, this petition, which raises as sole issue:

WHETHER OR NOT PETITIONER’S OBLIGATION TO PAY HAD ALREADY LEGALLY ACCRUED CONSIDERING
THAT RESPONDENT HAS NOT FULLY COMPLIED WITH ALL THE PREREQUISITES FOR PAYMENT IMPOSED
UNDER PETITIONER’S PURCHASE ORDERS, THERE BEING NO PROOF THAT RESPONDENT
HAD ACTUALLY DONE SO.13

Simply stated, we are now called upon to address the question of whether MMC should pay for the electrical
materials despite its allegation that Tan failed to comply with certain requisites for payment.

Petitioner contends that respondent’s claim for payment was premature inasmuch as the original invoices and
purchase orders were not sent to its accounting department. Consequently, Tan’s claims were not verified and
processed. MMC believes that mere delivery of the goods did not automatically give rise to its obligation to pay. It
relies on Article 1545 of the Civil Code to justify its refusal to pay:

ART. 1545. Where the obligation of either party to a contract of sale is subject to any condition which is not
performed, such party may refuse to proceed with the contract or he may waive performance of the condition.…

Petitioner also assails the probative value of the documentary evidence presented during trial. MMC claims that the
unauthenticated photocopies of invoices and purchase orders did not satisfy the Best Evidence Rule, 14 which
requires the production of the original writing in court. It adds that by Tan’s failure to yield the original documents, he
was presumed to have suppressed evidence under Section 3(e), 15 Rule 131 of the Rules of Court.

In its Memorandum dated February 20, 2007, 16 petitioner refutes any liability altogether, denying that it consented to
the sale. MMC maintains that the unmarked documents indicated a mere offer to sell, which it did not act upon.
MMC also charges Tan with laches for filing his claim nearly four years after the transaction.

In his Memorandum dated January 30, 2007,17 respondent Tan counters that the petition presents a factual issue
which has already been settled by the Court of Appeals. He stresses that findings of fact by the appellate court are
conclusive on the Supreme Court and only questions of law may be entertained by it.

After serious consideration, we are in agreement that the petition lacks merit.

Petitioner poses a question of fact which is beyond this Court’s power to review. This Court’s jurisdiction is generally
limited to reviewing errors of law that may have been committed by the Court of Appeals. We reiterate the oft-
repeated and fully established rule that findings of fact of the Court of Appeals, especially when they are in
agreement with those of the trial court, are accorded not only respect but even finality, and are binding on this Court.
Barring a showing that the findings complained of were devoid of support, they must stand. For this Court is not
expected or required to examine or refute anew the oral and documentary evidence submitted by the parties. The
trial court, having heard the witnesses and observed their demeanor and manner of testifying, is admittedly in a
better position to assess their credibility.18 We cannot weigh again the merits of their testimonies.

Having thoroughly reviewed the records of this case, we find no persuasive much less compelling reason to overturn
the findings and conclusions of the trial court and appellate court. We hereby sustain their findings and conclusions.

Worth stressing, Article 1475 of the Civil Code provides the manner by which a contract of sale is perfected:

ART. 1475. The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the
object of the contract and upon the price. 1avvphi1

From that moment, the parties may reciprocally demand performance, subject to the provisions of the law governing
the form of contracts.
521

In this case, the purchase orders constituted accepted offers when Tan supplied the electrical materials to
MMC.19 Hence, petitioner cannot evade its obligation to pay by claiming lack of consent to the perfected contracts of
sale. The invoices furnished the details of the transactions.

As regards respondent’s failure to present the original documents, suffice it to say that the best evidence rule
applies only if the contents of the writing are directly in issue. Where the existence of the writing or its general
purport is all that is in issue, secondary evidence may be introduced in proof. 20 MMC did not deny the contents of the
invoices and purchase orders. Its lone contention was that Tan did not submit the original copies to facilitate
payment. But we are in agreement that photocopies of the documents were admissible in evidence to prove the
contract of sale between the parties.

Neither is there merit to petitioner’s contention that respondent was guilty of delay in filing the collection case. A
careful examination of the records shows that Tan brought suit against MMC less than a year after the latter stopped
making partial payments. Tan is, therefore, not guilty of laches.

Laches is the neglect to assert a right or claim which, taken together with lapse of time and other circumstances
causing prejudice to adverse party, operates as bar in a court of equity. 21 Here, Tan had no reason to go to court
while MMC was paying its obligation, even if partially, under the contracts of sale.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated December 20, 2005 and Resolution
dated February 24, 2006 of the Court of Appeals in CA-G.R. CV No. 84385 are AFFIRMED.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

G.R. No. 171702 | February 12, 2009 | J. Quisumbing

Facts:
1. Miguel Tan, doing business under the name and style of Manila Mandarin Marketing, was engaged in the business
of selling electrical materials.

2. Manila Mining Corporation (MMC) ordered and received various electrical materials from Tan valued at
P2,347,880. MMC agreed to pay the purchase price within 30 days from delivery, or be charged interest of 18% per
annum, and in case of suit to collect the same, to pay attorney’s fees equal to 25% of the claim.

3. MMC made partial payments in the amount of P464,636. But despite repeated demands, it failed to give the
remaining balance of P1,883,244, which was covered by nine invoices.

4. Tan filed a collection suit against MMC at the Manila RTC. After Tan completed presenting evidence, MMC filed a
Demurrer to Evidence, which the RTC denied. RTC further directed MMC to present evidence.

5. MMC offered as sole witness Rainier Ibarrola, its accountant from year 2000 to 2002. Ibarrola confirmed that it
was standard office procedure for a supplier to present the original sales invoice and purchase order when claiming
to be paid. He testified that the absence of stamp marks on the invoices and purchase orders negated receipt of said
documents by MMC’s representatives.

6. On rebuttal, Tan presented Wally de los Santos, his sales representative in charge of MMC’s account. De los
Santos testified that he delivered the originals of the invoices and purchase orders to MMC’s accounting department.
As proof, he showed three customer’s acknowledgment receipts bearing the notation:

I/We signed below to signify my/our receipt of your statement of account with you for the period and the amount
stated below, together with the corresponding original copies of the invoices, purchase order and requisition slip
attached for purpose of verification, bearing acknowledgment of my/our receipt of goods.

7. The RTC ruled for Tan and ordered defendant to pay the principal amount with interest and liquidated damages.
MMC moved for reconsideration, but its motion was denied by the RTC.

8. On appeal, the Court of Appeals affirmed the RTC’s decision, hence the present petition for review on certiorari.

9. Petitioner contends, among others, that respondent’s claim for payment was premature inasmuch as the original
invoices and purchase orders were not sent to its accounting department. Consequently, Tan’s claims were not
verified and processed. MMC believes that mere delivery of the goods did not automatically give rise to its obligation
to pay, in light of Article 1545 of the Civil Code, which provides that, “where the obligation of either party to a
contract of sale is subject to any condition which is not performed, such party may refuse to proceed with the
contract or he may waive performance of the condition.…”
522

10. Petitioner also assails the probative value of the documentary evidence presented during trial, claiming that the
unauthenticated photocopies of invoices and purchase orders did not satisfy the Best Evidence Rule and that by
Tan’s failure to yield the original documents, he was presumed to have suppressed evidence under Section 3(e),15
Rule 131 of the Rules of Court.

Issue:
W/N MMC should pay for the electrical materials despite its allegation that Tan failed to comply with certain
requisites for payment
Held:
Yes. Petition denied for lack of merit. Petitioner poses a question of fact which is beyond this Court’s power to
review. This Court’s jurisdiction is generally limited to reviewing errors of law that may have been committed by the
Court of Appeals. We reiterate the oft-repeated and fully established rule that findings of fact of the Court of
Appeals, especially when they are in agreement with those of the trial court, are accorded not only respect but even
finality, and are binding on this Court.
In this case, the purchase orders constituted accepted offers when Tan supplied the electrical materials to MMC.
Hence, petitioner cannot evade its obligation to pay by claiming lack of consent to the perfected contracts of sale.
The invoices furnished the details of the transactions.

As regards respondent’s failure to present the original documents, suffice it to say that the best evidence rule applies
only if the contents of the writing are directly in issue. Where the existence of the writing or its general purport is all
that is in issue, secondary evidence may be introduced in proof. MMC did not deny the contents of the invoices and
purchase orders. Its lone contention was that Tan did not submit the original copies to facilitate payment. But we are
in agreement that photocopies of the documents were admissible in evidence to prove the contract of sale between
the parties.

MANILA MINING CORPORATION, Petitioner, vs. MIGUEL TAN, doing business under the name and style of
MANILA MANDARIN MARKETING, Respondent. G.R. No. 171702

February 12, 2009

FACTS: Miguel Tan, doing business under the name and style of Manila Mandarin Marketing, was engaged in
the business of selling electrical materials. Manila Mining Corporation (MMC) ordered and received various
electrical materials from Tan valued at P2,347,880. MMC agreed to pay the purchase price within 30 days from
delivery, or be charged interest of 18% per annum, and in case of suit to collect the same, to pay attorney’s
fees equal to 25% of the claim. MMC made partial payments in the amount of P464,636. But despite repeated
demands, it failed to give the remaining balance of P1,883,244, which was covered by nine invoices. Tan filed
a collection suit against MMC at the Manila RTC. After Tan completed presenting evidence, MMC filed a
Demurrer to Evidence, which the RTC denied. RTC further directed MMC to present evidence. MMC offered as
sole witness Rainier Ibarrola, its accountant from year 2000 to 2002. Ibarrola confirmed that it was standard
office procedure for a supplier to present the original sales invoice and purchase order when claiming to be
paid. He testified that the absence of stamp marks on the invoices and purchase orders negated receipt of said
documents by MMC’s representatives. On rebuttal, Tan presented Wally de los Santos, his sales
representative in charge of MMC’s account. De los Santos testified that he delivered the originals of the
invoices and purchase orders to MMC’s accounting department. As proof, he showed three customer’s
acknowledgment receipts bearing the notation: “I/We signed below to signify my/our receipt of your statement
of account with you for the period and the amount stated below, together with the corresponding original copies
of the invoices, purchase order and requisition slip attached for purpose of verification, bearing
acknowledgment of my/our receipt of goods”. The RTC ruled for Tan and ordered defendant to pay the
principal amount with interest and liquidated damages. MMC moved for reconsideration, but its motion was
denied by the RTC. On appeal, the Court of Appeals affirmed the RTC’s decision, hence the present petition
for review on certiorari. Petitioner contends, among others, that respondent’s claim for payment was premature
inasmuch as the original invoices and purchase orders were not sent to its accounting department.
Consequently, Tan’s claims were not verified and processed. MMC believes that mere delivery of the goods
did not automatically give rise to its obligation to pay, in light of Article 1545 of the Civil Code, which provides
that, “where the obligation of either party to a contract of sale is subject to any condition which is not
performed, such party may refuse to proceed with the contract or he may waive performance of the condition.
…” Petitioner also assails the probative value of the documentary evidence presented during trial, claiming that
the unauthenticated photocopies of invoices and purchase orders did not satisfy the Best Evidence Rule and
that by Tan’s failure to yield the original documents, he was presumed to have suppressed evidence under
Section 3(e),15 Rule 131 of the Rules of Court. ISSUE: Whether or not the best evidence rule applies only if
the contents of the writing are directly in issue.

RULING: As regards respondent’s failure to present the original documents, suffice it to say that the best
evidence rule applies only if the contents of the writing are directly in issue. Where the existence of the writing
or its general purport is all that is in issue, secondary evidence may be introduced in proof. MMC did not deny
the contents of the invoices and purchase orders. Its lone contention was that Tan did not submit the original
523

copies to facilitate payment. But we are in agreement that photocopies of the documents were admissible in
evidence to prove the contract of sale between the parties. Neither is there merit to petitioner’s contention that
respondent was guilty of delay in filing the collection case. A careful examination of the records shows that Tan
brought suit against MMC less than a year after the latter stopped making partial payments. Tan is, therefore,
not guilty of laches. Laches is the neglect to assert a right or claim which, taken together with lapse of time and
other circumstances causing prejudice to adverse party, operates as bar in a court of equity.21 Here, Tan had
no reason to go to court while MMC was paying its obligation, even if partially, under the contracts of sale.

G.R. No. 145842             June 27, 2008

EDSA SHANGRI-LA HOTEL AND RESORT, INC., RUFO B. COLAYCO, RUFINO L. SAMANIEGO, KUOK
KHOON CHEN, and KUOK KHOON TSEN, petitioners,
vs.
BF CORPORATION, respondent.

G.R. No. 145873             June 27, 2008

CYNTHIA ROXAS-DEL CASTILLO, petitioner,

vs.
BF CORPORATION, respondent.

DECISION

VELASCO, JR., J.:

Before us are these two (2) consolidated petitions for review under Rule 45 to nullify certain issuances of the Court
of Appeals (CA).

In the first petition, docketed as G.R. No. 145842, petitioners Edsa Shangri-la Hotel and Resort, Inc. (ESHRI), Rufo
B. Colayco, Rufino L. Samaniego, Kuok Khoon Chen, and Kuok Khoon Tsen assail the Decision 1 dated November
12, 1999 of the CA in CA-G.R. CV No. 57399, affirming the Decision 2 dated September 23, 1996 of the Regional
Trial Court (RTC), Branch 162 in Pasig City in Civil Case No. 63435 that ordered them to pay jointly and severally
respondent BF Corporation (BF) a sum of money with interests and damages. They also assail the CA Resolution
dated October 25, 2000 which, apart from setting aside an earlier Resolution 3 of August 13, 1999 granting ESHRI's
application for restitution and damages against bond, affirmed the aforesaid September 23, 1996 RTC Decision.

In the second petition, docketed as G.R. No. 145873, petitioner Cynthia Roxas-del Castillo also assails the
aforementioned CA Decision of November 12, 1999 insofar at it adjudged her jointly and severally liable with
ESHRI, et al. to pay the monetary award decreed in the RTC Decision.

Both petitions stemmed from a construction contract denominated as Agreement for the Execution of Builder's Work
for the EDSA Shangri-la Hotel Project4 that ESHRI and BF executed for the construction of the EDSA Shangri-la
Hotel starting May 1, 1991. Among other things, the contract stipulated for the payment of the contract price on the
basis of the work accomplished as described in the monthly progress billings. Under this arrangement, BF shall
submit a monthly progress billing to ESHRI which would then re-measure the work accomplished and prepare a
Progress Payment Certificate for that month's progress billing. 5

In a memorandum-letter dated August 16, 1991 to BF, ESHRI laid out the collection procedure BF was to follow, to
wit: (1) submission of the progress billing to ESHRI's Engineering Department; (2) following-up of the preparation of
the Progress Payment Certificate with the Head of the Quantity Surveying Department; and (3) following-up of the
release of the payment with one Evelyn San Pascual. BF adhered to the procedures agreed upon in all its billings
for the period from May 1, 1991 to June 30, 1992, submitting for the purpose the required Builders Work Summary,
the monthly progress billings, including an evaluation of the work in accordance with the Project Manager's
Instructions (PMIs) and the detailed valuations contained in the Work Variation Orders (WVOs) for final re-
measurement under the PMIs. BF said that the values of the WVOs were contained in the progress billings under
the section "Change Orders."6

From May 1, 1991 to June 30, 1992, BF submitted a total of 19 progress billings following the procedure agreed
upon. Based on Progress Billing Nos. 1 to 13, ESHRI paid BF PhP 86,501,834.05. 7

According to BF, however, ESHRI, for Progress Billing Nos. 14 to 19, did not re-measure the work done, did not
prepare the Progress Payment Certificates, let alone remit payment for the inclusive periods covered. In this regard,
BF claimed having been misled into working continuously on the project by ESHRI which gave the assurance about
the Progress Payment Certificates already being processed.
524

After several futile attempts to collect the unpaid billings, BF filed, on July 26, 1993, before the RTC a suit for a sum
of money and damages.

In its defense, ESHRI claimed having overpaid BF for Progress Billing Nos. 1 to 13 and, by way of counterclaim with
damages, asked that BF be ordered to refund the excess payments. ESHRI also charged BF with incurring delay
and turning up with inferior work accomplishment.

The RTC found for BF

On September 23, 1996, the RTC, on the main finding that BF, as plaintiff a quo, is entitled to the payment of its
claim covered by Progress Billing Nos. 14 to 19 and to the retention money corresponding to Progress Billing Nos. 1
to 11, with interest in both instances, rendered judgment for BF. The fallo of the RTC Decision reads:

WHEREFORE, defendants [EHSRI], Ru[f]o B. Colayco, Rufino L. Samaniego, Cynthia del Castillo, Kuok
Khoon Chen, and Kuok Khoon Tsen, are jointly and severally hereby ordered to:

1. Pay plaintiff the sum of P24,780,490.00 representing unpaid construction work accomplishments
under plaintiff's Progress Billings Nos. 14-19;

2. Return to plaintiff the retention sum of P5,810,000.00;

3. Pay legal interest on the amount of P24,780,490.80 representing the construction work
accomplishments under Progress Billings Nos. 14-19 and on the amount of P5,810,000.00
representing the retention sum from date of demand until their full Payment;

4. Pay plaintiff P1,000,000.00 as moral damages, P1,000,000.00 as exemplary damages,

P1,000,000.00 as attorney's fees, and cost of the suit. 8

According to the RTC, ESHRI's refusal to pay BF's valid claims constituted evident bad faith entitling BF to moral
damages and attorney's fees.

ESHRI subsequently moved for reconsideration, but the motion was denied by the RTC, prompting ESHRI to appeal
to the CA in CA-G.R. CV No. 57399.

Pending the resolution of CA-G.R. CV No. 57399, the following events and/or incidents transpired:

(1) The trial court, by Order dated January 21, 1997, granted BF's motion for execution pending appeal. ESHRI
assailed this order before the CA via a petition for certiorari, docketed as CA-G.R. SP No. 43187.9 Meanwhile, the
branch sheriff garnished from ESHRI's bank account in the Philippine National Bank (PNB) the amount of PhP 35
million.

(2) On March 7, 1997, the CA issued in CA-G.R. SP No. 43187 a writ of preliminary injunction enjoining the trial
court from carrying out its January 21, 1997 Order upon ESHRI's posting of a PhP 1 million bond. In a supplemental
resolution issued on the same day, the CA issued a writ of preliminary mandatory injunction directing the trial court
judge and/or his branch sheriff acting under him (a) to lift all the garnishments and levy made under the enjoined
order of execution pending appeal; (b) to immediately return the garnished deposits to PNB instead of delivering the
same to ESHRI; and (c) if the garnished deposits have been delivered to BF, the latter shall return the same to
ESHRI's deposit account.

(3) By a Decision dated June 30, 1997 in CA-G.R. SP No. 43187, the CA set aside the trial court's January 21, 1997
Order. The CA would later deny BF's motion for reconsideration.

(4) Aggrieved, BF filed before this Court a petition for review of the CA Decision, docketed as G.R. No. 132655.10 On
August 11, 1998, the Court affirmed the assailed decision of the CA with the modification that the recovery of
ESHRI's garnished deposits shall be against BF's bond. 11

We denied the motions for reconsideration of ESHRI and BF.

(5) Forthwith, ESHRI filed, and the CA by Resolution of August 13, 1999 granted, an application for restitution or
damages against BF's bond. Consequently, BF and Stronghold Insurance Co., Inc., the bonding company, filed
separate motions for reconsideration.

On November 12, 1999, in CA-G.R. CV No. 57399, the CA rendered a Decision resolving (1) the aforesaid motions
of BF and its surety and (2) herein petitioners' appeal from the trial court's Decision dated September 23, 1996. This
November 12, 1999 Decision, finding for BF and now assailed in these separate recourses, dispositively reads:
525

WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto. This Court's
Resolution dated 13 August 1999 is reconsidered and set aside, and defendants-appellants' application for
restitution is denied for lack of merit.

SO ORDERED.12

The CA predicated its ruling on the interplay of two main reasons. First, the issues the parties raised in their
respective briefs were, for the most part, factual and evidentiary. Thus, there is no reason to disturb the case
disposition of the RTC, inclusive of its award of damages and attorney's fees and the reasons underpinning the
award. Second, BF had sufficiently established its case by preponderance of evidence. Part of what it had
sufficiently proven relates to ESHRI being remiss in its obligation to re-measure BF's later work accomplishments
and pay the same. On the other hand, ESHRI had failed to prove the basis of its disclaimer from liability, such as its
allegation on the defective work accomplished by BF.

Apropos ESHRI's entitlement to the remedy of restitution or reparation arising from the execution of the RTC
Decision pending appeal, the CA held that such remedy may peremptorily be allowed only if the executed judgment
is reversed, a situation not obtaining in this case.

Following the denial by the CA, per its Resolution 13 dated October 25, 2000, of their motion for reconsideration,
petitioners are now before the Court, petitioner del Castillo opting, however, to file a separate recourse.

G.R. No. 145842

In G.R. No. 145842, petitioners ESHRI, et al. raise the following issues for our consideration:

I. Whether or not the [CA] committed grave abuse of discretion in disregarding issues of law raised by
petitioners in their appeal [particularly in admitting in evidence photocopies of Progress Billing Nos. 14 to 19,
PMIs and WVOs].

II. Whether or not the [CA] committed grave abuse of discretion in not holding respondent guilty of delay in
the performance of its obligations and, hence, liable for liquidated damages [in view that respondent is guilty
of delay and that its works were defective].

III. Whether or not the [CA] committed grave abuse of discretion in finding petitioners guilty of malice and
evidence bad faith, and in awarding moral and exemplary damages and attorney's fees to respondent.

IV. Whether or not the [CA] erred in setting aside its Resolution dated August 13, 2000. 14

The petition has no merit.

Prefatorily, it should be stressed that the second and third issues tendered relate to the correctness of the CA's
factual determinations, specifically on whether or not BF was in delay and had come up with defective works, and
whether or not petitioners were guilty of malice and bad faith. It is basic that in an appeal by certiorari under Rule
45, only questions of law may be presented by the parties and reviewed by the Court. 15 Just as basic is the rule that
factual findings of the CA, affirmatory of that of the trial court, are final and conclusive on the Court and may not be
reviewed on appeal, except for the most compelling of reasons, such as when: (1) the conclusion is grounded on
speculations, surmises, or conjectures; (2) the inference is manifestly mistaken, absurd, or impossible; (3) there is
grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are
conflicting; (6) such findings are contrary to the admissions of both parties; and (7) the CA manifestly overlooked
certain relevant evidence and undisputed facts, that, if properly considered, would justify a different conclusion. 16

In our review of this case, we find that none of the above exceptions obtains. Accordingly, the factual findings of the
trial court, as affirmed by the CA, that there was delay on the part of ESHRI, that there was no proof that BF's work
was defective, and that petitioners were guilty of malice and bad faith, ought to be affirmed.

Admissibility of Photocopies of Progress Billing Nos. 14 to 19,

PMIs and WVOs

Petitioners fault the CA, and necessarily the trial court, on the matter of the admission in evidence of the
photocopies of Progress Billing Nos. 14 to 19 and the complementing PMIs and the WVOs. According to petitioners,
BF, before being allowed to adduce in evidence the photocopies adverted to, ought to have laid the basis for the
presentation of the photocopies as secondary evidence, conformably to the best evidence rule.

Respondent BF, on the other hand, avers having complied with the laying-the-basis requirement. Defending the
action of the courts below in admitting into evidence the photocopies of the documents aforementioned, BF
526

explained that it could not present the original of the documents since they were in the possession of ESHRI which
refused to hand them over to BF despite requests.

We agree with BF. The only actual rule that the term "best evidence" denotes is the rule requiring that the original of
a writing must, as a general proposition, be produced 17 and secondary evidence of its contents is not admissible
except where the original cannot be had. Rule 130, Section 3 of the Rules of Court enunciates the best evidence
rule:

SEC. 3. Original document must be produced; exceptions. - When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the following
cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith
on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice; (Emphasis
added.)

Complementing the above provision is Sec. 6 of Rule 130, which reads:

SEC. 6. When original document is in adverse party's custody or control. - If the document is in the custody
or under control of the adverse party, he must have reasonable notice to produce it. If after such notice and
after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be
presented as in the case of loss.

Secondary evidence of the contents of a written instrument or document refers to evidence other than the original
instrument or document itself.18 A party may present secondary evidence of the contents of a writing not only when
the original is lost or destroyed, but also when it is in the custody or under the control of the adverse party. In either
instance, however, certain explanations must be given before a party can resort to secondary evidence.

In our view, the trial court correctly allowed the presentation of the photocopied documents in question as secondary
evidence. Any suggestion that BF failed to lay the required basis for presenting the photocopies of Progress Billing
Nos. 14 to 19 instead of their originals has to be dismissed. The stenographic notes of the following exchanges
between Atty. Andres and Atty. Autea, counsel for BF and ESHRI, respectively, reveal that BF had complied with
the requirements:

ATTY. ANDRES:

During the previous hearing of this case, your Honor, likewise, the witness testified that certain
exhibits namely, the Progress Payment Certificates and the Progress Billings the originals of these
documents were transmitted to ESHRI, all the originals are in the possession of ESHRI since these
are internal documents and I am referring specifically to the Progress Payment Certificates. We
requested your Honor, that in order that plaintiff [BF] be allowed to present secondary
original, that opposing counsel first be given opportunity to present the originals which are in
their possession. May we know if they have brought the originals and whether they will present the
originals in court, Your Honor. (Emphasis added.)

ATTY. AUTEA:

We have already informed our client about the situation, your Honor, that it has been claimed by
plaintiff that some of the originals are in their possession and our client assured that, they will try to
check. Unfortunately, we have not heard from our client, Your Honor.

Four factual premises are readily deducible from the above exchanges, to wit: (1) the existence of the original
documents which ESHRI had possession of; (2) a request was made on ESHRI to produce the documents; (3)
ESHRI was afforded sufficient time to produce them; and (4) ESHRI was not inclined to produce them.

Clearly, the circumstances obtaining in this case fall under the exception under Sec. 3(b) of Rule 130. In other
words, the conditions sine qua non for the presentation and reception of the photocopies of the original document as
secondary evidence have been met. These are: (1) there is proof of the original document's execution or existence;
(2) there is proof of the cause of the original document's unavailability; and (3) the offeror is in good faith. 19 While
perhaps not on all fours because it involved a check, what the Court said in Magdayao v. People, is very much apt,
thus:
527

x x x To warrant the admissibility of secondary evidence when the original of a writing is in the custody or
control of the adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable
notice, that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its
existence.

xxxx

The mere fact that the original of the writing is in the custody or control of the party against whom it is
offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all
in his power to secure the best evidence by giving notice to the said party to produce the document. The
notice may be in the form of a motion for the production of the original or made in open court in the presence
of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has
sufficient time to produce the same. When such party has the original of the writing and does not
voluntarily offer to produce it or refuses to produce it, secondary evidence may be
admitted.20 (Emphasis supplied.)

On the Restitution of the Garnished Funds

We now come to the propriety of the restitution of the garnished funds. As petitioners maintain, the CA effectively,
but erroneously, prevented restitution of ESHRI's improperly garnished funds when it nullified its own August 13,
1999 Resolution in CA-G.R. SP No. 43187. In this regard, petitioners invite attention to the fact that the restitution of
the funds was in accordance with this Court's final and already executory decision in G.R. No. 132655, implying that
ESHRI should be restored to its own funds without awaiting the final outcome of the main case. For ease of
reference, we reproduce what the appellate court pertinently wrote in its Resolution of August 13, 1999:

BASED ON THE FOREGOING, the Application (for Restitution/Damages against Bond for Execution
Pending Appeal) dated May 12, 1999 filed by [ESHRI] is GRANTED. Accordingly, the surety of [BF],
STRONGHOLD Insurance Co., Inc., is ORDERED to PAY the sum of [PhP 35 million] to [ESHRI] under its
SICI Bond. x x x In the event that the bond shall turn out to be insufficient or the surety (STRONGHOLD)
cannot be made liable under its bond, [BF], being jointly and severally liable under the bond
is ORDERED to RETURN the amount of [PhP 35 million] representing the garnished deposits of the bank
account maintained by [ESHRI] with the [PNB] Shangri-la Plaza Branch, Mandaluyong City. Otherwise, this
Court shall cause the implementation of the Writ of Execution dated April 24, 1998 issued in Civil Case No.
63435 against both [BF], and/or its surety, STRONGHOLD, in case they should fail to comply with these
directives.

SO ORDERED.21

Petitioners' contention on the restitution angle has no merit, for, as may be recalled, the CA, simultaneously with the
nullification and setting aside of its August 13, 1999 Resolution, affirmed, via its assailed November 12, 1999
Decision, the RTC Decision of September 23, 1996, the execution pending appeal of which spawned another
dispute between the parties. And as may be recalled further, the appellate court nullified its August 13, 1999
Resolution on the basis of Sec. 5, Rule 39, which provides:

Sec. 5. Effect of reversal of executed judgment. - Where the executed judgment is reversed totally or
partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution
or reparation of damages as equity and justice may warrant under the circumstances.

On the strength of the aforequoted provision, the appellate court correctly dismissed ESHRI's claim for restitution of
its garnished deposits, the executed appealed RTC Decision in Civil Case No. 63435 having in fact been upheld in
toto.

It is true that the Court's Decision of August 11, 1998 in G.R. No. 132655 recognized the validity of the issuance of
the desired restitution order. It bears to emphasize, however, that the CA had since then decided CA-G.R. CV No.
57399, the main case, on the merits when it affirmed the underlying RTC Decision in Civil Case No. 63435. This CA
Decision on the original and main case effectively rendered our decision on the incidental procedural matter on
restitution moot and academic. Allowing restitution at this point would not serve any purpose, but only prolong an
already protracted litigation.

G.R. No. 145873

Petitioner Roxas-del Castillo, in her separate petition, excepts from the CA Decision affirming, in its entirety, the
RTC Decision holding her, with the other individual petitioners in G.R. No. 145842, who were members of the Board
of Directors of ESHRI, jointly and severally liable with ESHRI for the judgment award. She presently contends:

I. The [CA] erred in not declaring that the decision of the trial court adjudging petitioner personally liable to
respondent void for not stating the factual and legal basis for such award.
528

II. The [CA] erred in not ruling that as former Director, Petitioner cannot be held personally liable for any
alleged breach of a contract entered into by the corporation.

III. The [cA] erred in not ruling that respondent is not entitled to an award of moral damages.

IV. The [CA] erred in holding petitioner personally liable to respondent for exemplary damages.

V. The [CA] erred in not ruling that respondent is not entitled to any award of attorney's fees. 22

First off, Roxas-del Castillo submits that the RTC decision in question violated the requirements of due process and
of Sec. 14, Article VII of the Constitution that states, "No decision shall be rendered by any court without expressing
therein clearly and distinctly the facts and the law on which it is based."

Roxas-del Castillo's threshold posture is correct. Indeed, the RTC decision in question, as couched, does not
provide the factual or legal basis for holding her personally liable under the premises. In fact, only in the dispositive
portion of the decision did her solidary liability crop up. And save for her inclusion as party defendant in the
underlying complaint, no reference is made in other pleadings thus filed as to her liability.

The Court notes that the appellate court, by its affirmatory ruling, effectively recognized the applicability of the
doctrine on piercing the veil of the separate corporate identity. Under the circumstances of this case, we cannot
allow such application. A corporation, upon coming to existence, is invested by law with a personality separate and
distinct from those of the persons composing it. Ownership by a single or a small group of stockholders of nearly all
of the capital stock of the corporation is not, without more, sufficient to disregard the fiction of separate corporate
personality.23 Thus, obligations incurred by corporate officers, acting as corporate agents, are not theirs but direct
accountabilities of the corporation they represent. Solidary liability on the part of corporate officers may at times
attach, but only under exceptional circumstances, such as when they act with malice or in bad faith. 24 Also, in
appropriate cases, the veil of corporate fiction shall be disregarded when the separate juridical personality of a
corporation is abused or used to commit fraud and perpetrate a social injustice, or used as a vehicle to evade
obligations.25 In this case, no act of malice or like dishonest purpose is ascribed on petitioner Roxas-del Castillo as
to warrant the lifting of the corporate veil.

The above conclusion would still hold even if petitioner Roxas-del Castillo, at the time ESHRI defaulted in paying
BF's monthly progress bill, was still a director, for, before she could be held personally liable as corporate director, it
must be shown that she acted in a manner and under the circumstances contemplated in Sec. 31 of the Corporation
Code, which reads:

Section 31. Directors or trustees who willfully or knowingly vote for or assent to patently unlawful acts
of the corporation or acquire any pecuniary interest in conflict with their duty as such directors or
trustees shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation,
its stockholders or members and other persons. (Emphasis ours.)

We do not find anything in the testimony of one Crispin Balingit to indicate that Roxas-del Castillo made any
misrepresentation respecting the payment of the bills in question. Balingit, in fact, testified that the submitted but
unpaid billings were still being evaluated. Further, in the said testimony, in no instance was bad faith imputed on
Roxas-del Castillo.

Not lost on the Court are some material dates. As it were, the controversy between the principal parties started in
July 1992 when Roxas-del Castillo no longer sat in the ESHRI Board, a reality BF does not appear to dispute. In
fine, she no longer had any participation in ESHRI's corporate affairs when what basically is the ESHRI-BF dispute
erupted. Familiar and fundamental is the rule that contracts are binding only among parties to an agreement. Art.
1311 of the Civil Code is clear on this point:

Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in cases where
the rights and obligations are not transmissible by their nature, or by stipulation or by provision of law.

In the instant case, Roxas-del Castillo could not plausibly be held liable for breaches of contract committed by
ESHRI nor for the alleged wrongdoings of its governing board or corporate officers occurring after she severed
official ties with the hotel management.

Given the foregoing perspective, the other issues raised by Roxas-del Castillo as to her liability for moral and
exemplary damages and attorney's fees are now moot and academic.

And her other arguments insofar they indirectly impact on the liability of ESHRI need not detain us any longer for we
have sufficiently passed upon those concerns in our review of G.R. No. 145842.
529

WHEREFORE, the petition in G.R. No. 145842 is DISMISSED, while the petition in G.R. No. 145873 is GRANTED.
Accordingly, the appealed Decision dated November 12, 1999 of the CA in CA-G.R. CV No. 57399
is AFFIRMED with MODIFICATION that the petitioner in G.R. No. 145873, Cynthia Roxas-del Castillo, is absolved
from any liability decreed in the RTC Decision dated September 23, 1996 in Civil Case No. 63435, as affirmed by
the CA.

SO ORDERED.

EDSA SHANGRI-LA HOTEL AND G.R. No. 145842 RESORT, INC., RUFO B. COLAYCO, RUFINO L.
SAMANIEGO, KUOK KHOON CHEN, and KUOK KHOON TSEN, Petitioners, vs. BF CORPORATION,
Respondent. GR No. 145873 June 27, 2008

FACTS: Petitions stemmed from a construction contract denominated as Agreement for the Execution of
Builders Work for the EDSA Shangri-la Hotel Project that ESHRI and BF executed for the construction of the
EDSA Shangri-la Hotel starting May 1, 1991. Among other things, the contract stipulated for the payment of the
contract price on the basis of the work accomplished as described in the monthly progress billings. Under this
arrangement, BF shall submit a monthly progress billing to ESHRI which would then re-measure the work
accomplished and prepare a Progress Payment Certificate for that month’s progress billing. After several futile
attempts to collect the unpaid billings, BF filed, on July 26, 1993, before the RTC a suit for a sum of money and
damages. The trial court rule in favor of BF, which was affirmed by the CA. On appeal, petitioners fault the CA,
and necessarily the trial court, on the matter of the admission in evidence of the photocopies of Progress
Billing Nos. 14 to 19 for being contrary to the best evidence rule. ISSUE: Whether or not the photocopies are
admissible in evidence. RULING: The photocopies are admissible. BF complied with the laying-the-basis
requirement. The only actual rule that the term best evidence denotes is the rule requiring that the original of a
writing must, as a general proposition, be produced and secondary evidence of its contents is not admissible
except where the original cannot be had. Rule 130, Section 3 of the Rules of Court enunciates the best
evidence rule: “SEC. 3. Original document must be produced; exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document itself, except in the
following cases: a. When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror; b. When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable notice;” Complementing the
above provision is Sec. 6 of Rule 130, which reads: “SEC. 6. When original document is in adverse party’s
custody or control. If the document is in the custody or under control of the adverse party, he must have
reasonable notice to produce it. If

after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary
evidence may be presented as in the case of loss.” Secondary evidence of the contents of a written instrument
or document refers to evidence other than the original instrument or document itself. A party may present
secondary evidence of the contents of a writing not only when the original is lost or destroyed, but also when it
is in the custody or under the control of the adverse party. In either instance, however, certain explanations
must be given before a party can resort to secondary evidence. In other words, the conditions sine qua non for
the presentation and reception of the photocopies of the original document as secondary evidence have been
met. These are: (1) there is proof of the original documents execution or existence; (2) there is proof of the
cause of the original documents unavailability; and (3) the offeror is in good faith.

G.R. No. L-55436 November 25, 1983

NICASIO BORJE, petitioner,
vs.
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

Salonga, Ordoñez, Yap, Corpuz & Padlan Law Offices and Nicodemo T. Ferrer for petitioner.

The Solicitor General for respondents

GUERRERO, J.: ñé+.£ªwph!1

That the constitutional presumption of innocence in favor of the accused has not been satisfactorily overcome by the
prosecution evidence in the case at bar where the conviction of petitioner for falsification of public documents was
based principally on the mere assumption that as possessor of the falsified documents, he is presumed to be the
author of the falsification, is stoutly raised in this appeal by certiorari. Since there is no direct proof showing that
accused-appellant, being then the Provincial Plant Industry Officer with many subordinate employees and personnel
under him engaged in agricultural field work and assigned in the rural areas like the complainant Rodrigo Ducusin,
530

had personally and actually falsified the public documents in question (Timebook and Payroll, Exhibit "A"; Daily Time
Record, Exhibit "B"; and Certification, Exhibit "C") which under normal office procedures pass through numerous
hands at several government offices for typing, attestations, funding, accounting, and payment of the check for
P225.00, the legal issue thus raised merits Our careful consideration and resolution, in the face of accused-
appellant's vigorous denial.

The information filed against the accused-appellant reads as follows:  têñ.£îhqwâ£

The undersigned Special Prosecutor accuses NICASIO BORJE of the crime of FALSIFICATION OF
PUBLIC DOCUMENT committed as follows:

That on or about the period from January, February and March, 1977, and sometime thereafter, in
the Municipality of San Fernando, Province of La Union, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being then the Provincial Plant Industry Officer of
Bureau of Plant Industry, Provincial Office at San Fernando, La Union and in relation by his
performance of the duties of his office, taking advantage of his position as such, did then and there
willfully, unlawfully and feloniously falsify the Timebook and Payroll of his office for the periods
January to March, 1977, Daily Time Record for the same period of Rodrigo Ducusin and Certification
for P225.00 by causing it to appear in the said documents that Rodrigo Ducusin have participated in
the same and affixed his signatures thereon when in truth and in fact he did not so sign the said
documents nor otherwise participated in their execution to the damage and prejudice of the and
Rodrigo Ducusin and the Republic.

CONTRARY to Article 171 of the Revised Penal Code, in relation to P.D. 1606.

Manila, August 31, 1979.

(SGD.) FRANCISCO M. TEJANO Special Prosecutor

APPROVED:  têñ.£îhqwâ£

(SGD.) VICENTE ERICTA

TANODBAYAN

The accused-appellant pleaded not guilty to the crime charged and the trial commenced on August 7, 1980 after
the. case was reinvestigated by the Tanodbayan on petition of said accused-appellant, herein petitioner.

On October 23, 1980, the respondent court rendered a decision promulgated on October 29, 1980, finding the
petitioner guilty as per the dispositive portion thereof, to wit:  têñ.£îhqwâ£

WHEREFORE, accused is hereby found guilty beyond reasonable doubt as principal for the crane of
Falsification of Public Documents as defined and penalized under Article 171, paragraph 2, of the
Revised Penal Code, and there being no modifying circumstance to consider, the Court hereby
sentences him to an indeterminate imprisonment ranging from two (2) years, four (4) months and
one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor
as maximum, to pay a fine of P2,500.00 and to pay the costs.

SO ORDERED. 1äwphï1.ñët

Manila, Philippines, October 23, 1980.

The decision appealed from recites the evidence for the government as follows:  têñ.£îhqwâ£

The gist of the evidence of the prosecution, which consist of the testimonies of Ducusin, Edgardo
Olivares, 43 years old, married, agronomist and Provincial Plant Officer, Manuel Varquez, 45 years
old, married and Regional Director and Remedios Lorenzo, 47 years old, married and Cashier, all of
the Bureau of Plant Industry in San Fernando, La Union, shows that Ducusin was employed as Plant
Pest Officer with the Bureau of Plant Industry stationed in San Fernando, La Union from February 2,
1975 up to his resignation on April 30, 1978. From February 2, 1975 up to December 1976, he was
detailed as production technician in the Program of the Bureau of Plant Industry and the Bureau of
Agricultural Extension receiving incentive pay from the National Food and Agricultural Council
(NFAC) during said period. In 1977, however, Ducusin was no longer entitled to the NFAC incentive
pay as he was detailed to the Surveillance Team of the Bureau of Plant Industry on January 1977 up
to April 30, 1978.
531

Before one can receive his NFAC incentive pay, he must prepare his Daily Time Record (CS Form
48) for the month and a certification that he is detailed with the Program. In February 1978, Ducusin
was informed by one Roberto Castro that he is supposed to receive NFAC incentive pay because
his name is included in the special order enumerating those included in the program. This prompted
Ducusin to go to the Accounting Division of the Bureau of Plant Industry, Region I in San Fernando,
La Union to verify the information relayed to him by Castro and there he discovered that in the
payroll for January, February and March 1977 (Exhibit A) his name and signature appeared.
Attached to said payroll were a certification that he was detailed to the Program (Exhibit C) and the
corresponding Daily Time Records for said months (Exhibit D) which appeared to have been all
signed by him. Actually, however, he did not sign the said payroll, certification and time records nor
did he authorize anybody to sign for him. Ducusin referred the aforesaid falsification to the accused
in the last week of February 1978 and accused, confessing to him that he got the money, repeatedly
offered him Two Hundred Twenty Five (P225.00) Pesos to cover his incentive pay but he remained
silent and refused to receive the amount. He finally brought the matter to Regional Director Manuel
Varquez who assigned Olivares to investigate the case. But inasmuch as no further action was
taken, he brought the case to the attention of the President and the Director of the Bureau of Plant
Industry. Ducusin likewise submitted his written resignation to the Regional Director (Exhibit E) on
April 28, 1978 because he felt 'utterly' demoralized because of undesirable actuations which he
recently discovered ... On May 18, 1978, he received a reply from Regional Director Varquez dated
May 15, 1978 (Exhibit F) stating that his aforesaid letter of resignation had been endorsed to the
accused and attached therewith was the reply of the latter (Exhibit F-1).

Similarly, the decision condensed the evidence of the defense in the following manner:  têñ.£îhqwâ£

On the other hand, accused, in brief, claimed that Ducusin was one of those involved in the Program
for the months of January, February and March 1977 as shown in Special Order No. 172 of the
Bureau of Plant Industry Director Domingo E. Panganiban (Exhibits 6 and 6-A) and actually paid of
his incentive pay and that it is not true that he received the payroll (Exhibit A) and the corresponding
checks from Remedios Lorenzo for delivery to the persons whose names appear in said payroll.
Accused denied that he instigated the filing of two cases of falsification against Ducusin and to
bolster said denial accused presented Jacinto Costales, 54 years old, married and Second Assistant
Provincial Fiscal of La Union.

In fairness to the accused, We are constrained to include hereunder the more detailed statement of facts submitted
by him in his Brief, viz. 
têñ.£îhqwâ£

The Province of La Union undertook as one of its projects the program known as the Gulayan sa
Kalusugan and Masagana '99 Program, the implementation of which became a joint program of its
Bureau of Plant Industry and its Bureau of Agricultural Extension. Government employees detailed
as production technicians in the Gulayan Program received incentive allowances from the NFAC
during the covered period. Their detail as production technicians of the said program was effected
only by a special order emanating from the Bureau of Plant Industry Door; and before the employee
received his incentive pay, he was required to prepare his Daffy Time Record for the particular
month and submit a Certification attesting to the fact that he was detailed to the program.

In the case-at-bar, complainant Rodrigo Ducusin, an employee of the Bureau of Plant Industry, was
detailed to the program from February 2,1975 up to December 1977, his assignment of work being
contained in the NFAC Order captioned 'Detail and Designation of Personnel to NFAC, in connection
with the Gulayan Program where his name appeared opposite item 60 thereof. (Exhibit 6)

Making it appear that he was surprised to learn that he was supposed to receive his NFAC incentive
pay for the months of January, February and March 1977 because he was not entitled thereto as he
was not anymore connected with the Gulayan Program; and falsely making it appear that some
person other than himself received his incentive pay by allegedly forging his signature on the Daily
Time Records, the Payroll and the Certification required and submitted — complainant Rodrigo
Ducusin caused to be filled a complaint against the petitioner, Nicasio Borje, supervising agronomist
of the Bureau of Plant Industry, Region I, before the Tanodbayan ...

Accused-appellant contends that complainant Ducusin was paid his incentive pay for the months of January to
March, 1977 in the total sum of P225.00 as Ducusin was included in the payroll since he has worked with the
Program as shown by Special Order No. 72 issued by the BPI Director and concurrent Executive Director of NFAC,
Domingo Panganiban, and that said Special Order, Exhibit 6 entitled "Detail and Designation of BPI Personnel to
NFAC in Connection with the Masagana '99 Program effective January to December 1977" and dated May 17,
1977, included the name Rodrigo Ducusin, herein complainant, opposite item No. 60 in page 2 of the Exhibit and
marked Exhibit 6-A (TSN, Aug. 27, 1980, pp. 43-46). He confirms substantially the official procedure in the
preparation of the payroll and subsequent payment of the incentive pay to the production technicians as described
by witness Remedios Lorenzo, disbursing officer and cashier for the BPI office in San Fernando, La Union.
However, he vigorously denies having received the payroll and the corresponding checks from witness Lorenzo as
532

his participation in the preparation of the said payroll ended with his signing thereof after which the payroll goes to
the disbursing officer for the preparation and issuance of the checks to the payees.

The defense also presented in evidence certified true copies of two (2) criminal informations for falsification dated
August 13, 1979 filed by Assistant Provincial Fiscal Jacinto Costales against complainant Ducusin before the Court
of First Instance of La Union, Branch III, Agoo, docketed as Criminal Cases Nos. A-893 (Exhibit 1) and A-894
(Exhibit 2). The accused contends that the instant case against him was initiated by Ducusin to get even with the
petitioner as the complainant admitted in cross-examination that he believes that Borje instigated said two criminal
cases against him (TSN, Aug. 25,1980, pp. 21-27).

Further contending that complainant Ducusin was doing dual work from July, 1976 up to December, 1977, the
defense presented Exhibits 5 to 5-C which is Memorandum Order No. 56, Series of 1976, dated June 11, 1976,
issued by BPI Director Panganiban for the implementation of the Plant Pest and Disease Surveillance and Early
Warning Monitoring Project under the Philippine-German Crop Protection Program which shows that complainant
Ducusin was included in the list of personnel assigned to the Surveillance and Early Warning System SEWS team
as Plant Pest Control Officer. The accused-appellant declared that although Ducusin was named to this SEWS
team, he continued working with the Gulayan Program as production technician during said work.

The defense disclaims the authenticity of the prosecution's Exhibit H which is purportedly the original Borje reply
letter to BPI Regional Director Varquez' endorsement of Ducusin's resignation letter. Instead, Exhibit 8 was
presented in evidence as the genuine carbon copy of Borje's signed letter reply dated May 5,1978 in response to
Varquez' memorandum of May 3, 1978 wherein petitioner recommended disapproval of Ducusin's resignation in
order that Ducusin could face the charges against him in connection with his work with the Gulayan Program. (TSN,
Aug. 27,1980, pp. 56- 58,90).

The Sandiganbayan in its decision formulated two issues determinative of the innocence or guilt of the accused, to
wit: (1) Whether or not the Time Book and Payroll (Exhibit A), the certification (Exhibit C) and the Daily Time
Records (Exhibit D) in support of said payroll were falsified, and (2) If they were, the liability of the accused, if any.
As indicated earlier, the accused- appellant was found guilty by respondent court.

Hence, the instant appeal by way of certiorari.

Petitioner submits the following assignment of errors:  têñ.£îhqwâ£

I. The respondent court erred in holding that the petitioner is guilty of the offense of falsification of
public documents, the same not having began established by proof beyond reasonable doubt,
considering that: têñ.£îhqwâ£

A. the originals of the alleged falsified documents were not presented in court and,
hence, the corpus delicti has not been established as held in the case of U S. vs.
Gregorio

B. There is no iota of evidence that the petitioner falsified the complainant's signature
on the alleged falsified documents;

C. The testimony of complainant's witness, Remedios Lorenzo, was sufficiently

impeached by her own conflicting testimony previously given before the Tanodbayan;

D. The respondent court erred in finding as a fact that complainant was not entitled to
the NFAC incentive pay, in total disregard to the documentary evidence proving that
he was doing dual work, both with the Gulayan Program as wen as the SEWS and
therefore, still entitled to the NFAC allowance.

II. The respondent court erred in not holding that complainant falsely ascribed the offense to the
petitioner, there being proof that complainant was possessed of ill motives against petitioner.

Before resolving the above assigned errors, We find it imperative and compelling to describe and detail the nature
and contents of the vital documentary exhibits of the prosecution alleged to have been falsified by the accused-
appellant. These are official forms and they are (1) Exhibit A, Timebook and Payroll of accused-appellant's office for
the period January to March 1977; (2) Exhibit D, Daily Time Record for the same period of Rodrigo Ducusin; and (3)
Exhibit C, Certification that Ducusin was detailed to the Program.

As appearing on the face of these exhibits, the act or participation of the petitioner thereon is indicated below:  têñ.£îhqwâ£

In Exhibit A (Timebook and Payroll), the printed certification below which the signature of petitioner
is affixed, reads thus:
533

2. I certify that this roll is correct; every person whose name appears hereon rendered service for the
nine and at the rates stated under my general supervision, and I approve payment of this roll

CERTIFIED CORRECT:

(SGD.) NICACIO B. BORJE NFAC, Prov'l Chairman

In Exhibit D (Daily Time Record, Service Form No. 18), the signature of the accused-appellant
appears below the following words:

Certified true copy of the original:

Verified as to the prescribed office hours.  têñ.£îhqwâ£

(SGD.)
NICACIO
BORJE
In-Charg

Exhibit C (Certification) indicates no participation whatsoever of appellant Borje. It simply states,

thus:

CERTIFICATION

I hereby certify that the amount of two hundred twenty five pesos (P225.00) herein claimed is only in
reimbursement of representation and transportation expenses (excepting trips from home to office
and vice-versa) actually incurred by me in the performance of my official duties as Production
technician while on detailed with the National Food and Agriculture Council, during the period
from Jan. 1977 to March 1977 that I did not use any government vehicle or transportation furnished
paid by the government nor did I collect similar transportation and representation expenses from my
mother organization Bureau of Plant Industry during the period.

Certified true copy of the original:  têñ.£îhqwâ£

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534

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On the face of the above documentary evidence, Exh. "A" and "D", the liability of petitioner as head of the office who
had signed the certification and verification printed thereon must be limited to the contents of said verification and
certification for which he does not necessarily incur criminal responsibility if the entries, data or statements certified
and verified turn out not to be true in which case the employee or personnel making the entries, data or statements
as to his services and attendance is solely and separately responsible therefor. In the instant case, since there is the
Special Order No. 172 of Executive Director Domingo Panganiban, concurrently BPI Director, marked Exh. 6,
"Detail and Designation of BPI personnel to NFAC in connection with the Masagana-99 Program effective January
to December, 1977" listing complainant for the assignment and detail, the inclusion of Ducusin's name in the payroll
was not irregular. Besides, the payroll is prepared by the Budget Office based on the Special Order and not by the
petitioner's office.

According to complainant Ducusin, he was no longer connected with the Masagana Program during the period of
January to March 1977 because his assignment thereto had been terminated. But he was asked this question by
the Sandiganbayan, thus:  têñ.£îhqwâ£

JUSTICE ESCAREAL:  têñ.£îhqwâ£

Q — What evidence do you have that you were removed in 1977 and you were no
longer performing your duties as technician?

A — It is only verbal. (TSN, p. 47, Aug. 25, 1980)

The alleged verbal order is doubtful for under normal and usual official procedure, a written special order issued by
a government office is cancelled, amended or modified only by another written special order, not only for purposes
of record on file but also to prevent conflict and confusion in government operations. Moreover, under the best
evidence rule, Section 2, Rule 130 of the Rules of Court, the supposed verbal order cannot prevail over the written
Special Order No. 172 stated above.

Respondent Sandiganbayan, however, justified the conviction of the accused on the basis of the testimony of
witness Remedios Lorenzo, Regional Disbursing Officer and Cashier, to the effect that she delivered the payroll and
checks to petitioner accused- appellant, relying further on the presumption that as possessor of the document,
accused-appellant is presumed to have falsified it.

But reviewing the testimony of witness Lorenzo, the records disclose that her original testimony at the
reinvestigation of the case before the Tanodbayan was favorable to the accused, saying that she delivered the
535

payroll and the checks to the complainant Ducusin, even Identifying the genuine signature of Ducusin on the payroll.
We quote hereunder excerpts of her testimony:  têñ.£îhqwâ£

Prosecutor Ferrer:

Q: What is your SOP in the preparation of timebook and payroll, do you have to sign
as Regional Disbursing Officer?

A: I don't sir. It is only the Budget Officer who prepares the payroll. After the budget
officer has prepared it will go to the accounting for funding and after the accounting it
will go to my office.

Q: All in all how many signatures are to be signed in the payroll for its validity under
your standard operation procedure?

A: There are four, sir. The provincial officer, the accountant for funding, then the
Director and after the signed it, it will go to my office.

xxx xxx xxx

xxx xxx xxx têñ.£îhqwâ£

Q: Under your standard operating procedure who win sign first the payroll. The
payee or the provincial plant officer?

A: Provincial plant officer.

Q: After the Provincial Plant Officer, the payroll will go to the regional accountant, is
that correct?

A: Yes, sir.

Q: And after the Regional accountant it will go to the Director?

A: Yes, sir.

Q: And after the Regional Director, it will go to the Disbursing Officer?

A Yes, sir.

Q: And that will be the time that the payee will receive the amount, is that correct?

A: We prepare the check for them.

Q: When do the payee affix their signatures in the payroll if you know?

A: When I will issue them the check that is the time that they affix their signatures in
the payroll.

Q: So after that the check will go back to the Provincial Plant Officer?

A: It will not go back to the Provincial Plant Officer.

Q: After the Provincial Plant Officer has fixed his signature he has no further
participation in this payroll?

A: No more, sir.

Q: Now, Mrs. Lorenzo, you also brought with you . . . . . . . . By the way, who is
supposed to sign first this timebook and payroll under your Standard Operation
Procedure. Is it the Provincial Plant Officer?

A: Yes, sir. Then after that it will go to the office of the Regional Accountant, and after
the regional accountant have signed, it will go to the regional director for approval,
and from there it win go to my office.
536

Q: You are the same time cashier?

A: Yes, sir. My item is Cashier I.

Q: So, do you have any participation in this Exhibit "X" by way of issuing the check to
corresponding payee in this timebook and payroll?

A: In the preparation of the check, sir.

Q: Who delivers the check to the payee?

A: After we have prepared the check, they will just go to my office to get the check
and that is the nine they will affix their signature.

Q: And they sign their names after delivering to them their respective checks?

A: Yes, sir.

Q: Are you familiar with any of these signatures appearing in this timebook and
payroll, particularly that of Mr. Ducusin?

PROSECUTOR FERRER:

Q: By the way, before you answer that question do you know personally Mr. Rodrigo
Ducusin?

A: Yes, sir.

Q: Why do you know him?

A: He is also our employee in the office. He is one of the technicians under M-99.

Q: Since when have you known Mr. Rodrigo Ducusin ?

A: I could not exactly remember, sir. Because I have come across their names when
they got their checks from me.

Q: But before January 1977, you have already known him?

A: Yes, sir.

Q: How long before January 1977 have you been a cashier or Regional Disbursing
Officer?

A: I was already a cashier since 1976, July 1975.

Q: As a cashier since that time, are you f with the signature of Mr. Ducusin?

A: I could not remember their signatures because there are plenty of personnel in the
Bureau of Plant Industry.

Q: Were you the one who issued the check to the complainant?

A: Yes, sir.

Q: In issuing the checks did you issue them individually to the personnels in the BPI?

A: Yes, sir. As soon as we pay the check to anyone, they have to affix their signature
first.

Q: Where do you deliver the checks to the payees?

A: In my office.
537

Q: At San Fernando, La Union?

A: Yes, sir.

(TSN December 21, 1979, pp. 5-14, Tanodbayan, Emphasis supplied.)

The contradictory and conflicting testimonies of this witness only proves her unreliability and unworthiness in respect
to the sanctity of the witness' oath. Although she tried to explain her complete "turn-about" by saying during the
Sandiganbayan hearing: "They told me that if I win testify against them, I will be accessory and I don't want to be
involved in the case because I am not the one really who delivered the checks to the production technician, sir."
(TSN, p. 18, Aug. 27, 1980), the conclusion of the respondent court that she was intimidated to testify in favor of the
accused during the reinvestigation is not warranted, considering that the witness herself is a high regional official,
being the Regional Disbursing Officer and Cashier and not subordinate to but perhaps co-equal in rank to the
petitioner and, therefore, may not be so easily intimidated by the accused who was in no position or power to
include her as accessory in the case. Lorenzo's testimony given at the Sandiganbayan hearing is not worthy of
belief and must be rejected.

We also reject respondent court's reliance on the presumption that as possessor of the document, the accused is
presumed to be the author of the falsification. In the first place, the factual basis which is the Lorenzo testimony
which We have reviewed as doubtful and variable, cannot be credited. Petitioner has denied vigorously the
testimony of Lorenzo that he received the payroll and the checks from her. He said that his participation in the
preparation of the payroll ended with his signing thereof after which the payroll goes to the Disbursing Officer for the
preparation and issuance of the checks to the payees at which time the payee affix their signatures on the payroll,
which is substantially corroborated by the original testimony of the witness Lorenzo during the reinvestigation of the
case before the Tanodbayan.

In the second place, Exhibit "A" appears to be also signed by ten (10) other production technicians fisted in the
payroll, besides complainant Ducusin. It is initialled by three (3) personnel in the Accounting Services Unit and
further signed by the Regional Accountant and for the Regional Director. All of these persons were at one time or
another in possession of the document, all of them had the same opportunity impliedly imputed to the accused, The
payroll must have been carried and passed by messengers and other employees from one office to another, from
one desk to another for purposes of typing, funding, initialling, verification, certification, accounting, recording,
drawing of the check and finally, issuing of the check. In Our view, the respondent court's reliance on the
presumption which is only presumptive, is misplaced and unwarranted, there being no sufficient reason to apply the
same.

The defense contends that the prosecution, having presented xerox copies only of the falsified documents, Exhs.
"D" and "C", fatted to prove the corpus delicti of the crime charged, citing the case of U.S. vs. Gregorio, 17 Phil.
522. In this case of Gregorio, the Supreme Court held:  têñ.£îhqwâ£

In a criminal case for the falsification of a document, it is indispensable that the judges and the
courts have before them the document alleged to have been simulated, counterfeited or falsified, in
order that they may find, pursuant to the evidence produced at the trial, whether or not the crime of
falsification was actually committed; in the absence of the original document, it is improper to
conclude, with only a copy of the said original in view, that there has been a falsification of a
document which was neither found nor exhibited, because, in such a case, even the existence of
such original document may be doubted.

Reacting to the defense contention, the Sandiganbayan held that "(a)ccused's claim that in the absence of the
original documents it is improper to conclude that there is falsification of document in accordance with the case
of U.S. vs. Gregorio, 17 Phil. 522, is sleazy for the case referred to is not in point," and then attempted to
differentiate said case with the case at bar by holding that "(h)ad the issue confronting the Court been one of
alteration or superimposition of signatures or word or figure, then the issue of bringing out the original may have
relevance. " The Sandiganbayan further added: "At any rate, it is worthwhile to note that with the development of
modem copying devices which virtually eliminate the possibility of error in reproduction of the original, the relevancy
of the doctrine in U.S. vs. Gregorio is now open to question.

We do not agree with the respondent court. Firstly the Gregorio ruling makes no distinction for the doctrine itself
applies in criminal proceedings for the falsification of a document, whether simulated, counterfeited, or falsified.
Secondly, the Gregorio doctrine is still tenable notwithstanding modern copying devices for a falsified document,
passed off as an original can also be duplicated by xeroxing and thereafter, certified as true copy of the original as
in Exh. "D". And thirdly, considering that in the case at bar, the xeroxing was done or caused to be done by
complainant Ducusin (TSN, pp. 189-191, Aug. 25, 1980) after taking out the original documents without the official
authority and permission of the Disbursing Officer and Cashier, Remedios Lorenzo, who was then out on rural
service and thereafter the originals were lost, misplaced and are now missing, the failure to present the originals is
suspicious for complainant had ulterior and ill motives in accusing the petitioner as will be shown hereunder.
538

The ill motives of the complainant in falsely accusing the accused-appellant is easily discernible herein. There is
presented Exhibit " 1 ", certified true copy of the information filed against complainant Rodrigo Ducusin in Criminal
Case No. A-893, CFI, Agoo, La Union, for falsification committed on or about July 24, 1975 in relation to the grant of
farmer's loan under the Gulayan Sa Kalusugan Food Production Program when complainant was assigned to the
Agoo Rural Bank, and a similar information for falsification against Ducusin in Criminal Case No. A-894, Exh. "2".
Referring to these two (2) cases, Ducusin declared that petitioner Borje motivated the filing of the cases; that in the
filing of the case in the Fiscal's Office in San Fernando, La Union, there is an affidavit of Mr. Nicasio Borje and that
because of that affidavit, it was Mr. Borje who motivated the filing of the charge against him. (TSN, pp. 26-27, Aug.
25, 1980). There is also the refusal of the petitioner to recommend acceptance of the resignation of Ducusin until he
shall have cleared matters with the Rural Bank of Agoo, La Union considering that the total amount of P52,047.73 is
involved. (Exhibit "8").

The rule is established that the absence of evidence as to an improper motive actuating the offended party and the
principal prosecution witness tends to sustain the conclusion that no such improper motive existed and that their
testimonies are worthy of full faith and credit. (People vs. Amiscua 37 SCRA 813; People vs. Mercado, 38 SCRA
168; People vs. Valdemoro, 102 SCRA 170). Conversely, where there is showing as to improper motives, as in the
case at bar, the testimony of complainant Ducusin is unworthy of faith and credit and, therefore, deserves scant
consideration. And since the prosecution theory is built or based on such testimony, the cause of the prosecution
collapses or falls with it.

According to respondent court, its conclusion that the accused falsified or caused to be falsified the document in
question is further supported by the following facts: (1) that the accused confessed to him that he was the one who
got the money and offered immediately to Ducusin the sum of P225.00 to cover the incentive pay so that Ducusin
will just keep silent but Ducusin did not accept the money; and (2) that in his reply to the letter of Ducusin
denouncing the forging of his signature that he received his incentive pay from January to March, 1977, the accused
tried to justify the falsification of the time record as shown in the portion of said reply, Exhibit "H".

In the light of the ill-motives of the complainant as shown above, this particular assertion of Ducusin which is
uncorroborated is sleazy, that is, flimsy, shabby, cheap or unsubstantial. Moreover, petitioner's reply marked Exh.
"H" is not an admission of the accused that he falsified or caused to be falsified the documents in question. In fact,
examining Exh. "H", it says that "his Ducusin daily time record (was) prepared by other employees in order to justify
such payment. The authenticity of Exh. "H" is denied by the petitioner who presented Exh. "8" as the real and
correct copy duly received and initialed by the Regional Office, and therein, he wrote: "I therefore deny knowledge of
the alleged forgery of the signature of Mr. Ducusin in the same payroll."

Finally, the defense puts forth the exemplary and distinguished record of the petitioner as a public servant, having
been in the government service for more than twenty (20) years and multi-awarded and commended for meritorious
services, among them as scholar under the Colombo Plan specializing in pest management in England; Diploma of
Merit as Most Outstanding Employee in Ilocos Sur; Award as one of the Most Outstanding Green Revolutionist in
the Philippines, 1976; and Award as one of the Most Outstanding Bureau of Plant Industry Employees, 1978. And
citing the case of Manero vs. Court of Appeals, 102 SCRA 817 wherein the Supreme Court said:  têñ.£îhqwâ£

(T)he petitioner exhibited an exemplary record as a policeman; he was thrice cited by his superiors
for refusing to accept a bribe, was commended for minimizing armed robberies, was twice the
recipient to Letters of Appreciation and has been recommended for promotion on the basis of known
honesty and integrity ...

in sustaining the innocence of the accused, petitioner also prays for his acquittal.

The record and services of the accused-appellant is, indeed praiseworthy and commendable. But an accused is not
entitled to an acquittal simply because of his previous good moral character and exemplary conduct if the court
believes he is guilty beyond reasonable doubt of the crime charged. The affirmance or reversal of his conviction
must be resolved on the basic issue of whether the prosecution has discharged its duty of proving his guilt beyond
peradventure of doubt, of convincing the court as to the moral certainty of his guilt.

Considering that, on the whole, the evidence presented against the accused in the case at bar is not clear,
competent and convincing, and considering further that there is jurisprudence which, by analogy, supports the
defense in U.S. vs. Balais, 17 Phil. 503 wherein We held:  têñ.£îhqwâ£

The municipal treasurer who 'certifies that the official payroll he signs is correct, that the services
have been rendered and the payments made as stated,' does not pervert the truth in the narration of
the facts, if the persons certified as municipal secretary and clerk to the municipal president were
duly appointed and qualified as such municipal secretary and clerk to the municipal president,
discharging the duties of their respective offices, the services certified having been rendered at the
time referred to in the payroll, and both persons having received their respective salaries from the
municipal treasurer certifying the payroll. Nor can it be taken as proving the falsification of the
document if it is subsequently discovered that the services were really not rendered by the
539

aforementioned persons themselves but by substitutes; for it is not the mission of the municipal
treasurer to take upon himself to investigate whether the persons accredited to him as secretary and
clerk, by the municipal council and whom he, in turn, acknowledges and pays their monthly salary,
really or apparently perform the duties of such offices,

in resume Our review of the case at bar concludes that the prosecution failed in discharging its sworn duty to prove
the guilt of the accused beyond reasonable doubt. It has not overcome the constitutional presumption of innocence
in favor of the accused. Consequently, accused-appellant must be acquitted.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the Sandiganbayan convicting the accused is
hereby REVERSED and SET ASIDE. We find the accused-appellant NOT GUILTY. No costs.

Judgment reversed.

SO ORDERED. 1äwphï1.ñët

[G.R. No. 91797. August 7, 1992.]

WIDOWS & ORPHANS ASSOCIATION, INC., Petitioner, v. COURT OF APPEALS and ORTIGAS

& COMPANY LIMITED PARTNERSHIP, Respondents.

Quijano & Padilla for Petitioner.

Jose S. Songco for Private Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; SECONDARY EVIDENCE; ADMISSIBILITY IN EVIDENCE OF CERTIFIED

TRUE COPY OF ORIGINAL CERTIFICATE OF TITLE. — After careful re-examination of the evidence of
record and applicable rules of evidence, the Court considers that the word "secondary evidence" was
inaccurate. The copy of OCT No. 351 offered by Ortigas was a certified true copy of the original
thereof found in the Registration Book of the Register of Deeds of Rizal. The admissibility of such a
copy in court proceedings is an exception to the ordinary rule on secondary evidence; such
admissibility is in fact mandated by Section 47 of Act No. 496 (The Land Registration Act). Under the
Land Registration Act which was in force at the time OCT No. 351 was issued, the original thereof
found in the Registration Book of the Register of Deeds of Rizal was an official transcript of Decree
No. 1425, with respect to the land covered by such decree situated in the Province of Rizal. Thus,
OCT No. 351 constitutes direct proof of the existence of Decree No. 1425 upon which the Ortigas
TCTs (Nos. 77652 and 77653) are based.

2. ID.; ID.; JUDICIAL NOTICE; SUPREME COURT BOUND TO TAKE JUDICIAL NOTICE OF CASE LAW
AND ITS RECORDS; CASE AT BAR. — The Resolutions of the Supreme Court in the Navarro and Del
Rosario cases, disposed of those cases on their merits by affirming the pertinent decisions of the
Court of Appeals. Those Resolutions are part of the case law and the records of this Court itself of
which we are bound to take judicial notice. We are certainly not at liberty to disregard them in any
case. So to disregard our own decisions would be to inflict substantial injustice and irreparable injury
upon Ortigas which would be compelled to do all over again what it had done at least twice before —
to prove it has indefeasible title to the land covered by TCT Nos. 77652 and 77653. The resulting
injustice and injury would not be limited to Ortigas, but would engulf many thousands of present
registered private owners of Transfer Certificates of Title covering the thousands of hectares of land
embraced by Decree No. 1425. The grave social implications of permitting a cloud to arise on all
those Transfer Certificates of Title by our failure to take into account our own decisions in earlier
cases, can scarcely be contemplated.

3. ID.; APPEAL; DOCTRINE IN DIOQUINO VS. IAC, 179 SCRA 163, THAT FACTUAL FINDINGS BASED
ON EVIDENCE PRESENTED EX PARTE AS APPENDICES TO MOTION FOR RECONSIDERATION
REJECTED BY SUPREME COURT NOT APPLICABLE TO CASE AT BAR. — In holding that the Court of
Appeals should not have resolved the factual issues considering the nature of certiorari jurisdiction,
the Court relied on Dioquino v. Intermediate Appellate Court. In Dioquino, this Court rejected the
factual findings made by the Court of Appeals in the course of resolving a petition for review filed
under Section 22, B.P. Blg. 129, because, inter alia, those factual findings were based on evidence
Presented ex-parte as appendices to a motion for reconsideration from the decision of the trial court.
540

Considering that no evidence had been presented by either party in the principal proceedings, either
before the Municipal Circuit Trial Court or before the Regional Trial Court, the Court in Dioquino
concluded that the Court of Appeals’ power to resolve issues of fact under Section 9, paragraph 2,
B.P. Blg. 129, was misapplied because the opposing party had no real opportunity to reject the
evidence submitted ex parte by its opponent. Careful examination of the Dioquino case shows that
the facts there are so different from those of the present case as to render our holding in Dioquino
inapplicable here. Here, the Court of Appeals had conducted hearings on four (4) occasions, during
which it required both parties to present evidence to establish their respective contentions on Ortigas’
right to a writ of preliminary injunction. At these hearings, both parties reproduced before the Court
of Appeals the same evidence they had adduced before the trial Court during the 9-year long
hearings on Ortigas’ motion to dismiss, which evidence tended to support their respective
contentions on the derivation of Ortigas’s TCTs. Thus, the acceptance of ex parte evidence which the
Court rejected in Dioquino, never occurred in the instant case. Moreover, the determination of
whether an inferior court had arbitrarily disregarded preponderant evidence of record adduced in
protracted hearings before it, is a proper subject of inquiry by an appellate court in
a certiorari proceeding.

4. ID.; EFFECT OF JUDGMENTS; MINUTE RESOLUTION OF SUPREME COURT; EFFECT;

CONCLUSIVENESS OF JUDGMENT; SUBSTANTIAL IDENTITY OF PARTIES; EXPLAINED; CASE AT BAR.
— The decision of Judge Apostol was affirmed in its entirety by Gaviola, J. of the Court of Appeals. As
noted earlier, Felipe Navarro’s petition for review of the Gaviola decision was denied by the Supreme
Court for lack of merit. The Court’s minute resolution is a judgment on the merits for the purpose of
applying the principles of bar by prior judgment and conclusiveness of judgment. . . . Under the
doctrine of conclusiveness of judgment, these factual matters established in G.R. No. 50156 are
binding on Widora and can no longer be relitigated by it in G.R. No. 91797. Both cases, to a certain
extent, involve the same subject matter (i.e., the parcels of land described in Ortigas’ TCT Nos.
77652 and 77653. Ortigas’ cause of action in G.R. No. 50156 consisted of the fraudulent sales of its
property made by Felipe Navarro in behalf of his "owner" clients. That differs somewhat from Ortigas’
cause of action in G.R. No. 91797, which consists of the adverse claim of ownership asserted by
Widora over Ortigas’ property, manifested through the filling of Widora’s application for land
registration. But more importantly, there is a substantial identity between Felipe Navarro (and his
clients) on one hand and Widora on the other; both parties sought to question the validity of Decree
No. 1425 and its particular derivatives here involved (TCT Nos. 77652 and 77653), insofar as the
Decree had adjudicated in favor of Ortigas ownership of land being claimed by Navarro and Widora.
This circumstance makes them privies in law for purposes of the operation of the rule on
conclusiveness of judgment. Furthermore, it must be observed that Widora is bound by the ruling laid
down in the Cia. Agricola case of 1906 that Ortigas (through its predecessor-in-interest) is the
registered owner of land comprising the Hacienda de Mandaloyon because the factual matters
resolved in the Navarro case show that the land covered by Widora’s application forms part of that
vast tract of land adjudicated to Ortigas’ predecessor-in-interest in the 1906 decision. . . . Once
more, it is apparent that the factual matters which Widora seeks to litigate in G.R. No. 91797 have
already been resolved in the Del Rosario case. Since the subject matter of the controversy in Del
Rosario and in G.R. No. 91797 are identical (parcels of land covered by TCT Nos. 77652 and 77653),
the cause of action of Widora in G.R. No. 91797 is identical to that of the petitioners in Del Rosario,
i.e., the petitioners in Del Rosario contested Ortigas’ claim of ownership over the land from which
they were being ejected, which is of course the same claim of ownership embodied in Ortigas’
opposition to Widora’s land registration application over the same land in the instant case. It follows
that Widora in G.R. No. 91797 must also be deemed privy in law of the petitioners in Del Rosario (for
they too assailed the validity of Decree No. 1425 and its particular derivatives, TCT Nos. 77652 and
77653). Accordingly, the factual and legal matters resolved with finality in the Del Rosario case,
which are determinative of the merits of Widora’s application for land registration in G.R. No. 91797
must be considered, as in the Navarro case, as a bar to the grant of the Widora application under the
rule on conclusiveness of judgment.

5. ID.; ID.; BAR BY PRIOR JUDGMENT; NOT EVADED BY VARYING FORM OF ACTION OR ADOPTING
DIFFERENT MODE OF PRESENTING CASE. — In the case at bar, Widora is relying upon the same
supposed Spanish title — Titulo de Propiedad No. 4136. We believe and so hold that the Resolution of
this Court in G.R. No. 69343, holding that alleged Spanish title had become bereft of any probative
value is res adjudicata in respect of the present case. Put a little differently, the principle of bar by
prior judgment precludes any reliance by Widora in the case at bar on that fantastic Spanish title
considering the essential identities of parties and identity of subject matter and of cause of action
between Civil Case No. Q-22410 and LRC Case No. Q-336. We should add that Widora’s prayer for
alternative relief in the form of confirmation of imperfect title over the land covered by its application
for registration, is immaterial. That alternative relief is also premised upon Widora’s claim that
Ortigas had fraudulently registered the land in its (Ortigas) own name such that the land remained
541

presumptively public land. The firmly entrenched rule is that a party can not evade the application of
the principle of bar by prior judgment by simply varying the form of the action or by adopting a
different mode of presenting its case.

6. ID.; ID.; RES JUDICATA; WAIVER THEREOF NOT CASUALLY ASSUMED; IN CASE AT BAR,
DEFENSES OF RES ADJUDICATA RELATING TO JURISDICTION MAY BE RAISED AT ANY STAGE OF
PROCEEDINGS OR DETERMINED BY COURT MOTU PROPRIO. — We believe and so hold that there
was no such waiver of res adjudicata by Ortigas in the case at bar. It is most important to note, in
the first place, that the defense of res adjudicata pleaded by Ortigas in this case relates ultimately to
the jurisdiction of the land registration court to try LRC No. Q-336. The Court of Appeals correctly
stressed that Ortigas having shown that the land applied for by Widora is already registered in
Ortigas’ name, the land registration court simply had no jurisdiction to decree the registration of that
same land in the name of some other person. The well-established rule is that lack of jurisdiction
which renders an action dismissible may be determined by the court seized with it motu proprio, and
may be raised by a party, at any stage of the proceedings even on appeal. . . . Waiver of res
adjudicata, certainly in cases like the one before us, cannot casually be assumed to have been made.
What is involved here is not an academic doctrine of law but very valuable property rights, so
valuable that at least thrice before, various persons or groups of persons (including Widora, for the
second time) have attempted to usurp title thereto by assailing the same two (2) TCTs. Ortigas
tenaciously fought off those efforts at least three (3) times before, from the trial court thru the Court
of Appeals to our own Court, each litigation stretching out to many years. In this situation, only the
most explicit and deliberate statement, in unmistakable language, will suffice to constitute waiver;
that is certainly not present here. What is claimed here is merely implied or presumed waiver, which
has been expressly denied by Ortigas. Yet as Lantin, J. of the respondent Court of Appeals observed,
as far back as 27 June 1979, in its motion for reconsideration of the trial court’s order of 20 April
1979 denying its motion to dismiss, Ortigas had already brought to the attention of the trial court the
fact that its assailed titles had been upheld by Courts of First Instance and appellate courts in prior
cases. Moreover, during the proceedings on Ortigas’ motion to dismiss, the Government itself ,
through the Land Registration Commission, had advised the trial court that the 156 hectare parcel
Widora was seeking to register were "covered by valid and subsisting titles in the name of Ortigas."
library
cralaw virtua1aw

7. CIVIL LAW; LAND REGISTRATION; INDEFEASIBILITY AND INCONTROVERTIBILITY OF TORRENS

TITLE. — Finally, as held in the Court of Appeals decision which we affirmed in G.R. No. 50156, the
Torrens titles of Ortigas served as evidence of its indefeasible title over the property covered thereby
and they became incontrovertible one year after entry of the final decree of registration from which
they were derived in 1906. The Supreme Court’s affirmance of this ruling in fact constitutes a holding
that the land covered by these titles (particularly TCT Nos. 77652 and 77653) have been duly
brought under the Torrens System of land registration and that this circumstance prevented the land
registration court hearing Widora’s application in LRC No. Q-336 from acquiring jurisdiction over the
land covered by that application.

BIDIN, J., dissenting: chanrob1es virtual 1aw library

1. REMEDIAL LAW; EVIDENCE; JUDICIAL NOTICE; NOT PROPER IN CASE AT BAR. — In disposing of
the controversy before us, the Court resolved, the issue on the basis of facts which are not extant in
the records of the case (GR No. 97197). This is quite unprecendented. Invoking the concept of
judicial notice, the Court considered certain facts which led it to rule in favor of respondent Ortigas. I
submit that these "facts", substantial as they are, should not have been considered by the Court for
the simple reason that they were not even alleged by respondent itself nor do they appear on the
records before us. In so doing, it is my submission that the Court over-stretched the concept of
judicial notice. The immutable rule on burden of proof is that each party must prove his own
affirmative allegations (Sec. 1, Rule 131) by the amount of evidence required by law which is
preponderance of evidence in civil cases. That is why the decision sought to be reconsidered,
remanded the case to the trial court for further proceedings. At the risk of being repetitious, I would
like to emphasize that the facts narrated in the Resolution were gathered substantially from sources
outside of the records of the case. . . . But what is more disturbing is the fact that the ponencia
based its decision on evidenciary facts not borne out by the records. The ponencia made a number of
references to the records had in the Court of Appeals which, unfortunately, does not appear on the
records presented before this Court of resolution. This, I believe, amounted to over-extending the
concept of judicial notice. I submit that it is not the duty of this Court to supply what the party
litigants have failed to present. Otherwise, this Court might as a well sit as trier of facts.

2. ID.; ID.; SECONDARY EVIDENCE; ADMISSIBILITY IN EVIDENCE OF CERTIFIED TRUE COPY OF

ORIGINAL CERTIFICATE OF TITLE; IN CASE AT BAR, CERTIFIED TRUE COPY OF OCT 351 NOT
ADMISSIBLE FOR STATED PURPOSE; REASON THEREFOR. — Respondent next argues that the Court
542

of Appeals committed no error in admitting as evidence OCT 351 on the ground that Sec. 47 of Act
496 itself declares it to be admissible in all courts. Said Section provides: "Sec. 47. The original
certificate in the registration book, any copy thereof duly certified under the signature of the clerk, or
of the register of deeds of the province or the city where the land is situated and the seal of the
court, and also the owner’s duplicate certificate shall be received as evidence in all courts of the
Philippine Islands and shall be conclusive as to all matters contained therein except so far as
otherwise provided in this Act." Following the line of respondent’s argument, OCT 351 should not
have been admitted and/or considered as proof that TCT Nos. 77652 and 77653 were derived from it
(OCT 351). This is because the said TCTs themselves show that they were derived not from OCT 351
but from other OCTs stated above. To admit OCT 351 as the supposed origin of TCT Nos. 77652 and
77653 at this stage of the proceeding would in effect be disregarding the official entries made therein
which indicate that said TCTs were derivatives of OCT Nos. 19, 334, 336 & 337. These entries are
conclusive, so the law says. Consequently, Ortigas, contention that TCT Nos. 77652 and 77653 are
derivatives of OCT 351 has no leg to stand on.

3. ID.; APPEAL; QUESTIONS OF FACT BEYOND PROVINCE OF SUPREME COURT; CASE AT BAR. —
The issue in this case is whether the 156-hectare parcel of land applied for, located at Ugong Norte,
Quezon City, is covered by Ortigas TCT Nos. 77652 and 77653, or is alienable and disposable land as
contended by petitioner and certified by the Bureau of Lands and the Bureau of Forestry. These are
questions of facts and questions of facts are beyond the province of this Court (PLDT v. National
Telecommunications Commission, 190 SCRA 717 [1990]).

4. ID.; EFFECT OF JUDGMENTS; RES JUDICATA; WHEN VALID AS A DEFENSE; WHEN DEEMED
WAIVED; CASE AT BAR. — It is my considered opinion that the defense of res judicata must be
seasonably pleaded in order to be valid, (Fernandez v. de Castro, 48 Phil 123 [1925]; see also Del
Val v. Del Val, 29 Phil 534 [1915]) and if not set up as a defense or ground of objection seasonably,
the doctrine of res judicata is deemed waived (Alvarez v. Court of Appeals, 158 SCRA 401 [1988];
Vergara v. Rugue, 78 SCRA 312 [1977]; Phil. Coal Miners Assn. v. Cebu Portland Cement, 10 SCRA
784 [1964]). Where res judicata was raised as a defense only in the motion for reconsideration, the
same was deemed waived (Pulido v. Pablo, 117 SCRA 16 [1982]). Here, respondent raised the
defense of res judicata only in its memorandum submitted after filing its motion for reconsideration
of the decision dated August 28, 1991, which motion, as stated earlier, did not even contain any
reference to the cases now belatedly set up as a defense by respondent in its memorandum in
support of its motion for reconsideration. Respondent’s invocation of res judicata having been made
too late in the day, the same must be considered as having been waived (Sec. 8, Rule 15 and Sec. 5,
Rule 16). In any event, a perusal of the cases belatedly relied upon by respondent as defense (res
judicata) would readily disclose that OCT 351, the alleged origin of TCT Nos. 77652 and 77653, was
not the subject matter of said cases much less passed upon in the disposition of said cases. The issue
of the applicability of OCT 351 to the case at bar is even more compounded by the fact that TCT Nos.
776752 and 77653 do not, on their faces, reflect that their origin is OCT 351 as claimed
by Respondent. On the contrary, said TCTs trace their origin to OCT Nos. 19, 334, 336 and 337 and
hence, not to OCT 351. Otherwise stated, Ortigas, evidence (TCTs 77652 and 77653) do not support
its contention that the said TCTs were derivatives of OCT 351.

5. CIVIL LAW; LAND REGISTRATION; CORRECTION OF ENTRIES IN TRANSFER CERTIFICATES OF

TITLE; ENTRIES IN CERTIFICATES OF TITLE BINDING AND CONCLUSIVE UPON COURTS; CASE AT
BAR. — The procedure adopted by the respondent Court of Appeals in arriving at its conclusion that
TCT Nos. 77652 and 77653 were derived from OCT 351 contrary to what is stated in the faces of said
TCTs, finds no support in law as it amounted to a correction and/or alteration of the TCTs in violation
of the existing applicable law. Under the Sec. 112 of Act 496 (now Sec. 108 of PD 1529), no
certificate of title may be amended or altered except by order of the proper regional trial court. The
petition for the purpose must be filed before the regional trial court, sitting as a land registration
court, and entitled in the original case in which the decree of registration was entered. Certainly, the
Court of Appeals, in a certiorari and injunction proceeding, cannot arrogate unto itself that power
lodged exlusively with the land registration court without running afoul with the said provision of law.
As stated earlier, the correction of the entries in the transfer certificates of title should be effected
before the Regional Trial Court sitting as a land registration court which has original jurisdiction over
the same pursuant to Sec. 112 of Act 496 (now Sec. 108, PD 1529). For as long as these entries
appear in the transfer certificates of title, they are binding and conclusive upon the court (Sec. 47,
Act. 496). Otherwise stated, these entries, until ascertained to be erroneous in an appropriate
proceeding before the land registration court, are binding and conclusive in all courts including the
respondent Court of Appeals and this Court. Inasmuch as Ortigas insists that the subject parcel of
land is covered by OCT 351 under Decree 1425, while its own Transfer Certificate of Title Nos. 77652
and 77653 state that they are derivatives of OCT Nos. 19, 334, 336 and 337, it follows that Transfer
Certificates of Title Nos. 77652 and 77653 do not embrace the subject parcel of land, not being
543

derivatives of OCT 351. The entries in the TCTs of Ortigas cannot be dismissed as mere errors since
the said entries are conclusive. Hence, the necessity of remanding the case to the court a quo for
resolution of the factual issues in the exercise of its original jurisdiction. Neither this Court not the
respondent Court of Appeals can initially make the correction, if there be any.

RESOLUTION

FELICIANO, J.:

On 27 August 1974, petitioner Widows’ and Orphans Association, Inc. ("Widora") instituted Land
Registration Case ("LRC") No. Q-336 before Branch 4 of the Court of First Instance of Quezon City
(now Branch 83 of the Regional Trial Court, same City). Widora applied for original registration of
title over a parcel of land described in Plan LRC(SWO)-15352, alleging that said property is covered
by Titulo Propiedad No. 4136 dated 25 April 1894, supposedly issued in the name of one, deceased,
Mariano San Pedro y Esteban. 1 In an amended application, Widora stated that the land applied for
was situated at Malitlit-Ugong, Quezon City, with an area of 156 hectares. 2

On 13 October 1978, private respondent Ortigas & Co. Limited Partnership, Inc. ("Ortigas") filed an
opposition to the application. 3 This pleading was followed by a motion to dismiss dated 23 October
1978. 4

In a supplementary report dated 14 November 1978, the Commissioner of Land Registration

informed the trial court that the land sought to be registered was "identically the same" as that
covered by Lot 7 of Transfer Certificate of Title ("TCT") No. 77652 and of Lot 8 of TCT No. 77653,
both of which were issued and standing in the name of Ortigas. 5

In an order dated 20 April 1979, the trial court set the case for hearing to enable Widora to prove its
assertion that TCT Nos. 77652 and 77653 were not derived from the Original Certificates of Title
("OCT") referred to on their faces (i.e., OCT Nos. 19, 336, 337 and 344) and to give Ortigas an
opportunity to show the contrary. 6

For nine (9) years, from 1979 until 1988, hearings were held where the parties adduced evidence in
support of their respective contentions. 7

In an order dated 30 March 1988, the trial court denied Ortigas’ motion to dismiss, holding that its
TCT’s were apparently not derived from the OCT’s mentioned on their faces and did not appear to
have been based on an existing original decree of registration. 8

Ortigas’ motion for reconsideration having been denied, and the trial court having set the case for
hearing on the merits, Ortigas filed a petition for certiorari with prayer for a writ of preliminary
injunction with the public respondent Court of Appeals on 10 July 1989. 9

In a decision dated 27 November 1989, the Court of Appeals gave due course to the petition and
nullified the trial court’s order of 30 March 1988. It held that TCT Nos. 77652 and 77653 were
derived from OCT No. 351, which in turn was based on Decree of Registration No. 1425 issued in
favor of Ortigas’ predecessor-in-interest in 1905, in G.L.R.O. Record No. 917 which had been tried by
the Land Registration Court of Manila. The Court of Appeals dismissed LRC No. Q-336 because the
land subject thereof was already registered in favor of Ortigas, with the result that the trial court had
no jurisdiction over the subject matter of the action. 10

Its motion for reconsideration having been denied, Widora filed the present petition for review with
the Court on 22 March 1990. In a decision dated 28 August 1991, the Court’s Third Division set aside
the decision of the Court of Appeals and reinstated the order of the trial court dated 30 March 1988.

The Court’s Third Division held that the Court of Appeals erred in making factual findings
determinative of Widora’s application on the basis of "secondary evidence" offered by Ortigas, in
unilaterally correcting entries in the Ortigas Torrens titles and held that the controversy regarding the
authenticity of said titles should be resolved in "full-blown" hearings before the trial court. 11

Hence, the present Motion for Reconsideration filed by Ortigas. chanrobles lawlibrary : rednad
544

Examination of the Court’s Decision of 28 August 1991 shows that two (2) considerations led the
Court to remand this case to the trial court to hear Widora’s application for land registration on the
merits.

Firstly, the Court was apparently not entirely certain that the land covered by Widora’s application
was already registered under the Torrens system in Ortigas’ name, such that it appeared prudent to
conduct a "full-blown" trial on the merits to clear up that matter, considering: (1) Ortigas argued that
its ownership of the land which is the subject of Widora’s application was confirmed by Decree No.
1425 issued in G.L.R.O. Record No. 917 of the Land Registration Court of Manila in 1905; however,
Widora’s evidence tended to show that Decree No. 1425 adjudicated to Ortigas only seventeen (17)
hectares of land situated in Sta. Ana, Manila, while Widora’s application related to one hundred fifty-
six (156) hectares of land situated in Quezon City; and (2) it appeared that Ortigas’ TCT Nos. 77652
and 77653 carry some erroneous statements on their face, relating to "their source or mother
Original Certificate of Title (OCT)" lending some credence to Widora’s contention that the
genuineness of those TCTs was dubious.

The second consideration was the feeling that the Court of Appeals should not have resolved these
factual uncertainties by using "secondary" evidence offered by Ortigas, considering the limited nature
of certiorari jurisdiction, since Torrens titles are conclusive on their face and any inaccuracies of
entries thereon are to be corrected only by the proper land registration court.

In the Motion for Reconsideration and in the oral hearing on that Motion, Ortigas invited our attention
to the existence of previously decided cases showing that the factual uncertainties we had noted had
already been adjudicated by the Court with finality and are now matters of judicial notice. 12

In this Resolution, the Court will address this principal argument of Ortigas as well as the argument
concerning the character of evidence submitted by Ortigas before the trial court.

I.

In holding that the Court of Appeals should not have resolved the factual issues considering the
nature of certiorari jurisdiction, the Court relied on Dioquino v. Intermediate Appellate Court. 13 In
Dioquino, this Court rejected the factual findings made by the Court of Appeals in the course of
resolving a petition for review filed under Section 22, B.P. Blg. 129, because, inter alia, those factual
findings were based on evidence Presented ex-parte as appendices to a motion for reconsideration
from the decision of the trial court. Considering that no evidence had been presented by either party
in the principal proceedings, either before the Municipal Circuit Trial Court or before the Regional Trial
Court, the Court in Dioquino concluded that the Court of Appeals’ power to resolve issues of fact
under Section 9, paragraph 2, B.P. Blg. 129, was misapplied because the opposing party had no real
opportunity to reject the evidence submitted ex parte by its opponent. 14

Careful examination of the Dioquino case shows that the facts there are so different from those of
the present case as to render our holding in Dioquino inapplicable here. Here, the Court of Appeals
had conducted hearings on four (4) occasions, during which it required both parties to present
evidence to establish their respective contentions on Ortigas’ right to a writ of preliminary injunction.
At these hearings, both parties reproduced before the Court of Appeals the same evidence they had
adduced before the trial Court during the 9-year long hearings on Ortigas’ motion to dismiss, which
evidence tended to support their respective contentions on the derivation of Ortigas’s TCTs. 15 Thus,
the acceptance of ex parte evidence which the Court rejected in Dioquino, never occurred in the
instant case. Moreover, the determination of whether an inferior court had arbitrarily disregarded
preponderant evidence of record adduced in protracted hearings before it, is a proper subject of
inquiry by an appellate court in a certiorari proceeding.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

II.

In arriving at its conclusion that TCT Nos. 77652 and 77653 are proper derivatives of OCT No. 351,
which in turn had been issued pursuant to Decree No. 1425, the Court of Appeals had relied on (a) a
certified true copy of OCT No. 351; (b) survey plans prepared by Ortigas’ Geodetic Engineer, Mr.
Carlos Angeles, which were based on plottings of the boundaries of parcels of land appearing in the
Notice of Initial Hearing in G.L.R.O. Record No. 917 and in the technical description found in the body
of OCT No. 351, and, in TCT Nos. 77652 and 77653; and (c) the testimony of Engineer Angeles that
these plottings showed that the land covered by the TCTs was inside the larger parcel of land covered
by the OCT, which in turn was inside the much larger parcel of land (The Hacienda de Mandaloyon)
545

adjudicated to Ortigas’ predecessor-in-interest by Decree No. 1425 issued in G.L.R.O. Record No.
917. 16 As noted earlier, the above evidence had been presented by Ortigas before the trial court
during the prolonged hearings on its motion to dismiss. The Court described the above evidence as
"secondary" in nature and noted that Ortigas did not establish the due execution and subsequent loss
of the original documents, as required by the Rule on Secondary Evidence. 17 After careful re-
examination of the evidence of record and applicable rules of evidence, the Court considers that the
word "secondary evidence" was inaccurate. The copy of OCT No. 351 offered by Ortigas was a
certified true copy of the original thereof found in the Registration Book of the Register of Deeds of
Rizal. 18 The admissibility of such a copy in court proceedings is an exception to the ordinary rule on
secondary evidence; 19 such admissibility is in fact mandated by Section 47 of Act No. 496 (The
Land Registration Act). 20 Under the Land Registration Act which was in force at the time OCT No.
351 was issued, the original thereof found in the Registration Book of the Register of Deeds of Rizal
was an official transcript of Decree No. 1425, with respect to the land covered by such decree
situated in the Province of Rizal. 21

Thus, OCT No. 351 constitutes direct proof of the existence of Decree No. 1425 upon which the
Ortigas TCTs (Nos. 77652 and 77653) are based. We believe further that the Court of Appeals was
justified in relying upon the plotting prepared by Engineer Carlos Angeles and his testimony
explaining the significance thereof, notwithstanding the secondary nature of that plotting and
testimony. For, as will be seen shortly, the authenticity and correctness of these survey plans and of
Engineer Angeles’s explanation thereof had already been judicially sustained in previously decided
cases.

III.

In its Motion for Reconsideration and its supporting memorandum, Ortigas argued that the seeming
factual uncertainties relating to its TCTs which had impelled the Court to order a remand of this case
to the trial court, had already been resolved with finality in previously decided case and are now
matters of judicial notice.

We have reviewed the underlying record carefully and must conclude that this claim of Ortigas is
impressed with considerable merit. When evidence of record in the instant case is considered
together with the findings and conclusions embodied in previously decided cases, the factual
uncertainties initially feared by the Court are dissipated. In truth, resolution of these uncertainties
results from the application of the principle of res adjudicata and of its two (2) component concepts,
i.e., conclusiveness of judgment and bar by prior judgment.

As early as 1906, in Cia. Agricola de Ultramar v. Domingo, Et Al., 22 this Court affirmed on appeal
the trial court’s confirmation of the title of La Compania Agricola de Ultramar as registered owner
under the Torrens System of the Hacienda de Mandaloyon. Such confirmation. referring to title over a
specific thing, has now acquired immutability and incontestability. 23 Thus, in Ortigas v. Hon. Ruiz,
24 the Court ruled that the Ortigas & Co. Ltd. Partnership was the successor-in-interest of La
Compania Agricola de Ultramar and can invoke the benefits of the Court’s 1906 ruling, under the
doctrine of the law of the case, to defeat an action for annulment of some of its transfer certificates
of title on the ground of alleged fraud.25
cralaw:red

The Court noted in its 1906 decision that the identity and area of the Hacienda de Mandaloyon were
not disputed by the oppositors in the land registration Proceeding. 26 Neither was the validity of the
land registration proceeding therein impugned by said oppositors. Hence the Court had no occasion
there to discuss the detailed matters dealt with below. chanrobles virtual lawlibrary

However, in at least two subsequent cases cited by Ortigas, the Supreme Court had occasion to
affirm decisions rendered by the Court of Appeals, based on facts adduced before the Courts of First
Instance, clarifying these matters. The legal conclusions drawn in these two cases, as well as the
factual findings on which they were based, supplemented the Cia. Agricola ruling and demonstrate
that the land registration court hearing Widora’s application in LRC No. Q-336, could not have
acquired jurisdiction over the land subject of the application, since that land is already registered
under the Torrens system (TCT Nos. 77652 and 77653) and in fact formed part of a larger tract of
land similarly previously brought under the Torrens system in the name of Ortigas’ predecessor-in-
interest.

IV.
546

In the first of these cases, Felipe C . Navarro v. Ortigas & Co. Ltd. Partnership, 27 this Court affirmed
in 1979 by way of a minute resolution the decision of the Court of Appeals in C.A.-G.R. No. 53125-R
dated 13 December 1978. 28 In that decision, the Court of Appeals established that the land
registration application of La Compania Agricola de Ultramar over the Hacienda de Mandaloyon was
granted under Decree No. 1425, actually issued under G.L.R.O. Record No. 917 by the Land
Registration Court of Manila in 1905, the very same Decree affirmed by this Court in its 1906
decision. The Court of Appeals noted that Ortigas had established this proposition by offering an
extant portion of Decree No. 1425 covering land within the territorial jurisdiction of the City of
Manila, which "coincides with a portion of the entire vast tract of land embraced by the technical
description appearing in the notice of initial hearing published in the Manila American and (in) La
Democracia (English and Spanish language newspapers of general circulation existing in 1904,
certified true copies of which were offered in evidence by Ortigas) and was distinctly shown in a map
or sketch plotted by Mr. Carlos Angeles, Geodetic Engineer." 29

By way of background, the Navarro case involved a suit for injunction instituted by Ortigas on 11
February 1972 before Branch 16 of the Court of First Instance of Rizal [docketed as Civil Case No. Q-
16265] in order to restrain a certain Felipe Navarro from fraudulently selling portions of its property
to innocent third persons. Felipe Navarro was allegedly the attorney-in-fact of the physical occupants
of a 17,955 square meter parcel of land owned by Ortigas and bounded by Amado T. Reyes St.,
Harapin ng Bukas St. and Luna St., San Juan, Manila. Felipe Navarro answered the complaint by
impugning the validity of the Torrens titles held by Ortigas over the entire Hacienda de Mandaloyon,
situated partially in Manila, partially in Quezon City and partially in Pasig, 30 because, among other
things, they were allegedly declared void in a decision rendered by Branch 15 of the Court of First
Instance of Rizal in Civil Case No. 7-M(10339). 31

After trial, CFI Judge Sergio Apostol rejected Navarro’s contention in a decision granting injunction
dated 16 December 1972, holding that the Ortigas titles were indefeasible, being based on Decree
No, 1425 issued in 1905. 32

Before reaching the conclusion that the Ortigas titles had become indefeasible, Judge Apostol
satisfied himself as to the existence of original Decree of Registration No. 1425, issued in 1905 in
G.L.R.O. Record No. 917, from which these titles were derived: jgc:chanrobles.com.ph

"There seems to be no question that there exists in the dockets of the General Land Registration
Office a case known as G.L.R.O. Record No. 917 with La Compania Agricola de Ultramar as petitioner.
The record of said case is, however, no longer complete. Copies of the application for registration,
plan, technical description, decision and decree can no longer be found. However, the expediente of
the case still contains documents which reflect part of the proceedings that transpired therein, among
which are:chanrob1es virtual 1aw library

1.’Mocion Pidiento Se Deja Sin Efecto A La Rebeldia’, dated April 13, 1905;

2.’Decision on Motion to Vacate General Default’ dated March 29, 1905: chanrob1es virtual 1aw library

3.’Minutes of the session of the Land Registration Court presided by the Honorable Auxiliary Judge
James Ross on the 29th day of, March, 1905 in G.L.R.O. Record No. 917;

4.’Minutes of the session of the Land Registration Court presided by the Honorable Auxiliary Judge
James Ross on the 29th day (sic) of March, 1905 in G.L.R.O. Record No. 917;

5.’Mocion Emmendado Pidiendo Se Deja sin Efecto A La Sentencia Por Rebeldia’ and

6.’Mocion Pidiendo Se Deja Sin Efecto A La Rebeldia.

The foregoing, the court believes, establishes beyond doubt that there was such a land registration
case known as G.L.R.O. Record No. 917 with Compania Agricola de Ultramar as petitioner. chanrobles virtual lawlibrary

x          x           x

Defendant, however, contends that because the decree in that case could no longer be found in the
expediente of the case, Decree No. 1425, the decree number appearing in the titles issued under
G.L.R.O. Record No. 917, is non-existent and fictitious.

To rebut this contention of the defendant, plaintiff presented the following evidence: chanrob1es virtual 1aw library
547

1. A certified xerox copy of page 18 of the Book of Decrees, Bk. I;

2. A certified xerox copy of page 19 of the game book;

3. A certified xerox copy of Decree No. 1425 insofar as it covers the areas located in Manila;

4. A copy of the letter of transmittal from the Clerk of Court to the Register of Deeds of Manila dated
August 15, 1907 signed by (Clerk of the Land Registration Court) A.K. Jones requesting that a
separate title be issued for each parcel of land covered by Decree No. 1425; and

5. A certification issued by Alberto H. Lingayo, Chief Surveyor of the Land Registration Commission to
the effect that in the index card of ordinary cases kept in the Land Registration Commission, La
Compania Agricola de Ultramar appears to be the petitioner in G.L.R.O. Record Nos. 699, 875 and
917 and that Decree Nos. 240, 696 and 1425 were issued on August 9, 1904, September 14, 1905
and April 26, 1905, respectively in these cases as (shown by) the Decree Book of Ordinary Cases of
the Commission.

This Court finds that there is nothing in Exhibit ‘7’, `384’ or ‘CCCC’ (evidence of defendant Navarro)
from which it may be inferred that Decree No. 1425 is non-existent or fictitious. On the contrary, the
wordings of these certifications imply that such a decree did exist but the same can no longer be
found in the expediente of G.L.R.O. Record No. 917 because it was lost during the war. 33 (Citations
of evidence omitted, Emphasis supplied)

Judge Apostol also established that the Ortigas titles covered a large tract of land described in the
technical description appearing in the initial notice of hearing in G.L.R.O. Record No. 917: jgc:chanrobles.com.ph

"All these titles were traced back to their respective Original Certificates of Title, which were issued
under G.L.R.O. Record Nos. 699, 875 and 917. Finally, it (Ortigas) proved that the lands in question
are all embraced by the land described in the notice of the initial hearing in G.L.R.O. Record No. 917
as published in the Manila American and La Democracia (Exhibit ‘NNNN’), and Decree No. 1425." 34
(Emphasis supplied)

Exhibit ‘NNNN’ (above cited by Judge Apostol) in turn was based on the map plottings prepared by
Geodetic Engineer Carlos Angeles of said technical descriptions as they appeared in certified true
copies of the Manila American and La Democracia. 35

It should also be observed that Judge Apostol had noted an inaccuracy in the designation of the
source titles of TCT Nos. 77652 and 77653 similar to that noted by Widora in this case, but Judge
Apostol held that this inaccuracy did not effect the validity of the titles: jgc:chanrobles.com.ph

"Finally, defendant questions the fact that some of plaintiff’s Transfer Certificates of Title, particularly
Transfer Certificates of Title Nos. 73884, 77652, 71436-A and 77653, show that they were originally
registered under Original Certificates of Title Nos. 19, 313 (sic), 336, 334 (sic) and 699 whereas
Original Certificate of Title No. 19 covers land which is located in Antipolo. Plaintiff’s witness, the
surveyor Carlos Angeles, however, explained this as follows: chanrob1es virtual 1aw library

‘Q. It has been pointed out, Mr. Angeles that the present titles of the plaintiff Ortigas and Company
Limited Partnership now indicate that these lands covered by these titles were originally registered in
Original Certificate of Titles 337, 19, 336 and 334. Were you able to trace how these entries
appeared in these titles?

A. In Transfer Certificate No. 77652 and 77653, it is indicated at the bottom of the title that it came
from Original Certificate of Title Nos. 337, 19, 336, 337 (sic) and 344. We found out that 19 could
not have been a source because it is in Antipolo, Rizal. Now, we traced back this title to show where
that error is, and then we found out that it should have been 13, as indicated in Transfer Certificate
of Titles Nos. 443880, 27111, 44381 and 44382. So 19 is just a mere topographical (sic) error.

Q. How about Transfer Certificate of Title No. 699?

A. 699 is a G.L.R.O. Record Number, which was typed on the title.’

To better illustrate this, plaintiff’s witness traced these errors in a diagram which he prepared and
which was marked as Exhibit ‘YYYY’. chanrobles.com:cralaw:red
548

This Court is satisfied that the error in the statement of the sources of plaintiff’s titles was, as shown
by Exhibit ‘YYYY’, merely typographical. Besides, these errors do not go into the validity of plaintiff’s
titles. And they have all been traced to their respective Original Certificates of Title." 36 (Citations of
evidence omitted; Emphasis supplied)

The decision of Judge Apostol was affirmed in its entirety by Gaviola, J. of the Court of Appeals. 37
As noted earlier, Felipe Navarro’s petition for review of the Gaviola decision was denied by the
Supreme Court for lack of merit. 38 The Court’s minute resolution is a judgment on the merits for the
purpose of applying the principles of bar by prior judgment and conclusiveness of judgment. 39

The factual matters raised, controverted, litigated and established in G.R. No. 50156 (Navarro v.
Ortigas) which are relevant to the present case are as follows: 1) the inaccuracies in the sourcing of
the mother titles of TCT Nos. 77652 and 77653 did not impair their probative value as evidence of
Ortigas, ownership over the land described in their technical descriptions; 2) the Registry of Deeds of
Manila was the source of an original copy of Decree No. 1425 to the extent that that Decree covered
property situated in Manila; but this Decree, in its entirety, really covers much more, i.e., the entire
Hacienda de Mandaloyon; 3) the extant sources of the boundaries of the Hacienda de Mandaloyon
are the technical descriptions thereof appearing in the initial notice of hearing in G.L.R.O. Record No.
917; and 4) the land described in and covered by TCT Nos. 77652 and 77653 formed part of the
Hacienda de Mandaloyon.

Under the doctrine of conclusiveness of judgment, these factual matters established in G.R. No.
50156 are binding on Widora and can no longer be relitigated by it in G.R. No. 91797. 40 Both cases,
to a certain extent, involve the same subject matter (i.e., the parcels of land described in Ortigas’
TCT Nos. 77652 and 77653. Ortigas’ cause of action in G.R. No. 50156 consisted of the fraudulent
sales of its property made by Felipe Navarro in behalf of his "owner" clients. That differs somewhat
from Ortigas’ cause of action in G.R. No. 91797, which consists of the adverse claim of ownership
asserted by Widora over Ortigas’ property, manifested through the filling of Widora’s application for
land registration. But more importantly, there is a substantial identity between Felipe Navarro (and
his clients) on one hand and Widora on the other; both parties sought to question the validity of
Decree No. 1425 and its particular derivatives here involved (TCT Nos. 77652 and 77653), insofar as
the Decree had adjudicated in favor of Ortigas ownership of land being claimed by Navarro and
Widora. This circumstance makes them privies in law for purposes of the operation of the rule on
conclusiveness of judgment. 41

Furthermore, it must be observed that Widora is bound by the ruling laid down in the Cia. Agricola
case of 1906 that Ortigas (through its predecessor-in-interest) is the registered owner of land
comprising the Hacienda de Mandaloyon because the factual matters resolved in the Navarro case
show that the land covered by Widora’s application forms part of that vast tract of land adjudicated
to Ortigas’ predecessor-in-interest in the 1906 decision.

Finally, as held in the Court of Appeals decision which we affirmed in G.R. No. 50156, the Torrens
titles of Ortigas served as evidence of its indefeasible title over the property covered thereby and
they became incontrovertible one year after entry of the final decree of registration from which they
were derived in 1906. 42 The Supreme Court’s affirmance of this ruling in fact constitutes a holding
that the land covered by these titles (particularly TCT Nos. 77652 and 77653) have been duly
brought under the Torrens System of land registration and that this circumstance prevented the land
registration court hearing Widora’s application in LRC No. Q-336 from acquiring jurisdiction over the
land covered by that application. 43

V.

In the second previously decided case, Del Rosario, et. al. v. Ortigas & Co. Ltd. Partnership, 44 the
Supreme Court affirmed the decision of the Court of Appeals in A.C.-G.R. CV No. 61356 dated 29
December 1983, 45 holding that various Ortigas TCT’s, including TCT Nos. 77652 and 77653,
overlapping various portions of seventy-hectare parcel of land situated in Ugong Norte, Pasig and
Bagumbayan, Quezon City had become indefeasible and could no longer be impugned by the physical
occupants of the overlapping property. 46

By way of background, this Del Rosario case originated as Civil Case No. 7-M(10339) before Branch
15 of the CFI of Rizal. In 1967, two (2) groups of occupants of the disputed property, faced with final
and executory judgments for ejectment obtained by Ortigas, instituted this Del Rosario case as a
class suit to impugn the validity of Ortigas’ Torrens titles. The theory of the plaintiffs was that
G.L.R.O. Record No. 917, and its incidents, were void ab initio for alleged lack of notice of initial
549

hearing, among other reasons. In a decision dated 31 March 1970, Judge Vivencio Ruiz ruled in favor
of the plaintiffs and declared the Ortigas TCTs null and void.

Judge Ruiz’ decision was, however, nullified on petition for certiorari, prohibition and mandamus by
the Court of Appeals in its decision dated 12 November 1971 in C.A.-G.R. No. 00039-R. 47 The Court
of Appeals also decreed a remand of the case for new trial based on Ortigas’ newly-discovered
evidence. 48 This decision was affirmed by the Supreme Court in G.R. No. L-34440 by a Resolution
dated 4 April 1972. 49

In a decision dated 3 November 1973, CFI Judge Arsenio Alcantara (to whom the case was
remanded) rendered a decision on new trial upholding and confirming, among others, "the validity of
Decree No. 1425, issued in Expediente 917 and all titles emanating therefrom." This decision was
affirmed in its entirety by the Court of Appeals in AC-G.R. No. CV-61356, as noted earlier. 50 In turn,
this Court of Appeals decision was affirmed by the Supreme Court in G.R. No. 66110 in a Resolution
denying Del Rosario’s petition for review for lack of merit dated 16 February 1985. 51

It should be noted that Ortigas’ evidence and argument establishing the existence and regularity of
the proceedings in G.L.R.O. Record No. 917 and of Decree No. 1425 from which its controverted
TCTs were derived, first adopted in the Navarro case, were likewise used and sustained again in the
Del Rosario case, 52 and are, by and large, the same evidence and argument submitted by Ortigas to
resolve the same alleged factual uncertainty raised for the third time in this case. 53

In the Del Rosario case, Geodetic Engineer Carlos Angeles again drew and offered in evidence a map
indicating the full extent of the Hacienda de Mandaloyon, based on plottings of the technical
descriptions appearing in the initial notice of hearing in G.L.R.O. Record No. 917, offered and marked
as Exhibit 43-A New Trial. 54 Judge Alcantara noted that these plottings were quite adequate for the
purpose of identifying the land registered in Cia. Agricola’s name in 1906: chanrobles virtual lawlibrary

"Plaintiffs [Del Rosario, Et. Al.] also attempted to show as per technical description published in the
Manila American and La Democracia, a polygon does not close such that one cannot give the exact
area of the land sought to be registered. They claim that the plan submitted by said Surveyor Carlos
Angeles is ‘doctored’ because it had a closed polygon. In this connection, it should be emphasized
that the Hacienda Mandaloyon is a vast tract of land having an area of 4,000 hectares with natural
boundaries consisting of rivers and creeks as shown in the plan Exh.’3A New Trial. Its natural
boundaries are the Marikina-River, Pasig River, San Juan River, Diliman Creek and Estero de Buaya,
etc. Indeed, boundaries which are natural and fixed such as creeks and rivers, not the area, should
govern in determining the identity of the land sought to be registered. And even conceding that the
magnetic survey employed in surveying the disputed property in 1904 was erroneous, yet ‘mistake in
survey is not a ground for alteration of decree of registration.’ In fact, plaintiffs’ [Del Rosario]
witness, Geodetic Engineer Pedro Samson, readily admitted that the properties being claimed by
them are inside the area described in the notices." 55 (Citations omitted; Emphasis supplied)

Exhibit 43-A New Trial submitted in the Del Rosario case showed the boundaries and location of the
entire Hacienda Mandaloyon. Annex P submitted in the present Widora case shows the same entire
Hacienda Mandaloyon and is identical with Exhibit-43-A New Trial. In the present Widora case,
Ortigas also submitted Annex K-1 to show the location and boundaries of the land covered by TCT
Nos. 77652 and 77653. When the map which is Annex K-1 is placed side by side with (or on top of)
the map of the whole Hacienda Mandaloyon which is Exhibit 43-A New Trial and Annex P, the Annex
K-1 map coincides with a portion of the Exhibit 43-A map. In other words, the lots covered by TCT
Nos. 77652 and 77653 which are mapped in Annex K-1 constituted a portion of the Hacienda
Mandaloyon. These Exhibits also show that the parcels of land covered by TCT Nos. 77652 and 77653
are located west of the Marikina river, which river was established in Del Rosario to be the eastern
natural boundary of the Hacienda de Mandaloyon.

Thus, once more, it is apparent that the factual matters which Widora seeks to litigate in G.R. No.
91797 have already been resolved in the Del Rosario case. Since the subject matter of the
controversy in Del Rosario and in G.R. No. 91797 are identical (parcels of land covered by TCT Nos.
77652 and 77653), the cause of action of Widora in G.R. No. 91797 is identical to that of the
petitioners in Del Rosario, i.e., the petitioners in Del Rosario contested Ortigas’ claim of ownership
over the land from which they were being ejected, which is of course the same claim of ownership
embodied in Ortigas’ opposition to Widora’s land registration application over the same land in the
instant case. It follows that Widora in G.R. No. 91797 must also be deemed privy in law of the
petitioners in Del Rosario (for they too assailed the validity of Decree No. 1425 and its particular
derivatives, TCT Nos. 77652 and 77653). Accordingly, the factual and legal matters resolved with
finality in the Del Rosario case, which are determinative of the merits of Widora’s application for land
550

registration in G.R. No. 91797 must be considered, as in the Navarro case, as a bar to the grant of
the Widora application under the rule on conclusiveness of judgment.

VI.

There is another important element of Widora’s claim being asserted in the present proceedings
which is precluded by both the principle of bar by prior judgment and the principle of conclusiveness
of judgment. Widora’s application for registration in the present case (LRC No. Q-336), essentially
rests on an alleged Spanish title: "Titulo de Propiedad No. 4136," dated 25 April 1894, said to be
issued in the name of one Mariano San Pedro y Esteban, supposedly covering land of unimaginably
large proportions: 173,000 hectares in Bulacan, Nueva Ecija, Rizal, Quezon City, Caloocan City and
Pasay City. 56

Back in 10 December 1976, or only two (2) years after Widora had filed LRC No. Q-336, one Justino
Benito and Widora commenced another case, Civil Case No. Q-22410 before the CFI of Quezon City.
Benito claimed there that he was co-administrator of the intestate estate of Don Mariano San Pedro y
Esteban, and that part of this estate was land covered by the supposed Spanish title, including a
piece of land situated in Ugong Norte, Pasig and Bagumbayan, Quezon City, which land was covered
by TCT Nos. 77652 and 77653 issued in Ortigas’ name. Benito and Widora, therefore, sought in Q-
22410 to annul those TCTs for covering land allegedly previously owned by the Don Mariano San
Pedro y Esteban estate as evidenced by the supposed Titulo de Propiedad No. 4136, and
subsequently sold or assigned by the estate to Widora. 57

Ortigas moved to dismiss the Benito-Widora complaint, arguing inter alia, that the alleged Spanish
title relied upon by Benito and Widora had already been divested of probative value as evidence of
land ownership, by P.D. No. 892. Ortigas’ motion to dismiss was sustained on that ground by the trial
court in a decision dated 28 February 1978. 58

That decision of the trial court in Q-22410 was affirmed on appeal by the Court of Appeals in C.A.-
G.R, No. CV-64424 in a decision written by Jurado, J., dated 31 May 1984. The Court of Appeals,
thus, affirmed the trial court’s ruling that the Spanish title relied upon by Benito and Widora was no
longer any good. 59

Widora (but not Benito) went on a Petition for Review before the Supreme Court, in G.R. No. 69343.
This Court affirmed the decision of the Court of Appeals in a minute resolution dated 6 February
1985. Entry of final judgment was made on 29 March 1985. 60

As noted, in the case at bar, Widora is relying upon the same supposed Spanish title - Titulo de
Propiedad No. 4136. We believe and so hold that the Resolution of this Court in G.R. No. 69343,
holding that that alleged Spanish title had become bereft of any probative value is res adjudicata in
respect of the present case. Put a little differently, the principle of bar by prior judgment precludes
any reliance by Widora in the case at bar on that fantastic Spanish title considering the essential
identities of parties and identity of subject matter and of cause of action between Civil Case No. Q-
22410 and LRC Case No. Q-336. chanrobles.com.ph : virtual law library

We should add that Widora’s prayer for alternative relief in the form of confirmation of imperfect title
over the land covered by its application for registration, is immaterial. That alternative relief is also
premised upon Widora’s claim that Ortigas had fraudulently registered the land in its (Ortigas) own
name such that the land remained presumptively public land. The firmly entrenched rule is that a
party can not evade the application of the principle of bar by prior judgment by simply varying the
form of the action or by adopting a different mode of presenting its case. 61

VII.

We consider finally the question of whether or not the defense of res adjudicata has been waived by
Ortigas by failure to plead that defense seasonably in its opposition or motion to dismiss in LRC No.
Q-336.

We believe and so hold that there was no such waiver of res adjudicata by Ortigas in the case at bar.
It is most important to note, in the first place, that the defense of res adjudicata pleaded by Ortigas
in this case relates ultimately to the jurisdiction of the land registration court to try LRC No. Q-336.
The Court of Appeals correctly stressed that Ortigas having shown that the land applied for by Widora
is already registered in Ortigas’ name, the land registration court simply had no jurisdiction to decree
551

the registration of that same land in the name of some other person. The well-established rule is that
lack of jurisdiction which renders an action dismissible may be determined by the court seized with it
motu proprio, and may be raised by a party, at any stage of the proceedings even on appeal. 62

With particular reference to the ruling that Widora’s alleged Titulo de Propiedad No. 4136 was bereft
of probative value, we note that the Benito-Widora case reached finality (in the Supreme Court) only
in 1985, when the proceedings in the motion to dismiss filed by Ortigas in LRC No. Q-336 were
already in an advanced stage.

In the second place, the Resolutions of the Supreme Court in the Navarro and Del Rosario cases,
disposed of those cases on their merits by affirming the pertinent decisions of the Court of Appeals.
Those Resolutions are part of the case law and the records of this Court itself of which we are bound
to take judicial notice. 63 We are certainly not at liberty to disregard them in any case. So to
disregard our own decisions would be to inflict substantial injustice and irreparable injury upon
Ortigas which would be compelled to do all over again what it had done at least twice before — to
prove it has indefeasible title to the land covered by TCT Nos. 77652 and 77653. The resulting
injustice and injury would not be limited to Ortigas, but would engulf many thousands of present
registered private owners of Transfer Certificates of Title covering the thousands of hectares of land
embraced by Decree No. 1425. The grave social implications of permitting a cloud to arise on all
those Transfer Certificates of Title by our failure to take into account our own decisions in earlier
cases, can scarcely be contemplated.

In the third place, waiver of res adjudicata, certainly in cases like the one before us, cannot casually
be assumed to have been made. What is involved here is not an academic doctrine of law but very
valuable property rights, so valuable that at least thrice before, various persons or groups of persons
(including Widora, for the second time) have attempted to usurp title thereto by assailing the same
two (2) TCTs. Ortigas tenaciously fought off those efforts at least three (3) times before, from the
trial court thru the Court of Appeals to our own Court, each litigation stretching out to many years. In
this situation, only the most explicit and deliberate statement, in unmistakable language, will suffice
to constitute waiver; that is certainly not present here. What is claimed here is merely implied or
presumed waiver, which has been expressly denied by Ortigas. Yet as Lantin, J. of the respondent
Court of Appeals observed, as far back as 27 June 1979, in its motion for reconsideration of the trial
court’s order of 20 April 1979 denying its motion to dismiss, Ortigas had already brought to the
attention of the trial court the fact that its assailed titles had been upheld by Courts of First Instance
and appellate courts in prior cases. 64 Moreover, during the proceedings on Ortigas’ motion to
dismiss, the Government itself, through the Land Registration Commission, had advised the trial
court that the 156 hectare parcel Widora was seeking to register were "covered by valid and
subsisting titles in the name of Ortigas." 65

Finally, the record of the instant case shows that Ortigas pleaded as a special and affirmative defense
bar by prior judgment in its very first Opposition dated 13 October 1978 to Widora’s application in
LRC Q-336. 66 That defense was elaborated by Ortigas in its motion to dismiss dated 23 October
1978, where it stressed that the land applied for was already registered in its name under the
Torrens system and that such previous registration of its title amounts to res adjudicata binding upon
the whole world. 67 During the protracted hearings on its motion to dismiss before the trial court,
Ortigas specifically pleaded our decision in the Benito-Widora case which by the had attained finality,
in a Memorandum dated 28 October 1986 as a bar to further proceedings in the case at bar. In its
motion for reconsideration of the trial court’s order denying the motion to dismiss, Ortigas again
specifically pleaded the Benito-Widora case, as well as the Compania Agricola case to show that its
registered title over the disputed land had become indefeasible. 68 Further, Ortigas specifically
pleaded not only the Compania Agricola and the Benito-Widora cases but also the decisions in the
Navarro, Del Rosario and Ruiz cases in its petition for certiorari, prohibition and mandamus before
the Court of Appeals, 69 We accordingly find it extremely difficult to suppose that there was implied
or presumed waiver here of the defense of res adjudicata. chanrobles lawlibrary : rednad

FOR ALL THE FOREGOING, we hold that the Motion for Reconsideration should be as it is hereby
GRANTED; that our Decision dated 28 August 1991 is hereby RECONSIDERED and SET ASIDE; that
Widora’s Petition for Review in the instant case is hereby DENIED for lack of merit. The Regional Trial
Court’s order of 30 March 1988 is hereby SET ASIDE and that court is hereby ORDERED to dismiss
immediately LRC Case No Q-336. The Decision and Resolution of the Court of Appeals dated 27
November 1989 and 25 January 1990, respectively, are hereby AFFIRMED in toto. Costs against
petitioner.

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

552

Separate Opinions

BIDIN, J., dissenting: chanrob1es virtual 1aw library

With due respect, I find it difficult to agree with the ponencia written by my esteemed colleague, Mr.
Justice Florentino Feliciano.

In disposing of the controversy before us, the Court resolved, the issue on the basis of facts which
are not extant in the records of the case (GR No. 97197). This is quite unprecendented.

Invoking the concept of judicial notice, the Court considered certain facts which led it to rule in favor
of respondent Ortigas. I submit that these "facts", substantial as they are, should not have been
considered by the Court for the simple reason that they were not even alleged by respondent itself
nor do they appear on the records before us. In so doing, it is my submission that the Court over-
stretched the concept of judicial notice. The immutable rule on burden of proof is that each party
must prove his own affirmative allegations (Sec. 1, Rule 131) by the amount of evidence required by
law which is preponderance of evidence in civil cases. That is why the decision sought to be
reconsidered, remanded the case to the trial court for further proceedings. At the risk of being
repetitious, I would like to emphasize that the facts narrated in the Resolution were gathered
substantially from sources outside of the records of the case. chanrobles.com.ph : virtual law library

In its motion for reconsideration, respondent Ortigas contends, among others, that the petition filed
by Widows and Orphans is already barred by res judicial; that the origin of TCT Nos. 77652 and
77653 has been correctly identified by the Court of Appeals as OCT 351, notwithstanding the fact
that the said TCTs themselves show on their faces that they have been derived from OCT Nos. 19,
334, 336 and 337.

First, as to the defense of res judicata. At the outset, it is significant to note that respondent Ortigas
did not set up or raise the doctrine of res judicata anent the existence of previous cases involving the
same parties (Widora v. Court of Appeals, GR No. 69343 and Del Rosario v. Ortigas & Co., GR No.
66110) either in its Comment to the petition, in its memorandum or in its motion for reconsideration.
In said pleadings, respondent merely alleged that the trial court has no jurisdiction over LRC Case
No. Q-336 simply because the land applied for is alleged to have been already decreed and titled in
its name and cannot be decreed a second time (Rollo, pp. 101 & 194). They were bare recitals of
general principles applicable to land registration cases with respect to indefeasibility of certificates of
titles, made without the benefit of any discussion regarding the application thereof to the case at bar
nor was there any reference made to any case (now being relied upon) as constitutive of res
judicata.

Likewise, the existence of the said cases does not appear to have been raised in the court a quo or
put in issue before respondent Court of Appeals (as in fact is was not even considered by the Court of
Appeals in the appealed decision). Before this Court, respondent Ortigas chose to maintain its silence
in raising the defense of res judicata and did so only after an adverse decision was rendered.
Furthermore, it was not even raised in its motion for reconsideration but only in its memorandum
submitted after the hearing on said motion. Such being the case, I do not think this Court is at liberty
to cull evidence not borne by the records and in the process go beyond what appears in the
pleadings.

It is my considered opinion that the defense of res judicata must be seasonably pleaded in order to
be valid, (Fernandez v. de Castro, 48 Phil 123 [1925]; see also Del Val v. Del Val, 29 Phil 534
[1915]) and if not set up as a defense or ground of objection seasonably, the doctrine of res judicata
is deemed waived (Alvarez v. Court of Appeals, 158 SCRA 401 [1988]; Vergara v. Rugue, 78 SCRA
312 [1977]; Phil. Coal Miners Assn. v. Cebu Portland Cement, 10 SCRA 784 [1964]). Where res
judicata was raised as a defense only in the motion for reconsideration, the same was deemed
waived (Pulido v. Pablo, 117 SCRA 16 [1982]). Here respondent raised the defense of res judicata
only in its memorandum submitted after filing its motion for reconsideration of the decision dated
August 28, 1991, which motion, as stated earlier, did not even contain any reference to the cases
now belatedly set up as a defense by respondent in its memorandum in support of its motion for
reconsideration. Respondent’s invocation of res judicata having been made too late in the day, the
same must be considered as having been waived (Sec. 8, Rule 15 and Sec. 5, Rule 16). chanrobles virtual lawlibrary

In any event, a perusal of the cases belatedly relied upon by respondent as defense (res judicata)
would readily disclose that OCT 351, the alleged origin of TCT Nos. 77652 and 77653, was not the
subject matter of said cases much less passed upon in the disposition of said cases. The issue of the
553

applicability of OCT 351 to the case at bar is even more compounded by the fact that TCT Nos.
776752 and 77653 do not, on their faces, reflect that their origin is OCT 351 as claimed
by Respondent. On the contrary, said TCTs trace their origin to OCT Nos. 19, 334, 336 and 337 and
hence, not to OCT 351. Otherwise stated, Ortigas, evidence (TCTs 77652 and 77653) do not support
its contention that the said TCTs were derivatives of OCT 351.

The majority opines, however, that this Court has already given its imprimatur to the claim of Ortigas
that the identity of the disputed parcel of land has already been decided as far back in 1906 in the
case of Cia. Agricola de Ultramar v. Domingo (6 Phil. 246) and later in Ortigas v. Ruiz (148 SCRA 326
[1987]). Examining said cases, I see no clear and definite technical description of the contested land.

Ortigas v. Ruiz (supra) involves a parcel of land covered by TCT No. 227758 with an area of 162
hectares located in Pasig, Rizal. There is no identity of subject matter between Ortigas v. Ruiz and
the instant case. They refer to different parcels of land covered by different transfer certificates of
tittle. On the other hand, the 1906 case of Ultramar v. Domingo (supra) involves a parcel of land
known as "Hacienda de Mandaluyon" without any specification as to its location, area and
boundaries. Hence, it cannot be said that the parcel of land applied for in this case is identical with
the lots covered by Ortigas, title. As stated in the decision sought to be reconsidered, Decree 1425
(alleged by Ortigas to embrace the lots covered by its TCT Nos. 77652 and 77653), covers a 17-
hectare lot located at Sta. Ana, Manila, while the lot applied for is alienable and disposable as
certified by the Bureau of Lands and by the Bureau of Forestry and has an area of 156 hectares
located in Quezon City four (4) kilometers away from Sta. Ana, Manila.

Respondent next argues that the Court of Appeals committed no error in admitting as evidence OCT
351 on the ground that Sec. 47 of Act 496 itself declares it to be admissible in all courts. Said Section
provides:jgc:chanrobles.com.ph

"Sec. 47. The original certificate in the registration book, any copy thereof duly certified under the
signature of the clerk, or of the register of deeds of the province or the city where the land is situated
and the seal of the court, and also the owner’s duplicate certificate shall be received as evidence in
all courts of the Philippine Islands and shall be conclusive as to all matters contained therein except
so far as otherwise provided in this Act." (Emphasis supplied)

Following the line of respondent’s argument, OCT 351 should not have been admitted and/or
considered as proof that TCT Nos. 77652 and 77653 were derived from it (OCT 351). This is because
the said TCTs themselves show that they were derived not from OCT 351 but from other OCTs stated
above. To admit OCT 351 as the supposed origin of TCT Nos. 77652 and 77653 at this stage of the
proceeding would in effect be disregarding the official entries made therein which indicate that said
TCTs were derivatives of OCT Nos. 19, 334, 336 & 337. These entries are conclusive, so the law says.
Consequently, Ortigas, contention that TCT Nos. 77652 and 77653 are derivatives of OCT 351 has no
leg to stand on.

The procedure adopted by the respondent Court of Appeals in arriving at its conclusion that TCT Nos.
77652 and 77653 were derived from OCT 351 contrary to what is stated in the faces of said TCTs,
finds no support in law as it amounted to a correction and/or alteration of the TCTs in violation of the
existing applicable law. Under the Sec. 112 of Act 496 (now Sec. 108 of PD 1529), no certificate of
title may be amended or altered except by order of the proper regional trial court. The petition for
the purpose must be filed before the regional trial court, sitting as a land registration court, and
entitled in the original case in which the decree of registration was entered. Certainly, the Court of
Appeals, in a certiorari and injunction proceeding, cannot arrogate unto itself that power lodged
exlusively with the land registration court without running afoul with the said provision of law. chanrobles virtual lawlibrary

Unfortunately, this Court sustained the findings of respondent court. Thus giving judicial assent to
the illegal assumption of jurisdiction by the respondent Court of Appeals in the amendment or
alteration of TCTs contrary to the procedure which the law has explicitly provided. In effect, and by
virtue of this Court’s Resolution, we assumed the functions of a trial court and a land registration
court at the same time. This, I believe, should not be done.

Ortigas also questioned the ruling of this Court which considers the plan submitted as well as the
testimony of its surveyor as secondary evidence to prove the contents of Decree 1425. However,
what was submitted by Ortigas as the survey plan of the land and attached to its memorandum as an
annex is actually a location map prepared by its own surveyor in 1972 or 67 years after its alleged
registration and not the blueprint copy of the original survey plan, showing the sketch and the
technical description of the lot applied for approval by the Director of Lands. Hence, a secondary
evidence or doubtful competency.
554

Ortigas further assails the ruling of this Court to the effect that the issue of whether the land applied
is a registered land as contended by it or a public land as certified by the Bureau of Lands and the
Bureau of Forestry calls for a full-blown trial before the court a quo.

The issue in this case is whether the 156-hectare parcel of land applied for, located at Ugong Norte,
Quezon City, is covered by Ortigas TCT Nos. 77652 and 77653, or is alienable and disposable land as
contended by petitioner and certified by the Bureau of Lands and the Bureau of Forestry. These are
questions of facts and questions of facts are beyond the province of this Court (PLDT v. National
Telecommunications Commission, 190 SCRA 717 [1990]).

As stated earlier, the correction of the entries in the transfer certificates of title should be effected
before the Regional Trial Court sitting as a land registration court which has original jurisdiction over
the same pursuant to Sec. 112 of Act 496 (now Sec. 108, PD 1529). For as long as these entries
appear in the transfer certificates of title, they are binding and conclusive upon the court (Sec. 47,
Act. 496). Otherwise stated, these entries, until ascertained to be erroneous in an appropriate
proceeding before the land registration court, are binding and conclusive in all courts including the
respondent Court of Appeals and this Court. Inasmuch as Ortigas insists that the subject parcel of
land is covered by OCT 351 under Decree 1425, while its own Transfer Certificate of Title Nos. 77652
and 77653 state that they are derivatives of OCT Nos. 19, 334, 336 and 337, it follows that Transfer
Certificates of Title Nos. 77652 and 77653 do not embrace the subject parcel of land, not being
derivatives of OCT 351. The entries in the TCTs of Ortigas cannot be dismissed as mere errors since
the said entries are conclusive. Hence, the necessity of remanding the case to the court a quo for
resolution of the factual issues in the exercise of its original jurisdiction. Neither this Court not the
respondent Court of Appeals can initially make the correction, if there be any.

But what is more disturbing is the fact that the ponencia based its decision on evidenciary facts not
borne out by the records. The ponencia made a number of references to the records had in the Court
of Appeals which, unfortunately, does not appear on the records presented before this Court of
resolution. This, I believe, amounted to over-extending the concept of judicial notice. I submit that it
is not the duty of this Court to supply what the party litigants have failed to present. Otherwise, this
Court might as a well sit as trier of facts.

In view of the foregoing considerations, I vote to DENY the motion for reconsideration. cralawnad

Endnotes:

[G.R. No. 80505 :  December 4, 1990.]

192 SCRA 28
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.  MARIO TANDOY y LIM, Defendant-
Appellant.
 
DECISION
 
CRUZ, J.:
 
The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987, convicting Mario
Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the Dangerous Drugs Act
of 1972, is before us on appeal.
The information against the accused-appellant read as follows:
That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused without being authorized by law,
did then and there willfully, unlawfully and feloniously sell eight (8) pieces of dried marijuana flowering
tops, two (2) pieces of dried marijuana flowering tops and crushed dried marijuana flowering tops, which
are prohibited drug, for and in consideration of P20.00.
Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J. Guerrero
rendered a decision the dispositive portion of which declared:
WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of violation of
Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life imprisonment and
to pay a fine of P20,000.00 and cost.
: nad
555

The marijuana confiscated in this case is declared confiscated and forfeited and ordered turned
over to the Dangerous Drugs Board for proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of errors in this appeal:
1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged
despite lack of evidence to prove that he sold marijuana to the poseur-buyer.
2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which is merely
a xerox copy of the P10.00 bill allegedly used as buy-bust money.
The evidence of the prosecution may be summarized as follows:
On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de
la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines,
Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay
Singkamas, Makati.
The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone
near the store waiting for any pusher to approach. The other members of the team strategically positioned
themselves. Soon, three men approached Singayan. One of them was the accused-appellant, who said
without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made then and
there — two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-
Narcotics Unit).
The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the
accused-appellant and took from him the marked money, as well as eight more rolls/foils of marijuana
and crushed leaves. : nad

The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police Station, for
investigation by Detective Marvin Pajilan. The accused-appellant chose to remain silent after having been
informed of his constitutional rights.
These events were narrated under oath by De la Cruz, Singayan and Pajilan.  1 Microscopic, chemical and
chromotographic examination was performed on the confiscated marijuana by Raquel P. Angeles, forensic
chemist of the National Bureau of Investigation, who later testified that the findings were positive. The
marijuana was offered as an exhibit.  2
As might be expected, the accused-appellant had a different story. His testimony was that from 1:30 to
4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons along Solchuaga St.
when somebody suddenly said that policemen were making arrests. The players grabbed the bet money
and scampered. However, he and a certain Danny (another "cara y cruz" player) were caught and taken to
the Narcotics Command headquarters in Makati. There they were mauled and warned that if they did not
point to their fellow pushers, they would rot in jail. The accused-appellant denied he had sold marijuana to
Singayan and insisted the bills taken from him were the bet money he had grabbed at the "cara y cruz"
game.  3
The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen to their
respective testimonies, gave more credence to the statements of the arresting officers. Applying the
presumption that they had performed their duties in a regular manner, it rejected Tandoy's
uncorroborated allegation that he had been manhandled and framed. Tandoy had not submitted sufficient
evidence of his charges, let alone his admission that he had no quarrel with the peace officers whom he
had met only on the day of his arrest.
In People v. Patog,  4 this Court held:
When there is no evidence and nothing to indicate the principal witness for the prosecution was actuated
by improper motives, the presumption is that he was not so actuated and his testimony is entitled to full
faith and credit.
Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger until the
seller is certain of the identity of the buyer."
The conjecture must be rejected. : nad

In People v. Paco, 5 this Court observed:

Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be
committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the
illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the
presence of other people may not always discourage them from pursuing their illegal trade as these
factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug
pushers caught selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142
SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store
(People vs.  Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22,
1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988).
556

As the Court has also held, "What matters is not an existing familiarity between the buyer and the seller
but their agreement and the acts constituting the sale and delivery of the marijuana leaves."  6
Under the second assigned error, the accused-appellant invokes the best evidence rule and questions the
admission by the trial court of the xerox copy only of the marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted that contention thus:
This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh. E-2-A)
which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy.
Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under
Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence
except in the five (5) instances mentioned therein.:-cralaw

The best evidence rule applies only when the contents of the document are the subject of inquiry. Where
the issue is only as to whether or not such document was actually executed, or exists, or in the
circumstances relevant to or surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.)
Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing
its existence and not its contents, other substitutionary evidence, like a xerox copy thereof, is therefore
admissible without the need of accounting for the original.
Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of
the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of
the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as
an exhibit, the failure to produce the marked money itself would not constitute a fatal omission.
We are convinced from the evidence on record that the prosecution has overcome the constitutional
presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his
guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of drug
addiction upon our people.
WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with costs against
the accused-appellant.: nad

SO ORDERED
557

G.R. No. 126696 January 21, 1999

SECURITY BANK & TRUST COMPANY, petitioner,

vs.
TRIUMPH LUMBER AND CONSTRUCTION CORPORATION, respondent.
558

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court the petitioner asks this Court to reverse
the decision   of 28 December 1995 and the resolution   of 17 September 1996 of the Court of Appeals in CA-G.R.
1 2

CV No, 33513. The former set aside the decision   of 14 November 1990 of the Regional Trial Court (RTC) of Makati
3

in Civil Case No. 16882 and ordered the petitioner to reimburse the private respondent the value of the alleged
forged checks drawn against private respondent's account, plus interest and attorney's fees. The latter denied
petitioner's motion for reconsideration.

Petitioner and private respondent were the defendant and plaintiff respectively, in Civil Case No. 16882.

The factual antecedents of this case were summarized by the trial court in its decision in Civil Case No. 16882; thus:

Based on plaintiffs evidence, it appears that plaintiff is a depositor in good standing of defendant
bank's branch at Sucat, Parañaque, under current checking account no. 210-0053-60. Plaintiff
claims that on March 23 and 24, 1987, three (3) checks all payable to cash and all drawn against
plaintiffs aforementioned current account were presented for encashment at defendant's Sucat
Parañaque branch, to wit: Security Bank check nos. 466779 and 466777, both dated March 23,
1987 in the amount of P150,000.00 and P130,000.00, respectively; and Security Bank Check no.
466780 dated March 24, 1987 in the amount of P20,000.00. (Exhs. A, A-1 to A-3, B, B-1 to B-3, C,
C-1 to C-3) Plaintiff also claims that due to defendant bank's gross negligence and inexcusable
negligence in exercising ordinary diligence in verifying from plaintiff the encashment of plaintiff's
checks whose amount exceed P10,000.00 and in determining the forgery of drawer's signatures, the
aforesaid three (3) checks were encashed by unauthorized persons to the damage and prejudice of
the plaintiff corporation. (Exhs, D, D-l, D-2) Plaintiff then requested the defendant to credit back and
restore to its account the value of the checks which were wrongfully encashed in the amount of
P300,000.00 but despite due demand the defendant failed to pay its liability. (Exhs. F, F-l, F-2)
Finally, plaintiff claims that per findings of the PC Crime Laboratory, the signatures of Co Yok Teng
and Yu Chun Kit, the authorized [signatories] of plaintiff were forged. (Exhs.E, E-1, to E-4, G, G-1,
G-2, H, I, I-1, I-2)

Upon the other hand, the defendant bank claims that on June 19, 1985 the plaintiff corporation
opened savings account no. 3220-0529-79 and current account no. 3210-0053-60 with defendant
bank's branch in Sucat, Parañaque, Metro Manila. In order to make the said current and savings
account operational, the plaintiff herein provided the defendant with the requisite specimen signature
cards which in effect authorized defendant bank to honor withdrawals on the basis of any two of
three signatures affixed thereon, specifically those of Mr. Dee Kong, Mr. Co Yok Teng and Mr. Chun
Yun Kit, the president, treasurer and general manager, respectively, of plaintiff corporation. (Exhs. 3,
4) Subsequently, plaintiff executed an automatic transfer agreement authorizing defendant bank to
transfer cleared funds from plaintiff's savings account to its current account at any time whenever
funds in the current account are insufficient to meet withdrawals therefrom or are below the
stipulated minimum balance. (Exhs. 5, 6, 6-A) Defendant also claims that the savings account pass
book and the check booklets were kept by the plaintiff in its filing cabinet but on March 23, 1987 the
plaintiff herein discovered that the door of his office was forced open including that of the filing
cabinet where the check booklets and other bank documents were being kept by the plaintiff. (pp.
32-33, TSN of August 15, 1988) Defendant further claims that the incident was not reported to the
police authorities by the plaintiff nor was there any advise given to defendant bank and that on the
same day of the discovery by plaintiff of the burglary, said plaintiff nevertheless made three separate
deposits in a total amount of P374,554.10. (Exhs. 1, 1-A, 1-B, 2-A, 2-B) Defendant also claims that
immediately after the said deposit of P374,554.10 has been made by the plaintiff, three checks
namely: check no. 466779 dated March 23, 1987 in the amount of P130,000.00; check no. 466779
dated March 23, 1987 of P150,000.00 and check no. 466780 dated March 24, 1987 in the amount of
P20,000.00 which [were] all payable to cash were successively presented to defendant bank for
encashment which was given due course by the latter after said checks have passed through the
standard bank procedure for verification the check signatures and the regularity of the material
particular of said checks. (pp. 6, 19, 20, 39, TSN of February 1, 1989, p. 21, TSN of August 15,
1988) 4

On the basis of such factual environment, the trial court found no preponderance of evidence to support private
respondent's complaint. The private respondent failed to show that the signatures on the subject checks were
forged. It did not even present in court the originals of the checks. Neither did it bother to explain its failure to do so.
Thus, it could be presumed that the original checks were willfully suppressed and would be adverse to private
respondent's case if produced. Moreover, the signatures on the checks were not compared with the specimen
signatures appearing on the specimen signatures cards provided by the private respondent upon opening its current
account with petitioner. Thus, the opinion of the expert witness is not worthy of credit. Besides, the private
559

respondent failed to present Mr. Co Yok Teng, one of the signatories of the checks in question, to deny the
genuineness of the signatures.

The trial court was convinced that the petitioner bank had exercised due care and diligence in determining the
authenticity of the checks in question before they were encashed. It was rather the private respondent that had been
negligent in the care and custody of the corporate checks. After the incident in question occurred, the private
respondent should have reported the matter to the police authorities or to the bank in order that the latter could
"undertake stringent measure to counteract any attempt to forge the corporate checks." But private respondent did
not. Hence, private respondent should be the one to bear the loss.

In view of such findings, the trial court is missed the complaint for lack of merit.

On appeal, the Court of Appeals reversed the decision of the trial court and ordered the petitioner to reimburse the
private respondent the sum of P300,000, plus interest at the rate of 21/2 % per month from 24 March 1987 until full
payment thereof, as well as attorney's fees equivalent to 25% of the principal obligation.

The Court of appeals held that it was not necessary for the private respondent to prove that the signatures on the
three checks in question were forged of the following admissions set forth in petitioner's answer:

14. Plaintiff was guilty of negligence substantially contributing to the unauthorized signatures or for
forgery of the signatures on the checks mentioned in the complaint.

x x x           x x x          x x x

15. The alleged forged signatures on the checks were sufficiently adroit as to escape detection even
under the officer's scrutiny.

x x x           x x x          x x x

20.3 Anna P. Naval and Roberto N. Gabutao verbally admitted that the checks were forged.

x x x           x x x          x x x

21. Anna Naval and Roberto Gabutao are now facing charges for estafa thru Falsification of
Commercial Documents under Criminal Case No. 30004 pending with the Regional Trial Court,
National Capital Judicial Region, sitting at Makati, Metro Manila.

According to the Court of Appeals, the expert witness, contrary to the trial court's finding, was able to examine the
signatures on the original checks and compared them with the standard signatures of the signatories. The
photographic enlargements of the questioned checks, which she identified in court, were in fact taken from the
original checks. With the bank's admission in its answer, as well as the unrebutted testimony of the expert witness
and of Chun Yun Kit, there could be no doubt that the signatures on the questioned checks were forged.

The Court of Appeals likewise held that the petitioner must be the one to bear the consequences of its failure to
detect the fogery. Besides, petitioner was "less than prudent" in the treatment of private respondent's account. It did
not observe its arrangement with the private respondent that it would inform the latter whenever a check of more
than P10,000 would be presented for encashment. Neither did it ask the payee to present an identification card or to
bring someone who could attest to identity of the payee.

After its motion for reconsideration was denied   by the Court of Appeals, petitioner filed this petition contending that
5

the Court of Appeals erred in holding that

. . . THE SIGNATURES ON THE CHECKS IN QUESTION WERE FORGED.

II

. . . WHETHER THE SIGNATURES WERE FORGED IS NO LONGER AN ISSUE IN THE CASE

CONSIDERING THE AFFIRMATIVE DEFENSES SET FORT IN PETITIONER'S ANSWER.

III

. . . THE PETITIONER ITSELF WAS NEGLIGENT AND THAT RESPONDENT EXERCISED DUE
CARE IN THE CUSTODY OF ITS CHECKS AND OTHER RELATED DOCUMENTS.
560

IV

. . . RESPONDENT IS ENTITLED TO REIMBURSEMENT OF P300,000.00 PLUS INTEREST

THEREOF AS WELL AS ATTORNEY'S FEES.

In the first assigned error, the petitioner alleges that the best evidence of the forgery were the original checks
bearing the alleged forged signatures of private respondent's officers. In spite of the timely objection made by the
petitioner, the private respondent introduced in evidence mere photocopies of the questioned checks. The failure to
produce the originals of the checks was a fatal omission inasmuch as there would be no evidentiary basis for the
court to declare that the instruments were forgeries. Likewise such failure amounted to a willful suppression of
evidence, which created a presumption that its production would be unfavorable to respondent's case.  It could also
6

be presumed that "the checks in question [were] genuine checks regularly issued by the respondent in the course of
its business, bearing the genuine signatures of the officers whom it authorized to sign in its behalf." Also, an
unfavorable inference could be drawn from the unexplained failure of private respondent to call as its witness Mr. Co
Yok Teng, whose signature was among those allegedly forged.

Petitioner further contends that the opinion of private respondent's expert witness, Crispina V. Tabo, Senior
Document Examiner of the PC Crime Laboratory, has no weight and deserves no consideration. Tabo did not use
as basis of her analytical study the standard signatures of Chun Yun Kit and Co Yok Teng on the specimen
signature cards provided by the private respondent upon opening Current Account No. 3210-0523-60 with the
petitioner. It was to be against these standard signatures appearing on the specimen cards that petitioner was to
honor checks drawn against private respondent's account. What Tabo utilized for comparisons were signatures that
were not even authenticated by Chun Yun Kit and Co Yok Teng. Neither was it proved that the supposed standard
signatures had been written "closely proximate" to the date of the questioned checks. Moreover, the "requested
signatures" on the long bond paper written post litem motam could not be accepted as standards of comparison
"because of the ease with which they [could] be disguised to intentionally differentiate them from those being
challenged." 8

As to the second assigned error, petitioner maintains that its Answer contained a specific denial of private
respondent's allegation of forgery. It could set in its answer affirmative and negative defenses alternatively even if
they were inconsistent with each other. 9

With respect to its third assigned error, petitioner asserts that it exercised due care and diligence in the payment of
private respondent's checks by first verifying in accordance with standard bank practices and procedures the
genuineness of the signatures and endorsements. Upon the other hand, the private respondent, in the management
of its business affairs, fell short of the diligence and the ordinary prudence required under the circumstances. It
should have advised petitioner of the alleged burglary that petitioner could have applied stricter rules in the
processing of checks drawn against private respondent's account, but it did not bother to do so. Neither did it
reconcile its account balances with the petitioner in order to forestall the happening of the forgery.

In the last assigned error, the petitioner alleges that in view of the reasons it stated in the first and third assigned
errors the petitioner cannot be obliged to pay the amount of P300,000 plus interest. On the contrary, petitioner is
entitled to an award of attorney's fees because private respondent's complaint was "insincere, baseless, and
intended to harass, annoy and defame [it]." 10

Upon the other hand, the respondent claims that petitioner should have filed "a petition for review by certiorari and
not merely a petition for review." The determination of negligence by the Court of Appeals is a question of fact that
cannot be disturbed on appeal. Even assuming that the instant case is an exeption to the rule limiting the appellate
jurisdiction of the Supreme Court to reviewing errors of law nonetheless, the issue of forgery was adequately proved
by preponderance of evidence.

This appeal is meritorious.

Well settled is the rule that in the exercise of our power of review the findings of facts of the Court of Appeals are
conclusive and binding on this Court. However, there are recognized exceptions, among which is when the factual
findings of the trial court and the appellate court are conflicting.  The disagreement between the trial court and the
11

Court of Appeals in the factual conclusion, especially with regard to the alleged forgery of the signatures on the
questioned checks and the negligence of the parties, has constrained us to examine the evidence submitted by the
parties.

On the issue of forgery, we are unable to agree with the finding of the Court of Appeals that the petitioner admitted
in its Answer  to the complaint the forgery of the signatures. Far from admitting the forgery, petitioner categorically
12

denied that the signatures on the questioned checks were forgeries. However, by way of an alternative affirmative
defense, petitioner contended that it had exercised reasonable degree of diligence in detecting whether there was
forgery Even assuming that the signatures on the checks were forged, still petitioner could not be held liable for the
value of the checks because all the checks were complete and regular on their face. The alleged forged signatures
were "sufficiently adroit as to escape detection even under the officer's scrutiny."
561

The Court of Appeals also erred in holding that forgery was duly established. First, Section 3, Rule 130 of the Rules
of Court was not complied with by private respondent. The Section explicitly provides that when the subject of
inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. This is
what is known as the "best evidence" rule. The exceptions are as follows:

1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror;

2. When the original is in the custody or under the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable notice;

3. When the original consists of numerous accounts or other documents which cannot be examined
in court without great loss of time, and the fact sought to be established from them is only the
general result of the whole; and

4. When the original is a public record in the custody of a public officer or is recorded in a public
office.

In this case, the originals of the alleged forged check has to be produced since it was shown that any of these
exceptions was present. What the private respondent offered were mere photocopies of the checks in question
marked as Exhibits "A," "B," and "C,"  It never explained the reason why it could not produce the originals of the
13

checks. Its expert witness Crispina Tabo admitted though that the original checks were taken back by the
investigating policeman, Glen Ticson; thus:

ATTY. NARAG:

Q Do you have a copy, Madam Witness of the checks which were submitted to you
under question?

A It was only a xerox copy, because the original was withdrawn by the investigating
policeman, which is in (sic) the name of Glenn Ticzon, sir.

Q Do you want to impress the court that the originals of these checks were submitted
to you?

A Yes, sir.

Q Do you have a copy of the originals of the checks under (sic) standards?

A Xerox copies only, because it was also withdrawn by the investigating policeman,
who is Mr. Glenn Ticzon.  14

Yet, the said policeman was not presented to produce the original checks.

It is true that the photocopies of the questioned checks were all identified by private respondent's witness Yu Chun
Kit during his direct testimony   without objection on the part of petitioner's counsel. The latter even cross-examined
15

Yu Chun Kit,   and, at the formal offer of said exhibits, he objected to their admission solely on the grounds that they
16

were "irrelevant, immaterial and self-serving."   The photocopies of the checks may therefore be admitted for failure
17

of petitioner to tender an appropriate objection   to their admission. Nevertheless, their probative value is nil. 
18 19

Then, too, .the proper procedure in the investigation of a disputed handwriting was not observed. The initial step in
such investigation is the introduction of the genuine handwriting of the party sought to be charged with the disputed
writing, which is to serve as a standard of comparison.   The standard or the exemplar must therefore be proved to
20

be genuine.   For the purpose of proving the genuineness of a handwriting Section 22, Rule 132 of the Rules of
21

Court provides:

Sec. 22. How the genuineness of handwriting is proved. — The handwriting of a person may be
proved by any witness who believes it to be the handwriting of such person because he has seen
the person write, or has seen writing purporting to be his upon which the witness has acted or been
charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting
the handwriting may also be given by a comparison, made by the witness or the court, with writings
admitted or treated as genuine by the party against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge.

In BA Finance v. Court of Appeals,  we had the occasion to rule that the genuineness of a standard writing may be
22

established by any of the following: (1) by the admission of the person sought to be charged with the disputed
562

writing made at or for the purposes of the trial, or by his testimony; (2) by witnesses who saw the standards written
or to whom or in whose hearing the person sought to be charged acknowledged the writing thereof; (3) by evidence
showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been
adopted and acted upon by him in his business transactions or other concerns.

We find in the records only photocopies, not the originals, of the "long bond papers" containing the alleged
specimen signatures.   Nobody was presented to prove that the specimen signatures were in fact signatures affixed
23

by Yu Chun Kit and Co Yok Teng. Although the former took the witness stand, he was never called to identify or
authenticate his signatures on the said photocopy. Clearly then, Section 22 of Rule 132 of the Rules of Court and
the guidelines set forth in BA Finance v. Court of Appeals   were not complied with.
24

Moreover, the so-called specimen signatures on the bond paper were not directly turned over to Tabo by those who
purportedly wrote them. They, together with the questioned checks, were first submitted to the Administration
Branch of the PC Crime Laboratory, then endorsed to the Questioned Document Branch. The chief of the latter
branch thereafter referred them to Tabo. Tabo never saw the parties write the specimen signatures. She just
presumed the specimen signatures to be genuine signatures of the parties concerned. These facts were disclosed
by Tabo during her cross-examination; thus:

Q These question [sic] signatures and the specimen or signatures or standard were
just given to you by the police of Parañaque?

A It was submitted to the Administrative Branch and the Administrative Branch
endorsed that to the Question the Document Branch and the Chief of the Document
Branch assigned that case to me, sir That is why I received it and examined it.

COURT:

Q How do you know that, that is the genuine signatures?

A'ITY. REVILLA

Yes, how do you know that, that is the genuine signatures when you were not able to
see him personally write his signature?

A Because I examined the genuine signatures of Co Yok Teng which was submitted
to the office by the investigator and it said to be genuine, and I compared the
signature whether genuine or not. And upon comparing, all the specimen signatures
were written by one, and also comparing all the question [sic] signatures, this one
(pointing to the chart) are written by one so, they were written, the question [sic] and
specimen were written by two different persons.

Q You did not ask the person to personally give his signature in order that there will
be basis of comparison between standard signature and the question [sic] signature?

A Your Honor, if the specimen signature is not sufficient enough to arrive at a

conclusion, we will tell the investigator to let the person involved to come to our office
to write and sign his signature, if it is not sufficient to arrive at a conclusion we let him
sign.

Q So, you do not normally demand his income tax for example, the residence
certificate or other documents which contained this undisputed signature?

A. We did not ask anymore additional specimen because the submitted document is
sufficient enough to arrive at the conclusion.

ATTY. REVILLA:

Q So, you just relied on what were given to you by the investigator as they informed
you that these were genuine and standard signature?

A Yes, sir.

Q And who was that person who gave you this document?

A It was the Administrative Branch who [sic] endorsed this document to the
Documentation Branch. I do not know the person who brought that.
563

Q You do not know the person who brought this document to the Administrative
branch?

A Yes, sir I do not know.

Q When you started making comparison and analysis of` this question [sic]
signatures and standard signatures, you did not anymore require the person, Mr. CO
Yok Teng to appear personally to you?

A I did not, sir. 

25

ATIY. REVILLA

Q Mrs. Tabo, like the question [sic] signature of Mr. Co Yok Teng, you also did not
personally see or observe how Mr. Co Yok Teng write this standard signature?

A. Yes, sir

Q And this [sic] standard signatures were just submitted to you?

A Yes, it was submitted to the office, sir.

Q And when you made the examination and analysis of these documents the
standard and the question [sic] signature you did not require any other signature
from these two personalities except those which were delivered to you?

A. Yes, sir.

COURT

Q When this standard signature were submitted to you, you were just told that this is
the genuine signature of the person involved, you were just told?

A Yes, your Honor. As stated in the request it is the genuine signature.

Q So that was your basis in claiming that this is the genuine signature of the persons
involved?

A I examined first the specimen, all the specimen whether it was written by....

Q What are those specimen submitted to you.

A The same checks, your Honor, and the written standard.

Q Did you confront Co Yok Teng?

ATTY. REVILLA

A She said no, your Honor.

COURT

Q Did you confront Yu Chun Kit whether those were actually his genuine signature?

A No, your Honor.

Q So you just relied on the claim of the person who submitted to you that these are
the genuine signatures?

A Yes, your Honor.

Q And on the basis that you compare the characteristic handwriting between the
alleged genuine and question [sic] signature?

A Yes, your Honor.   (Underscoring ours for emphasis).

26
564

Our review of the testimony of private respondent's expert witness, Crispina V. Tabo, fails to convince us that she
was a credible document examiner, despite petitioner's admission that she was. She was candid enough to admit to
the court that although she had testified more or less three hundred times as an expert, her findings were sustained
by the courts in more or less ten cases only. Thus:

Court:

Q How many times have you testified in Court?

A More or less three hundred (300) times, your Honor.

Q How many were sustained by the Court?

A More or less ten (10), sir.

Q Out of 300?

A. Yes, your Honor.  27

Besides, under the circumstances obtaining in this case, Tabo could by no yardstick be considered to have
adequate knowledge of the genuine signatures of the parties whose signatures on the questioned checks
were claimed to be forged. That knowledge could be obtained either by (a) seeing the person write some
other documents or signatures (ex visu scriptionis); (b) seeing documents otherwise known to him to have
been written by the person in question (ex scriptis olim visis); or (c) examining, in or out of court, for the
express purpose of obtaining such knowledge, the documents said to have been written by the person in
question (ex comparatione scriptorum).   Tabo could not be a witness under the first and the second. She
28

tried to be under the third. But under the third, it is essential that (a) certain specimens of handwriting were
seen and considered by her and (b) they were genuinely written by the person in
question.   Now, as stated above, Tabo had no adequate basis for concluding that the alleged specimen
29

signatures in the long bond paper were indeed the signatures of the parties whose signatures in the checks
were claimed to have been forged. Moreover, we do not think that the alleged specimens before her were
sufficient in number. 
30

Given the fact that Mrs. Tabo's testimony cannot inspire a conclusion that she was an expert, it was error to rely on
her representation. It is settled that the relative weight of the opinions of experts by and large depends on the value
of assistance and guidance they furnish the court in the determination of the issue involved. 31

On the issue of negligence, the Court of Appeals held:

[T]here is overwhelming evidence to show that appellee (petitioner herein) was less than prudent in
the treatment of appellant's (private respondents') account. According to Chun Yun Kit, they had an
agreement with Appellee's Assistant branch manager, Felicidad, Dimaano, that appellant should be
informed whenever a check for than P10,000.00 is presented for encashment. Dimaano did not
controvert Chun Kit's testimony on this point. Such an arrangement was not observed by appellee
with respect to the payment of the checks in question.(Emphasis supplied).

We do not agree. During the hearing on 1 February 1989, Felicidad Dimaano denied having such agreement with
the private respondent. Rather, the agreement was that "all encashments over the counter of P10,000.00 and above
should be accompanied by one of the signatories" of private respondent. But this agreement was made only on 31
March 1987, or a few days after the encashment of the checks in question, 32

At any rate, since the questioned checks, which were payable to "cash," appeared regular on their face and the
bank found nothing unusual in the transaction, as the respondent usually issued checks in big amounts  made33

payable to cash or to a particular person or to a company,  the petitioner cannot be faulted in paying the value of the
34

disputed checks.

Contrary to the finding of the Court of Appeals, the private respondent is the one which stands to be blamed for its
predicament. Chun Yun Kit testified that in the morning of 23 March 1987, he and some employees found the doors
of their office and the filing cabinets containing the company's check booklet to have been forcibly opened. They
also found the documents in disarray. Under these circumstances, a prudent and reasonable man would simply
have to go over the check booklet to find out whether a check was missing. But, apparently, private respondent's
officers and employees did not bother to do so. If they did examine the booklet they could have readily discovered
whether a check was taken. The following testimony of Chun Yun Kit is apropos:

Q You said also during the last hearing that on the morning of March 23, 1987 you
found out in the morning that the doors of the office were forced opened?
565

A Yes, sir.

Q And you also testified during the last hearing that the locked [sic] of the filing
cabinet were also forced opened?

A Yes, sir.

Q And you found out on that same time and date on March 23, 1987 that the
documents in the filing cabinet were not in their proper position ?

A Yes, sir.

Q What did you do when you found out this [sic] circumstances on March 23, 1987?

A We did not do anything because nothing was lost.

Q Did it not occur to you Mr. witness, that considering that burglary was committed in
your office, the doors of your office were forced opened, the locks of the filing cabinet
were forced opened, the documents placed in the filing cabinet were not in their
proper position, it did not occur to you to check the checks of the company as being
placed in the filing cabinet?

A When we examined the check booklet, we did not discover anything lost.

Q You did not at all bother Mr. witness or your treasurer to check something might
have lost in the check [sic], considering that the burglery [sic] and the filing cabinet
were forced opened?

A No, sir.

Q Did you notice anything lost?

A No, Sir.  35

Neither did any of private respondents officers or employees report the incident to the police authorities,   nor did
36

anyone advise the petitioner of such incident so that the latter could adopt necessary measures to prevent
unauthorized encashments of private respondent's checks. Hence, as correctly held by the trial court, it is the
private respondent, not the petitioner, which must bear the loss.

WHEREFORE, the instant petition is GRANTED the challenged decision of the Court of Appeals in CA-G.R. CV No.
33513 is hereby REVERSED, and the decision of the Regional Trial Court of Makati in Civil Case No. 6882 is
hereby REINSTATED. 1âwphi1.nêt

SO ORDERED.
566

1. Rule 130 Section 5 – Secondary Evidence

B est Evidence Rule BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE
VERAPAPA represented by GLICERIA PAPA-FRANCISCO, et al., petitioners, vs. SPOUSES MARIANO
AGUILAR and LEONA V. AGUILAR, respondents. G.R. No. 83377 February 9, 1993

FACTS: Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona,
married to respondent Mariano Aguilar, are the children and heirs of the late MarcosaBernabe who died on
May 10, 1960. In her lifetime, MarcosaBernabe owned the disputed parcel of land situated in Camalig,
Meycauayan, Bulacan, with an area of 4,195 square meters, designated as Cadastral Lot No. 3621, Cad. 337,
Case No. 4, MeycauayanCadastre. The disputed property was mortgaged by petitioners Basilio and Felipe de
Vera to a certain Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the
property from Atty. Leonardo Bordador and in turn MarcosaBernabe sold the same to them as evidenced by a
deed of absolute sale dated February 11, 1956. On February 13, 1956, the respondents registered the deed
with the Registry of Deeds of Bulacan resulting in the cancellation of the tax declaration in the name of
MarcosaBernabe and the issuance of another in the name of the Aguilars. Since then and up to the present,
the Aguilars have been paying taxes on the land. Respondent Mariano Aguilar was then issued a free patent to
the land on the basis of which Original Certificate of Title No. P-1356(M) was issued in his name. On
September 1, 1980, the petitioners wrote to the respondents claiming that as children of MarcosaBernabe, they
were co-owners of the property and demanded partition thereof on threats that the respondents would be
charged with perjury and/or falsification. The petitioners also claimed that the respondents had resold the
property to MarcosaBernabe on April 28, 1959. The respondents wrote in reply to the petitioners that they were
the sole owners of the disputed parcel of land and denied that the land was resold to MarcosaBernabe. True to
petitioners' threat, they filed a falsification case against the respondents. However, on March 31, 1981,
Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of
falsification of public document against the respondents for lack of a prima facie case. On March 26, 1981,
petitioners filed a suit for reconveyance of the lot covered by Original Certificate of Title No. P-1356(M). Trial
Court rendered decision in favor with the petitioners. Not contented with the decision, respondents contended
that since the petitioners have failed to produce the original of the alleged deed of sale dated April 28, 1959,
the same was not the best evidence of the alleged sale hence it should have been excluded and should not
have been accorded any evidentiary value. On the other hand, the petitioners claimed that the existence of the
document of sale dated April 28, 1959 had been duly established by the testimony of the notary public before
whom it was acknowledged and by Luis de Vera who was present during its execution and that the loss of the
original document had been proven by the testimony of the representatives of the offices of the National
Archives and the Provincial Assessor of Bulacan. On November 29, 1987, the Court of Appeals rendered its
decision reversing the trial court's decision. It found that the loss or destruction of the original deed of sale has
not been duly proven by the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of
the alleged deed of sale is inadmissible. ISSUE: Whether or not the petitioners have satisfactorily proven the
loss of the original deed of sale so as to allow the presentation of the xeroxed copy of the same. RULING: No.
The petitioners didn’t sufficiently satisfy the court that the original deed of sale was lost. In accordance with the
Rules of Court, secondary evidence is admissible when the original documents were actually lost or destroyed.
But prior to the introduction of such secondary evidence, the proponent must establish the former existence of
the instrument which the petitioners failed to do. Also, all duplicates or counterparts must be accounted for
before using photocopies. For, since all the duplicates

or multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can
be regarded as established until it appears that all of its parts are unavailable. In the case at bar, Atty. Emiliano
Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or
five original copies. Hence, all originals must be accounted for before secondary evidence can be given of any
one.

G.R. No. 117384 October 21, 1998

HEIRS OF TEODORO DELA CRUZ represented by EDRONEL DELA CRUZ, Petitioners, vs. COURT OF APPEALS, PACIFICO
MARQUEZ, FILOMENO and GREGORIO, both surnamed MADRID, Respondents.

ROMERO, J.:
567

Petitioners seek the reversal of the decision of the Court of Appeals, 1 in CA G.R. No. 25339 dated September 27, 1994
affirming the decision of the Regional Trial Court of Isabela in Civil Case No. 19-219 dated October 9, 1989 which
adjudicated lot Nos. 7036-A-10-A, 7036-A-10-B and 7036-A-10-C to herein private respondents. 2

The following facts, concisely related in the petition, 3 are not in dispute.

On November 20, 1986, petitioners filed an action for reconveyance with damages 4 against private respondents
involving a parcel of land situated in Poblacion, San Mateo, Isabela with a total area of 3,277 square meters. In their
complaint, petitioners assert that the subject land was bought by their predecessor-in-interest from the private
respondents, Madrid brothers, for P4,000.00 in a deed of sale executed on May 18, 1959, and since then they have been
in actual, physical, continuous and open possession of the property. However, sometime in October 1986, much to their
dismay and surprise, private respondents managed to obtain a Torrens Title over the said land.

On the other hand, the Madrids denied having executed the said deed of sale and assuming that said document exists,
the same is fictitious and falsified. Moreover, while they admit petitioners' possession of the land, they assert that this
possession is in defiance of their repeated demands that the former relinquish the same. Meanwhile, Pacifico Marquez
contends that he is an innocent purchaser for value of the property having bought the same from the Madrid brothers in
1976. 5

During the trial, petitioners were unable to present the original deed of sale since it was lost. Consequently, they were
constrained to offer, as Exhibit "A," a photo copy of the purported original carbon copy of the deed of sale in an effort to
prove the transaction.

However, in disposing of the case, the trial court ruled that Exhibit "A" was inadmissible in evidence, thus:

Since at the time of the execution of Teodoro dela Cruz' affidavit or on June 14, 1966, a duplicate original carbon copy of
the alleged sale was still in his possession, the plaintiffs must have to account for it. No proof was adduced that this
remaining copy was lost or destroyed. Furthermore, no attempt was done to produce the copies retained by the notary
public although there is a possibility that the same still exist (sic). Neither was there any proof that the copy sent to the
court as required by the notarial law is unavailable. Under these (sic) state of facts, the Court believes that the "xerox
copy of a certified true copy" of the original issued by the notary public cannot be admitted in evidence to prove the
conveyance of the land in question.

Accordingly, the trial court dismissed petitioners' complaint, the dispositive portion of the decision of which reads:

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered:

1. Dismissing the complaint;

2. Declaring the defendants the lawful owners of the land in question insofar as the portion thereof falling or found in
their respective titles are concerned; and

3. Ordering the plaintiffs, their agents, representatives or any person or persons deriving their title, ownership or
possession from the plaintiffs, to vacate the portions of Lots 7036-A-10-A, 70360A-10-B and 7036-A-10-C, occupied by
them and to deliver the possession thereof to the defendants;

No pronouncement as to costs.

SO ORDERED.

Evidently aggrieved by the decision, petitioners appealed to the Court of Appeals contending that the trial court erred in
holding that: (1) Exhibit "A" was inadmissible in evidence to prove the transaction; (2) there was no valid sale of the land
in question; (3) that they (petitioners) are not entitled to the improvements they had introduced in the land.

On September 27, 1994, the Court of Appeals rendered its judgment which ruled that Exhibit "A" was admissible in
evidence for failure of the private respondents to object when it was offered during the trial, thus:

It is therefore evident that defendants-appellees never put in issue the inadmissible nature of Exh. "A" as a mere
secondary evidence and that the trial judge did not exclude the same when it was formally offered, only to ultimately
exclude it in its decision. It is true that the originals of Exh. "A" were never produced or accounted for by plaintiffs. Yet,
notwithstanding this omission, the defense did not object to its not being the best evidence when it was formally
offered. Had the defendant interposed an objection to Exh. "A" on the ground of its incompetency for not complying
568

with the best evidence rule, it would have been properly excluded by the trial court. Defendants' omission to object on
the proper ground operated as a waiver, as this was a matter resting on their discretion.

Unfortunately, petitioners' victory was shortlived. For the Court of Appeals, while ruling that Exhibit "A" was admissible,
concluded that the sine had no probative value to support the allegation of the petitioners that the disputed land was
sold to them in 1959, viz.:

The lone fact that Atty. Tabangay asserted that he recognized his signature on the copy shown by Teodoro when the loss
of the originals was just made known to him, does not render Exh. "A" trustworthly as to the actual execution of the
alleged deed of sale. Exh. "A" does not even contain a reproduction of the alleged signatures of the Madrid brothers for
comparison purposes. The surviving witness to the alleged execution, Constantino Balmoja was not presented to
corroborate Atty. Tabangay's testimony, hinged as the latter was on secondary evidence.

Hence, the Court of Appeals affirmed the trial court's decision, the dispositive portion of which reads:

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the trial court dated October 9, 1989 is hereby AFFIRMED
with the modification that the case be remanded to the court a quo to conduct the proper proceedings to determine the
value of the useful improvements introduced by appellants for reimbursement by appellees.

SO ORDERED.

Failing in their bid to reconsider the decision, the petitioners have filed the present petition.

Petitioners maintain that even if Exhibit "A" were a mere photo copy of the original carbon copy, they had presented
other substantial evidence during the trial to prove the existence of the sale. 6 First, the testimony of the notary public,
Atty. Tabangay, who acknowledged the due execution of the deed of sale. Second, their long possession of the land in
question, bolstered by the construction of various improvements gives rise to the disputable presumption of ownership.

While we concur with the Court of Appeals' finding that Exhibit "A" does not prove that the sale of the land indeed
occurred, still we are constrained to reverse its decision in view of the circumstances present in this case.

To begin with, Atty. Sevillano Tabangay, the notary public who notarized the deed of sale, testified that the document
has about five (5) copies. 7 Hence, it is imperative that all the originals must be accounted for before secondary evidence
can be presented. 8 These petitioners failed to do. Moreover, records show that none of these five copies was even
presented during the trial. Petitioners' explanation that these copies were lost or could not be found in the National
Archives was not even supported by any certification from the said office.

It is a well-settled principle that before secondary evidence can be presented, all duplicates and/or counterparts must be
accounted for, and no excuse for the non-production of the original document itself can be regarded as established until
all its parts are unavailable. 9

Notwithstanding this procedural lapse, when Exhibit "A" was presented private respondents failed, not only to object,
but even to cross-examine the notary public, Atty. Tabangay, regarding its execution. 10 Forthwith, upon private
respondents' failure to object to Exhibit "A" when it was presented, the same becomes primary evidence. 11 To be sure,
even if Exhibit "A" is admitted in evidence, we agree with the Court of Appeals that its probative value must still meet
the various tests by which its reliability is to be determined. Its tendency to convince and persuade must be considered
for admissibility of evidence should not be confused with its probative value. 12

As earlier stated, Exhibit "A" was merely a photocopy lifted from the carbon copy of the alleged deed of sale. 13 A
cursory glance will immediately reveal that it was unsigned by any of the parties and undated as to when it was
executed. Worse, when Atty. Tabangay typed Exhibit "A," the contents were based on an alleged carbon original which
petitioners' predecessor-in-interest presented to him, without bothering to check his own files to verify the correctness
of the contents of the document he was copying. In other words, Atty. Tabangay's failure to determine the accuracy of
the carbon copy requested by the petitioners' predecessor-in-interest renders Exhibit "A" unreliable.

However, despite our prescinding discussion, all is not lost for the petitioner.
569

The records show that the disputed petitioners since 1959. They have since been introducing several improvements on
the land which certainly could not have escaped the attention of the Madrids. Furthermore, during all this time, the land
was enclosed, thus signifying petitioners' exclusive claim of ownership. The construction of various infrastructure on the
land - rice mill, storage house, garage, pavements and other buildings - was undoubtedly a clear exercise of ownership
which the Madrids could not ignore. Oddly, not one of them protested.

We cannot accept the Madrids' explanation that they did not demand the petitioners to vacate the land due to the
unexplained killings within the area. 14 Not a single shred of evidence was presented to show that these killings were
perpetrated by the petitioners. All told, their remonstration and fears are nothing but pure speculation. To make
matters worse, the record is bereft of any documentary evidence that the Madrids sent a written demand to the
petitioners ordering them to vacate the land. Their failure to raise a restraining arm or a shout of dissent to the
petitioners' possession of the subject land in a span of almost thirty (30) years is simply contrary to their of ownership.

Next, the Madrids argue that neither prescription nor laches can operate against them because their title to the
property is registered under the Torrens system and therefore imprescriptable. 15 The principle raised, while admittedly
correct, are not without exception. The fact that the Madrids were able to secure TCT No. 167250, and Marquez, TCT
Nos. 167220 and 167256, did not operate to vest upon them ownership of the property. The Torrens system does not
create or vest title. It has never been recognized as a mode of acquiring ownership, 16 especially considering the fact
that both the Madrids and Marquezes obtained their respective TCT's only in October 1986, twenty-seven long (27)
years after petitioners first took possession of the land. If the Madrids and Marquezes wished to assert their ownership,
they should have filed a judicial action for recovery of possession and not merely to have the land registered under their
respective names. For as earlier mentioned, Certificates of Title do not establish ownership. 17

Even if we were to rule that the Certificates of Title to the private respondents would ripen into ownership of the land,
and therefore, the defense of prescription would be unavailing, still, the petitioners would have acquired title to it by
virtue of the equitable principle of laches. The Madrids' long inaction or passivity in asserting their rights over disputed
property will preclude them from recovering the same. 18

The above ruling was stressed in the following cases:

Miguel v. Catalino 19 declared:

Notwithstanding the errors aforementioned in the appealed decision, we are of the opinion that the judgment in favor
of defendant-appellee Florencio Catalino must be sustained. For despite the invalidity of his sale to Catalino Agyapao,
father of defendant-appellee, the vendor Bacaquio suffered the latter to enter, possess and enjoy the land in question
without protest, from 1928 to 1943, when the seller died; and the appellants, in turn, while succeeding the deceased,
also remained inactive, without taking any step to reinvindicate the lot from 1944 to 1962, when the present suit was
commenced in court. Even granting appellants' proposition that no prescription lies against their father's recorded title,
their passivity and inaction for more than 34 years (1928-1962) justifies the defendant-appellee in setting up the
equitable defense of laches in his own behalf. As a result, the action of plaintiffs-appellants must be considered barred
and the Court below correctly so held. Courts can not look with favor at parties who, by their silence, delay and inaction,
knowingly induce another to spend time, effort and expense in cultivating the land, paying taxes and making
improvements thereon for 30 long years, only to spring from ambush and claim title when the possessor's efforts and
the rise of land values offer an opportunity to make easy profit at his expense. . . . .

Pabalete v. Echarri 20 stated:

Upon a careful consideration of the facts and circumstances, we are constrained to find, however, that while no legal
defense to the action lies, an equitable one lies in favor of the defendant and that is, the equitable defense of laches.
We hold that the defense of prescription or adverse possession in derogation of the title of the registered owner
Domingo Mejia does not lie, but that of the equitable defense of laches. Otherwise stated, we hold that while defendant
may not be considered as having acquired title by virtue of his and his predecessor's long continued possession for 37
years, the original owner's right to recover back the possession of the property and the title thereto from the defendant
has, by the long period of 37 years and by patentee's inaction and neglect been converted into a stale demand. (Quoting
Mejia de Lucas v. Gamponia, 100 Phil. 277).

xxx xxx xxx

This defense is an equitable one and does not concern itself with the character of the defendant's title, but only with
whether or not by reason of the plaintiff's long inaction or inexcusable neglect he should be barred from asserting this
claim at all, because to allow him to do so would be inequitable and unjust to the defendant. . . .
570

Lastly, Marquez' claim that he is a purchaser in good faith and for value does not inspire any merit. In his testimony, he
admitted that he knew the land in question. 21 Curiously, in his Answer 22 to the complaint filed by the petitioners, he
stated that he has been aware that the former were in possession of the land since 1959. Where a purchaser was fully
aware of another person's possession of the lot he purchased, he cannot successfully pretend later to be an innocent
purchaser for value. 23 Moreover, one who buys without checking the vendor's title takes all the risks and losses
consequent to such failure. 24

In fact, it would have been expected that in the normal course of daily life, both the Madrids and Marquezes talked
about the status of the property. This being so, it would be difficult to imagine that the latter were not made aware of
the petitioner's possession of the land. Armed with such information, they should have acted with the diligence of a
prudent man in determining the circumstances surrounding the property. Otherwise, the law does not give him the
benefit afforded to an innocent purchaser for value. 25

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals dated September 24, 1994 in CA-G.R. No.
25339 is hereby REVERSED and SET ASIDE. Instead, petitioners are hereby declared as the legal owners of the subject
land. No costs.

SO ORDERED.

Narvasa, C.J., Kapunan, Purisima and Pardo, JJ., concur.

571

1. Rule 130 Section 9- Parol Evidence Rule

Baldomero Inciong, petitioner vs. Court of Appeals and Philippine Bank of Communications, respondents 257
SCRA 578 (1996)

FACTS: In February 1983, Rene Naybe took out a loan from Philippine Bank of Communicatons in the amount
of P50,000. For that he executed a promissory note in the same amount. Naybe was able to convince
Baldomero Inciongand Gregoria Pantanosas to co-sign with him as co-makers. The promissory note went due
and it was left unpaid. PBC demanded payment from the three but still no payment was made. PBC then sue
the three but PBC later released Pantanosas from its obligations. Naybe left for Saudi Arabia were can’t issue
summons and the complaint against him was subsequently dropped. Inciong was left to face the suit. He
argued that since the complaint against naybe was dropped and that Pantanosas was released from his
obligations, he too should have been released. Petitioner contends that in signing the promissory note his
consent was vitiated by fraud as contrary to their agreement that the loan was only P5,000, the promissory
note stated the amount of P50,000. ISSUE: Whether or not Inciong should be held liable under the Parol
Evidence Rule. RULING: Yes, The assertion of the petitioner that since the promissory note is not a public
deed with the formalities prescribed by law but a mere commercial paper which does not bear a signature of
attesting witnesses parol evidence may overcome the contents of the promissory note is unmeritorious. Parol
evidence states that when the terms of the agreement have been reduced to writing it is considered as
containing all the terms agreed upon and there can be no evidence of such terms other than the contents of
the agreement. The rule does not specify that the written agreement be a public document.

For the parol evidence to apply, a written contract need not be in any particular form or be signed by both
parties. Fraud must be established by clear and convincing evidence mere preponderance of evidence not
even being adequate. Petitioner’s attempt to prove fraud must therefore fail as it was evidenced only by his
own corroborated and self-serving testimony

G.R. No. 96405 June 26, 1996

BALDOMERO INCIONG, JR., petitioner,

vs.
COURT OF APPEALS and PHILIPPINE BANK OF COMMUNICATIONS, respondents.

ROMERO, J.:p

This is a petition for review on certiorari of the decision of the Court of Appeals affirming that of the Regional Trial Court of Misamis Oriental, Branch 18, 1 which
disposed of Civil Case No. 10507 for collection of a sum of money and damages, as follows:

WHEREFORE, defendant BALDOMERO L. INCIONG, JR. is adjudged solidarily liable and ordered
to pay to the plaintiff Philippine Bank of Communications, Cagayan de Oro City, the amount of
FIFTY THOUSAND PESOS (P50,000.00), with interest thereon from May 5, 1983 at 16% per
annum until fully paid; and 6% per annum on the total amount due, as liquidated damages or penalty
from May 5, 1983 until fully paid; plus 10% of the total amount due for expenses of litigation and
attorney's fees; and to pay the costs.

The counterclaim, as well as the cross claim, are dismissed for lack of merit.

SO ORDERED.

Petitioner's liability resulted from the promissory note in the amount of P50,000.00 which he signed with Rene C.
Naybe and Gregorio D. Pantanosas on February 3, 1983, holding themselves jointly and severally liable to private
respondent Philippine Bank of Communications, Cagayan de Oro City branch. The promissory note was due on
May 5, 1983.

Said due date expired without the promissors having paid their obligation. Consequently, on November 14, 1983
and on June 8, 1984, private respondent sent petitioner telegrams demanding payment thereof.  On December 11, 2

1984 private respondent also sent by registered mail a final letter of demand to Rene C. Naybe. Since both obligors
did not respond to the demands made, private respondent filed on January 24, 1986 a complaint for collection of the
sum of P50,000.00 against the three obligors.

On November 25, 1986, the complaint was dismissed for failure of the plaintiff to prosecute the case. However, on
January 9, 1987, the lower court reconsidered the dismissal order and required the sheriff to serve the summonses.
On January 27, 1987, the lower court dismissed the case against defendant Pantanosas as prayed for by the
572

private respondent herein. Meanwhile, only the summons addressed to petitioner was served as the sheriff learned
that defendant Naybe had gone to Saudi Arabia.

In his answer, petitioner alleged that sometime in January 1983, he was approached by his friend, Rudy Campos,
who told him that he was a partner of Pio Tio, the branch manager of private respondent in Cagayan de Oro City, in
the falcata logs operation business. Campos also intimated to him that Rene C. Naybe was interested in the
business and would contribute a chainsaw to the venture. He added that, although Naybe had no money to buy the
equipment, Pio Tio had assured Naybe of the approval of a loan he would make with private respondent. Campos
then persuaded petitioner to act as a "co-maker" in the said loan. Petitioner allegedly acceded but with the
understanding that he would only be a co-maker for the loan of P50,000.00.

Petitioner alleged further that five (5) copies of a blank promissory note were brought to him by Campos at his office.
He affixed his signature thereto but in one copy, he indicated that he bound himself only for the amount of
P5,000.00. Thus, it was by trickery, fraud and misrepresentation that he was made liable for the amount of
P50,000.00.

In the aforementioned decision of the lower court, it noted that the typewritten figure "-- 50,000 --" clearly appears
directly below the admitted signature of the petitioner in the promissory note.   Hence, the latter's uncorroborated
3

testimony on his limited liability cannot prevail over the presumed regularity and fairness of the transaction, under
Sec. 5 (q) of Rule 131. The lower court added that it was "rather odd" for petitioner to have indicated in a copy and
not in the original, of the promissory note, his supposed obligation in the amount of P5,000.00 only. Finally, the
lower court held that, even granting that said limited amount had actually been agreed upon, the same would have
been merely collateral between him and Naybe and, therefore, not binding upon the private respondent as creditor-
bank.

The lower court also noted that petitioner was a holder of a Bachelor of Laws degree and a labor consultant who
was supposed to take due care of his concerns, and that, on the witness stand, Pio Tio denied having participated in
the alleged business venture although he knew for a fact that the falcata logs operation was encouraged by the
bank for its export potential.

Petitioner appealed the said decision to the Court of Appeals which, in its decision of August 31, 1990, affirmed that
of the lower court. His motion for reconsideration of the said decision having been denied, he filed the instant
petition for review on certiorari.

On February 6, 1991, the Court denied the petition for failure of petitioner to comply with the Rules of Court and
paragraph 2 of Circular
No. 1-88, and to sufficiently show that respondent court had committed any reversible error in its questioned
decision.  His motion for the reconsideration of the denial of his petition was likewise denied with finality in the
4

Resolution of April 24, 1991.  Thereafter, petitioner filed a motion for leave to file a second motion for
5

reconsideration which, in the Resolution of May 27, 1991, the Court denied. In the same Resolution, the Court
ordered the entry of judgment in this case. 6

Unfazed, petitioner filed a notion for leave to file a motion for clarification. In the latter motion, he asserted that he
had attached Registry Receipt No. 3268 to page 14 of the petition in compliance with Circular No. 1-88. Thus, on
August 7, 1991, the Court granted his prayer that his petition be given due course and reinstated the same. 7

Nonetheless, we find the petition unmeritorious.

Annexed to the petition is a copy of an affidavit executed on May 3, 1988, or after the rendition of the decision of the
lower court, by Gregorio Pantanosas, Jr., an MTCC judge and petitioner's co-maker in the promissory note. It
supports petitioner's allegation that they were induced to sign the promissory note on the belief that it was only for
P5,000.00, adding that it was Campos who caused the amount of the loan to be increased to P50,000.00.

The affidavit is clearly intended to buttress petitioner's contention in the instant petition that the Court of Appeals
should have declared the promissory note null and void on the following grounds: (a) the promissory note was
signed in the office of Judge Pantanosas, outside the premises of the bank; (b) the loan was incurred for the
purpose of buying a second-hand chainsaw which cost only P5,000.00; (c) even a new chainsaw would cost only
P27,500.00; (d) the loan was not approved by the board or credit committee which was the practice, as it exceeded
P5,000.00; (e) the loan had no collateral; (f) petitioner and Judge Pantanosas were not present at the time the loan
was released in contravention of the bank practice, and (g) notices of default are sent simultaneously and
separately but no notice was validly sent to him.  Finally, petitioner contends that in signing the promissory note, his
8

consent was vitiated by fraud as, contrary to their agreement that the loan was only for the amount of P5,000.00, the
promissory note stated the amount of P50,000.00.

The above-stated points are clearly factual. Petitioner is to be reminded of the basic rule that this Court is not a trier
of facts. Having lost the chance to fully ventilate his factual claims below, petitioner may no longer be accorded the
same opportunity in the absence of grave abuse of discretion on the part of the court below. Had he presented
573

Judge Pantanosas affidavit before the lower court, it would have strengthened his claim that the promissory note did
not reflect the correct amount of the loan.

Nor is there merit in petitioner's assertion that since the promissory note "is not a public deed with the formalities
prescribed by law but . . . a mere commercial paper which does not bear the signature of . . . attesting witnesses,"
parol evidence may "overcome" the contents of the promissory note.  The first paragraph of the parol evidence
9

rule   states:
10

When the terms of an agreement have been reduced to writing, it is considered as containing all the
terms agreed upon and there can be, between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement.

Clearly, the rule does not specify that the written agreement be a public document.

What is required is that the agreement be in writing as the rule is in fact founded on "long experience that written
evidence is so much more certain and accurate than that which rests in fleeting memory only, that it would be
unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and
vary the stronger and to show that the
parties intended a different contract from that expressed in the writing signed by them."   Thus, for the parol
11

evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties.   As a
12

general rule, bills, notes and other instruments of a similar nature are not subject to be varied or contradicted by
parol or extrinsic evidence.  13

By alleging fraud in his answer,   petitioner was actually in the right direction towards proving that he and his co-
14

makers agreed to a loan of P5,000.00 only considering that, where a parol contemporaneous agreement was the
inducing and moving cause of the written contract, it may be shown by parol evidence.   However, fraud must be
15

established by clear and convincing evidence, mere preponderance of evidence, not even being
adequate.   Petitioner's attempt to prove fraud must, therefore, fail as it was evidenced only by his own
16

uncorroborated and, expectedly, self-serving testimony.

Petitioner also argues that the dismissal of the complaint against Naybe, the principal debtor, and against
Pantanosas, his co-maker, constituted a release of his obligation, especially because the dismissal of the case
against Pantanosas was upon the motion of private respondent itself. He cites as basis for his argument, Article
2080 of the Civil Code which provides that:

The guarantors, even though they be solidary, are released from their obligation whenever by some
act of the creditor, they cannot be subrogated to the rights, mortgages, and preferences of the latter.

It is to be noted, however, that petitioner signed the promissory note as a solidary co-maker and not as a guarantor.
This is patent even from the first sentence of the promissory note which states as follows:

Ninety one (91) days after date, for value received, I/we, JOINTLY and SEVERALLY promise to pay
to the PHILIPPINE BANK OF COMMUNICATIONS at its office in the City of Cagayan de Oro,
Philippines the sum of FIFTY THOUSAND ONLY (P50,000.00) Pesos, Philippine Currency, together
with interest . . . at the rate of SIXTEEN (16) per cent per annum until fully paid.

A solidary or joint and several obligation is one in which each debtor is liable for the entire obligation, and each
creditor is entitled to demand the whole obligation.  7 on the other hand, Article 2047 of the Civil Code states:
1

By guaranty a person, called the guarantor, binds himself to the creditor to fulfill the obligation of the
principal debtor in case the latter should fail to do so.

If a person binds himself solidarily with the principal debtor, the provisions of Section 4, Chapter 3,
Title I of this Book shall be observed. In such a case the contract is called a suretyship. (Emphasis
supplied.)

While a guarantor may bind himself solidarily with the principal debtor, the liability of a guarantor is different
from that of a solidary debtor. Thus, Tolentino explains:

A guarantor who binds himself in solidum with the principal debtor under the provisions of the
second paragraph does not become a solidary co-debtor to all intents and purposes. There is a
difference between a solidary co-debtor and a fiador in solidum (surety). The latter, outside of the
liability he assumes to pay the debt before the property of the principal debtor has been exhausted,
retains all the other rights, actions and benefits which pertain to him by reason of the fiansa; while a
solidary co-debtor has no other rights than those bestowed upon him in Section 4, Chapter 3, Title I,
Book IV of the Civil Code.  18
574

Section 4, Chapter 3, Title I, Book IV of the Civil Code states the law on joint and several obligations. Under Art.
1207 thereof, when there are two or more debtors in one and the same obligation, the presumption is that the
obligation is joint so that each of the debtors is liable only for a proportionate part of the debt. There is a solidary
liability only when the obligation expressly so states, when the law so provides or when the nature of the obligation
so requires. 19

Because the promissory note involved in this case expressly states that the three signatories therein are jointly and
severally liable, any one, some or all of them may be proceeded against for the entire obligation.   The choice is left
20

to the solidary creditor to determine against whom he will enforce collection.   Consequently, the dismissal of the
21

case against Judge Pontanosas may not be deemed as having discharged petitioner from liability as well. As
regards Naybe, suffice it to say that the court never acquired jurisdiction over him. Petitioner, therefore, may only
have recourse against his co-makers, as provided by law.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned decision of the
Court of Appeals is AFFIRMED. Costs against petitioner.

SO ORDERED.

Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

G.R. No. 85869 November 6, 1992

THE NATIONAL IRRIGATION ADMINISTRATION (NIA), represented by the Project Manager, Magat River
Multi-Purpose Project, petitioner,
vs.
ESTANISLAO GAMIT and THE HONORABLE COURT OF APPEALS, respondents.

PADILLA, J.:

On 23 January 1985, the plaintiff Estanislao Gamit (private respondent herein) filed with the RTC of Roxas, Isabela,
Branch XXIII, a complaint   against the defendant National Irrigation Administration (petitioner herein) for reformation
1

of contract, recovery of possession and damages, docketed therein as Civil Case No. 4, alleging, among others, as
follows:

2. That defendant is in charge of the implementation of the Irrigation Program of the national
government to increase food production nationwide, and in pursuance of the policy, the Magat River
Multi-Purpose Project was undertaken to provide irrigation in the Cagayan Valley region, particularly
in the province of Isabela, funded by a multi-billion loan from the world bank; that as an
indispensable component of the project, massive infrastructure improvements such as buildings and
the like, were constructed to house the different offices monitoring the actual implementation of the
project;

3. That for the purpose above mentioned and sometime on June 5, 1975, herein plaintiff and
defendant, thru its Officer-in-Charge, Magat River Multi-Purpose Project (MRMP) then with business
office at San Mateo, Isabela, after some negotiations were made, entered into a CONTRACT OF
LEASE, over plaintiff's urban parcel of land, more particularly described as follows:

An undivided portion of twenty five thousand (25,000) square meters, more or less,
and forming part of that parcel of land with a total area of thirty thousand and five
(30,005) square maters, more or less, embraced in TCT No. T-85689 of the land
records of Isabela, under Tax Declaration No. S3-5603, situated at the poblacion
(Centro), San Manuel, Isabela, which portion leased is bounded as follows:

NORTH: Estanislao Gamit; EAST National Road; SOUTH:

Dominador Bullungan; WEST: Dominador Bullagan

For a consideration or rental in the sum of ten centavos (P0.10) per square meter, per year for ten
(10) years, from date of execution of the instrument, for the use by defendant on which to construct
the Administration Building and other facilities for Division III, Magat River Multi-Purpose Project at
San Manuel, Isabela, and other purposes that may be deemed necessary for the operation and
maintenance of the system when completed; certified xerox copy of the title is hereto attached as
Annex "A" to form part hereof.
575

4. That in at least three paragraphs, (4, 8, 9) of the contract of lease the defendant surreptitiously
inserted, the following stipulations, which are hereby quoted:

4. That should LESSEE decides (sic) to continue utilizing the said portion of twenty
five thousand (25.000) square meters, more or less, beyond the ten (10) year period
that this contract is in force, then lessee may purchase the property and all rentals
paid to lessor shall be considered part of the purchase price (which) shall not exceed
twenty five thousand (P25,000.00) Pesos: (Emphasis Supplied)

xxx xxx xxx

8. That six (6) months before the expiration of the ten (10) year period, LESSOR shall request
LESSEE in writing about the latter's final intention on the herein (property) leased; likewise, LESSEE
shall inform LESSOR in writing about LESSEE'S definite intention on the area; failure of parties to
make bilateral communication shall be deemed that this contract is in force and effect even after the
ten (10) year period, as if LESSOR, his successors, or assigns allowed continued use of the
property by LESSEE without any additional compensation whatsoever. (Emphasis Supplied.)

9. That upon payment of the said amount of Twenty Five Thousand (P25,000.00)
Pesos, the land owner, Estanislao Gamit shall be deemed to have ceded and
conveyed all his rights and interest on the subject property free from all liens and
encumbrances in favor of the National Irrigation Administration. (Emphasis Supplies).
Certified xerox copy of the contract is hereto attached as Annex "B", to form part
hereof.

5. That prior to the signing of the contract of lease as stated in the immediately preceding
paragraphs, serious negotiations were made, the first was, when the Municipal Mayor and Chief of
Police of the Municipality of San Manuel, Isabela, approached plaintiff in behalf of defendant, to
allow the later thru its Project Manager or his duly authorized representatives and equipments to
enter into and occupy three (3) hectares or 30,000 square meters of his land on which to establish
the Office of Division III, of the Project, and plaintiff and his wife signed a written permit dated April
24, 1975, witnessed by Mayor Paulino A. Domingo and Chief of Police Pedro R. Pascua, which
permit was granted "pending the perfection of documents pertinent to a formal lease contract with
the right to purchase" to be executed by and between plaintiff and defendant. Certified xerox copy of
the permit is hereto attached as Annex "B-1", to form part hereof;

That further negotiations followed, and a document denominated as "'AGREEMENT" was prepared
by herein defendant for the signature of plaintiff and the latter and his wife signed the same, with one
Engr. Antonio A. Ramos, then the Chief of Division III, MRMP, San Manuel, Isabela, signing as an
instrumental witness; for reasons known only to the Asst. Project Manager, the document was not
however signed by him, for which reason, the contract of lease was not perfected possibly because
defendant's Assistant Project Manager wanted to prolong plaintiff's anxiety and the same was
aggravated by the latter's deep financial need, which fact is known by the Assistant Project Manager
during the negotiations, thereby exercising undue influence or advantage over that of plaintiff, when
the contract of lease was finally signed on June 6, 1975. Certified xerox copy of the unperfected
agreement is hereto attached as Annex "B-2", to form part hereof.

6. That contemporaneously or subsequently thereafter and sometime on August 27, 1975 or

thereabout, the whole rental of the leased premises was offered to be paid by the defendant and the
plaintiff being then in need of cash, as he was then in financial distress, accepted the offer, and
finally received the whole amount, as evidenced by a certified xerox copy of the corresponding
voucher, hereto attached as Annex "C", to form part hereof.

7. That only recently, in a letter dated November 23, 1984, sent by the Assistant Project Manager to
the plaintiff, herein defendant notified the former, of the election to purchase the leased premises,
allegedly in accordance with stipulation No. 8 quoted above, and contained in the contract of lease
(Annex "B"). Certified xerox copy of the same is hereto attached as Annex "D", to form part hereof.

8. That the contract of lease entered into, by and between herein plaintiff and defendant does not
express the real agreement or intention of the parties, as there was error or mistake of fact on the
part of plaintiff, aggravated by his state of financial distress at the time the contract was signed, and
herein defendant acted fraudulently or inequitably, exercising undue influence over plaintiff on
account of the latter's financial distress, in such a way that their real agreement was not reflected or
expressed in the contract of lease signed by the parties.

9. That the real agreement or intention of the parties was only for the lease of the twenty five
(25,000) thousand square meters by defendant at the rate of P0.10 centavos per square meter, for a
576

period of ten (10) years from date of execution with the right of defendant to purchase the area upon
the termination of the lease, on a price certain or consideration to be negotiated and agreed upon,
by and between the parties after the lapse of the ten (10) year period;

10. That it was not the real agreement or intention of the parties, at least that of herein plaintiff, to
have the rentals paid as forming part of the purchase price later to be negotiated or agreed upon,
much less was it their intention at least on the part of herein plaintiff, that the price shall, not exceed
P25,000.00 (see stipulation No. 4, Lease of Contract), otherwise, there will be a gross inadequacy of
the purchase price, enough to shock the conscience of man and that of the court; that it was not also
the intention or agreement of the parties, at least that of herein plaintiff, that in case the lease
contract is not renewed after the lapse of the ten (10) year period, for failure of the parties to make
bilateral communication, the lessor or his successors or assigns are deemed to have allowed
continued use of the land in suit without any additional compensation whatsoever (see stipulation
No. 8, contract of lease) and neither was it the true agreement or real intention the parties, at least
on the part of herein plaintiff, that upon payment of the rental amount of P25,000.00, herein plaintiff
shall be deemed to have conveyed and ceded all his rights and interest on the subject property, in
favor of herein defendant. (see stipulation No. 9)

11. That herein defendant acted fraudulently and inequitably, taking advantage of the financial
distress of herein plaintiff, when it caused the unlawful insertion of the stipulation contained in
paragraphs 4, 8 and 9 quoted above, in the contract of lease, and the same are all contrary to law
and void ab-initio, because the fixing of the price of the land to be purchased can never be left to the
discretion or will of one of the contracting parties; and in this case, it was defendant alone who
determined the price and if this is so, then the validity or compliance of the contract can not be
demanded by herein defendant, for the reason that a contract of sale, is essentially bilateral in
character;

12. That evidently, the contract as drafted and prepared by herein defendant for the signature of
herein plaintiff is a contract commonly known as ADHESION CONTRACT, which is one where one
party (plaintiff herein) merely signs carefully prepared contracts of big companies, such as contracts
of insurance, construction and the like; as in the case of herein defendant where the project involves
multi-billion contracts funded from the World Bank, thus, the same should be strictly interpreted
against defendant, and liberally in favor of herein plaintiff, because the latter was virtually helpless to
bargain for better terms on account of his financial need at the time;

13. That the fair and reasonable price or market value of the land in suit which is an urban land
located at the Poblacion or Centro of the town of San Manuel, this province, is no less than Fifty
Pesos (50.00) per square meter, and plaintiff makes this offer, subject to the acceptance of herein
defendant;

14. That as agreed upon, the area to be leased is only twenty five (25.000) thousand square meters,
as evidenced by the encumbrance registered at the back of TCT No. T-85689, in the name of
plaintiff leaving a portion of five (5,000) thousand square meters, as free from the lien and
encumbrance;

15. That after the lease contract was executed and registered, herein defendant fenced the area
leased, but in the process, the latter stealthily and surreptitiously expanded its occupation and it
included the remaining portion of five (5,000) thousand square meters, unencumbered, as evidenced
by a relocation survey conducted by one Geodetic Engineer Apolinar P. Alvarez in the premises, a
blue print copy of the sketch map is hereto attached as Annex "E" to form part hereof, and there
xerox copy of the letter of plaintiff dated August 27, 1984, addressed to the Manager of Division III,
Magat River Multi-Purpose Project, San Manuel, Isabela, requesting for a relocation of the leased
premises, is hereto attached as Annex "E-1", to form part hereof;

16. That the encroached area of five (5,000) thousand square meters which is irrigated, can be
easily planted to palay and would yield an average of no less than one (100) hundred cavans of
palay at 46 kilos per cavan, per crop, for three (3) croppings a year, with a selling price of P3.50 per
kilo;

17. That herein plaintiff failed to realize the expected income stated in the immediately preceding
paragraph due to the unlawful occupation of the area by defendant since the year 1975 to the
present, and despite repeated demands, the defendant refuses to deliver the possession of the
encroached portion of 5,000 square meters to the plaintiff, with accounting of its corresponding
produce, up to the present; however, should defendant desires to purchase the remaining portion of
5,000 square meters, plaintiff offers a price of no less than P50.00 per square meter which is the fair
and reasonable market value of the land;
577

18. That due to the unlawful, inequitable and malicious actuations of herein defendant, plaintiff was
forced to engage the services of counsel for a contingent fee of 30% of whatever is due plaintiff, plus
P300.00 as appearance fee, for the protection, respect, and preservation of his rights and interests
in the premises;

19. That likewise, for fraudulent and inequitable acts committed by defendant, plaintiff is entitled to
actual or compensatory damages representing unrealized income of the 5,000 square meters
encroached portion, which is estimated to be no less that 25 cavans of palay (25% of 100 as rental
per crop, for three (3) croppings a year), or a total of 75 cavans per year and/or a grand total of 750
cavans of palay at 46 kilos per cavan for the (10) years, at the current price of P3.50 per kilo; and
entitled to nominal or temperate damages in the sum of P30,000.00 plus moral and exemplary
damages of no less that P60,000.00 for the public good;

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that
judgment be rendered in favor of your plaintiff and against herein defendant by:

1. Ordering, that the contract of lease with right to purchase (Annex "B") be reformed, so that the
real and true agreement or intention of the parties be reflected and/or expressed therein;

2. In the alternative, should the defendant pursue to BUY the land in suit (30,000 square meters) at a
price certain agreed upon by the parties after serious negotiations at the rate of P50.00 per square
meter, then the necessary and proper document be drawn and prepared, under the strict supervision
of the Court, and the corresponding purchase price or compensation to be paid by defendant, be
deposited with the court under custodia legis;

3. Ordering the defendant to pay plaintiff, the unrealized income or profit, plaintiff suffered, by virtue
of the unlawful occupation by defendant of the remaining portion of 5,000 square meters from 1975
to the present or until possession is finally restored;

4. Ordering defendant to pay plaintiff, the sum of P30,000.00, by way of nominal or temperate
damages and the sum of P60,000.00, by way of moral and exemplary damages, for the public good,
plus attorney's fees on a contingent basis of 30% depending on the amount finally adjudicated in
favor of plaintiff, plus appearance fee of P3000.00 when the case is called for hearing or for any
other purpose;

5. Ordering the parties to strictly abide by, and comply with their commitments in the documents that
may be executed in the premises;

6. If for any reason, the parties can not agree on reasonable terms for the continuation of their
relationship and the lease contract ordered terminated, and/or, should the defendant elects not to
purchase the whole 30,000 square meters, defendant be ordered to deliver the possession of the
land in suit to the plaintiff, and the defendant allowed to remove the infrastructure improvement
introduced on the land, with right of retention to the former;

In due time, the defendant filed its answer   alleging, inter alia, as follows:
2

2. That defendant admits the allegations in paragraph 2 of the complaint;

3. That defendant admits the allegations in paragraph 3 of the complaint that a Contract of Lease
With Right to Purchase was entered into between the parties on June 6, 1975, but it specifically
denies the rest of the allegation therein, more specifically that plaintiff's land is urban land, the fact of
the matter being that it is riceland at the time NIA took possession of the same;

4. That defendant specifically denies the material allegations in paragraph 4 of the complaint alleging
that stipulations No. 4, 8 and 9 of the Contract of Lease with Right to Purchase was surreptitiously
inserted it appearing plaintiff is an intelligent person who knows English, and that his wife, Estilita
Santos, is likewise a signatory to the document;

5. That defendant admits the allegations in paragraph 5 of the compaint concerning plaintiff's
issuance of a permit to enter the property in question on April 24, 1975, but it specifically denies the
rest of the allegations therein, for being without basis in fact and in law;

6. That defendant admits the allegations in paragraph 6 of the complaint whereby plaintiff
acknowledged receipt of the amount of P25,000.00 as payment for the land in question, but
specifically denies the rest of the allegations therein for being self-serving and baseless conclusions
of fact, it appearing the delay in the payment for such property was due to plaintiff's fault, who was
not paid until he was able to register the property in his own name;
578

7. That defendant admits the material allegations in paragraph 7 of the complaint;

8. That defendant specifically denies the allegations in paragraphs 8 and 9 of the complaint for being
self-serving, without basis in fact, and for reasons to be stated in the Special and Affirmative
defenses;

9. That defendant specifically denies the allegations in paragraphs 10, 11, 12 and 13, of the
complaint for being without basis in law and in fact;

10. That defendant admits the allegations in paragraph 14 of the complaint that 25,000 square
meters was the subject of the Contract of Lease with Right of Repurchase, with the qualification that
the remaining 5,000 square meters was intended to be donated by the plaintiff to defendant upon the
execution of a Deed of Sale;

11. That defendant specifically denies the allegations in paragraph 15 of the complaint for reasons
stated in the preceding paragraph;

12. That defendant specifically denies the allegations in paragraphs 16 of the complaint for being
unwarranted conclusions of fact;

13. That defendant specifically denies the allegations in paragraphs 17, 18 and 19 of the complaint
for being self-serving, speculative and without basis in fact; and by way of —

SPECIAL AND AFFIRMATIVE DEFENSES

defendant respectfully alleges:

14. That it repleads and incorporates the foregoing as integral part hereof;

15. That the contract entered into on June 6, 1975 is the law between the parties and the same
should be complied with in good faith (Art. 1159, Civil Code);

16. That there could not have been any fraud or mistake in the execution of said contract because
plaintiff appears to know English and his wife is a signatory to the instrument; besides, public
officials are entitled to the presumption of regularity in the performance of their official duties;

17. That from the appearance of their signatures, plaintiff and his wife are not ignorant or illiterate,
otherwise they would have merely used their thumbmarks;

18. That as public entity, defendant has not been motivated by any other consideration other than to
reflect the true intentions of the parties in the instrument of June 6, 1975;

19. That money claims for damages against the State should have been first had before the
Commission on Audit (Carabao Inc. vs. Agricultural Productivity Commission, 35 SCRA 224 [1970];
Commissioner of Public Highways vs. San Diego, 31 SCRA 616 [1970];

20. That there was no exhaustion of administrative remedies, and therefore, the instant suit does not
state a valid cause of action (Abe-Abe vs. Manta, 90 SCRA 524 [1979]).

The plaintiff seasonably filed a reply   to the defendant's answer, after which the case was set for pre-trial.
3

After the pre-trial, the court a quo issued on 4 March 1986 an order   incorporating therein the facts admitted by the
4

parties during the pre-trial, and stating therein that:

The parties agreed that the issue in this case is only a question of law because it involved the
interpretation of the contract between the parties whether it is an absolute sale or a contract of lease
only. That there is no genuine issue of material fact on the basis of which the court should try the
case on the merits and require presentation of evidence to prove such issue of material fact.

As there is no genuine issue of material fact this case could be decided by way of summary
judgment pursuant to Sec. 3, Rule 20 of the Rules of Court which provides as follows:

Sec. 3. Judgment on the pleadings and summary judgment at pre-trial. — If at the

pre-trial the court finds that facts exist upon which a judgment on the pleadings or a
summary judgment may be made, it may render judgment on the pleadings or a
summary judgment as justice may require.
579

Hence, the court a quo, without conducting a trial on the merits of the case, rendered on 20 March 1986 a
decision   interpreting the contract between the parties as a contract of lease with the right to purchase. Thus, the
5

trial court held:

That the issue in this case, is a question of law not a question of fact because it involved the
interpretation of the contract between the parties only. Therefore, there is no genuine issue of
material fact to be determined by the court in a trial on the merits and the case may be decided by
way of summary judgment under Sec. 3, Rule 20 of the Rules of Court

The pre-trial order was furnished to the parties giving them reasonable period of time to file any
objection if any as mandated by Sec. 4 of Rule 20 of the Rules of Court to which the parties did not
submit or file any pleading for the correction or amendment of the pre-trial order.

With respect to the interpretation of the contract between the parties sought to be reformed in this
case whether or not the contract is a lease contract or a contract of sale, there are terms and
conditions of the agreement which maybe very pertinent and determinative of the nature of the
contract entered into by the parties to wit:

1. That the contract is denominated as contract of lease with the right to purchase and not a deed of
sale;

2. That the contract stipulated a period of ten (10) years from June 6, 1975 the date when it was
executed to June 6, 1985;

3. That the defendant has an option to buy the property.

The parties are not ordinary parties to a contract and the court is of the opinion, that they intended
there contract to be a contract of lease not sale. If it were otherwise, the party could have
denominated their contract a deed of sale not a contract of lease with right of purchase. If the parties
intended to execute a contract of sale over the two and one-half hectares they should have executed
a deed of sale and not a contract of lease. The plaintiff much less the defendant could not claim
ignorance of the contract executed by them because the latter is represented by a battery of
corporate counsel aside from the office of the Solicitor General and a project Manager whose
educational qualification is above an ordinary citizen or individual. The court cannot therefore sustain
the contention of the defendant that the contract entered into is that of sale and hereby holds that it
is a lease contract with the right to purchase not sale. The mere fact that there is a period agreed
upon by the parties which is ten (10) years from June 6, 1975 to June 6, 1985 clearly indicate that
the contract between them is a lease contract not sale. A contract of sale does not have any period
because it is final and absolute. Likewise, the contract cannot be deemed to be that of sale because
the defendant is given the option to buy and if the latter chooses to buy the land in question the price
should be that which has already been paid the plaintiff as the consideration of the lease which was
paid in advance in the amount of P25,000.00 The option to buy is not embodied in a contract of sale
but it is a term which maybe agreed upon in a contract of lease. The agreement of the parties to be
the P25,000.00 paid in full to the plaintiff to the purchase price of the two and one-half hectares
however, cannot be considered as the consideration for purposes of the option to buy of the
defendant for the reason that the said amount was paid to the plaintiff as rentals for the use of the
property during the period of ten (10) years when the option to buy of the defendant is not yet being
exercised by the latter otherwise it will be considered as pactum commissorium which in the eyes of
the law is illegal per se. To hold otherwise, would deprived the plaintiff the reasonable rentals of the
two and one-half hectares during the duration of the lease contract because then the P25,000.00
would be considered as advance payment of the land. . . .

xxx xxx xxx

. . . Hence, there is no need to reform the agreement. First, because it has already expired and
second, the contract is very clear that it is only a contract of lease with option or right to purchase.
However, the agreement or stipulation that should the defendant exercise its option to buy the
amount of P25,000.00 paid as rental should be considered null and void as if there is no such
agreement between the parties for it being illegal.

Dissatisfied, the defendant appealed to the Court of Appeals, where it was docketed as CA-G.R. No. CV No. 11538.
On 14 November 1988, the Court of Appeals * promulgated a decision   affirming with modification the decision of
6

the trial court, the dispositive portion of which reads:

WHEREFORE, the judgment appealed from is AFFIRMED with the following modifications:
580

1) That in case the defendant would exercise its option to buy under the contract, the total purchase
price of the two and one-half hectares is P25,000.00; and

2) The amount of attorney's fees is reduced to P30,000.00.

SO ORDERED.

Hence, the present petition for review on certiorari of the decision of the Court of Appeals, the petitioner NIA
formulating for resolution the following ISSUES:

WHETHER OR NOT THE COURT OF APPEALS HAS PROPERLY INTERPRETED THE

CONTRACT.

II

WHETHER OR NOT THE STIPULATION IN THE CONTRACT THAT RENTALS PAID SHALL BE
CONSIDERED PART OF THE PURCHASE PRICE IS NULL AND VOID, BEING PACTUM
COMMISSORIUM.

III

WHETHER OR NOT THE COURT OF APPEALS ERRED IN AWARDING DAMAGES AND

ATTORNEY'S FEES.

" A contract", according to Article 1305 of the Civil Code, "is a meeting of the minds between two persons whereby
one binds himself, with respect to the other, to give something or to render some service." Once the minds of the
contracting parties meet, a valid contract exists, whether it is reduced to writing or not. And, when the terms of an
agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be,
between the parties and their successors in interest, no evidence of such terms other than the contents of the
written agreement, except when it fails to express the true intent and agreement of the parties thereto,   in which 7

case, one of the parties may bring an action for the reformation of the instrument to the end that such true intention
may be expressed. 8

Equity orders the reformation of an instrument in order that the true intention of the contracting parties may be expressed. The courts do not attempt to make
another contract for the parties. The rationale of the doctrine of reformation is that it would be unjust and inequitable to allow the enforcement of a written
instrument which does not reflect or disclose the real meeting of the minds of the parties. The rigor of the legalistic rule that a written instrument should be the final
and inflexible criterion and measure of the rights and obligations of the contracting parties is thus tempered, to forestall the effect of mistake, fraud, inequitable
conduct or accident. 9

In order that an action for reformation of instrument as provided in Article 1359 of the Civil Code may prosper, the
following requisites must concur: (1) there must have been a meeting of the minds of the parties to the contract; (2)
the instrument does not express the true intention of the parties; and (3) the failure of the instrument to express the
true intention of the parties is due to mistake, fraud, inequitable conduct or accident.

A perusal of the complaint at bar and the relief prayed for therein shows that this is clearly a case for reformation of
instrument under Articles 1359 and 1362   of the Civil Code of the Philippines. Thus, the complaint alleges:
10

8. That the contract of lease entered into, by and between herein plaintiff and defendant does not
express the real agreement or intention of the parties, as there was error or mistake of fact on the
part of plaintiff, aggravated by his state of financial distress at the time the contract was signed, and
herein defendant acted fraudulently or inequitably, exercising undue influence over plaintiff on
account of the latter's financial distress, in such a way that their real agreement was not reflected or
expressed in the contract of lease signed by the parties.

9. That the real agreement or intention of the parties was only for the lease of the twenty five
(25,000) thousand square meters, by defendant at the rate of P0.10 centavos per square meter, for
a period of ten (10) years from date of execution with the right of defendant to purchase the are upon
the termination of the lease, on a price certain or consideration to be negotiated and agreed upon,
by and between the parties after the lapse of the ten (10) year period;

10. That it was not the real agreement or intention of the parties, at least that of herein plaintiff, to
have the rentals paid as forming part of the purchase price later to be negotiated or agreed upon,
much less was it their intention at last on the part of herein plaintiff, that the price shall not exceed
P25,000.00 (see stipulation No. 4, Lease of Contract), otherwise, there will be a gross inadequacy of
the purchase price, enough to shock the conscience of man and that of the court; that it was not also
the intention or agreement of the parties, at least that of herein plaintiff, that in case the lease
581

contract is not renewed after the lapse of the ten (10) year period, for failure of the parties to make
bilateral communication, the lessor or his successors or assigns are deemed to have allowed
continued use of the land in suit without any additional compensation whatsoever (see stipulation
No. 8, contract of lease) and neither was it the true agreement or real intention of the parties, at least
on the part of herein plaintiff, that upon payment of the rental amount of P25,000.00, herein plaintiff
shall be deemed to have conveyed and ceded all his rights and interest on the subject property, in
favor of herein defendant. (see stipulation No. 9);

11. That herein defendant acted fraudulently and inequitably, taking advantage of the financial
distress of herein plaintiff, when it caused the unlawful insertion of the stipulation contained in
paragraphs 4, 8 and 9 quoted above, in the contract of lease, and the same are all contrary to law
and void ab initio, because the fixing of the price of the land to be purchased can never be left to the
discretion or will of one of the contracting parties; and in this case, it was defendant alone who
determined the price and if this is so, then the validity or compliance of the contract can not be
demanded by herein defendant, for the reason that contract of sale, is essentially bilateral in
character;"

and prays, among others, as follows:

1. Ordering, that the contract of lease with right to purchase (Annex "B") be reformed, so that the
real and true agreement or intention of the parties be reflected and/or expressed therein;

Otherwise stated, the complaint at bar alleged that the contract of lease with right to purchase does not express the
true intention and agreement of thej parties thereto due to mistake on the part of the plaintiff (private respondent)
and fraud on the part of the defendant (petitioner), i.e., by unlawfully inserting the stipulations contained in
paragraphs 4, 8 and 9 in said contract of lease.

As a general rule, parol evidence is not admissible for the purpose of varying the terms of a contract. However,
when the issue that a contract does not express the intention of the parties and the proper foundation is laid therefor
— as in the present case — the court should hear the evidence for the purpose of ascertaining the true intention of
the parties.  11

From the foregoing premises, we hold that the trial court erred in holding that the issue in this case is a question of
law and not a question of fact because it merely involves the interpretation of the contract between the parties. The
lower court erred in not conducting a trial for the purpose of determining the true intention of the parties. It failed to
appreciate the distinction between interpretation and reformation of contracts. While the aim in interpretation of
contracts is to ascertain the true intention of the parties, interpretation is not, however, equivalent to reformation of
contracts.

"Interpretation" is the act of making intelligible what was before not understood, ambiguous, or not obvious. It is a
method by which the meaning of language is ascertained.   The "interpretation" of a contract is the determination of
12

the meaning attached to the words written or spoken which make the
contract.   On the other hand, "reformation" is that remedy in equity by means of which a written instrument is made
13

or construed so as to express or conform to the real intention of the parties.   In granting reformation, therefore,
14

equity is not really making a new contract for the parties, but is confirming and perpetuating the real
contract between the parties which, under the technical rules of law, could not be enforced but for such
reformation.   As aptly observes by the Code Commission, the rational of the doctrine is that it would be unjust and
15

inequitable to allow the enforcement of a written instrument which does not reflect or disclose the real meeting of the
minds of the parties. 16

Since the compaint in the case at bar raises the issue that the contract of lease does not express the true intention
or agreement of the parties due to mistake on the part of the plaintiff (private respondent) and fraud on the part of
the defendant (petitioner), the court a quo should have conducted a trial and received the evidence of the parties for
the purpose of ascertaining the true intention of the parties when they executed the instrument in question.

Summary judgment can be resorted to only where there are no question of fact in issue or where the material
allegations of the pleadings are not
disputed.   A cursory reading of the pleadings in this case shows that there is a genuine issue or material
17

controversy raised therein. Hence, summary judgment is not proper.

WHEREFORE, the decision of the trial court dated 20 March 1986 as well as the decision of the Court of Appeals
dated 14 November 1988 are hereby SET ASIDE and the case should be, as it is hereby, REMANDED to the court
of origin for further proceedings in accordance with this decision. Without costs.

SO ORDERED.

 
582
583

G.R. No. 75290 November 4, 1992

AMADO T. GURANGO and ESTER GURANGO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT and EDWARD L. FERREIRA, respondents.

NOCON, J.:

This is a petition for review on certiorari to annul and set aside the decision dated March 12, 1986 of the then
Intermediate Appellate Court   reversing the decision of the trial court   and ordering petitioners spouses Amado and
1 2

Ester Gurango to pay private respondent Edward Ferreira the sum of P36,000.00 representing the price of the car
and P5,000.00 as attorney's fees, as well as the Resolution dated July 11, 1986   denying petitioners' Motion for
3

Reconsideration in the appealed decision.

It appears on record that, on January 26, 1977, private respondent Edward Ferreira sold to petitioner Amado
Gurango one (1) booklet of raffle tickets valued at Five Hundred (P500.00) Pesos consisting of one hundred (100)
tickets bearing ticket numbers 162501 to 162600 in connection with a fund-raising project sponsored by the Makati
Jaycees to be held in the evening of April 14, 1977 at the Manila Peninsula Hotel.

At around 10:00 p.m. of April 14, 1977, ticket number 162574 in the name of Armando "Boyet" Gurango, a minor
son of the petitioners, but in the custody or possession of private respondent, won a Toyota Corolla car.

Petitioner Amado Gurango alleged that on April 14, 1977, he issued Check No. 00730 dated April 12, 1977 for the
payment of the sixty (60) raffle tickets in the amount of Three Hundred (300.00) Pesos. Thereafter, petitioner called
his cashier, Miriam Burgo, and instructed the latter to fill up the stubs of the one hundred (100) raffle tickets with the
names of his family members before surrendering the same to the messenger of private respondent who would go
there to collect the check for the payment of said raffle tickets.

When petitioner arrived at his office in the afternoon of that same day, his cashier gave him the one hundred (100)
claim stubs and informed him that the messenger of the private respondent took the check as well as all the raffle
tickets. Thereafter, petitioner instructed his cashier to keep said claim stubs as he was in a hurry to return to Cavite
City for the induction of the officers and directors of the Cavite Jaycees.

The following morning or on April 15, 1977, private respondent called up petitioner Amado Gurango to inform the
latter that he had already paid petitioner's remaining unpaid balance of Two Hundred (P200.00) Pesos to the Makati
Jaycees the previous night during the raffle and, subsequently, arranged a meeting with the petitioner for the latter
to turnover the forty (40) claim stubs representing the unpaid balance. During said telephone conversation,
petitioner inquired from the private respondent if any of his tickets won a car during the raffle but was told by the
latter that no Jaycee had won any car in said raffle.

Upon private respondent's arrival at the office of the petitioner, the latter inquired again from the former if any of his
tickets, won a car to which private respondent answered again in the negative. When private respondent asked for
the forty (40) claim stubs from the petitioner, the latter informed the former that he is still willing to honor their
previous agreement and even tendered a check for Two Hundred (P200.00) Pesos dated April 30, 1977 but private
respondent refused to accept said check maintaining that the money he advanced the previous night will be charged
against his company and he only needs the claim stubs of said tickets to justify said expenses.

As petitioner was in a hurry to finish his income tax return, he handed all the claim stubs to the private respondent
who selected forty (40) claim stubs from the lot representing the unpaid balance. Thereafter, private respondent
asked the petitioner to put down their agreement into writing which the latter did in a piece of yellow paper and in his
own handwriting, to wit:

14 April
1977

This is a mutual agreement between Mads Gurango & Ed Ferreira that they bought a booklet of
Raffle Tickets of Makati JC worth P500.00. All the stubs in our possessions remains our share and
any number happened to win in the raffle corresponding to the stub numbers each one of us is
holding will own the prize solely w/o the other party claims co-ownership, even that the name printed
in the such raffle stubs is in the name of one party or any other person.
584

(SGD.) (SGD.)
MADS GURANGO EDWARD L. FERREIRA

Further any holder of the winning stub shall be printed as the sole winner and owner, even though it
was in other's name.

This is a Gentlemen and Jayceely agreement that both of us will stick to this simple and binding
agreement.

(SGD.) (SGD.)
MADS GURANGO EDWARD L. FERREIRA  4

On April 18, 1977, petitioner was shown a copy of Daily Express and learned from an item in said newspaper that
ticket No. 162574 won a Toyota Corolla car but was surprised to find out that the winning stub was among those
taken by the private respondent.

That same evening, petitioner attended a meeting of the Metropolitan Jaycees at the Metro Jaycee Clubhouse and
confronted private respondent about the winning stub. Upon being shown a copy of their agreement, petitioner
realized his mistake in dating said agreement on April 14, 1977 instead of April 15, 1977 which he distinctly
remembered to be the date said agreement was executed since it was the last day to file the income tax return but
must have erroneously wrote down the wrong date due to his tight schedule on that day.

On the other hand, private respondent claimed that on April 12, 1977, petitioner informed the former that he is only
buying sixty (60) tickets and offered to return the remaining forty (40) tickets since he needed the money for the
payment of his income tax on April 15, 1977, which was accepted by the private respondent and the latter agreed to
appropriate for himself the remaining tickets.

Consequently, in the morning of April 14, 1977, petitioner turned over the one hundred (100) tickets to be dropped in
the "tambiolo" and his check for Three Hundred (P300.00) Pesos for the sixty (60) tickets he bought from the private
respondent.

Upon noticing that all the returned tickets were in the name of the petitioner Amado Gurango or members of his
family, private respondent, during his meeting with the petitioner at Manila Midtown Ramada Hotel at around 6 p.m.
of April 14, 1977, asked the latter to write down their agreement signed by them on April 14, 1977 (Exhibit "A").

Thereafter, private respondent and petitioner met at the Metro Jaycee Clubhouse were the former asked the latter to
comply with their agreement but petitioner refused and wrote a letter to the Makati Jaycees disclaiming said
agreement. Eventually, the car was awarded to petitioners' son. Subsequent demands by the private respondent to
the petitioner to comply with their agreement were ignored by the latter.

Consequently, on August 25, 1977, private respondent filed a complaint for damages against petitioners with the
then Court of First Instance of Rizal, Branch XX in Civil Case No. 27163.

After trial on the merits, a decision was rendered by the Regional Trial Court, the dispositive portion of which reads
as follows:

IN VIEW OF ALL THE FOREGOING, the Court dismisses the complaint, for failure on the part of the
plaintiff to have established a cause of action against the defendants.

On the counterclaim, the Court orders the plaintiff to pay the defendants the sum of Ten Thousand
Pesos (P10,000.00) as moral damages, and the sum of Two Thousand Five Hundred Pesos
(P2,500.00) as and for attorney's fees and expenses of litigation. However, the defendants are
ordered to reimburse the plaintiff the sum of Two Hundred Pesos (P200.00), the balance price of the
forty (40) tickets paid for by the plaintiff. 
5

Not satisfied with said decision, private respondent appealed to the respondent court which reversed the decision of
the trial court. The pertinent portion of its decision reads:

We find therefore and so hold that the agreement (Exh. A or A-1) was prepared and signed by the
parties on April 14, 1977 before the raffle. Considering the business and social backgrounds of the
parties. Exhibit A or A-1 is the most practical covenant for their mutual protection before the raffle.

WHEREFORE, the decision of the lower court appealed from is hereby REVERSED ordering
defendants-appellees to pay plaintiff-appellant the sum of P36,000.00 representing the price of the
car and the sum of P5,000.00 as and for counsel fees. No damages and costs.  6
585

The principal issue presented to Us in the instant case is the validity of the agreement executed between petitioner
and private respondent on April 14, 1977.

As a rule, only legal questions are reviewable by this Court on appeals from decisions of the Court of Appeals.
However, one of the exceptions to the rule is when there is a conflict in factual findings of the Court of Appeals and
the trial court.  7

Section 9, Rule 130 of the Revised Rules of Court in the Philippines provides that:

Sec. 9. Evidence of written agreements. — When the terms of an agreement have been reduced to
writing, it is to be considered as containing all such terms, and, therefore, there can be, between the
party and their successors in interest, no evidence of the terms of the agreement other than the
contents of the writing, except in the following cases:

(a) Where a mistake or imperfection of the writing, or its failure to express the true intent and
agreement of the parties, or the validity if the agreement is put in issue by the pleading;

(b) When there is an intrinsic ambiguity in the writing.

Under the aforementioned provision, when the parties have reduced their agreement in writing, the contents of said
agreement are rendered conclusive upon the parties and evidence aliunde is inadmissible to change a valid and
enforceable agreement embodied in a document. "The mistake contemplated as an exception to the parol evidence
rule is one which is a mistake of fact mutual to the parties," 8 which is not present on this case. Moreover, in view of the parties' conflicting
claims regarding the true nature of the agreement executed by them, We find the version of the private respondent more credible for the terms of said agreement
are clear and require no room for interpretation since the intention of the parties, as expressly specified in said agreement, do not contradict each other.

The fact that the agreement was prepared and written by petitioner himself further indicated that said agreement
was entered into by the parties freely and voluntarily which renders petitioners' claim of fraud in the execution of the
agreement unbelievable. Being the author of the agreement, petitioner is presumed to have actual knowledge of the
true intent of the parties and the surrounding circumstance that attended the preparation of the document in
question including the date when said agreement was executed. If it is true that the date if execution was on April
15, 1977, petitioner should have written said date in the agreement and not April 14, 1977 considering that one does
not usually forget a date that has a special significance to him as alleged by the petitioner. In the instant case, it is
highly improbable that petitioner's consent was given through fraud since the document was prepared and executed
by petitioner himself. Therefore, the agreement is valid and binding upon petitioner and respondent.

WHEREFORE, finding no reversible error in the questioned decision of the appellate court, the petitioner
for certiorari is hereby DENIED for lack of merit.

SO ORDERED.

Feliciano, Regalado and Campos, Jr., JJ., concur.

Narvasa, C.J., is on leave.

G.R. No. 75290 November 4, 1992

AMADO T. GURANGO and ESTER GURANGO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT and EDWARD L. FERREIRA, respondents.

NOCON, J.:

This is a petition for review on certiorari to annul and set aside the decision dated March 12, 1986 of the then
Intermediate Appellate Court   reversing the decision of the trial court   and ordering petitioners spouses Amado and
1 2

Ester Gurango to pay private respondent Edward Ferreira the sum of P36,000.00 representing the price of the car
and P5,000.00 as attorney's fees, as well as the Resolution dated July 11, 1986   denying petitioners' Motion for
3

Reconsideration in the appealed decision.

It appears on record that, on January 26, 1977, private respondent Edward Ferreira sold to petitioner Amado
Gurango one (1) booklet of raffle tickets valued at Five Hundred (P500.00) Pesos consisting of one hundred (100)
tickets bearing ticket numbers 162501 to 162600 in connection with a fund-raising project sponsored by the Makati
Jaycees to be held in the evening of April 14, 1977 at the Manila Peninsula Hotel.
586

At around 10:00 p.m. of April 14, 1977, ticket number 162574 in the name of Armando "Boyet" Gurango, a minor
son of the petitioners, but in the custody or possession of private respondent, won a Toyota Corolla car.

Petitioner Amado Gurango alleged that on April 14, 1977, he issued Check No. 00730 dated April 12, 1977 for the
payment of the sixty (60) raffle tickets in the amount of Three Hundred (300.00) Pesos. Thereafter, petitioner called
his cashier, Miriam Burgo, and instructed the latter to fill up the stubs of the one hundred (100) raffle tickets with the
names of his family members before surrendering the same to the messenger of private respondent who would go
there to collect the check for the payment of said raffle tickets.

When petitioner arrived at his office in the afternoon of that same day, his cashier gave him the one hundred (100)
claim stubs and informed him that the messenger of the private respondent took the check as well as all the raffle
tickets. Thereafter, petitioner instructed his cashier to keep said claim stubs as he was in a hurry to return to Cavite
City for the induction of the officers and directors of the Cavite Jaycees.

The following morning or on April 15, 1977, private respondent called up petitioner Amado Gurango to inform the
latter that he had already paid petitioner's remaining unpaid balance of Two Hundred (P200.00) Pesos to the Makati
Jaycees the previous night during the raffle and, subsequently, arranged a meeting with the petitioner for the latter
to turnover the forty (40) claim stubs representing the unpaid balance. During said telephone conversation,
petitioner inquired from the private respondent if any of his tickets won a car during the raffle but was told by the
latter that no Jaycee had won any car in said raffle.

Upon private respondent's arrival at the office of the petitioner, the latter inquired again from the former if any of his
tickets, won a car to which private respondent answered again in the negative. When private respondent asked for
the forty (40) claim stubs from the petitioner, the latter informed the former that he is still willing to honor their
previous agreement and even tendered a check for Two Hundred (P200.00) Pesos dated April 30, 1977 but private
respondent refused to accept said check maintaining that the money he advanced the previous night will be charged
against his company and he only needs the claim stubs of said tickets to justify said expenses.

As petitioner was in a hurry to finish his income tax return, he handed all the claim stubs to the private respondent
who selected forty (40) claim stubs from the lot representing the unpaid balance. Thereafter, private respondent
asked the petitioner to put down their agreement into writing which the latter did in a piece of yellow paper and in his
own handwriting, to wit:

14 April
1977

This is a mutual agreement between Mads Gurango & Ed Ferreira that they bought a booklet of
Raffle Tickets of Makati JC worth P500.00. All the stubs in our possessions remains our share and
any number happened to win in the raffle corresponding to the stub numbers each one of us is
holding will own the prize solely w/o the other party claims co-ownership, even that the name printed
in the such raffle stubs is in the name of one party or any other person.

(SGD.) (SGD.)
MADS GURANGO EDWARD L. FERREIRA

Further any holder of the winning stub shall be printed as the sole winner and owner, even though it
was in other's name.

This is a Gentlemen and Jayceely agreement that both of us will stick to this simple and binding
agreement.

(SGD.) (SGD.)
MADS GURANGO EDWARD L. FERREIRA  4

On April 18, 1977, petitioner was shown a copy of Daily Express and learned from an item in said newspaper that
ticket No. 162574 won a Toyota Corolla car but was surprised to find out that the winning stub was among those
taken by the private respondent.

That same evening, petitioner attended a meeting of the Metropolitan Jaycees at the Metro Jaycee Clubhouse and
confronted private respondent about the winning stub. Upon being shown a copy of their agreement, petitioner
realized his mistake in dating said agreement on April 14, 1977 instead of April 15, 1977 which he distinctly
remembered to be the date said agreement was executed since it was the last day to file the income tax return but
must have erroneously wrote down the wrong date due to his tight schedule on that day.

On the other hand, private respondent claimed that on April 12, 1977, petitioner informed the former that he is only
buying sixty (60) tickets and offered to return the remaining forty (40) tickets since he needed the money for the
587

payment of his income tax on April 15, 1977, which was accepted by the private respondent and the latter agreed to
appropriate for himself the remaining tickets.

Consequently, in the morning of April 14, 1977, petitioner turned over the one hundred (100) tickets to be dropped in
the "tambiolo" and his check for Three Hundred (P300.00) Pesos for the sixty (60) tickets he bought from the private
respondent.

Upon noticing that all the returned tickets were in the name of the petitioner Amado Gurango or members of his
family, private respondent, during his meeting with the petitioner at Manila Midtown Ramada Hotel at around 6 p.m.
of April 14, 1977, asked the latter to write down their agreement signed by them on April 14, 1977 (Exhibit "A").

Thereafter, private respondent and petitioner met at the Metro Jaycee Clubhouse were the former asked the latter to
comply with their agreement but petitioner refused and wrote a letter to the Makati Jaycees disclaiming said
agreement. Eventually, the car was awarded to petitioners' son. Subsequent demands by the private respondent to
the petitioner to comply with their agreement were ignored by the latter.

Consequently, on August 25, 1977, private respondent filed a complaint for damages against petitioners with the
then Court of First Instance of Rizal, Branch XX in Civil Case No. 27163.

After trial on the merits, a decision was rendered by the Regional Trial Court, the dispositive portion of which reads
as follows:

IN VIEW OF ALL THE FOREGOING, the Court dismisses the complaint, for failure on the part of the
plaintiff to have established a cause of action against the defendants.

On the counterclaim, the Court orders the plaintiff to pay the defendants the sum of Ten Thousand
Pesos (P10,000.00) as moral damages, and the sum of Two Thousand Five Hundred Pesos
(P2,500.00) as and for attorney's fees and expenses of litigation. However, the defendants are
ordered to reimburse the plaintiff the sum of Two Hundred Pesos (P200.00), the balance price of the
forty (40) tickets paid for by the plaintiff.  5

Not satisfied with said decision, private respondent appealed to the respondent court which reversed the decision of
the trial court. The pertinent portion of its decision reads:

We find therefore and so hold that the agreement (Exh. A or A-1) was prepared and signed by the
parties on April 14, 1977 before the raffle. Considering the business and social backgrounds of the
parties. Exhibit A or A-1 is the most practical covenant for their mutual protection before the raffle.

WHEREFORE, the decision of the lower court appealed from is hereby REVERSED ordering
defendants-appellees to pay plaintiff-appellant the sum of P36,000.00 representing the price of the
car and the sum of P5,000.00 as and for counsel fees. No damages and costs.  6

The principal issue presented to Us in the instant case is the validity of the agreement executed between petitioner
and private respondent on April 14, 1977.

As a rule, only legal questions are reviewable by this Court on appeals from decisions of the Court of Appeals.
However, one of the exceptions to the rule is when there is a conflict in factual findings of the Court of Appeals and
the trial court.  7

Section 9, Rule 130 of the Revised Rules of Court in the Philippines provides that:

Sec. 9. Evidence of written agreements. — When the terms of an agreement have been reduced to
writing, it is to be considered as containing all such terms, and, therefore, there can be, between the
party and their successors in interest, no evidence of the terms of the agreement other than the
contents of the writing, except in the following cases:

(a) Where a mistake or imperfection of the writing, or its failure to express the true intent and
agreement of the parties, or the validity if the agreement is put in issue by the pleading;

(b) When there is an intrinsic ambiguity in the writing.

Under the aforementioned provision, when the parties have reduced their agreement in writing, the contents of said
agreement are rendered conclusive upon the parties and evidence aliunde is inadmissible to change a valid and
enforceable agreement embodied in a document. "The mistake contemplated as an exception to the parol evidence
rule is one which is a mistake of fact mutual to the parties," 8 which is not present on this case. Moreover, in view of the parties' conflicting
claims regarding the true nature of the agreement executed by them, We find the version of the private respondent more credible for the terms of said agreement
are clear and require no room for interpretation since the intention of the parties, as expressly specified in said agreement, do not contradict each other.
588

The fact that the agreement was prepared and written by petitioner himself further indicated that said agreement
was entered into by the parties freely and voluntarily which renders petitioners' claim of fraud in the execution of the
agreement unbelievable. Being the author of the agreement, petitioner is presumed to have actual knowledge of the
true intent of the parties and the surrounding circumstance that attended the preparation of the document in
question including the date when said agreement was executed. If it is true that the date if execution was on April
15, 1977, petitioner should have written said date in the agreement and not April 14, 1977 considering that one does
not usually forget a date that has a special significance to him as alleged by the petitioner. In the instant case, it is
highly improbable that petitioner's consent was given through fraud since the document was prepared and executed
by petitioner himself. Therefore, the agreement is valid and binding upon petitioner and respondent.

WHEREFORE, finding no reversible error in the questioned decision of the appellate court, the petitioner
for certiorari is hereby DENIED for lack of merit.

SO ORDERED.

Feliciano, Regalado and Campos, Jr., JJ., concur.

Narvasa, C.J., is on leave.

[G.R. No. 111890. May 7, 1997.]

CKH INDUSTRIAL AND DEVELOPMENT CORPORATION and RUBI SAW, Petitioners, v. THE

COURT OF APPEALS, (FORMER 13TH DIVISION), THE REGISTER OF DEEDS OF METRO
MANILA — DISTRICT III (VALENZUELA), CENTURY-WELL PHIL. CORPORATION, LOURDES
CHONG, CHONG TAK KEI and UY CHI KIM, Respondents.

Dumlao, Farolan and Ignacio Law Offices, for Petitioners.

Arturo S. Santo for Private Respondents.

Estrella-Bautista & Associates for respondent Uy Chi Kim.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PAROLE EVIDENCE RULE, CONSTRUED. — Section 9 of Rule 130 of
the Rules of Court states that "when the terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can be, between the parties and their
successors-in-interest, no evidence of such terms other than the contents of the written agreement."
The so-called "parole evidence rule" forbids any addition to or contradiction of the terms of a written
instrument by testimony or other evidence purporting to show that, at or before the execution of the
parties’ written agreement, other or different terms were agreed upon by the parties, varying the
purport of the written contract. When an agreement has been reduced to writing, the parties cannot
be permitted to adduce evidence to prove alleged practices which to all purposes would alter the
terms of the written agreement. Whatever is not found in the writing is understood to have been
waived and abandoned.

2. ID.; ID.; ID.; EXCEPTIONS. — The rule is not without exceptions, however, as it is likewise
provided that a party to an action may present evidence to modify, explain, or add to the terms of
the written agreement if he puts in issue in his pleadings: (a) an intrinsic ambiguity, mistake or
imperfection in the written agreement; (b) The failure of the written agreement to express the true
intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The
existence of other terms agreed too by the parties or their successors in interest after the execution
of the written agreement.

3. CIVIL LAW; OBLIGATIONS AND CONTRACTS; EXTINGUISHMENT OF OBLIGATION; MODES. —

Under Article 1231 of the Civil Code, an obligation may be extinguished: (1) by payment or
performance; (2) by the loss of the thing due, (3) by the condonation or remission of the debt; (4)
by the confusion or merger of the rights of creditor and debtor, (5) by compensation; or (6) by
novation. Other causes of extinguishment of obligations include annulment, rescission, fulfillment of a
resolutory condition and prescription.

4. ID.; ID.; ID.; LEGAL COMPENSATION; REQUISITES. — Compensation may take place by operation
589

of law (legal compensation), when two persons, in their own right, are creditors and debtors of each
other. Article 1279 of the Civil Code provides for the requisites of legal compensation: "Article 1279.
In order that compensation may be proper, it is necessary: (1) that each one of the obligors be
bound principally, and that he be at the same time a principal creditor of the other; (2) That both
debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and
also of the same quality if the latter has been stated; (3) That the two debts be due; (4) That they,
be liquidated and demandable; (5) That over neither of them there be any retention or controversy,
commenced by third persons and communicated in due time to the debtor." cralaw virtua1aw library

5. ID.; ID.; ID.; CONVENTIONAL COMPENSATION; REQUISITES. — Compensation may also be

voluntary or conventional, that is, when the parties, who are mutually creditors and debtors agree to
compensate their respective obligations, even though not all the requisites for legal compensation
are present. Without the confluence of the characters of mutual debtors and creditors, contracting
parties cannot stipulate to the compensation of their obligations, for then the legal tie that binds
contracting parties to their obligations would be absent. At least one party would be binding himself
under an authority he does not possess. As observed by a noted author, the requirements of
conventional compensation are (1) that each of the parties can dispose of the credit he seeks to
compensate, and (2) that they agree to the mutual extinguishment of their credits.

6. ID.; ID.; ID.; ID.; WILL NOT APPLY WHERE THE CONTRACTING PARTIES ARE NOT MUTUALLY
BOUND AS CREDITORS AND DEBTORS IN THEIR OWN NAME. — In the instant case, there can be no
valid compensation of the purchase price with the obligations of Cheng Kim Heng reflected in the
promissory notes, for the reason that CKH and Century-Well the principal contracting parties, are not
mutually bound as creditors and debtors in their own name. A close scrutiny of the promissory notes
does not indicate the late Cheng, as then president of CKH, acknowledging any indebtedness to
Century-Well. In fact, there is no indication at all, that such indebtedness was contracted by Cheng
from Choi and Kei as stockholders of Century-Well, Choi and Kei, in turn are not parties to the Deed
of Absolute Sale. They are merely stockholders of Century-Well, and as such, are not bound
principally, not even in a representative capacity, in the contract of sale. Thus, their interest in the
promissory, notes cannot be off-set against the obligations between CKH and Century-Well arising
out of the deed of absolute sale, absent any allegation, much less, even a scintilla of substantiation,
that Choi and Kei’s interest in Century-Well are so considerable as to merit a declaration of unity of
their civil personalities. Under present law, corporations, such as Century-Well, have personalities
separate and distinct from their stockholders, except only when the law sees it fit to pierce the veil of
corporate identity, particularly when the corporate fiction is shown to be used to defeat public
convenience, justify wrong, protect fraud or defend crime, or where a corporation the mere alter ego
or business conduit of a person. The court cannot, in this instance make such a ruling absent a
demonstration of the merit of such a disposition.

DECISION

TORRES, JR., J.:

The present petition springs from a civil action instituted by herein petitioners, to rescind and/or
annul the sale of two parcels of land, from petitioner CKH Industrial and Development Corporation
(CKH, for brevity) to private respondent Century-Well Phil. Corporation (Century-Well, for brevity),
for failure to pay the stipulated price of P800,000.00.

Petitioners specifically assail the Decision 1 of the respondent Court of Appeals, which denied the
annulment of the sale. The appellate court found that there was payment of the consideration by way
of compensation, and ordered petitioners to pay moral damages and attorney’s fees to private
respondents. The dispositive portion of the questioned decision reads: chanrobles law library : red

"WHEREFORE, in view of all the foregoing, the appealed Decision is REVERSED. The complaint is
DISMISSED with costs against the plaintiffs. The plaintiffs jointly and severally are required to pay
each of the defendants Lourdes Chong, Chong Tak Kei, and Uy Chi Kim moral damages of
P20,000.00; and further requiring the plaintiffs, jointly and severally, to pay to each of the
defendants Century-Well Phil. Corporation, Lourdes Chong, Chong Tak Kei and Uy Chi Kim attorney’s
fees of P20,000.00

With costs in this instance against the Plaintiffs-Appellees.

590

SO ORDERED." 2

The said decision reversed the disposition of the Regional Trial Court of Valenzuela, Branch 172 in
Civil Case No. 2845-V-88 entitled "CKH Industrial & Development Corporation v. Century-Well
Philippine Corporation, Lourdes Chong, Chong Tak Kei, Uy Chi Kim, and the Register of Deeds of
Metro Manila, District III (Valenzuela)." The trial court’s decision stated pertinently: jgc:chanrobles.com.ph

"WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff: chanrob1es virtual 1aw library

1. Ordering the rescission/annulment of the Deed of Absolute Sale of Realty.

2. Ordering defendants Lourdes Chong, Chong Tak Kei and Century-Well to pay plaintiffs moral
damages in the sum of P200,000.00;

3. Ordering defendants Lourdes Chong, Chong Tak Kei and Century Well to pay plaintiffs Attorney’s
fees in the amount of 15% of the agreed price of P800,000.00 plus appearance fees of P500.00 per
appearance;

4. Ordering defendants Lourdes Chong, Chong Tak Kei and Century Well to pay the costs of suit;

5. As the writ of preliminary injunction was denied, the defendant Register of Deeds of Valenzuela is
hereby ordered to cancel the certificates of title issued to Century-Well by virtue of the Deed of
Absolute Sale of Realty and to reissue a new title in the name of CKH.

The case is dismissed as far as defendant Uy Chi Kim is concerned. His counterclaim is likewise
dismissed considering that by his mediation he took it upon himself to assume the damages he
allegedly suffered.

SO ORDERED." 3

The records disclose that petitioner CKH is the owner of two parcels of land, consisting of 4,590 sq.
m. and 300 sq. m. respectively, located in Karuhatan, Valenzuela, and covered by Transfer
Certificates of Title Nos. 8710 and 8711, Register of Deeds of Caloocan City (now Register of Deeds
District III [Valenzuela]). 4 CKH is a corporation established under Philippine law by the late Cheng
Kim Heng (Cheng), an immigrant of Chinese descent. Upon Cheng’s demise, control over the
petitioner corporation was transferred to Rubi Saw, also of Chinese descent, and Cheng’s second
wife.

It also appears that before coming to the Philippines, Cheng Kim Heng was married to Hung Yuk Wah
(Wah), who lived in Hongkong together with their children, Chong Tak Kei (Kei), Chong Tak Choi
(Choi), and Chong Tak Yam (Yam). After Cheng immigrated to the Philippines in 1976, and married
Rubi Saw in 1977, he brought his first wife, Heng, and their children to this country, and established
himself and his Chinese family as naturalized Filipino citizens. Heng died in 1984.

On May 8, 1988, Rubi Saw and Lourdes Chong, the wife of Cheng’s son, Kei, met at the 1266 Soler
St., Sta. Cruz, Manila, the residence of Cheng’s friend, Uy Chi Kim, and executed a Deed of Absolute
Sale, 5 whereby Rubi Saw, representing CKH, agreed to sell the subject properties to Century-Well, a
corporation owned in part by Lourdes Chong, Kei and Choi. 6

The pertinent portions of the Deed of Sale are hereby reproduced: jgc:chanrobles.com.ph

"KNOW ALL MEN BY THESE PRESENTS: chanrob1es virtual 1aw library

This Deed of Absolute Sale of Realty executed by and between: chanrob1es virtual 1aw library

CKH INDUSTRIAL & DEVELOPMENT CORPORATION, a corporation duly organized and existing under
and by virtue of the laws of the Republic of the Philippines, with business address at 553 Bermuda
St., Sta. Cruz, Manila, represented in this act by its authorized representative, Ms. RUBI SAW,
hereinafter referred to as VENDOR,

- in favor of -

CENTURY-WELL PHIL. CORPORATION, a corporation duly organized and existing under and by virtue
of the laws of the Republic of the Philippines at least sixty (60%) percent of the subscribed capital
591

stock of which is owned by Filipino citizens, duly qualified to own and acquire lands in the Philippines,
with office and business address at 66 F. Bautista St., Valenzuela, Metro Manila and represented in
this act by its Treasurer and authorized representative, Ms. Lourdes Chong, hereinafter referred to as
VENDEE,

WITNESSETH: chanrob1es virtual 1aw library

That vendor is the registered owner of two adjacent parcels of residential land situated in the Bo. of
Karuhatan, Municipality of Valenzuela, Metro Manila, covered by Transfer Certificates of Titles Nos. B-
8710 and B-8711 of the Registry of Deeds for Metro Manila District III, and more particularly
described as follows: chanrob1es virtual 1aw library

x          x           x

That for and in consideration of the sum of EIGHT HUNDRED THOUSAND (P800,000.00) PESOS,
Philippine Currency, paid by VENDEE to VENDOR, receipt of which is hereby acknowledged by the
latter to its entire satisfaction, said VENDOR, by these presents, has SOLD, CEDED, TRANSFERRED,
and CONVEYED by way of absolute sale unto said VENDEE, its successors and assigns, the two
parcels of land above described and any and all improvements therein;

That the above-described parcels of land are free from liens and encumbrances of whatever kind and
nature.

IN WITNESS WHEREOF, the parties hereto and their instrumental witnesses have hereunto set their
hand on _____ at _____." cralaw virtua1aw library

Rubi Saw signed on behalf of CKH, while Lourdes Chong signed for Century Well. 7 The document
was notarized the day after the parties signed the same, i. e., March 9, 1988. 8

Claiming that the consideration for the sale of the subject properties was not paid by the private
respondent-vendee despite several demands to do so, Petitioners CKH and Rubi Saw filed the instant
complaint 9 on May 23, 1988, with the Regional Trial Court of Valenzuela, Branch 172, against
Century-Well, Lourdes Chong, Chong Tak Kei and Uy Chi Kim. Petitioners prayed for the
annulment/rescission of the Deed of Absolute Sale, and in the meantime, for the issuance of a writ of
preliminary injunction restraining the Register of Deeds of Valenzuela from registering the
Certificates of Title over the subject properties in the name of the private respondent Century-Well.

The trial court synthesized the petitioners’ submissions as follows: jgc:chanrobles.com.ph

"The complaint alleges the following: chanrob1es virtual 1aw library

Lourdes Chong and Rubi Saw agreed that the full payment of P800,000.00 as purchase price shall be
in the form of a Manager’s Check, to be delivered to Rubi Saw upon the execution of the Deed of
Sale, the preparation of which, Lourdes Chong undertook. On May 8, 1988, the date agreed upon for
the execution of the Deed of Sale, plaintiff Rubi Saw, accompanied by her friend Aurora Chua Ng,
went to 1266 Soler St., Sta. Cruz, Manila which is the residence and place of business of defendant
Uy Chi Kim, an elderly man of Chinese ancestry and the place suggested by Lourdes Chong as their
meeting place. During the meeting, Uy Chi Kim who was there presented to Rubi Saw a Deed of
Absolute Sale in favor of defendant Century Well for her signature. Before Rubi Saw signed the Deed
of Absolute Sale she inquired about the payment of the P800,000.00. Defendant Uy Chi Kim
presented to her a personal check but she refused the same because it was contrary to her
arrangement with Lourdes Chong that the payment would be in the form of Manager’s Check. Uy Chi
Kim then explained to Rubi Saw that since it was a Sunday that day, they were unable to obtain the
Manager’s Check. He assured her that he had sufficient cash money at the first floor of his residence
which is a store owned by Uy Chi Kim. Before Uy Chi Kim left on the pretext of getting the money, he
persuaded plaintiff Rubi Saw to sign the Deed of Absolute Sale and give the same to Lourdes Chong
together with the two Certificates of Title. Since Uy Chi Kim is an elderly Chinese whom Rubi Saw
had no reason to mistrust, following Chinese custom, plaintiff Rubi Saw acceded to the request of Uy
Chi Kim, trusting that he had sufficient cash amounting to P800,000.00 kept in the first floor of his
residence. When Uy Chi Kim returned, he told Rubi Saw that he had only P20,000 on hand. He
assured plaintiff, however, that there was no cause for her to worry (as) he was certain he would
have the entire amount ready by the next day when the banks would be open. Again, trusting the
elderly defendant Uy Chi Kim, Rubi Saw did not object and did not insist on the return of the Deed of
Absolute Sale that she signed, together with the Certificate of Title which she delivered to Lourdes
592

Chong. The next day, May 9, 1988 Rubi Saw called Lourdes Chong and Uy Chi Kim over the
telephone but was told they were not around. She could not go to the residence of Uy Chi Kim
because she could not leave her office due to business concerns. On May 10, 1988 Rubi Saw
repeatedly called the two but was informed they were not around. On May 11, 1988 already anxious,
she personally went to the residences and offices of the two defendants but they were not around.
On May 12, 1988 Rubi Saw wrote defendant Century Well advising Lourdes Chong of the rescission
and cancellation of the Deed of Absolute Sale because of lack of consideration. Lourdes Chong
refused to receive the letter. Thereafter, several demand letters were sent to the defendants but they
refused to pay plaintiffs. Worried that defendants might surreptitiously transfer the certificates of title
to their names, Rubi Saw wrote the public defendant Register of Deeds on May 16, 1988, giving
information about the circumstances of the sale and requesting not to allow registration of the Deed
of Absolute Sale, together with an Affidavit of Adverse Claim. On May 20, 1988, plaintiffs’
representative was informed by the Register of Deeds that defendants have made representations
with defendant to Register the Deed of Absolute Sale on May 23, 1988. chanrobles.com : virtual law library

Plaintiff Rubi Saw filed this Complaint alleging that Lourdes Chong and Uy Chi Kim maliciously misled
her to believe that they would pay the P800,000 as consideration when in fact they had no intention
to pay plaintiffs, and prayed that they should be awarded moral damages; that defendants be
restrained from registering the Deed of Absolute Sale, and be ordered to return to them the 2 titles
of the properties together with the Deed of Absolute Sale." 10

On the other hand, private respondents Century-Well, Lourdes Chong, and Chong Tak Kei alleged
that: jgc:chanrobles.com.ph

". . . the consideration for the two parcels of land was paid by means of off-setting or legal
compensation in the amount of P700,000 thru alleged promissory notes executed by Cheng Kim
Heng in favor of his sons Chong Tak Choi and Chong Tak Kei (Exh. 6, 7, & 8) and payment of
P100,000.00 in cash.

The defendant Century Well filed its Answer stating that during the operation of plaintiff CKH, the
latter borrowed from Chong Tak Choi and Chong Tak Kei the total sum of P700,000.00 paying
interest on P300,000.00 while the remaining P400,000.00 was interest free, and upon the death of
Cheng Kim Heng, it stopped making said payments. Defendant tried to prove that the source of this
P700,000 was Hung Yuk Wah while she was still residing in Hongkong, sent via bank draft from
Hongkong to Chong Tak Choi and Chong Tak Kei on a bank to bank transfer. Defendant likewise tried
to prove that after the death of Cheng Kim Heng, Rubi Saw unilaterally arrogated to herself the
executive positions in plaintiff corporation such as President, Secretary, Treasurer and General
Manager; thus effectively shunting aside Hung Yuk Wah and her children in the management of
plaintiff corporation. Family differences (arose) between Rubi Saw on one hand, and Hung Yuk Wah
and her children on the other hand which turned to worst after the death of Cheng Kim Heng. This
brought about the entry of Chinese mediators between them, one of whom is defendant Uy Chi Kim,
a reason why the execution of the Deed of Absolute Sale was to be done at the residence and
business address of Uy Chi Kim." 11

Uy Chi Kim, on the other hand, answered on his behalf, that: jgc:chanrobles.com.ph

". . . his only participation in the transaction was as a mediator, he being one of the closest friends of
Cheng Kim Heng; that because the heirs of Cheng Kim Heng could not settle their problems he,
together with Machao Chan and Tomas Ching tried to mediate in accordance with Chinese traditions;
that after long and tedious meetings the parties finally agreed to meet at his residence at 1266 Soler
St., Sta. Cruz, Manila for the purpose of pushing thru the sale of the properties in question as part of
the settlement of the estate. Defendant Uy Chi Kim corroborated the defense of his co-defendants
that the purchase price of the properties was P800,000.00 the payment of which consists in the form
of P100,000.00 in cash Philippine Currency; and the balance of P700,000.00 will be applied as a set-
off to the amount borrowed by plaintiff CKH from Chong Tak Choi and Chong Tak Kei. He advanced
the amount of P100,000.00 by way of his personal check to Rubi Saw but because Rubi Saw refused,
he gave Rubi Saw P100,000 in the form of P100 bills which Rubi Saw and Jacinto Say even counted.
After the P100,000.00 cash was given and the promissory notes, Rubi Saw signed the document of
sale. It was during the registration of the sale that a problem arose as to the payment of the capital
gains (tax) which Rubi Saw refused to pay. The buyer likewise refused to pay the same. The
complaint against him is baseless and which besmirched his reputation. Hence his counterclaim for
damages." 12

The trial court denied the petitioners’ prayer for issuance of the writ of preliminary injunction in its
Order dated August 4, 1988. 13
593

After trial, the lower court rendered its Decision on February 4, 1991, finding that the annulment of
the Deed of Absolute Sale was merited, as there was no payment of the stipulated consideration for
the sale of the real properties involved to Rubi Saw.

In the first place, said the court, the Deed of Sale itself, which is the best evidence of the agreement
between the parties, did not provide for payment by off-setting a portion of the purchase price with
the outstanding obligation of Cheng Kim Heng to his sons Chong Tak Choi and Chong Tak Kei. On the
contrary, it provided for payment in cash, in the amount of P800,000.00. The evidence presented,
however, did not disclose that payment of the said amount had ever been made by the
private Respondent. Moreover, there cannot be any valid off-setting or compensation in this case, as
Article 1278 of the Civil Code 14 requires, as a prerequisite for compensation, that the parties be
mutually bound principally as creditors and debtors, which is not the case in this instance. The
rescission of the contract is, therefore, called for, ruled the court.

Upon appeal, the respondent Court of Appeals reversed the findings and pronouncements of the trial
court. In its Decision 15 dated April 21, 1993, the appellate court expressed its own findings, that the
execution of the Deed of Absolute Sale was in settlement of a dispute between Rubi Saw and the first
family of Cheng Kim Heng, which arose upon Cheng’s death. The appellate court described the
history of their dispute as follows:
jgc:chanrobles.com.ph

"In 1977, Heng formed plaintiff-appellee CKH Industrial & Development Corporation (CKH), with his
first wife Wah, children Choi and Kei, and second wife Rubi as his co-incorporators/stockholders,
along with other individuals (Exhs. C and D; ibid., p. 9 and pp. 10-13. respectively). On April 15 and
July 17 the following year, Heng, on behalf of CHK [sic], obtained loans of P400,000.00 and
P100,000.00 from Choi, for which Heng executed two promissory notes in Choi’s favor (Exhs. 6 and
7; ibid., p. 40 and p. 41, respectively). On November 24, 1981, Heng obtained from his other son,
Kei, another loan this time in the sum of P200,000.00 on behalf of CKH for which he issued another
promissory note (Exh. 8, ibid., p. 42).

After its incorporation, CKH acquired two parcels of land situated in Karuhatan, Valenzuela, Bulacan
(now Metro Manila) covered by Transfer Certificates of Title Nos. B-8710 (Annex A-Complaint;
Record, p. 13) and B-8711 (Annex B-Complaint; ibid., p. 14), which are now the subject of litigation
in instant case.

On October 11, 1982, Kei was married to defendant-appellant Lourdes Chong nee Lourdes Gochico
Hai Huat (Lourdes). During their marriage, Kei and Lourdes resided in the house on Tetuan St., Sta.
Cruz, Manila, which CKH was then utilizing as its office. At about this time, Heng and Rubi had moved
residence from Valenzuela, Metro Manila, to Bermuda St., Sta. Cruz, Manila.

Two years later, or in late 1984, Heng died. Thenceforth, there appeared to be a falling out between
Heng’s first wife Wah and their three children on the one hand, and his second wife Rubi, on the
other, which came to a head when, Rubi as president of CKH wrote a letter dated August 21, 1985 to
the mayor of Valenzuela, Metro Manila, to prevent issuance of a business permit to American Metals
managed by Chong Tak Choi, stating that CKH has not allowed it to make use of the property, and on
November 7, 1985, when CKH, through counsel, demanded that Wah, Choi and Yam vacate the
residential and factory buildings and premises owned by CKH and located on one of the subject lots
on 76 F. Bautista St., Valenzuela, which the three and the corporation (of which two of them were
stockholders), had been allegedly illegally occupying (Exhs. 10 and 10-A; Folio, pp. 44-45).

Respected mediators from the Chinese community in the persons of defendant-appellant Uy Chi Kim,
Ma Chao, Tomas Cheng and Johnny Saw, were called in to mediate. The mediation efforts which
resulted in the withdrawal by Rubi Saw of her letter about the withholding of a license to American
Metals. Inc. and much later, had culminated in the transaction now under litigation.

The formula for settlement in the dispute was for the Valenzuela properties of CKH to be sold to
Century Well for the amount of P800,000.00, P 100,000.00 of which will be paid in cash and the
balance of P700,000.00 to be set-off by the three (3) promissory notes executed in behalf of CKH in
favor of Chong Tak Choi and Chong Tak Kei (Exhs. 6, 7 and 8) the accumulated interests thereon to
be waived as unstated consideration of the sale.

Having reached such agreement, on May 8, 1988, the parties met at the residence of Kim at Soler
St., where the corresponding deed of absolute sale of realty was executed (Exhs. 11, 11-A to 11-C;
ibid., pp. 46-49), with mediator Cheng and CKH stockholder and Rubi’s secretary, Jacinto Say,
signing as instrumental witnesses. After having received the cash consideration of P100,000.00 and
594

the promissory notes amounting to P700,000.00 Rubi had signed the deed, and thereafter delivered
to Lourdes the document of sale and the owner’s copies of the certificates of title for the two lots.
The deed having been executed on a Sunday, the parties agreed to have the same notarized the
following day, May 9, 1988. The parties again met the next day, May 9, 1988, when they
acknowledged the deed before a notary public." 16

In sum, the appellate court found that there was indeed payment of the purchase price, partially in
cash for P 100,000.00 and partially by compensation by off-setting the debt of Cheng Kim Heng to
his sons Choi and Kei for P500,000.00 and P200,000.00 respectively, against the remainder of the
stipulated price. Such mode of payment is recognized under Article 1249 17 of the Civil Code.

As observed by the appellate court: jgc:chanrobles.com.ph

"We are of the considered view that the appellees have not established what they claim to be the
invalidity of the subject deed of sale. The appellees are therefore neither entitled to the rescission or
annulment of the document nor to the award made in their favor in the decision under question and
those other reliefs they are seeking." 18

The question the Court is now tasked to answer is whether or not there was payment of the
consideration for the sale of real property subject of this case. More specifically, was there a valid
compensation of the obligations of Cheng Kim Heng to his sons with the purchase price of the sale?

To resolve this issue, it is first required that we establish the true agreement of the parties.

Both parties take exception to the provisions of the Deed of Absolute Sale to bolster their respective
claims. Petitioners, while submitting that as worded, the Deed of Absolute Sale does not provide for
payment by compensation, thereby ruling out the intention of the parties to provide for such mode of
payment, submit on the other hand, that they had not received payment of the stipulated cash
payment of P800,000.00. The testimony of Rubi Saw during the hearings for preliminary injunction
and during trial was submitted to advance the submission that she was never paid the price of the
subject lots, in cash or in promissory notes.

On the other side of the fence, private respondents, who, ironically, were the parties who drafted the
subject document, claim that the Deed of Sale does not express the true agreement of the parties,
specifically with regard to the mode of payment. Private respondents allege that the execution of the
deed of absolute sale was the culmination of mediation of the dispute of the first and second families
of Cheng Kim Heng, over the properties of the decedent; that the price of the real property subject of
the contract of sale was partly in cash, and the reminder to be compensated against Cheng’s
indebtedness to his sons Choi and Kei, reflected in the promissory notes submitted as Exhibits 6, 7
and 8 during the trial; that by virtue of such compensation, the sale has been consummated and the
private respondent Century-Well is entitled to the registration of the certificates of title over the
subject properties in its name.

These contrasting submissions of the circumstances surrounding the execution of the subject
document have led to this stalemate of sorts. Still, the best test to establish the true intent of the
parties remains to be the Deed of Absolute Sale, whose genuineness and due execution, are
unchallenged. 19

Section 9 of Rule 130 of the Rules of Court states that "when the terms of an agreement have been
reduced to writing, it is considered as containing all the terms agreed upon and there can be,
between the parties and their successors-in-interest, no evidence of such terms other than the
contents of the written agreement." cralaw virtua1aw library

The so-called "parol evidence rule" forbids any addition to or contradiction of the terms of a written
instrument by testimony or other evidence purporting to show that, at or before the execution of the
parties’ written agreement, other or different terms were agreed upon by the parties, varying the
purport of the written contract. When an agreement has been reduced to writing, the parties cannot
be permitted to adduce evidence to prove alleged practices which to all purposes would alter the
terms of the written agreement. Whatever is not found in the writing is understood to have been
waived and abandoned. 20

The rule is not without exceptions, however, as it is likewise provided that a party to an action may
present evidence to modify, explain, or add to the terms of the written agreement if he puts in issue
in his pleadings: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b)
The failure of the written agreement to express the true intent and agreement of the parties thereto;
595

(c) The validity of the written agreement; or (d) The existence of other terms agreed to by the
parties or their successors in interest after the execution of the written agreement. 21

We reiterate the pertinent provisions of the deed: jgc:chanrobles.com.ph

"That for and in consideration of the sum of EIGHT HUNDRED THOUSAND (P800,000.00) PESOS,
Philippine Currency, paid by VENDEE to VENDOR, receipt of which is hereby acknowledged by the
latter to its entire satisfaction, said VENDOR, by these presents, has SOLD, CEDED, TRANSFERRED,
and CONVEYED by way of absolute sale unto said VENDEE, its successors and assigns, the two
parcels of land above described and any and all improvements therein;" 22

The foregoing stipulation is clear enough in manifesting the vendor’s admission of receipt of the
purchase price, thereby lending sufficient, though reluctant, credence to the private respondents’
submission that payment had been made by off-setting P700,000.00 of the purchase price with the
obligation of Cheng Kim Heng to his sons Choi and Kei. By signing the Deed of Absolute Sale,
petitioner Rubi Saw has given her imprimatur to the provisions of the deed, and she cannot now
challenge its veracity.

However, the suitability of the said stipulations as benchmarks for the intention of the contracting
parties, does not come clothed with the cloak of validity. It must be remembered that agreements
affecting the civil relationship of the contracting parties must come under the scrutiny of the
provisions of law existing and effective at the time of the execution of the contract.

We refer particularly to the provisions of the law on compensation as a mode of extinguishment of

obligations. Under Article 1231 of the Civil Code, an obligation may be extinguished: (1) by payment
or performance; (2) by the loss of the thing due, (3) by the condonation or remission of the debt; (4)
by the confusion or merger of the rights of creditor and debtor, (5) by compensation; or (6) by
novation. Other causes of extinguishment of obligations include annulment, rescission, fulfillment of a
resolutory condition and prescription.

Compensation may take place by operation of law (legal compensation), when two persons, in their
own right, are creditors and debtors of each other. 23 Article 1279 of the Civil Code provides for the
requisites of legal compensation: jgc:chanrobles.com.ph

"ARTICLE 1279. In order that compensation may be proper, it is necessary: chanrob1es virtual 1aw library

(1) That each one of the obligors be bound principally, and that he be at the same time a principal
creditor of the other;

(2) That both debts consist in a sum of money, or if the things due are consumable, they be of the
same kind, and also of the same quality if the latter has been stated;

(3) That the two debts be due: chanrob1es virtual 1aw library

(4) That they be liquidated and demandable: chanrob1es virtual 1aw library

(5) That over neither of them there be any retention or controversy, commenced by third persons
and communicated in due time to the debtor." cralaw virtua1aw library

Compensation may also be voluntary or conventional, that is, when the parties, who are mutually
creditors and debtors agree to compensate their respective obligations, even though not all the
requisites for legal compensation are present. Without the confluence of the characters of mutual
debtors and creditors, contracting parties cannot stipulate to the compensation of their obligations,
for then the legal tie that binds contracting parties to their obligations would be absent. At least one
party would be binding himself under an authority he does not possess. As observed by a noted
author, the requirements of conventional compensation are (1) that each of the parties can dispose
of the credit he seeks to compensate, and (2) that they agree to the mutual extinguishment of their
credits. 24

In the instant case, there can be no valid compensation of the purchase price with the obligations of
Cheng Kim Heng reflected in the promissory notes, for the reason that CKH and Century-Well the
principal contracting parties, are not mutually bound as creditors and debtors in their own name. A
close scrutiny of the promissory notes does not indicate the late Cheng, as then president of CKH,
acknowledging any indebtedness to Century-Well. As worded, the promissory notes reveal CKH’s
indebtedness to Chong Tak Choi and Chong Tak Kei.
596

Exhibit 6

Metro Manila, Philippines

April 15, 1978

For Value Received, We, CKH INDUSTRIAL & DEVELOPMENT CORPORATION, a duly registered
corporation with postal address at Rm. 330, MTM Bldg. 1002 C. M. Recto Avenue, Manila, promises
[sic] to pay on demand to Mr. CHONG TAK CHOI, the sum of FOUR HUNDRED THOUSAND PESOS,
Philippine currency (P400,000.00)

To certify the correctness of the indebtedness to the party, I, CHENG KIM HENG, President of CKH
INDUSTRIAL & DEVELOPMENT CORPORATION, do hereby signed [sic] in behalf of the Corporation.

CKH INDUSTRIAL & DEVELOPMENT

CORPORATION

signed: chanrob1es virtual 1aw library

CHENG KIM HENG"

Exhibit 7

Manila,

July 17, 1978

For Value received, we, CKH INDUSTRIAL & DEVELOPMENT CORPORATION, a duly registered
domestic corporation in the City of Manila, represented by its president, CHENG KIM HENG with
residence certificate no. 118824650 issued at Manila, on 2-28-78 do promise to pay on demand the
sum of ONE HUNDRED THOUSAND PESOS ONLY (P100,000.00), Philippine currency with interest
from the date hereof at the rate of ten per cent (10%) per annum to Mr. CHONG TAK CHOI.

In witness hereof on the consents [sic] of the parties to this promissory note, I, CHENG KIM HENG,
president of CKH INDUSTRIAL & DEVELOPMENT CORPORATION do hereby affixed [sic] my signature
below.chanroblesvirtualawlibrary

signed: chanrob1es virtual 1aw library

CHENG KIM HENG

Exhibit 8

Manila, Philippines,

November 24, 1981

I, CHENG KIM HENG, President of CKH INDUSTRIAL & DEVELOPMENT CORPORATION, 831 Tetuan St.
(2nd floor) Sta. Cruz, Manila, promises to pay to CHONG TAK KEI, with postal address at 76 F.
Bautista St., Valenzuela, Metro Manila, the sum of PESOS: TWO HUNDRED THOUSAND ONLY
(P200,000.00) Philippine Currency, with interest at the rate of Ten per cent (10%) per annum from
date stated above to a period of one year and I hereby consent to any renewal, or extension of same
amount to a same period which may be requested by any one of us for the payment of this note.

I also acknowledge the receipt of the above sum of money today from MR. CHONG TAK KEI.

CKH IND. & DEV. CORP.

signed: chanrob1es virtual 1aw library

CHENG KIM HENG

President
597

In fact, there is no indication at all, that such indebtedness was contracted by Cheng from Choi and
Kei as stockholders of Century-Well. Choi and Kei, in turn, are not parties to the Deed of Absolute
Sale. They are merely stockholders of Century-Well, 25 and as such, are not bound principally, not
even in a representative capacity, in the contract of sale. Thus, their interest in the promissory notes
cannot be off-set against the obligations between CKH and Century-Well arising out of the deed of
absolute sale, absent any allegation, much less, even a scintilla of substantiation, that Choi and Kei’s
interest in Century-Well are so considerable as to merit a declaration of unity of their civil
personalities. Under present law, corporations, such as Century-Well, have personalities separate and
distinct from their stockholders, 26 except only when the law sees it fit to pierce the veil of corporate
identity, particularly when the corporate fiction is shown to be used to defeat public convenience,
justify wrong, protect fraud or defend crime, or where a corporation the mere alter ego or business
conduit of a person. 27 The Court cannot, in this instance make such a ruling absent a demonstration
of the merit of such a disposition.

Considering the foregoing premises, the Court finds it proper to grant the prayer for rescission of the
subject deed of sale, for failure of consideration. 28

IN VIEW WHEREOF, the Court hereby RESOLVED to GRANT the present petition. The decision of the
Court of Appeals dated April 21, 1993, is hereby REVERSED and SET ASIDE. The decision of the
Regional Trial Court of Valenzuela, Branch 173 dated February 4, 1991, is hereby REINSTATED, with
the MODIFICATION that the award of moral damages and attorney’s fees to Rubi Saw, and the order
for payment of costs are DELETED.

The parties shall bear their respective costs. chanroblesvirtuallawlibrary:red

SO ORDERED.
598
599

[G.R. No. 9363. November 24, 1914. ]

ALBINO CAMACHO, Plaintiff-Appellant, v. THE MUNICIPALITY OF BALIUAG, PROVINCE OF

BULACAN, Defendant-Appellee.

Buencamino & Lontok, for Appellant.

Chicote & Miranda, for Appellee.

SYLLABUS

1. PRINCIPAL AND AGENT; OWNERSHIP OF REALTY ACQUIRED BY AGENT. — The settled doctrine
in this jurisdiction is that realty acquired with funds and at the instance of another in the discharge of an
undisclosed agency, express or implied, belongs to the principal, and an action lies in favor of such undisclosed
principal to compel a conveyance to himself so long as the rights of innocent third parties have not intervened.

2. ID.; ID.; PAROL EVIDENCE. — Parol evidence is competent in such cases to overcome the prima facie
case made by documents of title in the name of the agent, but such evidence, to prevail must be clear and
convincing.

DECISION

TRENT, J.  :

This is an action to quiet title to two parcels of land situated in the poblacion of the municipality of
Baliuag, Province of Bulacan. The admitted facts in this case are that these lots were occupied by a
school and municipal building, respectively, belonging to the municipal government from very early
times. In 1895 the central govern- ment claimed the land and ordered its sale at public auction. This
sale occurred July 8, 1895. The plaintiff’s bid of P300 was accepted. Title was accordingly issued to
him and the sale was registered the following year — 1896. Notwithstanding this public sale, the
municipality continued to occupy the lots and to collect the rents from several tenants whose
dwellings were located thereon. In fact, it appears that its possession of the land had been
undisturbed by anyone except the central government (in 1895) until the institution of this action in
1908. In other words, the plaintiff has never made any pretense to rely upon his documents of title
between the date of his purchase in 1895 and shortly before he instituted the present action in 1908.

The plaintiff testified that he had lost his documents of title in the revolution of 1898 and did not
recover them until the month of April, 1908. During this period of time he had merely tolerated the
possession of the municipality as he had no proof sufficient to establish his title. The documents of
title had been returned to him by his attorney. His attorney testified that the documents had been
given to him by a third person whose name he refused to reveal and that, the plaintiff being a friend
of his, he had taken them to him.

The municipality introduced the deposition of Father Prada, now residing in Spain, who was the
parish priest of the municipality from 1889 to 1898, when he was compelled to leave on account of
the revolution. The affiant declared that when the Insular Government claimed the land and
proceeded to advertise it for sale, a number of the principal people had an unofficial conference with
him at which they requested him to furnish the money with which to buy the land in order that it
might be retained by the municipality, with the understanding that the latter would repay him at a
future date. He agreed to do this and chose the plaintiff to appear at the auction and bid for the
property, furnishing him the money. According to the affiant, it was in this capacity that the plaintiff
purchased the land at the public auction, with the affiant’s money. Upon receiving the documents of
title, the plaintiff turned them over to the affiant, who kept them in his office continuously until 1898,
when he was obliged to leave the municipality and did not take them with him.

A number of reputable citizens of the municipality who had been raised in the municipality and had
held offices in the local government, both before and after American occupation, testified that the
plaintiff represented either the municipality or Father Prada at the sale, although they did not exactly
agree as to which of these two furnished the money. As justly remarked by counsel for the defendant
600

however, this is a question which it is unnecessary to investigate in this action, as either theory is
sufficient to defeat the plaintiff’s claim of purchase in his own behalf. A number of tenants of this land
also testified that they had always paid rent to the municipality and never to the plaintiff.

It was also shown that the plaintiff was an officer of the local government in various capacities at
different times since 1895, and that he had subscribed to official acts of the municipal council in
which the municipality’s claim of ownership of the land was clearly set forth. The municipal market
was built in 1895 and witnesses for the defense testified without contradiction that the material in
the former municipal building was used in its construction. It is further admitted that the municipality
collected the rents from these parcels from 1895 until 1898, when plaintiff claims to have lost his
documents of title. To assume that this alleged loss was a sufficient excuse for his acquiescing in the
acts of ownership performed by the municipality between the years 1898 and 1908, when he first
disputed the possession of the municipality, would be a most charitable view of the plaintiff’s case.
But he offers no explanation of his acquiescence in the possession of the municipality between 1895
and 1898, during which time he must have had possession of his documents of title by his own
testimony. On this point also, he is directly contradicted by Father Prada, who testified that he it was
who had possession of these documents during this period.

It seems unnecessary to enter into an extended discussion of the evidence of record. The facts
testified to by the witnesses for the defendant are so clearly established as to leave no doubt
whatever of their authenticity, and the only question is whether they ought to be admitted to vary
the terms of the plaintiff’s deed.

There have been a number of cases before this court in which a title to real property was acquired by
a person in his own name while acting in a fiduciary capacity, and who afterwards sought to take
advantage of the confidence reposed in him by claiming the ownership of the property for himself.
This court has invariably held such evidence competent as between the fiduciary and the cestui que
trust.

In Uy Aloc v. Cho Jan Ling (19 Phil. Rep., 202), the members of a Chinese club agreed to purchase
some real property and for that purpose subscribed a fund and placed it in the hands of the
defendant, who made the purchase in his own name. Subsequently, he refused to account for the
rents on the property and claimed it as his own. This court held parol proof of the trust sufficient to
overcome the case in favor of the defendant by reason of his registered documents of title, and
decreed that a conveyance be made by the defendant to the members of the association.

In Taguinot v. Municipality of Tanay (9 Phil. Rep., 396), the plaintiffs, as heirs of their father, sought
to recover possession of a parcel of land held by the municipality on the strength of a Spanish patent
issued to him. It was proved (largely by parol evidence) that their father acted on behalf and at the
expense of the municipality in securing the patent. The patent was retained by the gobernadorcillo, a
copy only being issued to the patentee. The latter also drew up a private document engaging to
execute a conveyance to the municipality, the same being offered in evidence. The municipality had
continuously occupied the land since the issuance of the title. The judgment of the court below
dismissing the complaint was affirmed.

In the following cases of a similar character, parol evidence was held not sufficient to overcome the
case made out by the holder of the registered title: Belen v. Belen (13 Phil. Rep., 202); Garen v. Pilar
(17 Phil. Rep., 132); Balatian v. Agra (17 Phil. Rep., 501). Agonoy v. Ruiz (11 Phil. Rep., 204), and
Madariaga v. Castro (20 Phil. Rep., 563), were both cases wherein one person was delegated by a
community of property owners to secure in his own name a patent from the Spanish Government
covering all their lands, the object being to save the expense of obtaining individual patents in the
name of each. After securing these patents, the therein grantees ejected their neighbors from the
land covered by the patents and respectively claimed the land as their own. The evidence tending to
establish these facts was considered by the court in both cases Relief by reformation of the patent or
a compulsory conveyance to the injured persons was denied in each case, because the rights of an
innocent third purchaser intervened. But in the first case the injured persons were held entitled to
damages, provided they were able to establish the same. In the second case, however, the court
presumed a waiver of their claims by reason of other evidence of record. The fact that the parol
evidence relied upon in the cases cited in this paragraph to defeat the documents of title was
carefully considered by the court, impliedly admits its competency. It failed in its purpose in these
cases merely because it was not sufficiently strong to overcome the case in favor of the holders of
the registered titles.

We hold, therefore, that the parol evidence introduced by the defendant municipality was competent
to defeat the terms of the plaintiff’s deed. It need only be added that in all such cases as the present
601

we have required and shall continue to require that the proof contradicting such documents must be
clear and convincing. These qualities are apparent in the proof offered by the defendant municipality
in the case at bar.

What judgment ought to be entered in this case? The court below simply absolved the defendant
from the complaint. The defendant municipality does not ask for a cancellation of the deed. On the
contrary, the deed is relied upon to supplement the oral evidence showing that the title to the land is
in the defendant. As we have indicated in Consunji v. Tison (15 Phil. Rep., 81), and Uy Aloc v. Cho
Jan Ling (19 Phil. Rep., 202), the proper procedure in such a case, so long as the rights of innocent
third persons have not intervened, is to compel a conveyance to the rightful owner. This ought and
can be done under the issues raised and the proof presented in the case at bar.

For the foregoing reasons the judgment of the court below, absolving the defendant from the
complaint, is affirmed; and it is directed that the plaintiff execute a conveyance of the property in
dispute, now standing on the property registry in his name, to the defendant municipality. It may be
added that this judgment can affect no right which Father Prada may have against the municipality
for the recovery of the purchase money, which he alleges to have furnished. The costs will be against
the Appellant.

Arellano, C.J., Torres, Johnson, Carson and Araullo, JJ., concur.

Separate Opinions

MORELAND, J., concurring: chanrob1es virtual 1aw library

I agree to the decision in this case, but I think the discussion of the law upon which the decision is
based is misleading and will give a wrong impression unless attention is called to it. The decision
raises and discusses the question as to when parol evidence is admissible to vary, alter or contradict
the terms of a written instrument. That question is not in the case in any sense and has no bearing
whatever on the resolution of the question presented.

As is seen from reading the decision, the only question involved is whether the plaintiff bought the
land from the Insular Government on his own behalf and with his own money or for and on behalf of
the municipality and with money of the latter; in other words, whether he holds the land for and on
behalf of the municipality or whether he holds it as owner. There is nothing in this question which, in
the remotest way, involves that of the admissibility of parol evidence.

It should be noted, in the first place, that there is no written instrument between the plaintiff and the
municipality, that is, between the parties to the action; and there is, therefore, no possibility of the
question arising as to the admissibility of parol evidence to vary or contradict the terms of an
instrument. The written instrument, that is, the conveyance on which plaintiff bases his action, was
between the Insular Government and the plaintiff, and not between the municipality and the plaintiff;
and, therefore there can arise, as between the plaintiff and defendant, no question relative to varying
or contradicting the terms of a written instrument between them. Thus, when the decision states that
"the facts testified to by the witnesses for the defendant are so clearly established as to leave no
doubt whatever of their authenticity, and the only question is whether they ought to be admitted to
vary the terms of the plaintiff’s deed," it is apparent, in my judgment, that the nature of the question
presented for resolution is misunderstood.

In the second place, the evidence presented by the defendant, whether parol or documentary, was
not offered, for the purpose of varying or contradicting the terms of the deed between the Insular
Government and the plaintiff. Nobody seeks to destroy that deed or to alter, vary, or contradict its
terms in any way. That conveyance, just as it stands, is the basis of defendant’s rights in this action.
I t is admitted that that deed was made precisely as it stands and that its terms;are exactly in
accordance with the wishes of the parties who made it. No one is seeking to alter, vary or contradict
it. The evidence is offered for the purpose of showing that the plaintiff, in taking that deed, the terms
of which are absolutely undisputed, was acting as the agent of the municipality and that he received
that deed for and on behalf of the municipality and that he will, therefore, be compelled, at the suit
of the municipality, to transfer to it the lands described therein. In other words, the evidence was
offered, not to vary the terms of a written instrument, but to establish what the decision calls a
trusteeship; and all relevant and material evidence, whether oral or documentary, is admissible for
that purpose.

In the light of these observations, the statement of the court that "we hold, therefore, that the parol
602

evidence introduced by the defendant municipality was competent to destroy the terms of the
plaintiff’s deed," appears to be based on a misunderstanding of the nature of the case and of the
objects which the action was intending to secure. Why attempt to vary the terms of plaintiff’s deed?
That is the very thing the defendant is depending on to establish the trusteeship from which springs
plaintiff’s liability to deed the property to the municipality. The municipality is not trying to vary or
contradict or destroy plaintiff’s deed; in fact, it is the purpose of the municipality to establish that
deed just as it stands, as, without the deed from the Insular Government to plaintiff, the municipality
would be unable to prove the trusteeship upon which it depends to obtain a conveyance from the
plaintiff. Moreover, if we destroy plaintiff’s deed; then a deed from plaintiff to the municipality would
be defective, because the registry of property would show no title in the plaintiff which he could
transfer to the municipality. The only reasons why the court orders a transfer from the plaintiff to the
municipality is because the plaintiff has title, actually and according to the record, of land which
belongs to the municipality. If he does not have that title, then a deed from him to the municipality is
without proper basis, there being absent a link in the chain of title, and, if the court holds that the
evidence in this case destroys plaintiff’s deed, then, at the same time, it destroys, so far as the
record goes, the value of a deed from him to the municipality; for, if the plaintiff has no title, he can
confer none.

The law relative to parol evidence is set out in section 285 of the Code of Civil Procedure. That
section reads: jgc:chanrobles.com.ph

"When the terms of an agreement have been reduced to writing by the parties, it is to be considered
as containing all those terms, and therefore there can be, between the parties and their
representatives or successors in interest, no evidence of the terms of agreement other than the
contents of the writing, except in the following cases: jgc:chanrobles.com.ph

"1. Where a mistake or imperfection of the writing, or its failure to express the true intent and
agreement of the parties, is put in issue by the pleadings;

"2. Where the validity of the agreement is the fact in dispute. Put this section does not exclude other
evidence of the circumstances under which the agreement was made, or to which it relates, or to
explain an intrinsic ambiguity, or to establish its illegality or fraud. The term ’agreement’ includes
deeds and instruments conveying real estate, and wills as well as contracts between parties." cralaw virtua1aw library

It will be noted that the admissibility of parol evidence which affects the terms of a written
agreement must be raised by one of the parties to that agreement against the other, or by his
representative or successor in interest. In the case before us the parties to the instrument are not
the parties to the action, nor are their representatives or successors in interest; and, therefore, the
question of the admissibility of parol evidence cannot arise.

Even if the case before us were one in which the question of the admissibility of parol evidence could
arise, such evidence would not be admissible for the reason that it does not fall within any of the
exceptions mentioned by the section above quoted. There was neither a mistake nor an imperfection
in the instrument, nor did it fail to express the true intent and agreement of the parties; the validity
of the instrument is not a fact in dispute; there is no ambiguity; and it is not attacked for fraud or
illegality. Thus it is seen, as already stated, that, if the question of the admissibility of parol evidence
were a question in the case, such evidence would have to be rejected because the conditions
required to make it admissible are not present. The existence of the instrument in its present form
and with all of its terms intact is one of the fundamental and necessary bases of defendant’s right to
obtain a transfer from the plaintiff to it; and its only hope of justifying its contention is based on the
existence of that instrument in its present form and with its present terms unchanged by parol or
other evidence.

G.R. No. 9363    November 24, 1914

Albino Camacho
vs.

Municipality of Baliuag, Province of Bulacan

 

Facts:
603

A land originally owned by municipal government was claimed by central government and was sold at
a public auction, to which Camacho was the highest bidder. Title was issued in his name.
Notwithstanding the sale, the municipality continued to occupy the land and collected rents therefrom.

Both plaintiff and defendant had their own set of facts. However, SC decided that by virtue of the
parol evidence rule, Camacho actually acquired the land in his name while acting in a fiduciary
capacity for the Municipality.

Issue:
Whether or not the court can compel Camacho to reconvey the land to Municipality, even in the
presence of the title in Camacho’s name.

Held:
Yes. Camacho must reconvey the land to the municipality.

There have been a number of cases in which a title to real property was acquired by a person in his
own name while acting in a fiduciary capacity, and who afterwards sought to take advantage of the
confidence reposed in him by claiming the ownership of the property for himself. This court has
invariably held such evidence competent as between the fiduciary and the cestui que trust.

What judgment ought to be entered in this case? Municipality must be absolved from the complaint.
Munipality does not ask for a cancellation of the deed. On the contrary, the deed is relied upon to
supplement the oral evidence showing that the title to the land is in the Municipality. The proper
procedure in such a case, so long as the rights of innocent third persons have not intervened, is to
compel a conveyance to the rightful owner.

G.R. No. 72121             February 6, 1991

RAFAEL PAGSUYUIN and PEREGRINA PAGSUYUIN-SUBIDO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT and SALUD PAGSUYUIN, respondents.

R. G. Carlos & Associates Law Offices for petitioners.

Aurea Aragon-Casiano for private respondent.

PARAS, J.:

In this petition for review on certiorari, petitioners seek to reverse and set aside the decision  of the Intermediate
1

Appellate Court (now Court of Appeals) dated June 6, 1985 in AC G.R. No. CV-67019 entitled "Salud Pagsuyuin vs.
Rafael Pagsuyuin, et al." affirming with modification the
decision  of the then Court of First Instance (now RTC) of Zambales, Branch I in Civil Case No. 2139-0 entitled
2

"Salud Pagsuyuin v. Rafael Pagsuyuin et al." for annulment of document, damages with preliminary injunction.

Records show that private respondent Salud Pagsuyuin and petitioners Peregrina Pagsuyuin-Subido and Rafael
Pagsuyuin are first cousins.

Sometime in August, 1974, one Mrs. Gregoria B. Schlander, then a resident of Olongapo City and an acquaintance
of private respondent Salud Pagsuyuin was able to secure a loan in the amount of P165,000.00 with the Manila
Banking Corporation at Olongapo City upon a security of a real estate mortgage of property belonging to Salud
Pagsuyuin consisting of two (2) two-storey buildings: the first two-storey building has an area of 114 square meters
and the second two-storey building has an area of 98 square meters, as well as the commercial lot (Lot 3114, TS-
308, Olongapo Townsite Subdivision) with an area of 339 square meters upon which these two (2) two-storey
buildings are erected, which loan was obtained by the said Mrs. Gregoria B. Schlander upon a forged power of
attorney allegedly signed by Salud Pagsuyuin (Rollo, Annex "D", Amended Record on Appeal, p. 54; pp. 6-7).
604

On December 1975, Salud Pagsuyuin was informed that her property had been mortgaged by Mrs. Gregoria B.
Schlander in favor of said bank and she immediately went to verify the accuracy of the information which she found
to be true, but then, Mrs. Schlander had already absconded and left for the United States (Rollo, Ibid., p. 46).

As the loan indicated hereinabove was not paid at maturity, the Manila Banking Corporation at Olongapo City
started to foreclose the mortgaged properties extrajudicially (Rollo, Ibid., p.7).

To protect, her interest on her property, Salud Pagsuyuin filed suit in the Court of First Instance of Olongapo City,
Branch III, Civil Case No. 1918-0 against the Manila Banking Corporation, Mrs. Gregoria B. Schlander and her
husband Mr. Schlander, including the City Sheriff of Olongapo City, to annul the said real estate mortgage with a
prayer for preliminary injunction (Rollo, Ibid., p. 8).

Petitioners Rafael Pagsuyuin and Peregrina Pagsuyuin-Subido, brother and sister and first cousins of Salud
Pagsuyuin, offered to the latter to settle the bank loan so as to keep her peace of mind and to retain the ownership
of her mortgaged properties (Rollo, Ibid., p. 47).

The three cousins, namely Peregrina, Rafael and Salud, went to the Manila Banking Corporation to inquire about
the possibility of an amicable settlement of the loan, and it was at this juncture that the petitioners told Salud
Pagsuyuin that they would help her in settling her mortgage loan if petitioner Peregrina Pagsuyuin-Subido will stay
free of charge in the leased premises and that Salud Pagsuyuin will repay whatever amount will be advanced by the
petitioners to Salud with interest (Rollo, Ibid., p. 48).

Consequently, two (2) documents were allegedly executed involving the transfer of the properties of Salud
Pagsuyuin to Peregrina Pagsuyuin-Subido and Rafael Pagsuyuin. These documents were:

1) Deed of Assignment (morning version) stating that Salud Pagsuyuin allegedly transferred her properties
for and in consideration of the amount of P256,362.95, and that the amount of P30,000.00 will be delivered
to Salud Pagsuyuin upon signing the instrument, which was allegedly signed in the morning of September
13, 1976 (Rollo, Petition, pp. 13-16);

2) Deed of Assignment (afternoon version) stating that Salud Pagsuyuin allegedly transferred her properties
for and in consideration of the amount of P256,362.96 but there was no indication that there will be a down
payment of P30,000.00, which was allegedly signed in the afternoon of September 13, 1976 (Rollo, Petition,
pp. 1719).

The two (2) documents (Deeds of Assignment) were notarized by Notary Public Edmundo Tubio allegedly on the
13th of September, 1976 in the presence of witnesses Marietta Javier and Federico Javier (Rollo, Petition, pp. 16;
18).

Salud Pagsuyuin and her witnesses denied having executed the above deeds of assignment on September 13,
1976 as she was on that date at Alitagtag, Batangas while her instrumental witnesses Federico Javier was working
at the U.S. Naval Base, while his wife Marietta Javier was at Olongapo City.

Consequently, on March 1, 1977, an amended complaint was filed by Salud Pagsuyuin before the Court of First
Instance of Zambales for the annulment of documents, damages with preliminary injunction, alleging among others,
that the signature of private respondent Salud Pagsuyuin and her witnesses, namely; Marietta Pagsuyuin-Javier and
Federico Javier in the Deeds of Assignment were obtained thru fraud and trickery perpetrated by the petitioners
Rafael Pagsuyuin and Peregrina Pagsuyuin-Subido (Rollo, Annex "D", Amended Record on Appeal, p. 54; pp. 5-
19).

On March 24, 1977, petitioners filed an answer claiming by way of special defense that it was the private respondent
Salud Pagsuyuin who proposed to the petitioners the transfer of all the properties covered by a Real Estate
Mortgage (Rollo, Annex "D", Amended Record on Appeal, p. 54; pp. 23-32).

On March 21, 1980, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff (Salud) and against the defendants
(herein petitioners) as follows:

a) Declaring the Deeds of Assignment (Exhs. A and B) as null and void;

b) If there was payment of indebtedness in the amount of P226,362.96 to the Manila Bank, the
plaintiff is hereby directed to refund the same amount to the defendants with legal interest;
605

c) Ordering all other payments made by the defendants offsetting the plaintiffs indebtedness such as
made to Felix Makalintal, Theodore Ilagan, and Irene de Leon, refunded by the plaintiff to the
defendants with legal interest;

d) Ordering defendants jointly and severally to pay plaintiff the amount of P20,000.00 as moral
damages and exemplary damages; and

e) Ordering defendants jointly and severally to pay the amount of P20,000.00 as attorney's fees.

Defendants' counterclaim are hereby denied.

SO ORDERED. (Rollo, Annex "H"; Amended Record on Appeal, p. 54; pp. 69-70).

On Appeal, the Intermediate Appellate Court in its decision dated June 6, 1985, ruled:

WHEREFORE, premises considered, the decision appealed from is affirmed but with the modification of
paragraphs b, d, and e of the dispositive portion of the decision to read as follows:

b.) Ordering plaintiff to pay defendants the amount of P226,362.96 with legal interest from dates of
said payment and expenses paid by the defendants to the Manila Bank;

d.) Ordering defendants jointly and severally to pay plaintiff the amount of P5,000.00 as moral and
exemplary damages; and

e.) Ordering defendants jointly and severally to pay the amount of P5,000.00 as attorney's fees.

With costs against the defendants'.

SO ORDERED. (Rollo, Annex "A", Decision, pp. 50-51).

A motion for reconsideration was filed on June 25, 1985, however, it was denied (Rollo, Annex "B", P. 52).

Hence, this petition.

The main issue in the instant case is whether or not parol evidence is admissible to annul the deed of assignment
on the ground of fraud.

Petitioners Rafael Pagsuyuin, et al. contend that both lower courts gravely erred in voiding the Deeds of Assignment
based upon extrinsic evidence of alleged vitiated consent of the assignor-private respondent Salud Pagsuyuin in
defiance of the settled rule of parol evidence that a document reduced to writing is deemed to have contained all
such terms and conditions as contemplated by the parties and there can be, between the said parties and their
successors in interest, no evidence of the terms of the agreement other than the contents of the writing itself.

The contention is untenable.

The rule on parol evidence recognizes the following exceptions:

(a) where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of
the parties, or the validity of the agreement is put in issue by the pleadings;

(b) . . . . (Sec. 7, Rule 130).

As can be clearly gleaned from the foregoing, the rule making a writing the exclusive evidence of the agreement
therein stated, is not applicable when the validity of such agreement is the fact in dispute. A contract may be
annulled where the consent of one of the contracting parties was procured by mistake, fraud, intimidation, violence
or undue influence (Art. 1330, New Civil Code). In fact, as early as 1919 in the case of Bough v. Cantiveros, 40 Phil.
209, this Court laid down the rule that where the validity of the agreement is the issue, parol evidence may be
introduced to establish illegality or fraud.

In the case at bar, petitioners relied heavily on the fact of notarial certification of the Deeds of Assignment by Notary
Public Edmundo Tubio allegedly on the 13th of September, 1976 in the presence of witnesses Marietta Pagsuyuin-
Javier and Federico Javier to deflect the admissibility of parol evidence.

On the other hand, private respondent's evidence clearly shows that on September 7, 1976 a document was
brought to her at the Manila International, Airport, which she signed that same evening (when she returned to her
606

house) in the presence of witnesses Federico and Marietta Javier but they were not given copies thereof (Rollo, pp.
72-76). Then on September 8, 1976 at around 6:00 a.m., Rafael Pagsuyuin went to the house of the private
respondent Salud Pagsuyuin with more documents for signature. Relying on the assurances of petitioner Rafael that
the same were additional copies of the documents they had signed in the evening of September 7, 1976 (TSN,
Hearing of May 9, 1978, pp. 9-13; Rollo, pp. 73-74), Salud and her witnesses signed without reading as petitioner
Rafael was in a hurry (TSN, Hearing of January 31, 1978; Rollo, pp. 74-75) and he only showed them the latter
portion and refused to show the contents of the documents (TSN, Hearing of October 13, 1977; Rollo, pp. 75-76).
After he had obtained their signatures, Rafael left the house of Salud again without leaving any copy of the
document (TSN, Hearing of January 31, 1978, Ibid.). As it turned out, the documents were denominated as Deeds
of Assignment, contrary to the intent of private respondent. These testimonies were never satisfactorily rebutted by
the petitioners.

At this juncture, the findings of the trial court which were affirmed by the appellate court are quoted with approval:

. . . the instruments of sale (Exh. "A" and "B") lacked the valid consent of the transferor Salud Pagsuyuin as
there was fraud enlisted in making plaintiff sign the documents without understanding the contents thereof.
The authenticity and genuineness of the documents were attacked because . . . . . defendants vitiated
consent in the preparation and execution of said documents as plaintiff was misled into believing the same is
a deed of mortgage instead of a deed of assignment. The evidence had proven that plaintiff was tricked and
deceived into signing two (2) deeds of assignment which was not her intention to do so (sic).

The trial court continued:

The person who could have enlightened this court as to the disputed facts is none other than Rafael
Pagsuyuin himself, but said witness developed cold feet and discontinued declaring against the plaintiff,
most probably because of deep-rooted fear of being discovered falsifying the truth and experiencing the
fangs of guilty conscience, he broke completely down in court and could not continue his declaration against
his cousin the herein plaintiff, so that his counsel withdrew him as a witness and his entire testimony was
disregarded by this court. Judging from his demeanor and attitude, the court had very well observed that he
could not explain the dubious circumstances that characterized the transfer of the property between him and
the plaintiff. The failure of defendant Rafael Pagsuyuin to give testimony was a fatal defect that torpedoed
the efforts of the defendants and witnesses to prove the defense that there was a valid transfer of the
properties. (C.A. Decision, Rollo, pp. 40-51).

While the writing itself may have been accompanied by the most solemn formalities, no instrument is so sacred
when tainted with fraud as to place it beyond the scrutiny of extrinsic evidence. This evidence overcomes the known
presumption fraus est odiosa et non praesumenda (Yturralde v. Vagilidad, 28 SCRA 393 [1969]).

The testimonies of private respondent Salud Pagsuyuin and her two instrumental witnesses which have not been
satisfactorily rebutted by the petitioners Rafael Pagsuyuin, et al. have made out a case of fraud by evidence clear,
convincing and more than merely preponderant.

Moreover, it is axiomatic that the factual findings of the trial Court and Court of Appeals are entitled to great respect
(Vda. de Roxas v. IAC, 143 SCRA 77 [1987]), that "it is a fundamental rule in criminal as well as in civil cases that in
the matter of credibility of witnesses the findings of the trial court are given great weight and the highest degree of
respect by the appellate court (People v. Sarol, 139 SCRA 125 [1985]), unquestionably because the trial judge is in
a superior position to gauge the credibility of those who take the witness seat before him. He has the opportunity to
size up the appearance, the demeanor, the manner of testifying, the probability or improbability of the testimony, of
the witnessed. Indeed, the trial court has a first hand advantage to assess the value to be given the testimony of a
witness (Yturralde v. Vagilidad, supra).

Petitioners Rafael Pagsuyuin, et. al., also assign as error the grant of moral and exemplary damages plus attorney's
fees in favor of private respondent Salud Pagsuyuin.

As shown in the records of the case, the trial court and respondent Court of Appeals are in unison as to the findings
of the former that a sufficient cause of action had been proved by overwhelming preponderance of evidence of the
private respondent as against the petitioners Rafael Pagsuyuin, et al. For moral damages to be awarded, it is
essential that the claimant must have satisfactorily proved during the trial the existence of the factual basis of the
damages and its causal connection with adverse party's acts. This is so because moral damages, though incapable
of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury
suffered and not to impose a penalty on the wrongdoer (Makabili v. Court of Appeals, 157 SCRA 253 [1988]).

The wrongful act attributable to the petitioners –– the employment of fraud –– is the proximate cause of the mental
anguish suffered by private respondent Salud Pagsuyuin.

PREMISES CONSIDERED, the decision of the Intermediate Appellate Court dated June 6, 1985 is AFFIRMED.
607

SO ORDERED.

G.R. No. 133643            June 6, 2002

RITA SARMING, RUFINO SARMING, MANUEL SARMING, LEONORA VDA. DE LOY, ERLINDA DARMING,
NICANDRA SARMING, MANSUETA SARMING, ARTURO CORSAME, FELY CORSAME, FEDERICO
CORSAME, ISABELITA CORSAME, NORMA CORSAME, CESAR CORSAME, RUDY CORSAME, ROBERTA
CORSAME, ARTEMIO CORSAME, ELPIDIO CORSAME, ENRIQUITA CORSAME, and GUADALUPE CORSAME
TAN, petitioners,
vs.
CRESENCIO DY, LUDIVINA DY-CHAN, TRINIDAD FLORES, LUISA FLORES, SATURNINA ORGANISTA,
REMEDIOS ORGANISTA, OFELIA ORGANISTA, LYDIA ORGANISTA, ZOSIMO ORGANISTA, DOMISIANO
FLORES, FLORITA FLORES, EDUARDO FLORES, BENIGNA FLORES, ANGELINA FLORES, MARCIAL
FLORES, and MARIO FLORES, respondents.

QUISUMBING, J.:

This petition for review assails the decision 1 dated September 23, 1997 of the Court of Appeals in CA-G.R. CV No.
39401, which affirmed the decision2 of the Regional Trial Court, Branch 41 in Negros Oriental, Dumaguete City and
the resolution3 dated April 21, 1998 denying petitioners' motion for reconsideration.

The facts as culled from records are as follows:

Petitioners are the successors-in-interest of original defendant Silveria Flores, while respondents Cresencio Dy and
Ludivina Dy-Chan are the successors-in-interest of the original plaintiff Alejandra Delfino, the buyer of one of the lots
subject of this case. They were joined in this petition by the successors-in-interest of Isabel, Juan, Hilario, Ruperto,
Tomasa, and Luisa and Trinidad themselves, all surnamed Flores, who were also the original plaintiffs in the lower
court. They are the descendants of Venancio4 and Jose5, the brothers of the original defendant Silveria Flores.

In their complaint for reformation of instrument against Silveria Flores, the original plaintiffs alleged that they, with
the exception of Alejandra Delfino, are the heirs of Valentina Unto Flores, who owned, among others, Lot 5734,
covered by OCT 4918-A; and Lot 4163, covered by OCT 3129-A, both located at Dumaguete City.

After the death of Valentina Unto Flores, her three children, namely: Jose, Venancio, and Silveria, took possession
of Lot 5734 with each occupying a one-third portion. Upon their death, their children and grandchildren took
possession of their respective shares. The other parcel, Lot 4163 which is solely registered under the name of
Silveria, was sub-divided between Silveria and Jose. Two rows of coconut trees planted in the middle of this lot
serves as boundary line.

In January 1956, Luisa, Trinidad, Ruperto and Tomasa, grandchildren of Jose and now owners of one-half of Lot
4163, entered into a contract with plaintiff Alejandra Delfino, for the sale of one-half share of Lot 4163 after offering
the same to their co-owner, Silveria, who declined for lack of money. Silveria did not object to the sale of said
portion to Alejandra Delfino.

Before preparing the document of sale, the late Atty. Deogracias Pinili, Alejandra's lawyer, called Silveria and the
heirs of Venancio to a conference where Silveria declared that she owned half of the lot while the other half
belonged to the vendors; and that she was selling her three coconut trees found in the half portion offered to
Alejandra Delfino for P15. When Pinili asked for the title of the land, Silveria Flores, through her daughter, Cristita
Corsame, delivered Original Certificate of Title No. 4918-A, covering Lot No. 5734, and not the correct title covering
Lot 4163. At that time, the parties knew the location of Lot 4163 but not the OCT Number corresponding to said lot.

Believing that OCT No. 4918-A was the correct title corresponding to Lot 4163, Pinili prepared a notarized
Settlement of Estate and Sale (hereinafter "deed") duly signed by the parties on January 19, 1956. As a result, OCT
No. 4918-A was cancelled and in lieu thereof, TCT No. 5078 was issued in the names of Silveria Flores and
Alejandra Delfino, with one-half share each. Silveria Flores was present during the preparation and signing of the
deed and she stated that the title presented covered Lot No. 4163.

Alejandra Delfino immediately took possession and introduced improvements on the purchased lot, which was
actually one-half of Lot 4163 instead of Lot 5734 as designated in the deed.

Two years later, when Alejandra Delfino purchased the adjoining portion of the lot she had been occupying, she
discovered that what was designated in the deed, Lot 5734, was the wrong lot. She sought the assistance of Pinili
who approached Silveria and together they inquired from the Registry of Deeds about the status of Lot 4163. They
found out that OCT No. 3129-A covering Lot 4163 was still on file. Alejandra Delfino paid the necessary fees so that
608

the title to Lot 4163 could be released to Silveria Flores, who promised to turn it over to Pinili for the reformation of
the deed of sale. However, despite repeated demands, Silveria did not do so, prompting Alejandra and the vendors
to file a complaint against Silveria for reformation of the deed of sale with damages before the Regional Trial Court
of Negros Oriental, Branch 41, docketed as Civil Case No. 3457.

In her answer, Silveria Flores claimed that she was the sole owner of Lot 4163 as shown by OCT No. 3129-A and
consequently, respondents had no right to sell the lot. According to her, the contract of sale clearly stated that the
property being sold was Lot 5734, not Lot 4163. She also claimed that respondents illegally took possession of one-
half of Lot 4163. She thus prayed that she be declared the sole owner of Lot 4163 and be immediately placed in
possession thereof. She also asked for compensatory, moral, and exemplary damages and attorney's fees.

The case lasted for several years in the trial court due to several substitutions of parties. The complaint was
amended several times. Moreover, the records had to be reconstituted when the building where they were kept was
razed by fire. But, earnest efforts for the parties to amicably settle the matters among themselves were made by the
trial court to no avail.

On September 29, 1992, the trial court found in favor of herein respondents, who were the plaintiffs below,
decreeing as follows:

WHEREFORE, this Court finds the preponderance of evidence in favor of the plaintiffs and veritably against
the defendants and, as such, renders judgment accordingly, thereby ORDERING the defendants, the heirs
of the deceased-defendant SILVERIA FLORES and her successors-in-interest the following:

1) To enter into the reformation of the subject contract or execute a mutual conveyance of sale, by making
the one-half (1/2) eastern portion of Lot 4163, the subject of the document of sale, in favor of plaintiff, the
late Alejandra Delfino or her heirs and/or successors-in-interest;

2) To sign a document ceding to the heirs of the heirs of Maxima Flores and Venancio Flores the excess of
her one-third (1/3) share; and further ordering the heirs of the late Alejandra Delfino to correspondingly sign
a document for the return of the one-half (1/2) portion of Lot 5734 to the original registered owners, in
exchange thereby;

3) To pay to the heirs of the late plaintiff Alejandra Delfino, the sum of P5,000.00 as actual damages and the
sum of P10,000.00 as moral damages;

4) To pay P2,000.00 as attorney's fees plus the costs of this suit.

SO ORDERED.6

According to the trial court, the claims of herein respondents were anchored on valid grounds. It noted that
Alejandra had been occupying one-half portion of Lot 4163 since 1956 and it was the one pointed to her by the
vendors. Citing the case of Atilano vs. Atilano7, it ruled that when one sells or buys real property, he sells or buys the
said property as is shown to her and as he sees it, at its actual setting and by its physical metes and bounds, not by
the mere lot number assigned to it in the certificate of title. Thus, it concluded that from the facts and circumstances
of the case, it is clear that the object of the sale, as understood by the parties, was that portion "Y" of Lot 4163 and
that its designation as Lot 5734 in the document of sale was a simple mistake in the drafting of the document, which
mistake, however, did not vitiate the consent of the parties or affect the validity and the binding effect of the contract
between them. Hence, the remedy of reformation of instrument is proper. 8

Petitioners appealed the decision to the Court of Appeals, which affirmed the ruling of the trial court as follows:

WHEREFORE, the appealed decision is hereby AFFIRMED. Costs against defendants-appellants.

SO ORDERED.9

In affirming the decision of the trial court, the Court of Appeals agreed that the real intention of the parties was for
the sale of Lot 4163 which Alejandra Delfino had been occupying, and the designation of Lot 5734 in the deed was
a mistake in the preparation of the document. It noted that Silveria Flores did not object when Alejandra Delfino took
possession of one-half portion of Lot 4163 immediately after the sale, considering that it was Silveria's son, Michael
Corsame, who developed the area purchased by Alejandra. 10

Aggrieved but undeterred, the successors-in-interest of defendant Silveria Flores seasonably filed their petition for
review under Rule 45 of the Rules of Court. They assail the decision of the Court of Appeals on the following
grounds:
609

1. THE COURT OF APPEALS COMMITTED AN ERROR IN LAW WHEN IT FAILED TO ORDER THE
DISMISSAL OF CIVIL CASE NO. 3457 FOR LACK OF CAUSE OF ACTION.

2. THE COURT OF APPEALS AND THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN LAW
AND JURISPRUDENCE WHEN IT FAILED TO RULE THAT, BASED ON THE UNDISPUTED EVIDENCE
ON RECORD AND THE SETTLEMENT OF ESTATE AND SALE ITSELF, THE PLAINTIFFS HAVE NO
CAUSE OF ACTION AGAINST SILVERIA FLORES BECAUSE SHE DID NOT SELL HER LAND TO
ALEJANDRA DELFINO. HENCE SILVERIA FLORES CANNOT BE BOUND NOR PREJUDICED BY THE
CONTRACT OF SALE ENTERED BY ALEJANDRA DELFINO AND HER CO-PLAINTIFFS (CAPITOL
INSURANCE & SURETY CO INC. V. CENTRAL AZUCARERA DEL DAVAO, 221 SCRA 98; OZAETA V.
CA, 228 SCRA 350).

3. THE COURT OF APPEALS AND THE TRIAL COURT COMMITTED A REVERSIBLE ERROR WHEN IT
FAILED TO PRONOUNCE THAT SILVERIA FLORES WHO IS NOT A PARTY TO THE CONTRACT OF
SALE INVOLVING LOT NO. 5734 COVERED BY OCT NO. 4918-A CANNOT BE LEGALLY COMPELLED
BY ALEJANDRA DELFINO THRU AN ACTION FOR REFORMATION OF CONTRACT TO EXECUTE A
"CONVEYANCE OF SALE" INVOLVING LOT NO. 4163 COVERED BY OCT NO. 3129-A OWNED AND
REGISTERED SOLELY IN THE NAME OF SILVERIA FLORES.

4. THE COURT OF APPEALS AND THE TRIAL COURT GROSSLY MISAPPREHENDED THE FACTS
WHEN IT RULED THAT THE OBJECT OF THE CONTRACT OF SALE WAS LOT NO. 4163 COVERED BY
OCT NO. 3129-A, DESPITE THE UNASSAILABLE FACT THAT THE OBJECT OF THE SETTLEMENT
AND SUBJECT OF THE CONTRACT OF SALE WAS LOT NO. 5734 COVERED BY OCT NO. 4918-A.

5. THE COURT OF APPEALS AND THE TRIAL COURT GROSSLY MISAPPREHENDED THE FACTS IN
NOT UPHOLDING THAT THERE WAS NO MISTAKE IN THE DRAFTING OF THE DOCUMENT AS WELL
AS IN THE OBJECT OF THE SETTLEMENT OF ESTATE AND SALE BECAUSE THE DOCUMENT WAS
PREPARED BY ATTY. DEOGRACIAS PINILI, THE LAWYER OF ALEJANDRA DELFINO.

6. THE COURT OF APPEALS AND THE TRIAL COURT GROSSLY MISAPPREHENDED THE FACTS
WHEN IT RULED THAT THE GRANDCHILDREN OF JOSE FLORES ARE OWNERS AND COULD SELL
THE ONE-HALF (1/2) PORTION OF LOT NO. 4163 TO ALEJANDRA DELFINO DESPITE THE
INCONTROVERTIBLE EVIDENCE THAT LOT NO. 4163 COVERED BY OCT NO. 3129-A IS
REGISTERED AND SOLELY OWNED BY SILVERIA FLORES WHO IS PAYING THE REAL PROPERTY
TAXES.

7. THE COURT OF APPEALS AND THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN LAW
WHEN IT DISREGARDED ARTICLE 1370 OF THE CIVIL CODE OF THE PHILIPPINES AND PERTINENT
JURISPRUDENCE RELEVANT TO THIS CASE EVEN IF THE TERMS OF THE SETTLEMENT OF
ESTATE AND SALE ARE CLEAR AND LEAVE NO DOUBT ON THE INTENTION OF THE CONTRACTING
PARTIES.

8. THE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN DISREGARDING SETTLED
JURISPRUDENCE THAT A PUBLIC DOCUMENT EXECUTED AND ATTESTED THROUGH THE
INTERVENTION OF A NOTARY PUBLIC IS EVIDENCE OF THE FACTS IN CLEAR, UNEQUIVOCAL
MANNER AND TO CONTRADICT IT THERE MUST BE CLEAR AND CONVINCING EVIDENCE NOT
MERELY PREPONDERANT EVIDENCE (GEVERO VS. INTERMEDIATE APPELLATE COURT, G.R. NO.
77029, AUGUST 30, 1990; ZAMBO V. COURT OF APPEALS, 224 SCRA 855; REBULDEDA V. IAC, 155
SCRA 520; CHILIANCHIN V. COQUINCO, 84 PHIL. 714; CENTENERA V. GARCIA PALICIO, 29 PHIL.
470).

9. THE COURT OF APPEALS AND THE TRIAL COURT COMMITTED A REVERSIBLE ERROR WHEN IT
SUBSTITUTED, REVISED AND MODIFIED THE AGREEMENT OF THE PARTIES DESPITE THE
ABSENCE OF FRAUD, MISTAKE, INEQUITABLE CONDUCT OR ACCIDENT.

10. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN LAW WHEN IT FAILED TO
RULE ON THE ISSUE OF WHETHER THE TRIAL COURT GRAVELY ERRED IN ORDERING THE HEIRS
OF SILVERIA FLORES TO PAY ACTUAL AND MORAL DAMAGES AS WELL AS ATTORNEY'S FEES TO
THE HEIRS OF ALEJANDRA DELFINO.11

After careful consideration, we find the following relevant issues for our resolution: (1) whether or not there is a
cause of action for reformation of instrument against Silveria Flores, and consequently the petitioners; (2) whether or
not reformation of the subject deed is proper by reason of mistake in designating the correct lot number; and (3)
whether or not the heirs of Alejandra Delfino are entitled to actual and moral damages including attorney's fees.

In seeking the reversal of the appellate court's decision, the heirs of Silveria Flores, herein petitioners, ascribe to the
appellate court several errors: first, the Court of Appeals committed error in failing to appreciate that there is no
610

cause of action against Silveria as she was never a party to the contract of sale; second, the appellate court erred in
giving probative value to the biased testimony of Trinidad Flores to the effect that Lot No. 4163 was subdivided into
two, one-half of which is occupied by her and her siblings; and third, the appellate court erred in not considering the
fact that Silveria is the only registered owner of Lot 4163. Petitioners submit that the evidence adduced is insufficient
to sustain a decision in respondents' favor.

Respondents, for their part, maintain that the present petition is pro forma as it does not raise any new matter worth
considering. They also assert that the arguments and issues raised by petitioners have been more than adequately
and exhaustively discussed by the trial court as well as the Court of Appeals. 12

On the first issue, petitioners contend that there is no cause of action against them and their predecessor-in-interest,
Silveria Flores, because she and they were not parties to the contract sought to be reformed.

However, a close perusal of the deed would show that Silveria Flores was a party to the contract. She is not only the
seller of the coconut trees worth P15 but she was also one of the heirs entitled to the estate of Venancio and
Maxima, one of the heirs of Jose Flores. Her name did not appear as one of the sellers of one-half lot to Alejandra
Delfino because she never sold her share. What was sold was the one-half share of Jose Flores, as represented by
his heirs. It is also established that it was Silveria Flores herself who delivered the subject lot to the vendee
Alejandra Delfino. Said the lower court:

The truth of the matter, is that what the plaintiffs-vendors really intended to sell and what Alejandra Delfino
intended to buy, of which both of the parties agreed to be the subject of the transaction, was actually that
parcel of land, with two rows of coconut trees as the dividing line, and which lot is known as Lot 4163. This
lot, on the western portion, was the very portion which was pointed to and delivered to Alejandra Delfino by
the original defendant Silveria Flores and her two children, together with the vendors on January 19, 1956.
When the title to the said property was delivered to the notary public, for the preparation of the document of
sale, the title that was delivered was for Lot 5734. So, the document, that was executed, was done by
reason of mistake, inequitable conduct and accident, because the said document did not express the true
and real agreement and intention of the contracting parties. What was made to appear in the said document
was the sale of the one-half portion of another lot. Lot 5734, when in truth and in fact, the subject property
sold was Lot 4163.13 (Underscoring and italics supplied.)

Through her actions, Silveria Flores had made the parties to the deed believe that the lot intended to be the object
of the contract was the same lot described in the deed. Thus, by mistake or accident, as well as inequitable conduct,
neither she nor her successors-in-interest could deny involvement in the transaction that resulted in a deed that now
ought to be reformed.

Worth stressing, the existence of a cause of action is not determined by one's involvement in a contract.
Participation in a contract is not an element to determine the existence of a cause of action. The rule is that only the
allegations in the complaint may properly be considered in ascertaining the existence of a cause of action. Lack of
cause of action must appear on the face of the complaint and its existence may be determined only by the
allegations of the complaint. Consideration of other facts is proscribed and any attempt to prove extraneous
circumstances is not allowed.14

The test of sufficiency of the facts found in a complaint as constituting a cause of action is whether or not, admitting
the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer in the
complaint.15 An examination of the complaint16 shows herein respondents, as plaintiffs in the trial court, are entitled to
the relief of reformation of instrument if the following factual allegations of respondents are deemed admitted, to wit:
(1) that Silveria is a co-owner of Lots No. 5734 and 4163, in different shares; (2) that the heirs of Jose, her co-owner
in Lot No. 4163, offered to sell to her their one-half share but she declined for lack of money; (3) that said share was
later sold to Alejandra; (4) that Silveria was asked to deliver the title of Lot No. 4163 but instead she delivered the
title of Lot No. 5734; (5) that after the sale, Alejandra occupied one-half portion of Lot No. 4163 while Lot No. 5734
was still in the possession of Venancio and the heirs of Maxima and Silveria; (6) that it was only when Alejandra was
about to buy the adjacent lot that she realized that what was indicated in the Settlement of Estate and Sale was Lot
No. 5734 and not 4163. In sum, we find that the original plaintiffs in the trial court alleged sufficient facts in the
complaint that properly constituted a cause of action against the defendants.

On the second issue, petitioners contend respondents failed to show, specifically, a cause of action for the
reformation of the instrument in question. Reformation is that remedy in equity by means of which a written
instrument is made or construed so as to express or conform to the real intention of the parties. 17 As provided in
Article 1359 of the Civil Code:

Art. 1359. When, there having been a meeting of the minds of the parties to a contract, their true intention is
not expressed in the instrument purporting to embody the agreement by reason of mistake, fraud,
inequitable conduct or accident, one of the parties may ask for the reformation of the instrument to the end
that such true intention may be expressed.
611

If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the
proper remedy is not reformation of the instrument but annulment of the contract.

An action for reformation of instrument under this provision of law may prosper only upon the concurrence of the
following requisites: (1) there must have been a meeting of the minds of the parties to the contact; (2) the instrument
does not express the true intention of the parties; and (3) the failure of the instrument to express the true intention of
the parties is due to mistake, fraud, inequitable conduct or accident. 18

All of these requisites, in our view, are present in this case. There was a meeting of the minds between the parties
to the contract but the deed did not express the true intention of the parties due to mistake in the designation of the
lot subject of the deed. There is no dispute as to the intention of the parties to sell the land to Alejandra Delfino but
there was a mistake as to the designation of the lot intended to be sold as stated in the Settlement of Estate and
Sale.

While intentions involve a state of mind which may sometimes be difficult to decipher, subsequent and
contemporaneous acts of the parties as well as the evidentiary facts as proved and admitted can be reflective of
one's intention. The totality of the evidence clearly indicates that what was intended to be sold to Alejandra Delfino
was Lot 4163 and not Lot 5734. As found by both courts below, there are enough bases to support such conclusion.
We particularly note that one of the stipulated facts during the pre-trial is that one-half of Lot 4163 is in the
possession of plaintiff Alejandra Delfino "since 1956 up to the present." 19 Now, why would Alejandra occupy and
possess one-half of said lot if it was not the parcel of land which was the object of the sale to her? Besides, as found
by the Court of Appeals, if it were true that Silveria Flores was the sole owner of Lot 4163, then she should have
objected when Alejandra Delfino took possession of one-half thereof immediately after the sale. Additionally, we find
no cogent reason to depart from the conclusion of both the Court of Appeals and the trial court, based on the
evidence on record, that Silveria Flores owns only one-half of Lot 4163. The other half belongs to her brother Jose,
represented now by his grandchildren successors-in-interest. As such, the latter could rightfully sell the land to
Alejandra Delfino.

Furthermore, on record, it has been shown that a spot investigation conducted by a duly licensed surveyor revealed
that Lot 4163 is subdivided into two portions, one belonging to Silveria Flores and the other to the heirs of Jose
Flores.20 As found by the trial court, if indeed it was Lot 5734 that was sold, then Silveria Flores was occupying more
than her share of the inherited lot. Thus:

x x x That, with respect to Lot No. 5734 and Lot No. 4292, in an on-the-spot investigation, made by a
licensed surveyor, Mr. Rilthe Dorado, his findings thereon show that Silveria Flores is in possession on the
western portion of Lot 5734, with an area of more than one-half and, to be exact, with an area of 2,462, in
spite of the fact that she is the registered owner only of a one-third (1/3) share; and admitting, for the sake of
argument, that it was the one-half portion, of Lot 5734, that was sold, why should Silveria Flores possess
more than 2,190 square meters, which is the 1/2 of Lot 5734, Isabel Flores, the daughter of Venancio Flores
is possessing the middle portion, with an area of only 884 square meters; and Trinidad Flores Nodado, in
representation of her aunt, Maxima Flores, is possessing an area of 1,034 sq. m. 21

As a matter of fact, the trial court also found that in spite of her title over Lot 4163, Silveria recognized the right of
Jose's grandchildren over one-half portion of the property. 22 The trial court gave credence to the testimony of
Trinidad Flores, one of the grandchildren, who testified as follows:

Q:         During the lifetime of Jose and Silveria when they were possessing Lot 4163, did they subdivide it
because they were possessing it in common?

A:         They subdivided it into two halves.

xxx

Q:         And after Jose and Silveria subdivided Lot 4163, they possessed their respective shares of Lot
4163?

A:         Yes.

xxx

Q:         Now you said that you are the heirs of Jose and Roman Flores (father and son) and so when they
died this portion of Lot 4163 devolved on you, did you ever take possession of Lot 4163?

A:         Yes, we, the brothers and sisters immediately took possession of it. 23
612

On cross-examination, Trinidad sufficiently explained why the title to Lot No. 4163 is in the name of Silveria Flores
alone. Thus:

Q:         Now, this Lot No. 4163, do you know if this lot is also titled?

A:         Yes, it was titled, only in the name of Silveria Flores because my aunt was not able to go with her;
only my aunt was alone at that time. 24

xxx

Q:         And as you have stated earlier, that what you are intending to sell was Lot 4163 to plaintiff Alejandra
Delfino, and during this time that you sold this intended lot 4163, you were not aware this particular lot 4163
was titled exclusively in the name of Silveria Flores, is that correct?

A:         I knew already that the said lot was already titled, but it was titled only in the name of Silveria Flores
because she was the only one who went there to have it titled in her name. And at the time of the sale of the
lot, we demanded for the title from Silveria Flores, and what she delivered was the 5734 (sic). 25

Petitioners now claim that the foregoing testimony of Trinidad Flores was biased. But we note that the appellate
court sustained the trial court's reliance on her testimony, which both found to be credible. As consistently held,
factual findings of the trial court, especially when affirmed by the appellate court, are binding upon this Court 26 and
entitled to utmost respect.27 Considering these findings, we see no reason to disturb the trial court's finding, affirmed
by the Court of Appeals, that the object of the contract of sale, as intended and understood by the parties, was Lot
4163 covered by OCT 3129-A which Alejandra, and now her heirs, have been occupying. The designation of the lot
in the deed of sale as Lot 5734, covered by OCT 4918-A, was a mistake in the preparation of the document. Thus,
we concur in the conclusion reached by the courts a quo that reformation of the instrument is proper.

However, on the matter of damages, the award of actual damages in the amount of P5,000 lacks evidentiary
support. Actual damages if not supported by the evidence on record cannot be granted. 28 Moral damages
for P10,000 was also improperly awarded, absent a specific finding and pronouncement from the trial court that
petitioners acted in bad faith or with malice. However, the award of attorney's fees for P2,000 is justified under
Article 2208(2) of the Civil Code,29 in view of the trial court's finding that the unjustified refusal of petitioners to reform
or to correct the document of sale compelled respondents to litigate to protect their interest.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No. 39401 is AFFIRMED with MODIFICATION.
It is hereby ordered that the document entitled Settlement of Estate and Sale be reformed by changing the phrase
"Lot 5734" to "Lot 4163" found in the sixth paragraph of the deed, thereby ceding in favor of respondents one-half
portion of Lot 4163 instead of Lot 5734. The award to respondents of attorney's fees in the amount of P2,000 is
affirmed. However, the award of actual damages in the amount of P5,000 and of moral damages in the amount
of P10,000 are both SET ASIDE. No pronouncement as to costs.

SO ORDERED.

Bellosillo, Mendoza, De Leon, Jr., and Corona, JJ., concur.

Sarming, et. al. v. Cresencio Dy, et. al.

G.R. No. 133643, 6 June 2002
FACTS:

In this case a certain Silveria Flores sold her lot to Alejandra Delfino, now were all represented by their successors-
in-interest. The petitioner wanted for the reformation of the contract of sale entered between Silveria and Delfino
because of the mistake in the lot number in the contract. Silveria and Delfino inquired from the Registry of Deeds
about the status of the lot finding that the lot was still on file. Alejandra paid all the necessary expenses and the title
was given to Silveria however despite repeated demand Silveria failed to give the title to Delfino.

ISSUE:

Whether or not there is a cause of action for reformation of instrument against Silveria Flores.

RULING:
613

Yes. Reformation is that remedy in equity by means of which a written instrument is made or construed so as to
express or conform to the real intention of the parties.

Art. 1359. When, there having been a meeting of the minds of the parties to a contract, their true intention is not
expressed in the instrument purporting to embody the agreement by reason of mistake, fraud, inequitable conduct
or accident, one of the parties may ask for the reformation of the instrument to the end that such true intention may
be expressed.

If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper
remedy is not reformation of the instrument but annulment of the contract.

An action for reformation of instrument under this provision of law may prosper only upon the concurrence of the
following requisites: (1) there must have been a meeting of the minds of the parties to the contact; (2) the instrument
does not express the true intention of the parties; and (3) the failure of the instrument to express the true intention of
the parties is due to mistake, fraud, inequitable conduct or accident.

All of these requisites, in our view, are present in this case. There was a meeting of the minds between the parties
to the contract but the deed did not express the true intention of the parties due to mistake in the designation of the
lot subject of the deed. There is no dispute as to the intention of the parties to sell the land to Alejandra Delfino but
there was a mistake as to the designation of the lot intended to be sold as stated in the Settlement of Estate and
Sale.

[G.R. No. 121506. October 30, 1996.]

MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY, Petitioner, v. COURT OF APPEALS,

REGIONAL TRIAL COURT, BRANCH 9, CEBU CITY, MELBA LIMBACO, LINDA C. LOGARTA and
RAMON C. LOGARTA, Respondents.

RESOLUTION

FRANCISCO, J.:

Petitioner Mactan Cebu International Airport Authority (MCIAA) 1 seeks a reversal of the decision 2 of
the Court of Appeals (CA) dated March 23, 1995 as well as the resolution 3 dated August 7, 1995
denying petitioner’s motion for reconsideration. The facts, as stated in the assailed decision, and
which we adopt, are as follows: jgc:chanrobles.com.ph

"Sometime in 1949, officers of the National Airport Corporation informed the owners of the various
lots surrounding the Lahug Airport that the government will purchase their lands for the expansion of
the airport. The landowners were convinced to sell their properties, otherwise, the government will
be forced to institute expropriation proceedings in courts. They were also assured that their
properties will be returned to them when these are no longer being used by the airport (TSN-Daclan,
15 June 1992, pp. 5-7; TSN-Sanchez, 29 September 1992, p. 12; TSN-Daclan, 9 February 1993, pp.
7-9, 12).

"Initially, Inez Ouano did not want to sell her property because she does not have enough to
bequeath to her grandchildren and the price offered by the government was very low. Nonetheless,
she agreed to sell since the government was going to expropriate the land anyway. She was also
reassured by the promise that the land will be returned to her when it is no longer in use (TSN-
Daclan, 15 June 1992, pp. 5-6).

"Eufemio Vercide, one of the affected landowners testified that in a meeting called by the NAC, the
landowners were given documents to sign, and he asked for a rider or certification which would
indicate that the land will be returned to him should it not be used by the airport. He testified that it
was only after the rider was given to him that he signed the document of sale (TSN-Catin, 24
September 1992; Deposition of Eufemio Vercide; Records pp. 146-155). The rider dated 8
November, 1949, signed by Mariano Reyes for the NAC and Vercide reads, as follows: jgc:chanrobles.com.ph

"This RIDDER (sic), shall remain in full force up to whensoever and whatever the Lahug Airport may
happen in the future. All statements in anticipations herein below stated, shall remain valid in favor
of the landowners.
614

"That in the event that this Lahug Airport will be left dead and of no use, or be transferred to another
place or locality, then the parcels of land mentioned in the attached Doc. No. 698, Page 8, Book No.
XVII, Series of 1949 by Atty. Daniel Tumulak, shall be returned to the same owner, EUFEMIO O.
VERCIDE at the same selling price without any interest (Exhibit "F-1" ; Records, p. 92)." cralaw virtua1aw library

"The sale of Inez’ property was covered by a Deed of Sale signed by her and Mariano Reyes
representing the NAC. The deed indicates that the Lot 742 was sold for P2,596.40; and Lot 953 for
P1,125.20. The deed does not contain any provision regarding Inez’ right to repurchase the
properties. Nor does she have any rider such as the one given to Vercide.

"Nonetheless, during her lifetime, Inez used to remind her granddaughter Melba Limbaco, who was
living with her, about the assurance by the NAC officials that the properties will be returned. Inez
also made Melba understand that the latter can recover the land herself should Inez die before the
proper time arises.

x          x           x

"Upon learning that other landowners were able to recover their properties and that the then Pres.
Aquino had ordered that the airport be transferred to Mactan, the appellees tried to repurchase the
properties originally owned by their grandmother. On 2 October 1991, they wrote to Capt. Antonio
Oppus, the manager of appellant, signifying their intention to repurchase the properties originally
owned by their grandmother (Exhibit "D", Records, pp. 82-83). Capt. Oppus replied through a letter
dated 17 October 1991 denying their request because the deed of sale covering the properties does
not contain any condition relating to the right to repurchase. These properties, it was explained, had
become the absolute properties of the NAC (Exhibit "E" Records, p. 84). 4

Private respondents thereafter filed a case for reconveyance with the Regional Trial Court (RTC)
which ruled in their favor. On appeal to the CA, the same was affirmed in toto. Hence, this petition
assigning the following errors:jgc:chanrobles.com.ph

"I. RESPONDENT COURT ERRED IN RULING THAT THERE WAS AN AGREEMENT ALLOWING INEZ
OUANO AND HER SUCCESSORS TO REPURCHASE THE LOTS IN QUESTION ABSENT ANY "RIDER" IN
THE DEED OF SALE SIMILAR TO THE SALES OF ADJACENT LOTS WHICH CONTAINED RIDERS.

II. RESPONDENT COURT ERRED IN RULING THAT THE STATUTE OF FRAUDS DOES NOT APPLY IN
THE INSTANT CASE AS THE CONTRACT HAS BEEN PARTIALLY EXECUTED. 5

Anent the first error, the CA’s finding that there was an agreement allowing the right of repurchase,
was established after admitting the parol evidence presented by private respondents. We reject
petitioner’s argument that in the absence of any rider providing for such right of repurchase, no
evidence, whatsoever can be received to establish that such a right indeed exists. Both the RTC and
the CA correctly ruled that the right of repurchase granted by the NAC to Inez Ouano can be
sufficiently established by parol evidence. The Court of Appeals, based on the parol evidence
presented by private respondents, thus stated: jgc:chanrobles.com.ph

"We see no reason, however, why Inez should be considered as not similarly situated as the owners
of these other lots. All these lots surround the Lahug Airport and were acquired by the government
for the proposed expansion of the airport. The appellee has not presented any evidence to show that
Inez’ lots were acquired for a different purpose or under different conditions. Why then should the
sale of such lots be singled out as not subject to the right to repurchase when a good number of the
lots around them were already repurchased by their original owners? 6

Under the parol evidence rule, when the terms of an agreement have been reduced into writing, it is
considered as containing all the terms agreed upon, and there can be, between the parties and their
successors-in-interest, no evidence of such terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the terms of the written
agreement if he puts in issue in his pleading, the failure of the written agreement to express the true
intent of the parties thereto. 7 In the case at bench, the fact which private respondents seek to
establish by parol evidence consists of the agreement or representation made by the NAC that
induced Inez Ouano to execute the deed of sale; that the vendors and their heirs are given the right
of repurchase should the government no longer need the property. Where a parol contemporaneous
agreement was the moving cause of the written contract, or where the parol agreement forms part of
the consideration of the written contract, and it appears that the written contract was executed on
615

the faith of the parol contract or representation, such evidence is admissible. 8 It is recognized that
proof is admissible of any collateral parol agreement that is not inconsistent with the terms of the
written contract though it may relate to the same subject matter. The rule excluding parol evidence
to vary or contradict a writing does not extend so far as to preclude the admission of existing
evidence to show prior or contemporaneous collateral parol agreements between the parties, but
such evidence may be received, regardless of whether or not the written agreement contains any
reference to such collateral agreement, and whether the action is at law or in equity. 9

More importantly, no objection was made by petitioner when private respondents introduced
evidence to show the right of repurchase granted by the NAC to Inez Ouano. It has been repeatedly
laid down as a rule of evidence that a protest or objection against the admission of any evidence
must be made at the proper time, and if not so made, it will be understood to have been waived. 10

As regards the second assigned error, the CA correctly held that the Statute of Frauds does not apply
to the case at bench. In support thereof, the CA declared: jgc:chanrobles.com.ph

"It will be stressed that the right to repurchase is part of the contract of sale, albeit not incorporated
in the deed of sale. It is not an independent agreement or contract. It is, therefore, correct for the
trial court to hold that the contract has been partially executed by the sale of the properties to the
appellant." 11

Under Art. 1403 of the Civil Code, a contract for the sale of real property shall be unenforceable
unless the same or some note or memorandum thereof be in writing and subscribed by the party
charged or his agent. Evidence of the agreement cannot be received without the writing, or a
secondary evidence of its contents. In the case at bench, the deed of sale and the verbal agreement
allowing the right of repurchase should be considered as an integral whole. The deed of sale relied
upon by petitioner is in itself the note or memorandum evidencing the contract. Thus, the
requirement of the Statute of Frauds has been sufficiently complied with. Moreover, the principle of
the Statute of Frauds only applies to executory contracts and not to contracts either partially or
totally performed, 12 as in this case, where the sale has been consummated; hence, the same is
taken out of the scope of the Statute of Frauds. As the deed of sale has been consummated, by
virtue of which, petitioner accepted some benefits thereunder, it cannot now deny the existence of
the agreement. 13 The Statute of Frauds was enacted for the purpose of preventing fraud. It should
not be made the instrument to further them. 14

ACCORDINGLY, the petition is hereby DENIED.

SO ORDERED.

P arol Evidence Rule LUCIO R. CRUZ, Petitioner, vs. COURT OF APPEALS AND CONRADO Q. SALONGA,
Respondents. G.R. No. 79962 December 10, 1990

FACTS: The private respondent Conrado Salonga filed a complaint for collection and damages against
petitioner Lucio Cruz alleging that in the course of their business transactions of buying and selling fish, the
petitioner borrowed from him an amount of P35,000.00, evidenced by a receipt. The plaintiff claimed that of
this amount, only P20,000.00 had been paid, leaving a balance of P10,000.00; that in August 1982, he and the
defendant agreed that the latter would grant him an exclusive right to purchase the harvest of certain fishponds
leased by Cruz in exchange for certain loan accommodations; that pursuant thereto, Salonga delivered to Cruz
various loans totaling P15,250.00, evidenced by four receipts and an additional P4,000.00, the receipt of which
had been lost; and that Cruz failed to comply with his part of the agreement by refusing to deliver the alleged
harvest of the fishpond and the amount of his indebtedness. Cruz denied having contracted any loan from
Salonga. By way of special defense, he alleged that he was a lessee of several hectares of a fishpond owned
by Nemesio Yabut and that he entered into an agreement with Salonga whereby the latter would purchase
(pakyaw) fish in certain areas of the fishpond. They also agreed that immediately thereafter, Salonga would
sublease (bubuwisan) the same fishpond for a period of one year. Cruz admitted having received the amount
of P35,000.00 and on several occasions an aggregate amount of P15,250.00. He contended however, that
these amounts were received by him not as loans but as consideration for their "pakyaw" agreement and
payment for the sublease of the fishpond. The trial court ruled in favor of the petitioner and ordered the private
respondent to pay the former. Judge Eriberto U. Rosario, Jr. found that the transactions between the petitioner
and the private respondent were indeed "pakyaw" and sublease agreements. On appeal, the decision of the
trial court was reversed. ISSUE: Whether or not the Court of Appeals gravely erred in disregarding parol
evidence. RULING: A distinction should be made between a statement of fact expressed in the instrument and
the terms of the contractual act. The former may be varied by parol evidence but not the latter. 5 Section 7 of
616

Rule 130 clearly refers to the terms of an agreement and provides that "there can be, between the parties and
their successors in interest, no evidence of the terms of the agreement other than the contents of the writing."
Even if it were assumed that Exhibits D and I are covered by the parol evidence rule, its application by the
Court of Appeals was improper. The record shows that no objection was made by the private respondent when
the petitioner introduced evidence to explain the circumstances behind the execution and issuance of the said
instruments. The rule is that objections to evidence must be made as soon as the grounds therefor become
reasonably apparent. In the case of testimonial evidence, the objection must be made when the objectionable
question is asked or after the answer is given if the objectionable features become apparent only by reason of
such answer. For failure of the private respondent to object to the evidence introduced by the petitioner, he is
deemed to have waived the benefit of the parol evidence rule. Thus, in Abrenica v. Gonda, this Court held: . . .
“The proper time to make a protest or objection is when, from the question addressed to the witness, or from
the answer thereto, or from the presentation of proof, the inadmissibility of evidence is, or may be inferred. It is
also settled that the court cannot disregard evidence which would ordinarily be incompetent under the rules but
has been rendered admissible by the failure of a party to object thereto.”

[G.R. No. 79962 :  December 10, 1990.]

192 SCRA 209
LUCIO R. CRUZ, Petitioner, vs. COURT OF APPEALS AND CONRADO Q. SALONGA, Respondents.
 
DECISION
 
CRUZ, J.:
 
The private respondent Conrado Salonga filed a complaint for collection and damages against petitioner
Lucio Cruz ** in the Regional Trial Court of Lucena City alleging that in the course of their business
transactions of buying and selling fish, the petitioner borrowed from him an amount of P35,000.00,
evidenced by a receipt dated May 4, 1982, marked as Exhibit D, reading as follows:
5/4/82
Received the amount of Thirty Five Thousand Cash from Rodrigo Quiambao and Conrado Salonga on the
day of May 4, 1982.
Sgd. Lucio Cruz
The plaintiff claimed that of this amount, only P20,000.00 had been paid, leaving a balance of
P10,000.00; that in August 1982, he and the defendant agreed that the latter would grant him an
exclusive right to purchase the harvest of certain fishponds leased by Cruz in exchange for certain loan
accommodations; that pursuant thereto, Salonga delivered to Cruz various loans totaling P15,250.00,
evidenced by four receipts and an additional P4,000.00, the receipt of which had been lost; and that Cruz
failed to comply with his part of the agreement by refusing to deliver the alleged harvest of the fishpond
and the amount of his indebtedness.
Cruz denied having contracted any loan from Salonga. By way of special defense, he alleged that he was a
lessee of several hectares of a fishpond owned by Nemesio Yabut and that sometime in May 1982, he
entered into an agreement with Salonga whereby the latter would purchase (pakyaw) fish in certain areas
of the fishpond from May 1982 to August 15, 1982. They also agreed that immediately thereafter, Salonga
would sublease (bubuwisan) the same fishpond for a period of one year. Cruz admitted having received on
May 4, 1982, the amount of P35,000.00 and on several occasions from August 15, 1982, to September
30, 1982, an aggregate amount of P15,250.00. He contended however, that these amounts were received
by him not as loans but as consideration for their "pakyaw" agreement and payment for the sublease of
the fishpond. He added that it was the private respondent who owed him money since Salonga still had
unpaid rentals for the 10-month period that he actually occupied the fishpond. Cruz also claimed that
Salonga owed him an additional P4,000.00 arising from another purchase of fish from other areas of his
leased fishpond.
In a pre-trial conference held on August 24, 1984, petitioner and private respondent entered into the
following partial stipulation of facts.
COURT:
Plaintiff and defendant, through their respective counsel, during the pre-trial conference, agreed on the
following stipulation of facts:
1) That plaintiff Conrado Salonga entered into a contract of what is commonly called as 'pakyawan'
with defendant Lucio Cruz on the fishes contained in a fishpond which defendant Lucio Cruz was
taking care of as lessee from the owner Mr. Nemesio Yabut, with a verbal contract for the sum of
P28,000.00 sometime in May 1982.
617

2) That because of the necessity, defendant Lucio Cruz at that time needed money, he requested
plaintiff Conrado Salonga to advance the money of not only P28,000.00 but P35,000.00 in order
that Lucio Cruz could meet his obligation with the owner of the fishpond in question, Mr. Nemesio
Yabut;
3) That the amount of P35,000.00 as requested by defendant Lucio Cruz was in fact delivered by
plaintiff Conrado Salonga duly received by the defendant Lucio Cruz, as evidenced by a receipt
dated May 4, 1982, duly signed by defendant Lucio Cruz
4) That pursuant to said contract of "pakyaw," plaintiff Conrado Salonga was able to harvest the
fishes contained in the fishpond administered by Lucio Cruz in August 1982.
5) Immediately thereafter the aforesaid harvest thereon, they entered again on a verbal
agreement whereby plaintiff Conrado Salonga and defendant Lucio Cruz had agreed that defendant
Lucio Cruz will sublease and had in fact subleased the fishpond of Nemesio Yabut to the herein
plaintiff for the amount of P28,000.00 for a period of one year beginning August 15, 1982.
6) That sometime on June 15, 1983, Mayor Nemesio Yabut, who is the owner of the fishpond, took
back the subject matter of this case from the defendant Lucio Cruz.
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had received
from the plaintiff Conrado Salonga the following sums of money:
a) P8,000.00 on August 15, 1982 as evidenced by Annex "B" of the Complaint. (Exh. E);
b) The sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the complaint
(Exh. F);
c) The sum of P3,000.00 on September 19, 1982 as evidenced by Annex "D" of the
complaint (Exh. G); and
d) The sum of P3,750.00 on September 30, 1982 as Annex "E" of the complaint (Exh. H).
At the trial, the private respondent claimed that aside from the amounts of P35,000.00 (Exh. D),
P8,000.00 (Exh. E), P500.00 (Exh. F), P3,000.00 (Exh. G) and P3,750.00 (Exh. H) mentioned in the
partial stipulation of facts, he also delivered to the petitioner P28,000.00, which constituted the
consideration for their "pakyaw" agreement. This was evidenced by a receipt dated May 14, 1982 marked
as Exhibit I and reading as follows:
May 14, 1982
Tinatanggap ko ang halagang dalawampu't walong libong piso (P28,000.00) bilang halaga sa
pakyaw nila sa akin sa sangla sa kahong bilang #8 maliit at sa kaputol na sapa sa gawing may
bomba. Ito ay tatagal hanggang Agosto 1982.
SGD. LUCIO CRUZ
Salonga also claimed that he had paid Cruz the amount of P4,000 but the receipt of which had been lost
and denied being indebted to the petitioner for P4,000 for the lease of other portions of the fishpond.
For his part, the petitioner testified that he entered into a "pakyaw" and sublease agreement with the
private respondent for a consideration of P28,000 for each transaction. Out of the P35,000 he received
from the private respondent on May 4, 1982, P28,000 covered full payment of their "pakyaw" agreement
while the remaining P7,000 constituted the advance payment for their sublease agreement. The petitioner
denied having received another amount of P28,000 from Salonga on May 14, 1982. He contended that the
instrument dated May 14, 1982 (Exh. I) was executed to evidence their "pakyaw" agreement and to fix its
duration. He was corroborated by Sonny Viray, who testified that it was he who prepared the May 4,
1982, receipt of P35,000.00, P28,000 of which was payment for the "pakyaw" and the excess of
P7,000.00 as advance for the sublease.
The trial court ruled in favor of the petitioner and ordered the private respondent to pay the former the
sum of P3,054.00 plus P1,000.00 as litigation expenses and attorney's fees, and the costs. Judge Eriberto
U. Rosario, Jr. found that the transactions between the petitioner and the private respondent were indeed
"pakyaw" and sublease agreements, each having a consideration of P28,000.00, for a total of P56,000.00.
Pursuant to these agreements, Salonga paid Cruz P35,000.00 on May 4, 1982 (Exh. D); P8,000.00 on
August 15, 1982 (Exh. E); P500.00 on September 4, 1982 (Exh. F); P3,000 on September 19, 1982;
P3,750 on September 30, 1982 (Exh. H) and P4,000.00 on an unspecified date. The trial court noted an
earlier admission of the private respondent that on an unspecified date he received the sum of P6,000.00
from the petitioner. This amount was credited to the petitioner and deducted from the total amount paid
by the private respondent. As the one-year contract of sublease was pre-terminated two months short of
the stipulated period, the rentals were correspondingly reduced.
On appeal, the decision of the trial court was reversed. The respondent court instead ordered the
petitioner to pay the private respondent the sum of P24,916.00 plus P1,500.00 as litigation expenses and
attorney's fees, on the following justification:
Exhibit "I" is very clear in its non-reference to the transaction behind Exhibit "D." What only gives the
semblance that Exhibit "I" is an explanation of the transaction behind Exhibit "D" are the oral testimonies
618

given by the defendant and his two witnesses. On the other hand, Exhibit "I" is very clear in its language.
Thus, its tenor must not be clouded by any parol evidence introduced by the defendant. And with the
tenor of Exhibit "I" remaining unembellished, the conclusion that Exhibit "D" is a mere tentative receipt
becomes untenable.
The trial court erred when it relied on the self-serving testimonies of the defendant and his witness as
against the receipts both parties presented and adopted as their own exhibits. As said before, Exhibit "I" is
very clear in its tenor. And if it is really the intention of Exhibit "I" to explain the contents of Exhibit "D",
such manifestation or intention is not found in the four corners of the former document.
The respondent court also found that the amounts of P35,000.00, P8,000.00, P500.00, P3,000.00,
P3,750.00 and P4,000.00 were not payments for the "pakyaw" and sublease agreement but for loans
extended by Salonga to Cruz. It also accepted Salonga's claim that the amount of P28,000.00 was
delivered to the petitioner on May 14, 1982, as payment on the "pakyaw" agreement apart from the
P35,000.00 (Exh. D) that was paid on May 4, 1982. However, it agreed that the amount of P6,000.00
received by the private respondent from the petitioner should be credited in favor of the latter.
The petitioner is now before this Court, raising the following issues:
1. The public respondent Court of Appeals gravely erred in (1) disregarding parol evidence to
Exhibits "D" and "I" despite the fact that these documents fall under the exceptions provided for in
Sec. 7, Rule 130 of the Rules of Court and thereby in (2) making a sweeping conclusion that the
transaction effected between the private respondent and petitioner is one of contract of loan and
not a contract of lease.
2. Assuming for the sake of argument that exhibits "D" and "I" evidence separate transactions, the
latter document should be disregarded, the same not having been pleaded as a cause of action.
3. Whether or not the Stipulation of Facts entered into by the parties herein relative to their
executed transactions during the hearing of their case a quo, are binding upon them and as well
as, upon the public respondent?
Our ruling follows:
Rule 130, Sec. 7, of the Revised Rules of Court provides:  1
Sec. 7. Evidence of Written Agreements. — When the terms of an agreement have been reduced to
writing, it is to be considered as containing all such terms, and therefore, there can be, between the
parties and their successors in interest, no evidence of the terms of the agreement other than the
contents of the writing, except in the following cases:
a) When a mistake or imperfection of the writing or its failure to express the true intent and agreement of
the parties, or the validity of the agreement is put in issue by the pleadings;
b) When there is an intrinsic ambiguity in the writing. The term "agreement" includes wills.
The reason for the rule is the presumption that when the parties have reduced their agreement to writing
they have made such writing the only repository and memorial of the truth, and whatever is not found in
the writing must be understood to have been waived or abandoned.  2
The rule, however, is not applicable in the case at bar, Section 7, Rule 130 is predicated on the existence
of a document embodying the terms of an agreement, but Exhibit D does not contain such an agreement.
It is only a receipt attesting to the fact that on May 4, 1982, the petitioner received from the private
respondent the amount of P35,000. It is not and could have not been intended by the parties to be the
sole memorial of their agreement. As a matter of fact, Exhibit D does not even mention the transaction
that gave rise to its issuance. At most, Exhibit D can only be considered a casual memorandum of a
transaction between the parties and an acknowledgment of the receipt of money executed by the
petitioner for the private respondent's satisfaction. A writing of this nature, as Wigmore observed is not
covered by the parol evidence rule.
A receipt — i.e. a written acknowledgment, handed by one party to the other, of the manual custody of
money or other personality — will in general fall without the line of the rule; i.e. it is not intended to be an
exclusive memorial, and the facts may be shown irrespective of the terms of the receipt. This is because
usually a receipt is merely a written admission of a transaction independently existing, and, like other
admissions, is not conclusive.  3
The "pakyaw" was mentioned only in Exhibit I, which also declared the petitioner's receipt of the amount
of P28,000.00 as consideration for the agreement. The petitioner and his witnesses testified to show when
and under what circumstances the amount of P28,000.00 was received. Their testimonies do not in any
way vary or contradict the terms of Exhibit I. While Exhibit I is dated May 14, 1982, it does not make any
categorical declaration that the amount of P28,000.00 stated therein was received by the petitioner on
that same date. That date may not therefore be considered conclusive as to when the amount of
P28,000.00 was actually received.
A deed is not conclusive evidence of everything it may contain. For instance, it is not the only evidence of
the date of its execution, nor its omission of a consideration conclusive evidence that none passed, nor is
619

its acknowledgment of a particular consideration an objection to other proof of other and consistent
considerations; and, by analogy, the acknowledgment in a deed is not conclusive of the fact.  4
A distinction should be made between a statement of fact expressed in the instrument and the terms of
the contractual act. The former may be varied by parol evidence but not the latter.   5 Section 7 of Rule
130 clearly refers to the terms of an agreement and provides that "there can be, between the parties and
their successors in interest, no evidence of the terms of the agreement other than the contents of the
writing."
The statement in Exhibit I of the petitioner's receipt of the P28,000.00 is just a statement of fact. It is a
mere acknowledgment of the distinct act of payment made by the private respondent. Its reference to the
amount of P28,000.00 as consideration of the "pakyaw" contract does not make it part of the terms of
their agreement. Parol evidence may therefore be introduced to explain Exhibit I, particularly with respect
to the petitioner's receipt of the amount of P28,000.00 and of the date when the said amount was
received.
Even if it were assumed that Exhibits D and I are covered by the parol evidence rule, its application by the
Court of Appeals was improper. The record shows that no objection was made by the private respondent
when the petitioner introduced evidence to explain the circumstances behind the execution and issuance
of the said instruments. The rule is that objections to evidence must be made as soon as the grounds
therefor become reasonably apparent.  6 In the case of testimonial evidence, the objection must be made
when the objectionable question is asked or after the answer is given if the objectionable features become
apparent only by reason of such answer.  7
For failure of the private respondent to object to the evidence introduced by the petitioner, he is deemed
to have waived the benefit of the parol evidence rule. Thus, in Abrenica v. Gonda,  8 this Court held:
. . . it has been repeatedly laid down as a rule of evidence that a protest or objection against the
admission of any evidence must be made at the proper time, and that if not so made it will be understood
to have been waived. The proper time to make a protest or objection is when, from the question
addressed to the witness, or from the answer thereto, or from the presentation of proof, the
inadmissibility of evidence is, or may be inferred.
It is also settled that the court cannot disregard evidence which would ordinarily be incompetent under the
rules but has been rendered admissible by the failure of a party to object thereto. Thus:
. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the allowance of
improper questions that may be put to him while on the stand is a matter resting in the discretion of the
litigant. He may assert his right by timely objection or he may waive it, expressly or by silence. In any
case the option rests with him. Once admitted, the testimony is in the case for what it is worth and the
judge has no power to disregard it for the sole reason that it could have been excluded, if it had been
objected to, nor to strike it out on its own motion. (Emphasis supplied.)  9
We find that it was error for the Court of Appeals to disregard the parol evidence introduced by the
petitioner and to conclude that the amount of P35,000.00 received on May 4, 1982 by the petitioner was
in the nature of a loan accommodation. The Court of Appeals should have considered the partial
stipulation of facts and the testimonies of the witnesses which sought to explain the circumstances
surrounding the execution of Exhibits D and I and their relation to one another.
We are satisfied that the amount of P35,000.00 was received by the petitioner as full payment of their
"pakyaw" agreement for P28,000.00 and the remaining P7,000.00 as advance rentals for their sublease
agreement. The claim that the excess of P7,000.00 was advance payment of the sublease agreement is
bolstered by the testimony of the private respondent himself when during the cross examination he
testified that:
ATTY. CRUZ:
Q And during the time you were leasing the fishpond, is it not a fact that you pay lease rental to the
defendant?
SALONGA:
A No sir, because I have already advanced him money.
Q What advance money are you referring to?
A Thirty-Five Thousand Pesos (P35,000.00), sir. 10
It was also error to treat the amounts received by the petitioner from August 15, 1982, to September 30,
1982, from the private respondent as loan accommodations when the partial stipulation of facts clearly
stated that these were payments for the sublease agreement. The pertinent portions read:
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had received from the
plaintiff Conrado Salonga the following sums of money: (Emphasis Supplied.)
(a) P8,000.00 on August 15, 1982, as evidenced by Annex "B" of the complaint;
(b) the sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the complaint;
620

(c) the sum of P3,000.00 on September 19, 1982, as evidenced by Annex "D" of the complaint;
(d) the sum of P3,750.00 on September 30, 1982, as Annex "E" of the complaint; 11
These admissions bind not only the parties but also the court, unless modified upon request before the
trial to prevent manifest injustice.
We find, however, that the Court of Appeals did not act in excess of its jurisdiction when it appreciated
Exhibit I despite the fact that it was not pleaded as a cause of action and was objected to by the
petitioner. According to Rule 10 of the Rules of Court:
Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if
they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be made upon motion of any party at any
time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The
court may grant a continuance to enable the objecting party to meet such evidence.
In Co Tiamco v. Diaz, 12 the Supreme Court held:
. . . When evidence is offered on a matter not alleged in the pleadings, the court may admit it even
against the objection of the adverse party, when the latter fails to satisfy the court that the admission of
the evidence would prejudice him in maintaining his defense upon the merits, and the court may grant
him continuance to enable him to meet the situation created by the evidence . . .
While it is true that the private respondent did not even file a motion to amend his complaint in order that
it could conform to the evidence presented, this did not prevent the court from rendering a valid judgment
on the issues proved. As we held in the Co Tiamco case:
. . . where the failure to order an amendment does not appear to have caused a surprise or prejudice to
the objecting party, it may be allowed as a harmless error. Well-known is the rule that departures from
procedure may be forgiven when they do not appear to have impaired the substantial rights of the parties.
The following computation indicates the accountability of the private respondent to the petitioner:
 Exh. D, May 4, 1982  — P35,000.00
 Exh. E, Aug. 15, 1982 — 8,000.00
 Exh. F, Sept. 4, 1982  — 500.00
 Exh. G, Sept. 19, 1982 — 3,000.00
 Exh. H, Sept. 30, 1982 — 3,750.00
 Lost receipt    4,000.00
      ————
      P54,250.00
 Less: (amount received by the
 private respondent from the
 petitioner)    (6,000.00)
      ————
 Total amount paid by the
 private respondent to
 the petitioner    48,250.00
Amount to be paid by the private respondent to the petitioner:
 1. Pakyaw  P28,000.00
 2. Sublease   — 28,000 per annum
 Less: 2 months: 4,666 23,334.00
     ————
 Total amount to be paid by
 the private respondent to
 the petitioner P51,334.00
621

 Total amount to be paid

 by the private respondent P51,334.00
 Total amount paid by
 the private respondent 48,250.00
     ————
 Deficiency in the amount
 paid by the private respondent P3,084.00
ACCORDINGLY, the decision of the respondent Court of Appeals is REVERSED and that of the Regional
Trial Court of Laguna AFFIRMED, with the modification that the private respondent shall pay the petitioner
the sum of P3,084.00 instead of P3,054.00, plus costs. It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
622

G.R. No. L-8844 December 16, 1914

FERNANDO MAULINI, ET AL., plaintiffs-appellees,

vs.
ANTONIO G. SERRANO, defendant-appellant.

R. M. Calvo for appellant.

Jose Arnaiz for appellees.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila in favor of the plaintiff for the
sum of P3,000, with interest thereon at the rate of
1½ per cent month from September 5, 1912, together with the costs.

The action was brought by the plaintiff upon the contract of indorsement alleged to have been made in his favor by
the defendant upon the following promissory note:

3,000. Due 5th of September, 1912.

We jointly and severally agree to pay to the order of Don Antonio G. Serrano on or before the 5th day of
September, 1912, the sum of three thousand pesos (P3,000) for value received for commercial operations.
Notice and protest renounced. If the sum herein mentioned is not completely paid on the 5th day of
September, 1912, this instrument will draw interest at the rate of 1½ per cent per month from the date when
due until the date of its complete payment. The makers hereof agree to pay the additional sum of P500 as
attorney's fees in case of failure to pay the note.

Manila, June 5, 1912.

(Sgd.) For Padern, Moreno & Co., by F. Moreno, member of the firm. For Jose Padern, by F. Moreno. Angel
Gimenez.

The note was indorsed on the back as follows:

Pay note to the order of Don Fernando Maulini, value received. Manila, June 5, 1912. (Sgd.) A.G. Serrano.

The first question for resolution on this appeal is whether or not, under the Negotiable Instruments Law, an indorser
of a negotiable promissory note may, in an action brought by his indorsee, show, by parol evidence, that the
indorsement was wholly without consideration and that, in making it, the indorser acted as agent for the indorsee, as
a mere vehicle of transfer of the naked title from the maker to the indorsee, for which he received no consideration
whatever.

The learned trial court, although it received parol evidence on the subject provisionally, held, on the final decision of
the case, that such evidence was not admissible to alter, very, modify or contradict the terms of the contract of
indorsement, and, therefore, refused to consider the evidence thus provisionally received, which tended to show
that, by verbal agreement between the indorser and the indorsee, the indorser, in making the indorsement, was
acting as agent for the indorsee, as a mere vehicle for the transference of naked title, and that his indorsement was
wholly without consideration. The court also held that it was immaterial whether there was a consideration for the
transfer or not, as the indorser, under the evidence offered, was an accommodation indorser.

We are of the opinion that the trial court erred in both findings. 1awphil.net

In the first place, the consideration of a negotiable promissory note, or of any of the contracts connected therewith,
like that of any other written instrument, is, between the immediate parties to the contract, open to attack, under
proper circumstances, for the purpose of showing an absolute lack or failure of consideration.
623

It seems, according to the parol evidence provisionally admitted on the trial, that the defendant was a broker doing
business in the city of Manila and that part of his business consisted in looking up and ascertaining persons who
had money to loan as well as those who desired to borrow money and, acting as a mediary, negotiate a loan
between the two. He had done much business with the plaintiff and the borrower, as well as with many other people
in the city of Manila, prior to the matter which is the basis of this action, and was well known to the parties
interested. According to his custom in transactions of this kind, and the arrangement made in this particular case,
the broker obtained compensation for his services of the borrower, the lender paying nothing therefor. Sometimes
this was a certain per cent of the sum loaned; at other times it was a part of the interest which the borrower was to
pay, the latter paying 1½ per cent and the broker ½ per cent. According to the method usually followed in these
transactions, and the procedure in this particular case, the broker delivered the money personally to the borrower,
took note in his own name and immediately transferred it by indorsement to the lender. In the case at bar this was
done at the special request of the indorsee and simply as a favor to him, the latter stating to the broker that he did
not wish his name to appear on the books of the borrowing company as a lender of money and that he desired that
the broker take the note in his own name, immediately transferring to him title thereto by indorsement. This was
done, the note being at once transferred to the lender.

According to the evidence referred to, there never was a moment when Serrano was the real owner of the note. It
was always the note of the indorsee, Maulini, he having furnished the money which was the consideration for the
note directly to the maker and being the only person who had the slightest interest therein, Serrano, the broker,
acting solely as an agent, a vehicle by which the naked title to the note passed fro the borrower to the lender. The
only payment that the broker received was for his services in negotiating the loan. He was paid absolutely nothing
for becoming responsible as an indorser on the paper, nor did the indorsee lose, pay or forego anything, or alter his
position thereby.

Nor was the defendant an accommodation indorser. The learned trial court quoted that provision of the Negotiable
Instruments Law which defines an accommodation party as "one who has signed the instrument as maker, drawer,
acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other
person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of
taking the instrument knew the same to be only an accommodation party." (Act No. 2031, sec. 29.)

We are of the opinion that the trial court misunderstood this definition. The accommodation to which reference is
made in the section quoted is not one to the person who takes the note — that is, the payee or indorsee, but one to
the maker or indorser of the note. It is true that in the case at bar it was an accommodation to the plaintiff, in a
popular sense, to have the defendant indorse the note; but it was not the accommodation described in the law, but,
rather, a mere favor to him and one which in no way bound Serrano. In cases of accommodation indorsement the
indorser makes the indorsement for the accommodation of the maker. Such an indorsement is generally for the
purpose of better securing the payment of the note — that is, he lend his name to the maker, not to the holder.
Putting it in another way: An accommodation note is one to which the accommodation party has put his name,
without consideration, for the purpose of accommodating some other party who is to use it and is expected to pay it.
The credit given to the accommodation part is sufficient consideration to bind the accommodation maker. Where,
however, an indorsement is made as a favor to the indorsee, who requests it, not the better to secure payment, but
to relieve himself from a distasteful situation, and where the only consideration for such indorsement passes from
the indorser to the indorsee, the situation does not present one creating an accommodation indorsement, nor one
where there is a consideration sufficient to sustain an action on the indorsement.

The prohibition in section 285 of the Code of Civil Procedure does not apply to a case like the one before us. The
purpose of that prohibition is to prevent alternation, change, modification or contradiction of the terms of a written
instrument, admittedly existing, by the use of parol evidence, except in the cases specifically named in the section.
The case at bar is not one where the evidence offered varies, alters, modifies or contradicts the terms of the
contract of indorsement admittedly existing. The evidence was not offered for that purpose. The purpose was to
show that no contract of indorsement ever existed; that the minds of the parties never met on the terms of such
contract; that they never mutually agreed to enter into such a contract; and that there never existed a consideration
upon which such an agreement could be founded. The evidence was not offered to vary, alter, modify, or contradict
the terms of an agreement which it is admitted existed between the parties, but to deny that there ever existed any
agreement whatever; to wipe out all apparent relations between the parties, and not to vary, alter or contradict
the terms of a relation admittedly existing; in other words, the purpose of the parol evidence was to demonstrate,
not that the indorser did not intend to make the particular indorsement which he did make; not that he did not intend
to make the indorsement in the terms made; but, rather, to deny the reality of any indorsement; that a relation of any
kind whatever was created or existed between him and the indorsee by reason of the writing on the back of the
instrument; that no consideration ever passed to sustain an indorsement of any kind whatsoever.

The contention has some of the appearances of a case in which an indorser seeks prove forgery. Where an
indorser claims that his name was forged, it is clear that parol evidence is admissible to prove that fact, and, if he
proves it, it is a complete defense, the fact being that the indorser never made any such contract, that no such
relation ever existed between him and the indorsee, and that there was no consideration whatever to sustain such a
contract. In the case before us we have a condition somewhat similar. While the indorser does not claim that his
name was forged, he does claim that it was obtained from him in a manner which, between the parties themselves,
renders, the contract as completely inoperative as if it had been forged.
624

Parol evidence was admissible for the purpose named. 1awphil.net

There is no contradiction of the evidence offered by the defense and received provisionally by the court. Accepting it
as true the judgment must be reversed.

The judgment appealed from is reversed and the complaint dismissed on the merits; no special finding as to costs.

Arellano, C.J., Johnson and Trent, JJ., concur.

Separate Opinions

TORRES, J., concurring:

Act No. 2031, known as the Negotiable Instruments Law, which governs the present case, establishes various kinds
of indorsements by means of which the liability of the indorser is in some manner limited, distinguishing it from that
of the regular or general indorser, and among those kinds is that of the qualified indorsement which, pursuant to
section 38 of the same Act, constitutes the indorser a mere assignor of the title to the instrument, and may be made
by adding to the indorser's signature the words "without recourse" or any words of similar import.

If the defendant, Antonio G. Serrano, intervened, as he alleged and tried to prove that he did at the trial, only as a
broker or agent between the lender and plaintiff, Maulini, and the makers of the promissory note, Padern, Moreno &
Co. and Angel Gimenez, in order to afford an opportunity to the former to invest the amount of the note in such
manner that it might bring him interest, the defendant could have qualified the indorsement in question by adding to
his signature the words "without recourse" or any others such as would have made known in what capacity he
intervened in that transaction. As the defendant did not do so ad as he signed the indorsement in favor of the
plaintiff Maulini for value received from the latter, his liability, according to section 66 of the Act aforecited, is that of
a regular or general indorser, who, this same section provides, engages that if the instrument be dishonored, and
the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any
subsequent indorser who may be compelled to pay it. And the evidence which the defendant presented, tending to
show what were the conditions to which the defendant presented, tending to show what were the conditions to
which he obligated himself and in what capacity he intervened in making that indorsement and that this latter was
absolutely without consideration, should not have been admitted so that he might elude the aforesaid obligation, or,
if admitted, should not be taken into account, because as a regular indorser he warranted, pursuant to the said
section 66, that the instrument was genuine and in all respects what it purported to be, that he had a good title to it,
and that it was at the time of his indorsement valid and subsisting. He cannot, therefore, by means of any evidence,
and much less of such as consists of his own testimony, and as such interested party, alter, modify, contradict or
annul, as he virtually claimed and claims to be entitled to do, what in writing and with a full and perfect knowledge of
the meaning and import of the words contained in the indorsement, he set forth therein over his signature.

Section 63 of the Act above cited says that a person placing his signature upon an instrument otherwise than as
maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his
contention to be bound indicates by appropriate words his intention to be bound in some other capacity. This
provision of the law clearly indicates that in every negotiable instrument it is absolutely necessary to specify the
capacity in which the person intervenes who is mentioned therein or takes part in its negotiation, because only by so
doing can it be determined what liabilities arise from that intervention and from whom, how and when they must be
exacted. And if, in the vent of a failure to express the capacity in which the person who signed the negotiable
instrument intended to be bound, he should be deemed to be an indorser, when the very words of the instrument
expressly and conclusively show that such he is, as occurs in the present case, and when the indorsement contains
no restriction, modification, condition or qualification whatever, there cannot be attributed to him, without violating
the provisions of the said Act, any other intention than that of being bound in the capacity in which he appears in the
instrument itself, nor can evidence be admitted or, if already admitted, taken into consideration, for the purpose of
proving such other intention, for the simple reason that if the law has already fixed ad determined the capacity in
which it must be considered that the person who signed the negotiable instrument intervened and the intention of
his being bound in a definite capacity, for no other purpose, undoubtedly, than that there shall be no evidence given
in the matter, when the capacity appears in the instrument itself and the intention is determined by the very same
capacity, as occurs in this case, the admission of evidence in reference thereto is entirely unnecessary, useless,
and contrary to the purposes of the law, which is clear and precise in its provisions and admits of no subterfuges or
evasions for escaping obligations contracted upon the basis of credit, with evident and sure detriment to those who
intervened or took part in the negotiation of the instrument.

However, it is held in the majority opinion, for the purpose of sustaining the premises that the proofs presented by
the defendant could have been admitted without violating the provisions of section 285 of the Code of Civil
Procedure, that the evidence was not offered to vary, alter, modify, or contradict the terms of an agreement which it
is admitted existed between the parties, but to deny that there ever existed any agreement whatever; to wipe out all
apparent relations between the parties, and not to vary, alter or contradict the terms of a relation admittedly existing;
in other words, the purpose of the parol evidence was to demonstrate, not that the indorser did not intend to make
the particular indorsement in the terms made, but rather to deny the reality of any indorsement; to deny that a
625

relation of any kind whatsoever was created or existed between him and the indorsee by reason of the writing on
the back of the instrument; to deny that any consideration ever passed to sustain an indorsement of any kind
whatsoever. It is stated in the same decision that the contention has some of the appearances of a case in which an
indorser seeks to prove forgery.

First of all, we do not see that there exists any appearance or similarity whatever between the case at bar and one
where forgery is sought to be proved. The defendant did not, either civilly or criminally, impugn the indorsement as
being false. He admitted its existence, as stated in the majority opinion itself, and did not disown his signature
written in the indorsement. His denial to the effect that the indorsement was wholly without consideration, aside from
the fact that it is i contradiction to the statements that he over his signature made in the instrument, does not allow
the supposition that the instrument was forged.

The meaning which the majority opinion apparently wishes to convey, in calling attention to the difference between
what, as it says, was the purpose of the evidence presented by the defendant and what was sought to be proved
thereby, is that the defendant does not endeavor to contradict or alter the terms of the agreement, which is
contained in the instrument and is admitted to exist between the parties; but to deny the existence of such an
agreement between them, that is, the existence of any indorsement at all, and that any consideration ever passed to
sustain the said indorsement, or, in other words, that the defendant acknowledged the indorsement as regards the
form in which it appears to have been drawn up, but not with respect to its essence, that is, to the truth of the
particular facts set forth in the indorsement. It cannot be denied that the practical result evidence is other than to
contradict, modify, alter or even to annul the terms of the agreement contained in the indorsement: so that, in reality,
the distinction does not exist that is mentioned as a ground of the decision of the majority of the court in support of
the opinion that the evidence in question might have been admitted, without violating the provisions of the
aforementioned section 285 of the Code of Civil Procedure. This section is based upon the same principle which is
taken into account in the Negotiable Instruments Law to write into it such positive and definite provisions which
purport, without possibility of discussion or doubt, the uselessness of taking evidence when the capacity of the
person who intervened in a negotiable instrument or his intention of being bound in a particular way appears in the
instrument itself or has been fixed by statute, if it is not shown that he did so in some other capacity than that of
maker, drawer or acceptor.

But aside from what the Code of Civil Procedure prescribes with respect to this matter, as the present case is
governed by the Negotiable Instruments Law, we must abide by its provisions.

Section 24 of this Act, No. 2031, says that every negotiable instrument is deemed prima facie to have been issued
for a valuable consideration; and every person whose signature appears thereon, to have become a party thereto
for value. If the Act establishes this presumption for the case where there might be doubt with respect to the
existence of a valuable consideration, in order to avoid the taking of evidence in the matter, when the consideration
appears from the instrument itself by the expression of the value, the introduction of evidence is entirely
unnecessary and improper.

According to section 25 of the same Act, value is any consideration sufficient to support a simple contract, and so
broad is the scope the law gives to the meaning of "value" in this kind of instruments that it considers as such a prior
of preexistent debt, whether the instrument be payable on demand or at some future date.

Section 26 provides that where value has at any time been given for the instrument, the holder is deemed a holder
for value, both in respect to the maker and to the defendant indorser, it is immaterial whether he did so directly to
the person who appears in the promissory note as the maker or whether he delivered the sum to the defendant in
order that this latter might in turn deliver it to the maker.

The defendant being the holder of the instrument, he is also unquestionably the holder in due course. In the first
place, in order to avoid doubts with respect to this matter which might require the introduction of evidence, the Act
before mentioned has provided, in section 59, that every holder is deemed prima facie to be a holder in due course,
and such is the weight it gives to this presumption and to the consequences derived therefrom, that it imposes upon
the holder the burden to prove that he or some person under whom he claims acquired the title in due course, only
when it is shown that the title of any person who has negotiated the instrument was defective. This rule, however,
pursuant to the said section, does not apply in favor of a party who became bound on the instrument prior to the
acquisition of such defective title, in which case the defendant Serrano is not included, because, in the first place, he
was not bound on the instrument prior to the acquisition of the title by the plaintiff, but it was the maker of the
promissory note who was bound on the instrument executed in favor of the defendant or indorser prior to the
acquisition of the title by the plaintiff; and, in the second place, it does not appear, nor was it proved, as will be seen
hereinafter, that the title in question was defective.

According to section 52 of the same Act, the plaintiff is the holder in due course of the instrument in question, that is,
of the promissory note containing the obligation compliance with which is demanded of him by the defendant,
because he took the instrument under the condition: (a) That it was complete and regular upon its face; (b) that he
became the holder of it before it was overdue, and without notice that it had been previously dishonored; (c) that he
626

took it in good faith and for value; and (d) that at the time it was negotiated to him he had no notice of any deficiency
in the instrument or defect in the title of the person negotiating it.

Pursuant to section 56 of the said Act, to constitute notice of a deficiency in the instrument or defect in the title of the
person negotiating the same, the person to whom it is transferred must have had actual knowledge of the deficiency
or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.

In the present case it cannot be said, for it is not proven, that the plaintiff, upon accepting the instrument from the
defendant, had actual knowledge of any deficiency or defect in the same, for the simple reason that it contains no
deficiency or defect. Its terms are very clear and positive. There is nothing ambiguous, concealed, or which might
give rise to any doubt whatever with respect to its terms or to the agreement made by the parties. Furthermore, as
stated in the majority opinion, the defendant did not intend to make the particular indorsement which he did make in
the terms, form and manner in which it was made, nor did he intend to change or alter the terms of the agreement
which is admitted to have existed between the parties. All of which indicates that, neither as regards the plaintiff nor
as regards the defendant, was there any deficiency or defect in the title or in the instrument, and that the plaintiff,
upon taking or receiving the instrument from the defendant, had no knowledge of any fact from which bad faith on
his part might be implied. Besides, no evidence was produced of the existence of any such bad faith, nor of the
knowledge of any deficiency or defect.

Moreover, section 55 of Act No. 2031 provides that the title of a person who negotiates an instrument is defective
within the meaning of this Act when he obtained the instrument, or any signature thereto, by fraud, duress, or force
and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under
such circumstances as amount to a fraud. As no evidence was taken on these points, the only ones that may be
proven as regards negotiable instruments, the defendant must be deemed to be the holder of the instrument in due
course, pursuant to the provisions of the aforecited section 59, and he cannot be required to prove that he or his
predecessor in interest acquired the title as such holder in due course.

Now then, according to section 28 of the same Act, as against the holder of the instrument in due course absence or
failure of consideration is not a matter of defense; and, pursuant to section 57, a holder in due course holds the
instrument free from any defect of title of prior parties, and free from defenses available to prior parties among
themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.
And the next section, No. 58 prescribes that in the hands of any holder other than a holder in due course, a
negotiable instrument is subject to the same defenses as if it were nonnegotiable.

So it could not be clearer than that, pursuant to the provisions of the Negotiable Instrument Law, which governs the
case at bar, as the plaintiff is the holder in due course of the instrument in question, no proof whatever from the
defendant could be admitted, nor if admitted should be taken into account, bearing on the lack of consideration in
the indorsement, as alleged by him, and for the purpose of denying the existence of any indorsement and that any
relation whatever was created or existed between him and the indorsee; likewise, that no defense of any kind could
have been admitted from the defendant in respect to the said instrument, and, finally, that the defendant is obligated
to pay the sum mentioned in the said indorsement, it being immaterial whether or not he be deemed to be an
accommodation party in the instrument, in order that compliance with the said obligation may be required of him in
his capacity of indorser.

Basing our conclusions on the foregoing grounds, and regretting to dissent from the opinion of the majority of our
colleagues, we believe that the judgment appealed from should be affirmed, with the costs against the appellant.

Araullo, J., dissents.

#Separate Opinions

TORRES, J., concurring:

Act No. 2031, known as the Negotiable Instruments Law, which governs the present case, establishes various kinds
of indorsements by means of which the liability of the indorser is in some manner limited, distinguishing it from that
of the regular or general indorser, and among those kinds is that of the qualified indorsement which, pursuant to
section 38 of the same Act, constitutes the indorser a mere assignor of the title to the instrument, and may be made
by adding to the indorser's signature the words "without recourse" or any words of similar import.

If the defendant, Antonio G. Serrano, intervened, as he alleged and tried to prove that he did at the trial, only as a
broker or agent between the lender and plaintiff, Maulini, and the makers of the promissory note, Padern, Moreno &
Co. and Angel Gimenez, in order to afford an opportunity to the former to invest the amount of the note in such
manner that it might bring him interest, the defendant could have qualified the indorsement in question by adding to
his signature the words "without recourse" or any others such as would have made known in what capacity he
intervened in that transaction. As the defendant did not do so ad as he signed the indorsement in favor of the
plaintiff Maulini for value received from the latter, his liability, according to section 66 of the Act aforecited, is that of
a regular or general indorser, who, this same section provides, engages that if the instrument be dishonored, and
627

the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any
subsequent indorser who may be compelled to pay it. And the evidence which the defendant presented, tending to
show what were the conditions to which the defendant presented, tending to show what were the conditions to
which he obligated himself and in what capacity he intervened in making that indorsement and that this latter was
absolutely without consideration, should not have been admitted so that he might elude the aforesaid obligation, or,
if admitted, should not be taken into account, because as a regular indorser he warranted, pursuant to the said
section 66, that the instrument was genuine and in all respects what it purported to be, that he had a good title to it,
and that it was at the time of his indorsement valid and subsisting. He cannot, therefore, by means of any evidence,
and much less of such as consists of his own testimony, and as such interested party, alter, modify, contradict or
annul, as he virtually claimed and claims to be entitled to do, what in writing and with a full and perfect knowledge of
the meaning and import of the words contained in the indorsement, he set forth therein over his signature.

Section 63 of the Act above cited says that a person placing his signature upon an instrument otherwise than as
maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his
contention to be bound indicates by appropriate words his intention to be bound in some other capacity. This
provision of the law clearly indicates that in every negotiable instrument it is absolutely necessary to specify the
capacity in which the person intervenes who is mentioned therein or takes part in its negotiation, because only by so
doing can it be determined what liabilities arise from that intervention and from whom, how and when they must be
exacted. And if, in the vent of a failure to express the capacity in which the person who signed the negotiable
instrument intended to be bound, he should be deemed to be an indorser, when the very words of the instrument
expressly and conclusively show that such he is, as occurs in the present case, and when the indorsement contains
no restriction, modification, condition or qualification whatever, there cannot be attributed to him, without violating
the provisions of the said Act, any other intention than that of being bound in the capacity in which he appears in the
instrument itself, nor can evidence be admitted or, if already admitted, taken into consideration, for the purpose of
proving such other intention, for the simple reason that if the law has already fixed ad determined the capacity in
which it must be considered that the person who signed the negotiable instrument intervened and the intention of
his being bound in a definite capacity, for no other purpose, undoubtedly, than that there shall be no evidence given
in the matter, when the capacity appears in the instrument itself and the intention is determined by the very same
capacity, as occurs in this case, the admission of evidence in reference thereto is entirely unnecessary, useless,
and contrary to the purposes of the law, which is clear and precise in its provisions and admits of no subterfuges or
evasions for escaping obligations contracted upon the basis of credit, with evident and sure detriment to those who
intervened or took part in the negotiation of the instrument.

However, it is held in the majority opinion, for the purpose of sustaining the premises that the proofs presented by
the defendant could have been admitted without violating the provisions of section 285 of the Code of Civil
Procedure, that the evidence was not offered to vary, alter, modify, or contradict the terms of an agreement which it
is admitted existed between the parties, but to deny that there ever existed any agreement whatever; to wipe out all
apparent relations between the parties, and not to vary, alter or contradict the terms of a relation admittedly existing;
in other words, the purpose of the parol evidence was to demonstrate, not that the indorser did not intend to make
the particular indorsement in the terms made, but rather to deny the reality of any indorsement; to deny that a
relation of any kind whatsoever was created or existed between him and the indorsee by reason of the writing on
the back of the instrument; to deny that any consideration ever passed to sustain an indorsement of any kind
whatsoever. It is stated in the same decision that the contention has some of the appearances of a case in which an
indorser seeks to prove forgery.

First of all, we do not see that there exists any appearance or similarity whatever between the case at bar and one
where forgery is sought to be proved. The defendant did not, either civilly or criminally, impugn the indorsement as
being false. He admitted its existence, as stated in the majority opinion itself, and did not disown his signature
written in the indorsement. His denial to the effect that the indorsement was wholly without consideration, aside from
the fact that it is i contradiction to the statements that he over his signature made in the instrument, does not allow
the supposition that the instrument was forged.

The meaning which the majority opinion apparently wishes to convey, in calling attention to the difference between
what, as it says, was the purpose of the evidence presented by the defendant and what was sought to be proved
thereby, is that the defendant does not endeavor to contradict or alter the terms of the agreement, which is
contained in the instrument and is admitted to exist between the parties; but to deny the existence of such an
agreement between them, that is, the existence of any indorsement at all, and that any consideration ever passed to
sustain the said indorsement, or, in other words, that the defendant acknowledged the indorsement as regards the
form in which it appears to have been drawn up, but not with respect to its essence, that is, to the truth of the
particular facts set forth in the indorsement. It cannot be denied that the practical result evidence is other than to
contradict, modify, alter or even to annul the terms of the agreement contained in the indorsement: so that, in reality,
the distinction does not exist that is mentioned as a ground of the decision of the majority of the court in support of
the opinion that the evidence in question might have been admitted, without violating the provisions of the
aforementioned section 285 of the Code of Civil Procedure. This section is based upon the same principle which is
taken into account in the Negotiable Instruments Law to write into it such positive and definite provisions which
purport, without possibility of discussion or doubt, the uselessness of taking evidence when the capacity of the
person who intervened in a negotiable instrument or his intention of being bound in a particular way appears in the
628

instrument itself or has been fixed by statute, if it is not shown that he did so in some other capacity than that of
maker, drawer or acceptor.

But aside from what the Code of Civil Procedure prescribes with respect to this matter, as the present case is
governed by the Negotiable Instruments Law, we must abide by its provisions.

Section 24 of this Act, No. 2031, says that every negotiable instrument is deemed prima facie to have been issued
for a valuable consideration; and every person whose signature appears thereon, to have become a party thereto
for value. If the Act establishes this presumption for the case where there might be doubt with respect to the
existence of a valuable consideration, in order to avoid the taking of evidence in the matter, when the consideration
appears from the instrument itself by the expression of the value, the introduction of evidence is entirely
unnecessary and improper.

According to section 25 of the same Act, value is any consideration sufficient to support a simple contract, and so
broad is the scope the law gives to the meaning of "value" in this kind of instruments that it considers as such a prior
of preexistent debt, whether the instrument be payable on demand or at some future date.

Section 26 provides that where value has at any time been given for the instrument, the holder is deemed a holder
for value, both in respect to the maker and to the defendant indorser, it is immaterial whether he did so directly to
the person who appears in the promissory note as the maker or whether he delivered the sum to the defendant in
order that this latter might in turn deliver it to the maker.

The defendant being the holder of the instrument, he is also unquestionably the holder in due course. In the first
place, in order to avoid doubts with respect to this matter which might require the introduction of evidence, the Act
before mentioned has provided, in section 59, that every holder is deemed prima facie to be a holder in due course,
and such is the weight it gives to this presumption and to the consequences derived therefrom, that it imposes upon
the holder the burden to prove that he or some person under whom he claims acquired the title in due course, only
when it is shown that the title of any person who has negotiated the instrument was defective. This rule, however,
pursuant to the said section, does not apply in favor of a party who became bound on the instrument prior to the
acquisition of such defective title, in which case the defendant Serrano is not included, because, in the first place, he
was not bound on the instrument prior to the acquisition of the title by the plaintiff, but it was the maker of the
promissory note who was bound on the instrument executed in favor of the defendant or indorser prior to the
acquisition of the title by the plaintiff; and, in the second place, it does not appear, nor was it proved, as will be seen
hereinafter, that the title in question was defective.

According to section 52 of the same Act, the plaintiff is the holder in due course of the instrument in question, that is,
of the promissory note containing the obligation compliance with which is demanded of him by the defendant,
because he took the instrument under the condition: (a) That it was complete and regular upon its face; (b) that he
became the holder of it before it was overdue, and without notice that it had been previously dishonored; (c) that he
took it in good faith and for value; and (d) that at the time it was negotiated to him he had no notice of any deficiency
in the instrument or defect in the title of the person negotiating it.

Pursuant to section 56 of the said Act, to constitute notice of a deficiency in the instrument or defect in the title of the
person negotiating the same, the person to whom it is transferred must have had actual knowledge of the deficiency
or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.

In the present case it cannot be said, for it is not proven, that the plaintiff, upon accepting the instrument from the
defendant, had actual knowledge of any deficiency or defect in the same, for the simple reason that it contains no
deficiency or defect. Its terms are very clear and positive. There is nothing ambiguous, concealed, or which might
give rise to any doubt whatever with respect to its terms or to the agreement made by the parties. Furthermore, as
stated in the majority opinion, the defendant did not intend to make the particular indorsement which he did make in
the terms, form and manner in which it was made, nor did he intend to change or alter the terms of the agreement
which is admitted to have existed between the parties. All of which indicates that, neither as regards the plaintiff nor
as regards the defendant, was there any deficiency or defect in the title or in the instrument, and that the plaintiff,
upon taking or receiving the instrument from the defendant, had no knowledge of any fact from which bad faith on
his part might be implied. Besides, no evidence was produced of the existence of any such bad faith, nor of the
knowledge of any deficiency or defect.

Moreover, section 55 of Act No. 2031 provides that the title of a person who negotiates an instrument is defective
within the meaning of this Act when he obtained the instrument, or any signature thereto, by fraud, duress, or force
and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under
such circumstances as amount to a fraud. As no evidence was taken on these points, the only ones that may be
proven as regards negotiable instruments, the defendant must be deemed to be the holder of the instrument in due
course, pursuant to the provisions of the aforecited section 59, and he cannot be required to prove that he or his
predecessor in interest acquired the title as such holder in due course.
629

Now then, according to section 28 of the same Act, as against the holder of the instrument in due course absence or
failure of consideration is not a matter of defense; and, pursuant to section 57, a holder in due course holds the
instrument free from any defect of title of prior parties, and free from defenses available to prior parties among
themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.
And the next section, No. 58 prescribes that in the hands of any holder other than a holder in due course, a
negotiable instrument is subject to the same defenses as if it were nonnegotiable.

So it could not be clearer than that, pursuant to the provisions of the Negotiable Instrument Law, which governs the
case at bar, as the plaintiff is the holder in due course of the instrument in question, no proof whatever from the
defendant could be admitted, nor if admitted should be taken into account, bearing on the lack of consideration in
the indorsement, as alleged by him, and for the purpose of denying the existence of any indorsement and that any
relation whatever was created or existed between him and the indorsee; likewise, that no defense of any kind could
have been admitted from the defendant in respect to the said instrument, and, finally, that the defendant is obligated
to pay the sum mentioned in the said indorsement, it being immaterial whether or not he be deemed to be an
accommodation party in the instrument, in order that compliance with the said obligation may be required of him in
his capacity of indorser.

Basing our conclusions on the foregoing grounds, and regretting to dissent from the opinion of the majority of our
colleagues, we believe that the judgment appealed from should be affirmed, with the costs against the appellant.

Araullo, J., dissents.

MAULINI V. SERRANO
28 PHIL 640

FACTS:
This is an appeal from a judgment of the Court of First Instance of the city of Manila in favor of the plaintiff for the
sum of P3,000, with interest thereon at the rate of 11⁄2 per cent month from September 5, 1912, together with
the costs.

The action was brought by the plaintiff upon the contract of indorsement alleged to have been made in his favor by
the defendant upon the following promissory note:

3,000.

Due 5th of September, 1912.

We jointly and severally agree to pay to the order of Don Antonio G.
Serrano on or before the 5th day of September, 1912, the sum of three
thousand pesos (P3,000) for value received for commercial operations.
Notice and protest renounced. If the sum herein mentioned is not
completely paid on the 5th day of September, 1912, this instrument will
draw interest at the rate of 11⁄2 per cent per month from the date when
due until the date of its complete payment. The makers hereof agree to
pay the additional sum of P500 as attorney's fees in case of failure to pay
the note.

Manila, June 5, 1912.

(Sgd.) For Padern, Moreno & Co., by F. Moreno, member of the firm. For
Jose Padern, by F. Moreno. Angel Gimenez.

The note was indorsed on the back as follows:

Pay note to the order of Don Fernando Maulini, value received. Manila,
June 5, 1912. (Sgd.) A.G. Serrano.

HELD:
1. The accommodation to which reference is made in Section 29 is not one to the person who takes the note but
one to the maker or indorser of the note. It is true, that in the case at bar, it was an
630

accommodation to the plaintiff, in the popular sense, to have the defendant indorse the note; but it wasn't the
accommodation described in the law but rather a mere favor to him and one which in no way bound Serrano. In
cases of accommodation indorsement, the indorser makes the indorsement for the accommodation of the
maker. Such an indorsement is generally for the purpose of better securing the payment of the note—that is, he lends
his name to the maker and not the holder.

2. Parol evidence is admissible for the purposes named. The prohibiton against parol evidence is to prevent
alteration, change, modification, or contradiction of the term of a written instrument, admittedly existing, by the use of
some parol evidence except in cases specifically named in the action. The case at bar is not one where the evidence
offered varies, alters, modifies, or contradicts the terms of the indorsement admittedly existing. The evidence was
not offered for that purpose. The purpose was to show that the contract of indorsement ever existed; that the
minds of the parties never met on the terms of such contract; that they never mutually agreed to enter into such
contract; and that there never
existed a consideration upon which such an agreement could be founded.

1. Rule 130 Section 43- Entries in the Course of Business

PAL v. Ramos (March 23, 1992)

G.R. No. 92740 March 23, 1992

PHILIPPINE AIRLINES, INC., petitioner,

vs.
JAIME M. RAMOS, NILDA RAMOS, ERLINDA ILANO, MILAGROS ILANO, DANIEL ILANO AND FELIPA
JAVALERA, respondents.

MEDIALDEA, J.:

This petition for review on certiorari seeks to reverse the decision of the Court of Appeals dated March 15, 1990
affirming in toto the decision of the Regional Trial Court of Imus, Cavite, Branch 21, directing the Philippine Airlines,
Inc. (PAL, for short) to pay the private respondents the amounts specified therein as actual, moral and temperate
damages as well as attorney's fees and expenses of litigation.

The antecedents facts are briefly recounted by the appellate court, as follows:

Plaintiffs Jaime Ramos, Nilda Ramos, Erlinda Ilano, Milagros Ilano, Daniel Ilano and Felipe Javalera,
are officers of the Negros Telephone Company who held confirmed tickets for PAL Flight No. 264
from Naga City to Manila on September 24, 1985, scheduled to depart for Manila at 4:25 p.m. The
tickets were brought sometime in August 1985. Among the conditions included in plaintiffs tickets is
the following:

1. CHECK-IN TIME — Please check in at the Airport Passenger check-in counter at least one hour
before PUBLISHED departure time of your flight. We will consider your accommodation forfeited in
favor of waitlisted passenger if you fail to check-in at least 30 minutes before PUBLISHED departure
time. (Exhs. (1-A-A, 2-A-1, S-A, O-A-1, tsn. Nov 23, 1987, p. 8).

Plaintiffs claim in their Complaint that they went tot he check-in counter of the defendant's Naga
branch at least one (1) hour before the published departure time but no one was at the counter until
30 minutes before departure, but upon checking -in and presentation of their tickets to the
employee/clerk who showed up, their tickets were cancelled and the seats awarded to chance
passengers; plaintiffs had to go to Manila by bus, and seek actual, moral and exemplary damages,
and attorney's fees for breach of contract of carriage.

Defendant disclaim any liability, claiming that the non-accommodation of plaintiff on the said flight
was due to their having check-in (sic) late for their flight. It is averred even if defendant is found liable
to the plaintiffs such liability is confined to, and limited by, the CAB Economic Regulations No. 7 in
conjunction with P.D. 589.

The trial court rendered judgment finding defendant guilty of breach of contract of carriage in
bumping-off the plaintiffs from its F264 flight of September 25, 1985, and ordered defendant to pay:
631

1) P1,250.20 — the total value of the tickets:

2) P22.50 — the total value of airport security fees and terminal fees;

3) P20,000.00 — for each of the plaintiffs for moral and temperate damages; and

4) P5,000.00 — for attorney's fees and expenses of litigation. (Rollo, pp. 35-36)

PAL appealed to the Court of Appeals. On March 15, 990, the appellate court rendered a decision, the dispositive
portion of which, reads:

WHEREFORE, the decision appealed from is AFFIRMED in toto, with costs against appellant.

SO ORDERED. (Rollo, p. 42)

Hence, this present petition with the following legal questions:

1. Can the Honorable Court of Appeals validity promulgate the questioned decision by the simple
expedient of adopting in toto the trial court's finding that defendant-appellant is liable for damages on
the sole issue of credibility of witnesses without considering the material admissions made by the
plaintiffs and other evidence on record that substantiate the defense of defendant-appellant.

2. Can the Honorable Court award legally moral and temperate damages plus attorney's fees of
P5,000.00 contrary to the evidence and established jurisprudence. (Rollo, p. 9)

Under Section 1, Rule 131 of the Rules of Court, each party in a case is required to prove his affirmative allegations.
In civil cases, the degree of evidence required of a party in order to support his claim is preponderance of evidence
or that evidence adduced by one party which is more conclusive and credible than that of the other party
(Stronghold Insurance Company, Inc. vs. Court of Appeals, et al., G.R. No. 83376, May 29, 1989, 173 SCRA 619,
625).

The case at bar presents a simple question of fact: Whether or not the private respondents were late in checking-in
for their flight from Naga City to Manila on September 24. 1985. It is immediately apparent from the records of this
case that the claims of the parties on this question are dramatically opposed. As a rule, the determination of a
question of fact depends largely on the credibility of witnesses unless some documentary evidence is available
which clearly substantiates the issue and whose genuineness and probative value is not disputed (Legarda v.
Miaile, 88 Phil. 637, 642). The exception to the rule now runs true in this case.

We reverse. This case once more illustrates Our power to re-weigh the findings of lower courts when the same are
not supported by the record or not based on substantial evidence (see Cruz v. Villarin, G.R. No. 75679, January 12,
1990, 181 SCRA 53, 61).

It is an admitted fact that the private respondents knew of the required check-in time for passengers. The time
requirement is prominently printed as one of the conditions of carriage on their tickets, i.e., that the airport
passenger should check-in at least one hour before published departure time of his flight and PAL shall consider his
accommodation forfeited in favor of waistlisted passengers if he fails to check-in at least 30 minutes.

We note that while the aforequoted condition has always been applied strictly and without exception (TSN,
December 16, 1987, p. 11), the station manager, however, may exercise his discretion to allow passengers who
checked-in late to board provided the flight is not fully booked and seats are available (ibid, pp. 17-18). On
September 24, 1985, flight 264 from Naga to Manila was fully booked owing to the Peñafrancia Festival (TSN,
January 25, 1988, p.5). In addition, PAL morning flights 261 and 262 were canceled resulting in a big number o f
waitlisted passengers. (TSN, November 23,
1987, p. 6).

The private respondents claim that they were on time in checking-in for their flight; that no PAL personnel attended
to them until much later which accounted for their late check-in; that PAL advanced the check-in time and the
departure of their flight resulting in their non-accommodation; and that they suffered physical difficulties, anxieties
and business losses.

The evidence on record does not support the above contentions. We note that there were two other confirmed
passengers who came ahead of the private respondents but were refused accommodation because they were late.
Edmundo Araquel, then the check-in-clerk, testified on this point, as follows:

Atty. Marcelino C. Calica, counsel for PAL

632

Q Before the plaintiffs arrive (sic) at the check-in counter, do you recall if there were
other passengers who arrived at the counter and they were advised that they were
late?

A Yes, sir.

Q Who were those persons?

A My former classmates at Ateneo, sir, Rose Capati and Go, Merly.

Q Were these two passengers also confirmed passengers on this flight?

A Yes, sir.

Q I show to you a document which is entitled "Passenger Manifest of flight 264,

September 24, 1985," which we request to be marked as Exh. "5" you said earlier
that aside from the plaintiffs here there were two other passengers who also checked
in but they were also late and you mentioned the names of these passengers as
Capati and Go, please point to us that entry which will show the names of Go and
Capati?

A Here, sir, numbers 13 and 14 of the Manifest.

ATTY. CALICA: We request that passengers 13 and 14 be marked in evidence, Go

for 13 and Capati for 14 as Exh. "5-A."

Q You said that these two passengers you mentioned were also similarly denied
accommodations because they checked in late, did they check in before or after the
plaintiffs?

A Before, sir.

Q What time did they appear at the counter?

A 4:01 p.m., sir.

Q What happened when they checked in at 4:01?

A I told them also that they were late so they cannot be accommodated and they
tried to protest, but they decided later on just to refund the ticket. (TSN of November
23, 1987, pp. 11-12)

Shortly after, the private respondents followed the aforesaid two passengers at the counter. At this juncture, Araquel
declared, thus:

Q Now, you said that you met the plaintiffs in this case because they were
passengers of Flight 264 on September 24, 1985 and they were not accommodated
because they checked in late, what time did these plaintiffs check in?

A Around 4:02 p.m., sir.

Q Who was the clerk at the check in counter who attended to them?

A I was the one, sir.

x x x           x x x          x x x

Q You said when you were presented the tickets of the plaintiffs in this case and
noting that they were late for checking in, immediately after advising them that they
were late, you said you made annotation on the tickets?

A Yes, sir.

Q I am showing to you Exhs. "A," "B," "C," and "D," which are the tickets of Mr. &
Mrs. Jaime Ramos for Exh. "A," Exh. "B" ticket of Mr. & Mrs. Daniel Ilano, "C" ticket
633

of Felipa Javalera and "D" ticket of Erlinda Ilano, will you please go over the same
and point to us the notations you said you made on these tickets?

A This particular time, sir. (Witness pointing to the notation "Late" and the time "4:02"
appearing at the upper righthand of the tickets Exhs. "A," "B," "C," and "D.")

Q How long did it take after the tickets were tendered to you for checking in and
before you made this notation?

A It was just seconds, sir.

Q On the tickets being tendered for check-in and noting that they were late, you
mean to say you immediately made annotations?

A Yes, sir. That is an S.O.P. of the office.

Q So on what time did you base that 4:02?

A At the check-in counter clock, sir.

Q At the time you placed the time, what was the time reflected at the counter clock?

A 4:02, sir. (ibid, pp. 8-11)

The private respondents submitted no controverting evidence. As clearly manifested above, the intervening time
between Capati and Go and the private respondents took only a mere second. If indeed, the private respondents
were at the check-in counter at 3:30 p.m., they could have been the first ones to be attended to by Araquel than
Capati and Go. They cold have also protested if they were the earliest passengers at the counter but were ignored
by Araquel in favor of Go and Capati. They did not.

It is likewise improbable that not a single PAL personnel was in attendance at the counter when the check-in
counter was supposed to be opened at 3:25 p.m. It mist be remembered that the morning flight to Manila was
canceled and hence, it is not farfetched for Us to believe that the PAL personnel then have their hands full in dealing
with the passengers of the morning flight who became waitlisted passengers. Moreover, the emphatic assertions of
private respondent Daniel Javalora Ilano regarding the absence of a PAL personnel lost its impact during the cross
examination:

ATTY. CALICA —

Q So, you maintain therefore that for all the time that you waited for there for the
whole twenty (20) minutes the check-in counter and other PAL Offices there — the
whole counter was completely unmanned? I am referring to the whole area there
where it is enclosed by a counter.

I will describe to you, for the benefit of the court.

When you approach the counter at Naga Airport, the counter is enclosed, I mean,
you cannot just go inside the PAL office, right? there is some sort of counter where
you deal with the PAL personnel and you approximate this counter to be five (5) to
six (6) meters. Now, this space after the counter, did you observe what fixtures or
enclosures are contained there inside the enclosed space?

A I am not sure whether there are offices or enclosures there.

Q You have been traveling and had opportunity to check-in your tickets so may
times. Everytime that you check-in, how many personnel are manning the check-in
counter?

A There are about three (3) or four (4), sir.

Q Everytime, there are three (3) or four (4)?

A Everytime but not that time.

Q I am referring to your previous trips, I am not referring to this incident.

634

On previous occasions when you took the flight with Pili Airport and you see three (3)
or four (4) personnel everytime, are all these three (3) or four (4) personnel at the
counter or some are standing at the counter or others are seated on the table doing
something or what? Will you describe to us?

A Some are handling the baggages and some are checking-in the tickets.

Q So, on most occasions when you check-in and say, there were at least three (3) of
four (4) people at the check-in counter, one would attend to the tickets, another to the
check in baggage, if any. Now, do you notice if somebody evade when you check-in
your ticket. This other person would receive the flight coupon which is detached from
your ticket and record it on what we call passenger manifest?

A That's true.

Q Now, it is clear one would attend to the baggage, another person would receive
the ticket, detach the coupon and one would record it on the passenger manifest.
What about the fourth, what was he doing, if you recall?

A I think, putting the identification tags on the baggages (sic). (TSN, November 17,
1986, p. 38)

Ilano's declaration becomes even more patently unreliable in the face of the Daily Station Report of PAL
dated September 24, 1985 which contained the working hours of its personnel from 0600 to 1700 and their
respective assignments, as follows:

ATTY. CALICA

Q Normally upon opening of the check-in counter, how many PAL personnel are
assigned to man the counter?

EDMUNDO ARAQUEL

A A total of four personnel with the assistance of others.

Q Who are these personnel are assigned to the counter and what specific duties they
performed?

A Mr. Oropesa handled the cargo, Mr. Espiritu handled the ticketing, Mr. Valencia
and me handled the checking in of passengers.

Q Are you referring to this particular flight 264 on September 24, 1985?

A Yes, sir.

Q Who was assigned as check-in clerk that particular time?

A I was the one with Mr. Valencia, sir.

Q What was Mr. Valencia doing?

A He assisted me, sir.

Q How?

A If a group of passengers simultaneously check in, we divided the work between us.
(TSN, November 23, 1987, p. 7)

x x x           x x x          x x x

Q When the plaintiffs testified in this case particularly plaintiff Daniel Ilano and Felipa
Javalera at the previous hearings said plaintiffs stated that they arrived at the check-
in counter at about 3:25 or 3:30 and there was nobody in the counter, what can you
say to that?
635

A We cannot leave the counter, sir. That was always manned from 3:25 up to the last
minute. We were there assigned to handle the checking in of the passengers.

Q You mentioned earlier that aside from you there were other personnel assigned to
the check-in counter and you even mentioned about a certain Valencia assisting you,
do you have any evidence to show said assignment of personnel at the airport?

A Yes, sir.

Q I show to you a daily station report from 24 September 1985 covering working
hours 0600 to 1700, will you please go over the same and thereafter tell us from the
personnel listed in this Daily Station Report what were the name (sic) of the
personnel assigned to man a check-in counter at that time?

A There (sic) persons assigned were Mr. Oropesa, Mr. Espiritu, Mr. Medevilla, myself
and Mr. Valencia.

Q You mentioned about Mr. Espiritu, what was his specific task at that time?

A He was handling the ticketing, sir.

Q What about Mr. Medevilla?

A He was taking care of the ramp handling.

Q And Mr. Oropesa?

A He was handling the incoming cargo.

ATTY. CALICA: We request that this Daily Station Report be marked Exh. "6" and
the portion of the Report which shows the deployment of personnel of PAL Naga
Station on September 24, 1985 as "6-A."

Q Plaintiffs in this case testified that when they checked in there was nobody
manning the counter and they had to wait for twenty minutes before someone came
in to the counter, what can you say to that?

A It is not true because all the time we were there from the start, an hour before the
flight we were there because we were assigned there.

Q Plaintiff Daniel Ilano testified that he went to the counter twice, first at 3:25 and it
was only at 4:00 p.m. that somebody went to the counter and attended to him and
while he expected his boarding pass he was told instead that plaintiffs could not be
accommodated because they were late, what can you say to that?

A The truth is we were always there and we never left the counter from the start of
the check-in time of 3:25 we were all there, we never left the counter.

Q Until what time did you remain at the check-in counter?

A At around 4:15 p.m., sir.

Q You said that the check-in counter was closed at 3:55, for what purpose were you
still manning the check-in counter?

A To attend to the passenger who are late in checking in because they also need
assistance in explaining to them the situation.

Q So it was for that purpose you were there?

A Yes, sir. (ibid., pp. 16-18)

It is significant to note that there were no other passenger who checked-in late after the private respondents (TSN,
November 23, 1987, p. 13). In the absence of any controverting evidence, the documentary evidence presented to
corroborate the testimonies of PAL's witnesses are prima facie evidence of the truth of their allegations. The plane
636

tickets of the private respondents, exhs. "1," "2," "3," "4," (with emphasis on the printed condition of the contract of
carriage regarding check-in time as well as on the notation "late 4:02" stamped on the flight coupon by the check-in
clerk immediately upon the check-in of private respondents) and the passenger Manifest of Flight PR 264, exh. "5,"
(which showed the non-accommodation of Capati and Go an the private respondents)are entries made in the
regular course of business which the private respondents failed to overcome with substantial and convincing
evidence other than their testimonies. Consequently, they carry more weight and credence. A writing or document
made contemporaneously with a transaction in which are evidenced facts pertinent to an issue, when admitted as
proof of those facts, is ordinarily regarded as more reliable proof and of greater probative force than the oral
testimony of a witness as to such facts based upon memory and recollection (20 Am Jur S 1179, 1029 cited in
Francisco, Revised Rules of Court in the Philippines Annotated, 1973 Edition, Volume VII, Part II, p. 654). Spoken
words could be notoriously unreliable as against a written document that speaks a uniform language (Spouses
Vicente and Salome de Leon v. CA., et al., G.R. No. 95511, January 30, 1992). This dictum is amply demonstrated
by the diverse allegations of the private respondents in their complaint (where they claimed that no one was at the
counter until thirty (30) minutes before the published departure time and that the employee who finally attended to
them marked them late, Records, p. 2) and in their testimonies (where they contended that there were two different
PAL personnel who attended to them at the check-in counter. TSNs of November 17, 1986, pp. 41-45 and of May
18, 1987, pp. 5-6). Private respondents' only objection to these documents is that they are self-serving cannot be
sustained. The hearsay rule will not apply in this case as statements, acts or conduct accompanying or so nearly
connected with the main transaction as to form a part of it, and which illustrate, elucidate, qualify or characterize the
act, are admissible as apart of the res gestae (32 C.J.S., S. 411, 30-31). Based on these circumstances, We are
inclined to believe the version of PAL. When the private respondents purchased their tickets, they were
instantaneously bound by the conditions of the contract of carriage particularly the check-in time requirement. The
terms of the contract are clear. Their failure to come on time for check-in should not militate against PAL. Their non-
accommodation on that flight was the result of their own action or inaction and the ensuing cancellation of their
tickets by PAL is only proper.

Furthermore, We do not find anything suspicious in the fact that PAL flight 264 departed at 4:13 p.m. instead of 4:25
p.m. Apart from their verbal assertions, the private respondents did not show any evidence of irregularity. It being
clear that all the passengers have already boarded, there was no sense in keeping them waiting for the scheduled
time of departure before the plane could take flight.

ACCORDINGLY, the petition is GRANTED. The questioned decision of the Court of Appeals dated March 15, 1990
is hereby ANNULLED and SET ASIDE. No costs.

SO ORDERED.

Narvasa, C.J., Cruz and Griño-Aquino, JJ., concur.

PHILIPPINE AIRLINES, INC., petitioner, vs. JAIME M. RAMOS, NILDA RAMOS

G.R. No. 92740 March 23, 1992
PHILIPPINE AIRLINES, INC., petitioner,
vs.
JAIME M. RAMOS, NILDA RAMOS, ERLINDA ILANO, MILAGROS ILANO, DANIEL ILANO AND FELIPA
JAVALERA, respondents.

FACTS

Plaintiffs complained that they were not allowed to board their PAL( Philippines Air Lines) flight, despite the fact
that they went to the check-in counter one hour before departure. They alleged that when they arrived there no
one was at the counter. They testified that the PAL clerk arrived 30 minutes before departure. PAL however,
presented as evidence the plaintiffs’ tickets with notation “late 4:04” and the passenger manifest which showed
that two other passengers who arrived earlier than plaintiffs, were not accommodated.
ISSUE
Are the documents presented by PAL admissible? Which should prevail the oral testimony of plaintiffs or the
documentary evidence presented by PAL?

HELD 

Yes. The documentary evidence presented by PAL to corroborate the testimonies of its witnesses are entries
made in the regular course of business which plaintiffs failed to overcome with substantial and convincing
evidence other than their testimonies. Consequently they carry more weight and credit. A writing or document
made contemporaneously with a transaction which are evidence of facts pertinent to an issue, when admitted
637

as proof of those facts, is ordinarily regarded as more reliable proof and of greater probative force than the oral
testimony of a witness as to such fact based upon memory and recollection. Spoken words could be
notoriously unreliable as against a written document that speaks a uniform language.

1. Rule 130 Section 44 – Entries of official Records

People v. Belmaldez (294 SCRA 317 [1998])

G.R. No. 109780 August 17, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO BERNALDEZ @ "Dolfo," accused-appellant.

DAVIDE, JR., J.:

This is an appeal from the decision   of Branch 14 of the Regional Trial Court (RTC) of Ligao, Albay, convicting
1

accused-appellant RODOLFO BERNALDEZ of rape committed against his 10-year-old niece MARIA TERESA
BERNALDEZ. 2

The complaint   for rape was filed before the 6th Municipal Circuit Trial Court (MCTC) of Polangui-Libon, Albay, on 3
3

September 1990 by Pedro B. Bernaldez, the younger brother of the appellant and father of the victim. RODOLFO
was forthwith arrested and detained in jail.

After due proceedings in the MCTC, which found a probable cause against RODOLFO,   the Office of the Provincial
4

Prosecutor of Albay filed with the RTC of Ligao, Albay, an information  charging him with the crime of rape
5

committed as follows:

That in the morning of August 29, 1990, at Sitio Mabatia, Barangay Sugcad, Municipality of
Polangui, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, said
accused, with lewd design, did then and there wilfully, unlawfully and feloniously have carnal
knowledge of her 10-year old niece MARIA THERESA BERNALDEZ, to her damage and prejudice.

The case was docketed as Criminal Case No. 2763 and raffled to Branch 14 of said court.

RODOLFO entered a plea of innocence at his arraignment.  6

At the trial on the merits, the prosecution presented as its witnesses MARIA TERESA and her father Pedro
Bernaldez. Dr. Nancy de la Paz, who examined MARIA TERESA and issued the medical certificate, failed to
testify.   For its part, the defense had as its witnesses RODOLFO; Delfin Paular, the overseer of the rice mill where
7

RODOLFO allegedly worked; and Melita Sasota, the teacher of MARIA TERESA.

The evidence for the prosecution is summarized by the Office of the Solicitor General (OSG) in the Brief for the
Appellee as follows:

Through complainant's testimony, the prosecution was able to establish that in the morning of
August 29, 1990, complainant, then [ten] years old, was raped by accused-appellant, her uncle,
being the full-blooded brother of her father, at his house in Sitio Mabatia, Barangay Sugcad,
Polangui, Albay. She narrated that she was carried by her uncle upstairs who then removed her
clothes and let her lie down on the floor. While she was lying down, her uncle opened the zipper of
his pants and laid on top of her, inserted his penis inside her vagina and made a push and pull
movement while on top of her. After a while, a sticky and warm object came out from his penis. After
the rape, accused-appellant gave her P5.00 and threatened her not to tell anybody otherwise, he
would kill her parents, brothers and sisters. (TSN, March 1, 1991, pp. 6-7). Complainant further
claimed that accused-appellant had been abusing her since five (5) years ago and these repeated
638

acts were done in the same place, with accused-appellant always warning and threatening her not to
tell anybody. (TSN, supra, pp. 10-12).

On [August] 30, 1990, or the very next day after the last rape incident, complainant was sent by her
father to go to accused-appellant's house in order to borrow P10.00 from him. However, complainant
refused to go prompting her father to beat her. It was only then that she revealed to her father the
cause of her reluctance and narrated to him the repeated rape and assaults of her uncle.
Immediately after learning of the rape, her parents brought complainant to the Polangui Police
Station to report the incident and file the complaint (TSN, supra p. 7). Complainant then executed a
Sworn Statement before the police investigator (Exhs. A, A-1 and A-2). Afterwards, she was brought
for treatment to Pio Duran Memorial District Hospital, a government hospital where she was
examined by Dr. Maria Nancy de la Paz who issued a Medical Certificate dated September 3, 1990
(Exh. B). She likewise identified her Birth Certificate (Exh. C). Asked to identify her attacker, she
readily identified accused-appellant in open court (TSN, supra, pp. 8-9).

Pedro Bernaldez, father of the complainant, testified that he is the younger brother of accused-
appellant who lives in a separate house about two (2) "medium hills" away. He confirmed that he
only discovered the rape on his daughter when she revealed to him the reason for he reluctance or
fear in going to her uncle's (accused-appellant's) place when he sent her to borrow P10.00 from him
on [August] 30, 1990. He likewise confirmed that the victim told him of the repeated rapes by her
uncle since five (5) years ago, the last time being that done on [August] 29, 1990. These, his
daughter revealed after he hit her with his belt several times for refusing to go as instructed. Fearing
that something wrong would result if he directly confronted his brother, he decided to report the
matter to the police authorities instead, which he immediately did. He also executed a Sworn
Statement before the Polangui Police Station police investigator on September 2, 1990 (Exh. E). He
further stressed that he had a good relationship with his brother and had no quarrel with him.
(TSN, supra, pp. 17- 21.).  8

RODOLFO had alibi for his defense. According to him he could not have committed the crime charged because
from 6:00 a.m. to 5:00 p.m. of 29 August 1990, when the rape was allegedly committed, he was working as a
mechanic/mill operator in the rice mill of William Cu, located 2 1/2 to 3 kilometers from his house.  He was charged
9

with rape because in the evening of 28 August 1990, he saw one "Rodolfo" wearing only "briefs" near the door of
the house of his brother Pedro. Half a meter away from that man was Pedro's wife (MARIA TERESA's mother), who
was then lying down on the floor wearing a sando and a skirt. The next day, Pedro had a drinking spree with this
"Rodolfo"; "when he was already drunk," he filed the case against herein accused-appellant RODOLFO.  10

Delfin Paular, the overseer at the rice mill where RODOLFO was allegedly working, testified that RODOLFO arrived
at the rice mill at around 6:00 a.m. of 29 August 1990, and stayed there until 6:00 p.m. because nobody was
available to "relieve" him. 
11

Melita Sasota, MARIA TERESA's teacher at North Central School, Polangui, Albay, testified that MARIA TERESA
was present in her class on 29 August 1990 because her record of attendance was "clean" and not marked
"absent." MARIA TERESA must have been already in school at around 6:30 a.m. and was inside the classroom
when the bell rang at 7:15 a.m. However, Melita could not remember what time MARIA TERESA left school after the
morning session and to where the latter went, although she saw the latter again at the start of the afternoon session
until it ended at 4:20 p.m. 
12

In its decision of 19 January 1993, the trial court found RODOLFO guilty beyond reasonable doubt of the crime of
rape and sentenced him to suffer the penalty of reclusion perpetua. It also ordered him to pay MARIA TERESA
P50,000 representing moral and exemplary damages, and to pay the costs.

The trial court held that the testimony of MARIA TERESA, who positively identified RODOLFO as the malefactor,
was sufficient to prove RODOLFO's guilt. RODOLFO, as an uncle, had a great influence over MARIA TERESA,
who, admittedly, was less than 12 years of age when the offense was committed; besides, there was intimidation
consisting of the threat to kill her parents and brothers and sisters. Moreover, no reason or motive existed for
MARIA TERESA or her father to fabricate the charge. Both RODOLFO and Pedro Bernaldez admitted in open court
that they had "no quarrel with each other, as their families were close-knit. 
13

As to Melita Sasota's testimony that MARIA TERESA attended her class on 29 August 1990, the trial court ruled
that, as buttressed by a long line of decisions, the specific date of commission of the offense was not so material for
as long as evidence could show that accused had actually committed the offense; and that the accused could be
convicted even if there was a mistake as to the date of the commission of the offense as long as the evidence
showed with sufficient clarity that a crime was committed and the accused was responsible therefor.

Finally, the trial court gave weight to the medical certificate (Exhibit "B") issued on 3 September 1990 by Dr. De la
Paz, who was a government doctor at the time. In considering the medical certificate despite the failure of Dr. De la
Paz to testify thereon, the trial court reasoned that such document, being an act done by a public officer, was
639

presumed to be done regularly unless proved otherwise. It concluded that the finding of "[o]ld lacerations at 3:00
and 9 o'clock" and "newly-healed lacerations at 11 o'clock" on the hymen of MARIA TERESA proved that someone
had carnal knowledge of her. Nevertheless, a medical examination was not an indispensable requisite in the
prosecution for rape.

In view of the penalty imposed, appeal from the decision should have been to this Court.   But RODOLFO's appeal
14

was to the Court of Appeals;   hence, the record of the case was transmitted to that court.   On 23 April 1993, the
15 16

record of the case was forwarded to this Court.  17

It was only on 27 March 1996 that RODOLFO's counsel, Atty. Mario Abella Encinareal, filed the Appellant's Brief. He
did so only after he had been fined twice in the amounts of P500 and P1,000, and ordered arrested and confined in
the cell of the National Bureau of Investigation (NBI).

In his Appellant's Brief, RODOLFO contends that the trial court committed serious and grave error in convicting him
of the crime of "multiple rape," which was not charged in the information. He also attacks the ruling of the trial court
that the specific date of commission of the offense was not so material so long as evidence could show that the
accused had actually committed the offense. According to him, "while the precise time of the commission of the
crime need not be alleged in the complaint or information, nevertheless, it must be sufficiently definite and certain to
give the accused an opportunity to prepare for his defense"; for unless the accused is informed of the day, or about
the day, he may be, to an extent, deprived of the opportunity to defend himself.  18

RODOLFO likewise argues that he could not have sexually abused MARIA TERESA on 29 August 1990 because
(a) he was at his place of work from as early as 6:00 a.m. until 5:00 p.m.; and (b) MARIA TERESA attended her
classes the whole day of 29 August 1990, from 7:15 a.m. until the dismissal of classes in the afternoon. Moreover,
MARIA TERESA imputed the crime of rape against him just to escape from more severe beatings from her father for
her refusal to obey an errand.

On the other hand, the OSG maintains that RODOLFO was convicted of rape committed on 29 August 1990, and
not of multiple rape. His conviction was supported by the straightforward and candid testimony of MARIA TERESA
on the details of the rape. The motive imputed to MARIA TERESA is flimsy, illogical, and irrational; and so is the
insinuation that the case was filed against RODOLFO to cover up the alleged infidelity of his sister-in-law (MARIA
TERESA's mother).

The appeal is without merit.

RODOLFO was not convicted of multiple rape, but of one rape committed on 29 August 1990, as alleged in the
information. This is very clear from the following finding of the trial court:

The prosecution, as can be observed, tried to convey to the court that the victim Maria Teresa
Bernaldez ha[d] been repeatedly abused by the accused, her uncle and brother of his father,
repeatedly for the past five (5) years the latest of which was on the faithful [sic] morning of August
29, 1990. No evidence, however, was presented by the prosecution on how and when Maria Teresa
was abused the past five (5) years except that of August 29, 1990.  19

and the dispositive portion of the decision, which reads:

WHEREFORE, premises considered, the Court finds the accused RODOLFO

BERNALDEZ alias DOLFO, GUILTY beyond reasonable doubt of the crime of Rape. Accordingly, he
is hereby sentenced to suffer the penalty of Reclusion Perpetua together with the accessory
penalties provided for by law, and to pay the aggrieved party P50,000.00 representing moral and
exemplary damages, and to pay the costs.  20

As to RODOLFO's lament on the trial court's statement that the specific date of the commission of the offense
charged in the information is not material, it is enough to quote Section 11 of Rule 110 of the Rules of Court; thus:

Sec. 11. Time of the commission of the offense. — It is not necessary to state in the complaint or
information the precise time at which the offense was committed except when the time is a material
ingredient of the offense, but the act may be alleged to have been committed at any time as near to
the actual date at which the offense was committed as the information or complaint will permit.

Indeed, we have ruled that the precise time of the commission of the crime is not an essential element of rape.  21

In this case, the allegation in the information of the time of the commission of the offense is specific, i.e., "in the
morning of 29 August 1990." RODOLFO admits its sufficiency when he states:
640

A careful reading of the information clearly show[s] that accused-appellant was charged of [sic]
having committed the crime of rape on August 29, 1990, a precise designation of the commission of
the crime as determined by the Public Prosecutor. The plain and clear meaning of August 29, 1990,
only embraces a period of twenty four (24) hours when used with respect to time. . . .

In fact, at no time before the trial court did the defense question the sufficiency of the information.

Even granting arguendo that the prosecution failed to prove the allegation in the information that the rape was
committed "in the morning of August 29, 1990," any variance in the evidence as to the time the crime was
committed is insignificant, if not, irrelevant. Besides, the record fails to reveal that RODOLFO objected to the
testimony of MARIA TERESA as to the time of the commission of the crime. His counsel did not even object to the
questions as to the number of times RODOLFO had been abusing MARIA TERESA.  22

It is settled that even a variance of a few months between the time set out in the indictment and that established by
the evidence during trial has been held not to constitute an error so serious as to warrant reversal of a conviction
solely on that score.   The failure of the complainant to state the exact date and time of the commission of rape is a
23

minor matter and can be expected when the witness is recounting the details of a humiliating experience which are
painful and difficult to recall in open court and in the presence of other people.   Moreover, the date of the
24

commission of the rape is not an essential element of the crime.  25

The ruling in U.S. v. Dichao   cited by RODOLFO is not applicable because the statement of the time of the
26

commission of the offense in the information (between October 1910 to August 1912) was indefinite and uncertain
and was, therefore, held to be fatally defective because it deprived the accused of the opportunity to adequately
prepare for his defense.

We now proceed to the central issue of this case: whether RODOLFO is guilty of the crime charged.

We reiterate these guiding principles in reviewing rape cases: (1) an accusation for rape can be made with facility; it
is difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the intrinsic
nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and
cannot be allowed to draw strength from the weakness of the evidence for the defense.   What is decisive in a rape
27

charge is the complainant's positive identification of the accused as the malefactor.   Bare denial and alibi are
28

insufficient to overcome the positive identification made by the prosecution witness.  29

In this case, MARIA TERESA, a 10-year-old Grade III pupil,   positively identified RODOLFO as the person who
30

raped her on 29 August 1990,   and who had been sexually abusing her "many times" since she was 5 years old.
31

She testified as follows:

[PROSECUTOR BIRATA]:

Q On August 29, 1990, do you remember if you were in the house of your Uncle,
Rodolfo Bernaldez?

[WITNESS]:

A Yes, sir.

Q The house of your uncle, Rodolfo Bernaldez, is in Barangay Sugcad, Polangui,

Albay, is that correct?

A Yes, sir.

Q While you were there in the house of your uncle on August 29, 1990, what did
Rodolfo Bernaldez, your uncle do to you?

ATTY. ENCINAREAL: No basis, Your Honor.

PROSECUTOR BIRATA:

Q What happened?

Witness:

A He was removing my clothes.

641

Q After he removed you clothes, what happened?

A He was inserting his penis to my vagina.

ATTY. ENCINAREAL: Objection,Your Honor.

COURT: Continue.

PROSECUTOR BIRATA:

Q In what part of the house did he actually put his penis to your vagina?

A Upstairs.

Q When your uncle was doing that to you, were there other people?

A None.

COURT:

Q When your uncle inserted his penis to your vagina, what happened?

WITNESS:

A Something came out from his organ.

Q What is that something?

A Something which is sticky.

PROSECUTOR BIRATA:

Q How many times have your uncle done this to you?

WITNESS:

A Many times.  32

She affirmed the sworn statements which she gave to the police:

PROSECUTOR BIRATA:

Q Now I am going to read to you the question and answer No. 8. "Kung ikaw ba
inaabuso ng iyong tiyuhin na si Rodolfo Bernaldez ano naman ang ginagawa sa iyo."
Answer. "Ako po ay kanyang binubuhat patungo sa itaas ng kanyang bahay at doon
niya ako hinuhubaran ng panti at ako kanyang ipinapahihiga sa sahig ng kanyang
bahay at habang ako ay nakahiga siya naman ay binababa ang kanyang siper ng
kanyang pantalon at inilalabas ang kanyang titi at dahandahan ito pinapasok sa
akong kiki at doon ay humihindayog na pababa at paitaas ang kanyang poit
hanggang sa doon mayroong lumalabas na mainit na galing sa kanyang titi." Do you
remember having [been] asked that question and having [given] the same answer to
that question?

WITNESS:

A Yes, sir. 
33

During the cross-examination, MARIA TERESA asserted that the answers in her sworn statement were given by
her, not by the police investigator. 
34

Against this story of MARIA TERESA, RODOLFO had nothing but alibi. For the defense of alibi to prosper, the
requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else
when the crime was committed; he must also demonstrate that it was physically impossible for him to have been at
the crime scene at the time the crime was committed. 35
642

Initially, there is some surface appeal on the proffered alibi because according to RODOLFO and his witness Delfin
Paular, he was out of his house the whole day of 29 August 1990, from 6:00 a.m. to 5:00 p.m. Also, Melita Sasota
testified that on the basis of her school record, MARIA TERESA was in her class the whole day of 29 August 1990.
However, their testimonies have not convincingly proved that MARIA TERESA never went to RODOLFO's house on
29 August 1990 and that it was physically impossible for RODOLFO to have been in his house when the rape was
committed.

Sasota admitted that she did not know where MARIA TERESA went after the morning session, much less after the
dismissal of her class in the afternoon.   Moreover, we entertain serious doubt as to the reliability of Sasota's record
36

(Exhibit "2") and her testimony regarding MARIA TERESA's attendance and presence in school throughout the
whole day of 29 August 1990. First, Pedro Bernaldez declared that on that day MARIA TERESA did not go to
school; she was in their house when he left for work and when he came home.   Second, and more significantly, for
37

1 March 1991, Sasota's school record of attendance did not show that MARIA TERESA was absent or tardy on that
day. Yet, on that date, MARIA TERESA was in court and testified in the rape case.

Delfin Paular's testimony does not inspire belief either. He admitted that he did not actually keep a record of the day-
to-day list of personnel working for Mr. Cu because somebody was assigned to do it, and that he was only an
"overseer."   He also revealed that RODOLFO was not in the list of personnel because he was only a substitute for
38

his brother Pedro Bernaldez, who was the one listed as employee of the rice mill.   Obviously, his testimony was
39

contrived for the alibi of RODOLFO.

Moreover, RODOLFO's house was only about 2 1/2 to 3 kilometers away from his place of work and could be
reached in 30 minutes by walking.   Thus, even if indeed he went to work on 29 August 1990, it was not physically
40

impossible for him to have been at his house where the rape was committed.

RODOLFO's belated theory that MARIA TERESA fabricated the charge of rape to stop her father from further
beating her for her refusal to go to RODOLFO's house to borrow money is incredible. For one, it was never shown
that MARIA TERESA had been known to be a liar or a disobedient child. If she refused to go to the house of
RODOLFO, it must have been for a compelling reason. Her having been raped by him was, by any measure, an
overwhelming compelling reason not to go to RODOLFO's house. For another, it is unthinkable that MARIA
TERESA, a girl of tender age, inexperienced in the ways of the world, would concoct a tale of defloration by no less
than an uncle just to avoid further beatings from her father.

MARIA TERESA's statements before the police and her testimony on the rape incident contained delicate details
which could be given by her alone and could only be based on real experience rather than on imagination. Surely,
from the time she first disclosed the rape, that is, in the morning of 30 August 1990, until she gave her statements to
the police on 2 September 1990 and appeared before the municipal trial court judge, she had sufficient time to
reflect on the seriousness of the charge. Several months later, she affirmed in court the same allegations of rape.
We cannot discern any plausible reason for her to falsely accuse her uncle of so grave a wrong unless it was the
truth.

The prevailing rule is that the testimony of rape victims who are young and immature deserves full
credence.   Indeed, "no woman, especially of tender age, would concoct a story of defloration, allow an examination
41

of her private parts, and thereafter pervert herself by being subjected to a public trial if she was not motivated solely
by the desire to have the culprit apprehended and punished."  42

Curiously, the alleged ill-motive on the part of MARIA TERESA was not the motive RODOLFO disclosed in his
testimony. What he told the court was that the case was filed to stop him from revealing to the public the alleged
incident showing that MARIA TERESA's mother had an illicit affair with her neighbor, a certain Rodolfo. RODOLFO,
however, abandoned this claim, for he must have realized that it was too incredible. Pedro Bernaldez would unlikely
sacrifice the honor and reputation of his family and the future of his young daughter, and implicate his brother to
whom he usually ran for economic support just to cover up the alleged incident involving his wife. Neither would he
use her daughter as an engine of malice, especially if by doing so her daughter would be subjected to
embarrassment and even life-long stigma.   Then, too it is hard to believe that a rape victim, like MARIA TERESA,
43

and her family would publicly disclose the rape incident and thus sully their honor and reputation in the community
unless it was true.  44

The trial court erred in giving weight to the medical certificate issued by Dr. De la Pat despite the failure of the latter
to testify. The certificate could be admitted as an exception to the hearsay rule.   However, since it involved an
45

opinion of one who must first be established as an expert witness,   it could not be given weight or credit unless the
46

doctor who issued it be presented in court to show his qualifications. Here, a distinction must be made between
admissibility of evidence and probative value thereof. Nevertheless, a medical examination is not indispensable in a
prosecution for rape.   The lone testimony of the victim is sufficient if credible.
47

Finally, it was unnecessary for the trial court to consider the issue of force or intimidation. Since MARIA TERESA
was undisputedly below 12 years old on 29 August 1990, when the rape was committed, then any carnal knowledge
643

of her, even if consented, would be rape under the third paragraph of Article 335 of the Revised Penal Code. Said
article pertinently provides:

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

3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two preceding paragraphs shall be present.

Per current case law, a rape victim is entitled to an indemnity ofP50,000.   She can also recover moral damages
48

pursuant to Article 2219, and exemplary damages if the commission of the crime was attended by one or more
aggravating circumstance pursuant to Article 2230, both of the Civil Code. No aggravating circumstance was proved
in this case; hence, the trial court's award of exemplary damages is incorrect. Under the circumstances in this case,
we deem fit to award the complainant an indemnity of P50,000 and moral damages in the amount of P50,000.

WHEREFORE, the 19 January 1993 Decision of Branch 14 of the Regional Trial Court of Ligao, Albay, in Criminal
Case No. 2763 finding RODOLFO BERNALDEZ, alias "Dolfo," guilty beyond reasonable doubt of the crime of rape,
and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with the modification ordering him to
pay the victim civil indemnity of P50,000 and moral damages of P50,000.

Costs against accused-appellant.

SO ORDERED.
644

G.R. Nos. 93808-09. April 7, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BELARMINO DIVINA alias "Bejar" and MECRITO BAGA y HIYOG, accused-appellants.

G.R. No. 94073-74. April 7, 1993.

BELARMINO DIVINA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and JUDGE ROSENDO B. BANDAL, JR., Presiding Judge, Regional Trial Court of
Negros Oriental, Branch 34, respondents.

The Solicitor General for plaintiff-appellee.

Ramon C. Barrameda for accused-appellants.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF TRIAL JUDGE; GENERALLY ACCEPTED. — On the
question of credibility, this Court will not as a general rule disturb the findings of the trial judge unless he has plainly
overlooked certain facts of substance and value that, if considered, might affect the result of the case. The reason is
the opportunity available to the trial court — but not to the appellate court — to observe the witnesses on the stand
and to assess their credibility not only by the nature of their testimony but also by their demeanor under questioning.

2. ID.; ID.; WITNESSES; CREDIBILITY; NOT IMPAIRED BY FAILURE TO DISCLOSE AT ONCE THE IDENTITY
OF ACCUSED. — The rule is well-established that the failure to reveal or disclose at once the identity of the
accused does not necessarily affect much less impair, the credibility of the witness. The initial reluctance of
witnesses to volunteer information about a criminal case and their unwillingness to be involved in criminal
investigations due to fear of reprisal is common and has been judicially declared not to affect credibility. In the case
at bar, it is a fact that one of the accused, Belarmino Divina, has been the OIC Barangay Captain of Anhawan since
1986 up to May, 1988. It cannot be gainsaid that although the incident happened after his term, having held said
position, he has a strong influence in said place. It was natural for the victim to fear for his life as explained by him.
In addition thereto, the incident also resulted in the death of Concepcion Baillo, wife of Ambrocio Baillo and mother
of Jaime and Rogelio Baillo. We have held that "(a)lthough there is a natural tendency to seek the ends of justice for
the treacherous killing of a dearly departed, mourning and rites for the dead take priority as dictated by our culture.
Moreover, the injuries sustained by the victim Jaime Baillo, both physical and emotional, and the necessary period
of recuperation after his discharge from the hospital are enough reasons to understand the delay in the filing of the
complaint.

3. CRIMINAL LAW; CONSPIRACY; NOT ESTABLISHED BEYOND REASONABLE DOUBT. — On the issue of
conspiracy, We hold that it was not established beyond reasonable doubt. Nowhere in the trial court's decision was
there any mention of any act of the accused that may be construed as an overt act in the furtherance of conspiracy.
Absent such an evidentiary basis, We cannot accept the finding of implied conspiracy. We have held that: ". . .,
albeit no formal agreement is necessary to prove conspiracy and the same way be inferred from the circumstances
attending the commission of the crime, yet conspiracy must be established by the same quantum of evidence as
any other ingredient of the offense. Such evidence must show intentional participation in the transaction with a view
to the furtherance of the common design or purpose. The same degree of proof necessary to establish the crime is
required to establish a finding of criminal conspiracy, that is, proof beyond reasonable doubt. It cannot be
established by conjectures but by positive and conclusive evidence. Since conspiracy must be proved beyond
peradventure of a doubt, it follows that it cannot be appreciated where the facts can be consistent with the non-
participation of the accused in the fancied cabal." In the case at bar, no conspiracy may be deduced where there is
no evidence to show the participation of accused Mecrito Baga in the shooting incident. The lone eyewitness Jaime
Baillo testified that while he was hiding behind the hagonoy plants, he saw accused Belarmino Divina holding a gun
and together with Mecrito Baga, approached the lifeless body of his mother. The mere presence of accused Mecrito
Baga does not prove his participation in the killing. The mere fact of being with Divina does not of itself establish
conspiracy.

4. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF ACCUSED. —
The well-settled rule is that alibi is one of the weakest defenses that can be resorted to by an accused, not only
because it is inherently weak and unreliable but also because of its easy fabrication. We have repeatedly held that
the defense of alibi cannot prevail over the positive identification of the accused by witnesses for the prosecution
and that to establish it, the accused must show that he was at some other place for such a period of time that it was
impossible for him to have been at the place where the crime was committed at the time of its commission. Record
shows that the victim Jaime Baillo while hiding behind the hagonoy plant saw accused Belarmino Divina approach
the dead body of his mother Concepcion Baillo and uttered "PUSIL RAY TAMBAL SA MGA TESTIGOS SA
CONTRA SA MGA DIVINA" which means "ONLY THE GUN CAN SILENCE THOSE WITNESSES AGAINST THE
645

DIVINAS." In addition thereto, accused Belarmino Divina in his cross examination admitted that the house of his
father-in-law where he was allegedly drinking tuba with his friends is only about two and a half (2 1/2) kilometers
from where the victims Concepcion Baillo and Jaime Baillo were shot at. Hence, it was not physically impossible for
accused Belarmino Divina to be at the place where the crime was committed. Moreover, although motive is
unnecessary when the assailant has been positively identified, in this case, accused Belarmino Divina has the
motive to commit the crime charged because the victim Concepcion Baillo was shown to be a witness against the
former's brothers in another criminal case.

5. ID.; ID.; POLICE BLOTTER; ENTRIES THEREIN NOT INCLUSIVE. — A police blotter is a book which records
criminal incidents reported to the police. Entries in official records, as in this case of a police blotter, are only prima
facie evidence of the facts therein stated. They are not conclusive. It is undisputed that the alleged time of the
commission of the crime, i.e., 7:40 in the evening of June 17, 1988, was supplied only by the parish priest Fr. Badoy
who was neither present when the shooting incident happened nor presented as a witness during the trial. The
information supplied is therefore hearsay and does not have any probative value.

6. ID.; CRIMINAL PROCEDURE; BAIL; NOT AVAILABLE TO ACCUSED UNDER SO ADMINISTRATIVE

CIRCULAR NO. 2-92. — With regards to G.R. Nos. 94073-74, We are constrained to deny accused Belarmino
Divina's petition for certiorari in line with this Court's Administrative Circular No. 2-92 dated January 20, 1992 "Re:
Cancellation of Bail Bond of Accused Convicted of Capital Offense in the Regional Trial Court," pertinent provisions
of which are quoted hereunder: "The basic governing principle on the right of the accused to bail is laid down in
Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides: "Sec. 3. Bail, a matter
of right; exception. — All persons in custody shall before final conviction, be entitled to bail as a matter of right,
except those charged with a capital offense or an offense which, under the law at the time of its commission and at
the time of the application for bail, is punishable by reclusion perpetua, when the evidence of guilt is strong."
Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by
reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court
since his conviction clearly imports that the evidence of his guilt of the offense charged is strong." Accused
Belarmino Divina was convicted by the Regional Trial Court of the crime of murder which is an offense punishable
by reclusion perpetua. Pursuant to SC Administrative Circular No. 2-92, he is no longer entitled to bail even if he
appeals to Us since his conviction clearly imports that the evidence of his guilt is strong.

DECISION

CAMPOS, JR., J p:

In G.R. Nos. 93808-09, accused BELARMINO DIVINA alias "Bejar" and MECRITO BAGA y HIYOG appealed from
the judgment ** rendered by the Regional Trial Court, 7th Judicial Region, Branch 35 of Dumaguete City convicting
both accused for murder and frustrated murder for the death of Concepcion Baillo and the gunshot wounds
sustained by Jaime Baillo.

In G.R. Nos. 94073-74, accused BELARMINO DIVINA alias "Bejar" filed a petition for certiorari alleging that the trial
court committed grave abuse of discretion amounting to lack or in excess of jurisdiction for disapproving his property
bond because it consists of unregistered or untitled land.

On July 30, 1990, this Court resolved to consolidate the two abovementioned cases.

In G.R. Nos. 93808-09, the accused BELARMINO DIVINA alias "Bejar" and MECRITO BAGA y HIYOG were
charged with murder and frustrated murder in the two informations as follows.

The Information for Murder in Criminal Case No. 8342 dated August 30, 1988, alleged:

"That on or about the 17th day of June, 1988, at Barangay Malungcay Daku, Municipality of Dauin, Province of
Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, with intent to kill, evident premeditation
and treachery, did then and there willfully, unlawfully and feloniously attack, assault and shoot Concepcion Baillo
with the use of a firearm which said accused were then armed and provided, thereby inflicting upon the body of
Concepcion Baillo a gunshot wound at her back which directly caused her death immediately thereafter.

Contrary to Article 248 of the Revised Penal Code." 1

The information for Frustrated Murder in Criminal Case No. 8362 dated September 9, 1988, alleged:

"That in the evening of June 17, 1988, at Barangay Malungcay Daku, municipality of Dauin, Province of Negros
Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with evident
premeditation and treachery, and with intent to kill, conspiring and confederating together and acting under the
same accord and purpose, did then and there willfully, unlawfully and feloniously, with the use of a gun, shoot one
JAIME BAILLO inflicting upon the latter the following injuries, to wit:
646

1. Gunshot wound of entrance 0.5-1 cm. long posterior chest wall lower left penetrating abdominal cavity with injury
to the liver left lobe thru & thru.

2. Hemoperitoneum approximately 250 cc. with metallic foreign body at submuscular area, epigastrium.

3. Retro peritoneal hematoma.

4. Gunshot wound of entrance 0.5 cm. left buttock upper portion.

5. Gunshot wound of exit left inguinal area.

6. Pneumonia both lower lung fields.

thus the offenders performing all the acts of execution which would have produced the crime of MURDER, as a
consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the
perpetrators, that is, by the timely medical assistance rendered to the victim that prevented his death.

Contrary to Article 248 in relation to Article 6 of the Revised Penal Code." 2

On May 18, 1990, the court a quo rendered its decision convicting both accused for murder and frustrated murder,
the dispositive portion of which reads:

"WHEREFORE, accused BELARMINO DIVINA alias "Bejar" and MECRITO BAGA Y HIYOG are hereby found guilty
beyond reasonable doubt of the crimes of Murder, qualified by treachery, in Criminal Case No. 8342 for the killing of
Concepcion Baillo; and for Frustrated Murder, also qualified by treachery, in Criminal Case No. 8362, for the deadly
wounds inflicted on Jaime Baillo, and the Court hereby imposes the following penalties to wit:

1. For the Murder of Concepcion Baillo in Criminal Case No. 8342, accused Belarmino Divina and co-accused
Mecrito Baga are hereby sentenced to suffer the imprisonment of RECLUSION PERPETUA. Accused shall also
jointly and solidarily indemnify the heirs of the deceased victim the sum of THIRTY THOUSAND PESOS
(P30,000.00), and to pay the costs;

2. For the Frustrated Murder of Jaime Baillo in Criminal Case No. 8362, accused Belarmino Divina and co-accused
Mecrito Baga are hereby sentenced, after applying the Indeterminate Sentence Law, as amended, to suffer an
imprisonment ranging from EIGHT (8) YEARS AND ONE (1) DAY of Prision Mayor as minimum to SEVENTEEN
(17) YEARS AND FOUR (4) MONTHS of Reclusion Temporal as maximum, and to pay the costs.

Also considering the fact that the two (2) accused are charged with a capital offense and taking into account their
conviction today where it can no longer be said that the evidence against them is not strong, and considering that
the possibility of their jumping bail and evading arrest is not now remote, the two accused are likewise hereby
ordered to be detained at the Negros Oriental Detention and Rehabilitation Center without prejudice to their filing an
appeal, if so, unless they could put up an additional bail bond in the amount of ONE HUNDRED THOUSAND
PESOS (P100,000.00) each.

SO ORDERED." 3

On July 16, 1990, the accused-appellants Belarmino Divina and Mecrito Baga filed an appeal with this Court which
was docketed as G.R. Nos. 93808-09.

Pursuant to the trial court's decision, accused-appellant Belarmino Divina on June 29, 1990 filed an Urgent Ex-parte
Motion for Approval Of Bail Bond before the trial court offering untitled properties as property bond. On the same
date, the trial court in its Order dated June 29, 1990, directed the said accused-appellant to put up a titled property
as property bond otherwise, he may put up a surety bond or a cash bond. 4

Accused-appellant's motion for reconsideration of the aforesaid Order was denied. 5

Hence, accused-appellant Belarmino Divina filed with this Court a petition for certiorari with urgent prayer for
approval of bail bond, docketed as G.R. Nos. 94073-74.

In G.R. Nos. 93808-09, accused-appellants contend that the court a quo erred in finding that their guilt has been
proven beyond reasonable doubt and in convicting them of the crime charged. 6

The prosecution's version, as culled by the Solicitor General, is as follows:

"In the evening of June 17, 1988 at around 6:30 o'clock in the afternoon, Mr. Ambrocio Baillo, his thirteen (13) year
old son Jaime Baillo and his wife Concepcion Baillo just came from the "tabuan" (flea market) at Barangay
647

Anhawan, Dauin, Negros Oriental and were heading for home at Barangay Daku, Dauin, Negros Oriental (TSN,
January 3, 1984, pp. 4-5; TSN, April 10, 1989, pp. 4-5). Just after crossing the Maayong-tubig river and while
walking one behind the other (Ambrocio, Jaime then Concepcion) along the trail, suddenly and without any warning,
they were shot from behind (Ibid.). Concepcion, being hit and mortally wounded, fell down and cried "agi!" (Ibid.).
Jaime also fell down because he was hit at the back and at the left hip. Ambrocio was not hurt. Upon seeing his wife
and son fall, he instructed his son Jaime to hide as he was going to get a vehicle (TSN, April 10, 1989, pp. 5-7).
Immediately, Ambrocio ran away and proceeded directly to their house and told his other son Rogelio to go and see
his mother and younger brother Jaime who were shot at Malungcay Daku (Ibid., p. 7). Then Ambrocio reported the
incident to the police of Dauin and to the parish priest (Father Badoy) whose truck they used to return to the place of
the incident (Ibid., p. 8). Policemen Ikoy Tubil and Dadoy Elumir rode on the truck while Ambrocio rode with June
Alta Marino on the latter's motorcycle (Ibid., p. 9).

Meantime, at the scene of the incident, Jaime, upon being instructed by his father Ambrocio, was able to crawl and
hide himself behind a hagonoy plant despite the wounds he sustained (TSN, January 3, 1989, p. 5). While hiding,
two (2) men whom he recognized as their neighbors - Belarmino Divina and Mecrito Baga (accused-appellants)
approached the lifeless body of his mother (Ibid.)

Then Belarmino Divina, with a gun, said in the dialect: "PUSIL RAY TAMBAL SA MGA TESTIGOS SA CONTRA SA
MGA DIVINA" which means "ONLY THE GUN CAN SILENCE THOSE WITNESSES AGAINST THE DIVINAS".
(Ibid., p. 6). (The records show that victim Concepcion Baillo was a witness against the Divinas in another pending
case.)

Meanwhile, Rogelio Baillo, after being told by his father of the incident, immediately proceeded to Malungcay-Daku,
the place of the incident (TSN, April 10, 1989, p. 33).

Upon arrival, he was told by his brother Jaime that Belarmino Divina and Mecrito Baga had approached the dead
body of their mother Concepcion Baillo with Belarmino holding a gun (Ibid., p. 35). Rogelio saw wounds at the arms
and at the back of his mother and he was not able to talk with her anymore (Ibid., pp. 36). He also observed that
Jaime sustained wounds at his left hip and at the back (Ibid.).

Thereafter, at about 10:00 o'clock that same evening, Ambrocio Baillo arrived with the truck of Fr. Badoy
accompanied by policemen Ikoy Tubil and Dadoy Elumir and, Jun Alta Marino, a teacher in Malungcay Daku.
Ambrocio noticed that his wife Concepcion was already dead while his son Jaime was alive (Ibid., pp. 9-10).
Ambrocio further observed that his wife Concepcion sustained six (6) wounds at the back and both her arms were
lacerated (Ibid.). His son Jaime also sustained gunshot wounds at the back and at the left hip (Ibid.). They then
loaded the dead body of Concepcion on the truck and brought her to their house while Jaime was brought to the
provincial hospital for treatment (Ibid.). Jaime was operated twice. As testified to by the attending physician, Dr.
Nerissa Calumpang, Jaime could have died were it not for the timely medical attention (TSN, April 11, 1989, pp. 2-
18). Jaime was discharged only after two (2) weeks of confinement after which, he temporarily lived with their
relatives at Valencia (a nearby municipality) because of fear that he might be killed by the Divinas (TSN, March 29,
1989, p. 18)." 7

Accused-appellants, Belarmino Divina and Mecrito Baga interpose the defense of denial and alibi.

Accused Belarmino Divina's defense as contained in his Brief is as follows:

"Accused Belarmino Divina has been living in his parents-in-law's house at Anhawan, Dauin, Negros Oriental, since
January, 1984. (TSN, January 13, 1990, p. 2). He was the OIC Barangay Captain of Anhawan since 1986 up to
May, 1988 (ibid., p. 3).

On June 17, 1988, from 7:00 a.m. to 11:00 a.m., he was plowing in his farm, after which he ate his lunch. At about
3:00 p.m. of the same day, he went to the "tabu-an", (a flea market) about 40 meters from his in-law's house where
he met Sabino Sarense, Dedio Tubil, Porferio Tubil, Alberto Deloria and Nicolas Sarense. At about 3:30 p.m., the
group, including accused Divina, played volley-ball. The group finished playing at about 4:00 p.m. after which they
ate bread. At about 5:30 p.m. accused Divina invited the group to his in-law's house where he also lives with his
family, to drink tuba. The group was joined by Tony Regalado and Lucero Regalado, accused Divina's brothers-in-
law. They drank tuba until 7:00 p.m. that night after which accused Divina with his family, Dedio Tubil and Porferio
Tubil stayed around to view the TV.

Sabino Sarense, after the group stopped drinking at 7:00 p.m., left together with his son Nicolas Sarense and
Alberto Deloria. The rest of their group, Dedio Tubil, Porferio Tubil and accused Divina with his family were watching
the TV. At about 8:00 p.m., Dedio and Porferio Tubil also left.

Accused Divina came to know of the killing of Concepcion Baillo the following day, June 18, 1988. Since that day
accused Divina never heard of the identity of the suspect until he was arrested on July 26, 1988, as the suspect
himself at about 4:00 p.m., at the Poblacion of Dauin while waiting for transportation going to Anhawan where he
lives." 8
648

On the other hand, Mecrito Baga's defense is as follows:

"Mecrito Baga and Douglas Divina were plowing the latter's field on June 17, 1988, starting from 7:00 o'clock in the
morning until 11:00 o'clock that morning and from 2:00 o'clock in the afternoon at 5:00 o'clock in the afternoon that
same day. They rested for a while in the house of Douglas Divina and at about 6:00 o'clock p.m. Mecrito Baga with
his mother Nicolasa Baga joined the Divina family in praying the Holy Rosary which prayer had been going on for
the last six months. After the prayer which ended at about 7:00 o'clock in the evening, accused Mecrito Baga and
his mother joined the Divina family for supper. After supper, Mecrito Baga joined Guillermo Divina, Douglas Divina
and Restituto Delvo in drinking tuba. At about 9:00 o'clock in the evening, Mecrito Baga and his mother left the
residence of Douglas Divina.

Mecrito Baga learned about the killing of Concepcion Baillo and the wounding of her son the following day, June 18,
1988, but he never heard of any suspect, not until July 25, 1988, when he was arrested by four policemen in his
house." 9

This appeal hinges on the credibility of the lone eyewitness and victim Jaime Baillo.

On the question of credibility, this Court will not as a general rule disturb the findings of the trial judge unless he has
plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. The
reason is the opportunity available to the trial court — but not to the appellate court — to observe the witnesses on
the stand and to assess their credibility not only by the nature of their testimony but also by their demeanor under
questioning. 10

Accused-appellants allege that the testimony of the lone eyewitness, Jaime Baillo, is far from credible for being
conflicting, uncorroborated, unreliable and inconclusive. In support of this contention, accused-appellants point out
that Jaime Baillo upon admission in the hospital on the night of the incident allegedly told Dr. Calumpang that he
(Jaime) was shot by an unknown assailant. 11

Dr. Calumpang's testimony on cross examination is quoted as follows:

"ATTY. BARRAMEDA:

Q And did he tell you who shot him?

A No. By an unknown assailant.

Q That was what he said?

A Yes, Sir.

Q Unknown assailant?

A Yes, Sir.

Q That is very clear to you that he was shot by an unknown assailant?

A Witness nodding her head.

Q Please vocalize your answer. Yes, he said that?

A Yes, your honor.

". . ."." 12 (Emphasis Ours.)

A reading of the above-quoted testimony shows that the response of the doctor to the question: "Did he tell you who
shot him?" was "No". The phrase "by an unknown assailant" was merely volunteered by the doctor which can be
taken to mean that the assailant was unknown to her but not necessarily unknown to the victim, Jaime Baillo. The
succeeding question propounded by the defense counsel, to wit "That is very clear to you that he was shot by an
unknown assailant?" calls for a statement of an opinion and not a statement of fact.

It is the duty of the defense counsel to propound questions that will not result in two or more interpretations as what
happened in this case. The resulting inconsistencies were the product of the kind of questions propounded by
defense counsel.
649

As to the alleged testimony of one Feliciano Parao given in another criminal case that the victim Jaime Baillo
allegedly told him that it was Guillermo Divina and Douglas Divina, brothers of Belarmino Divina, who shot him and
his mother, the said testimony cannot but be considered as hearsay for Feliciano Parao was not presented as
witness during the trial of this case. His testimony has no probative value. The trial court was correct in rejecting
said statements.

The defense makes a big issue of the fact that the prosecution witnesses Ambrocio Baillo, Jaime Baillo and Rogelio
Baillo reported the identities of the accused only after one month and nine days have elapsed despite the fact that
the accused's identities were already known to them on the very night of the incident. 13

The rule is well-established that the failure to reveal or disclose at once the identity of the accused does not
necessarily affect much less impair, the credibility of the witness. 14 The initial reluctance of witnesses to volunteer
information about a criminal case and their unwillingness to be involved in criminal investigations due to fear of
reprisal is common and has been judicially declared not to affect credibility. 15

In the case at bar, it is a fact that one of the accused, Belarmino Divina, has been the OIC Barangay Captain of
Anhawan since 1986 up to May, 1988. It cannot be gainsaid that although the incident happened after his term,
having held said position, he has a strong influence in said place. It was natural for the victim to fear for his life as
explained by him.

In addition thereto, the incident also resulted in the death of Concepcion Baillo, wife of Ambrocio Baillo and mother
of Jaime and Rogelio Baillo. We have held that "(a)lthough there is a natural tendency to seek the ends of justice for
the treacherous killing of a dearly departed, mourning and rites for the dead take priority as dictated by our culture.
16

Moreover, the injuries sustained by the victim Jaime Baillo, both physical and emotional, and the necessary period
of recuperation after his discharge from the hospital are enough reasons to understand the delay in the filing of the
complaint.

Both accused interposed the defense of alibi and denial. It is Our view that the trial court was correct in convicting
accused Belarmino Divina on the strength of the testimony of the lone eyewitness Jaime Baillo but in the case of the
accused Mecrito Baga, We find the evidence of the prosecution not sufficient to establish his guilt beyond
reasonable doubt.

On the issue of conspiracy, We hold that it was not established beyond reasonable doubt. Nowhere in the trial
court's decision was there any mention of any act of the accused that may be construed as an overt act in the
furtherance of conspiracy. Absent such an evidentiary basis, We cannot accept the finding of implied conspiracy. 17

We have held that:

". . ., albeit no formal agreement is necessary to prove conspiracy and the same way be inferred from the
circumstances attending the commission of the crime, yet conspiracy must be established by the same quantum of
evidence as any other ingredient of the offense. Such evidence must show intentional participation in the transaction
with a view to the furtherance of the common design or purpose. The same degree of proof necessary to establish
the crime is required to establish a finding of criminal conspiracy, that is, proof beyond reasonable doubt. It cannot
be established by conjectures but by positive and conclusive evidence. Since conspiracy must be proved beyond
peradventure of a doubt, it follows that it cannot be appreciated where the facts can be consistent with the non-
participation of the accused in the fancied cabal." 18

In the case at bar, no conspiracy may be deduced where there is no evidence to show the participation of accused
Mecrito Baga in the shooting incident. The lone eyewitness Jaime Baillo testified that while he was hiding behind the
hagonoy plants, he saw accused Belarmino Divina holding a gun and together with Mecrito Baga, approached the
lifeless body of his mother. The mere presence of accused Mecrito Baga does not prove his participation in the
killing. The mere fact of being with Divina does not of itself establish conspiracy. 19

Having found that no conspiracy attended the commission of the crime and that the prosecution failed to establish
the guilt of accused Mecrito Baga beyond reasonable doubt, We are constrained to acquit him of the crime charged.

With regards to accused Belarmino Divina, his conviction must be sustained.

The well-settled rule is that alibi is one of the weakest defenses that can be resorted to by an accused, not only
because it is inherently weak and unreliable but also because of its easy fabrication. We have repeatedly held that
the defense of alibi cannot prevail over the positive identification of the accused by witnesses for the prosecution
and that to establish it, the accused must show that he was at some other place for such a period of time that it was
impossible for him to have been at the place where the crime was committed at the time of its commission. 20
650

Record shows that the victim Jaime Baillo while hiding behind the hagonoy plant saw accused Belarmino Divina
approach the dead body of his mother Concepcion Baillo and uttered "PUSIL RAY TAMBAL SA MGA TESTIGOS
SA CONTRA SA MGA DIVINA" which means "ONLY THE GUN CAN SILENCE THOSE WITNESSES AGAINST
THE DIVINAS."

In addition thereto, accused Belarmino Divina in his cross examination admitted that the house of his father-in-law
where he was allegedly drinking tuba with his friends is only about two and a half (2 1/2) kilometers from where the
victims Concepcion Baillo and Jaime Baillo were shot at. 21 Hence, it was not physically impossible for accused
Belarmino Divina to be at the place where the crime was committed.

Moreover, although motive is unnecessary when the assailant has been positively identified, 22 in this case,
accused Belarmino Divina has the motive to commit the crime charged because the victim Concepcion Baillo was
shown to be a witness against the former's brothers in another criminal case.

Accused Belarmino Divina argues that as stated in the police blotter, the shooting incident happened at around 7:40
o'clock in the evening of June 17, 1988 and not 6:30 o'clock as claimed by the prosecution witnesses. It was
therefore, not possible for the victim Jaime Baillo to have seen the accused without the aid of a lighted torch.

We do not agree. A police blotter is a book which records criminal incidents reported to the police. Entries in official
records, as in this case of a police blotter, are only prima facie evidence of the facts therein stated. They are not
conclusive. 23 It is undisputed that the alleged time of the commission of the crime, i.e., 7:40 in the evening of June
17, 1988, was supplied only by the parish priest Fr. Badoy who was neither present when the shooting incident
happened nor presented as a witness during the trial. The information supplied is therefore hearsay and does not
have any probative value.

With regards to G.R. Nos. 94073-74, We are constrained to deny accused Belarmino Divina's petition for certiorari
in line with this Court's Administrative Circular No. 2-92 dated January 20, 1992 "Re: Cancellation of Bail Bond of
Accused Convicted of Capital Offense in the Regional Trial Court," pertinent provisions of which are quoted
hereunder:

"The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985
Rules on Criminal Procedure, as amended, which provides:

"Sec. 3. Bail, a matter of right; exception. — All persons in custody shall before final conviction, be entitled to bail as
a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its
commission and at the time of the application for bail, is punishable by reclusion perpetua, when the evidence of
guilt is strong."

Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by
reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court
since his conviction clearly imports that the evidence of his guilt of the offense charged is strong." (Emphasis
Supplied.)

Accused Belarmino Divina was convicted by the Regional Trial Court of the crime of murder which is an offense
punishable by reclusion perpetua. Pursuant to SC Administrative Circular No. 2-92, he is no longer entitled to bail
even if he appeals to Us since his conviction clearly imports that the evidence of his guilt is strong.

We therefore find no reason to dwell on the issue raised in said petition.

WHEREFORE, premises considered, judgment is hereby rendered ACQUITTING accused MECRITO BAGA of the
crime of Murder in Criminal Case No. 8342 and of Frustrated Murder in Criminal Case No. 8362 for failure of the
prosecution to prove his guilt beyond reasonable doubt. The convictions of accused BELARMINO DIVINA in
Criminal Cases Nos. 8342 and 8362 are AFFIRMED with the modification that he be ordered to indemnify the heirs
of the victim Concepcion Baillo in the amount of P50,000.00 in consonance with prevailing jurisprudence.

The petition for certiorari filed by accused BELARMINO DIVINA is DISMISSED for lack of merit.

SO ORDERED.
651

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:

652

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.
653

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:
al
Y
r.:
1
9
7
3

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

F   Appr  
il oved
e by:
N
o
.
o
r
R
e
c
.
N
o
.

    Ped.: City
Free
:

    Surg. Tran
: sient
free:

  Dept. Obs.: Govt

Class .
if. free;

    Med.: Prvt.
free:

    EEN Hos
T: p.
pay:
654

    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
o
n
:
,

  I   Di  
m s
p d:
r
v
:

  U  A 3:45
n b P.M
i c .
m o
p n
r d:
o
v
:

  D  Tr 5-
i a 12-
e n 73
d sf
655

: 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)

656

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.
657

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.
658

SO ORDERED.

Barredo (Chairman), Aquino, Concepcion, Jr., Abad Santos and Escolin, JJ., concur.

De Castro, J., took no part.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JOSEPH LEONES Y DUCUSIN alias JESSIE,
Defendant-Appellant. G.R. No. L-48727

September 30, 1982

FACTS: Irene Dulaywas a salesgirl employed in the store of spouses Leones. She filed a criminal complaint
against Joseph Leones, son of her employer, allegingthat with the help of Joseph’s sister, Elizabeth, Joseph
was able to have carnal knowledge with her. According to Dulay, she was made to take three (3)tablets, which
she believed to be aspirin tablets, that made her feel dizzy. She was found without her panties on and was
immediately taken to the hospital for examination. The accused denied the allegation of Dulay arguing that he
was at the beach resort with his family at the time the alleged rapehappened. The trial court found the accused
guilty of having raped Dulay. ISSUE: Whether or not the guilt of Joseph Leones was proven beyond
reasonable doubt.

RULING: There are a number of significant facts from the recorded evidence of the prosecution which
materially and substantially debunked and derailed the theory of Dulay. Based from the clinical records, the
lacerations on the hymen of Dulaywere regarded as “healed” on the same day when the rape against her was
committed. It would have been recorded as a “fresh laceration”. It was also found out that Dulay was having
her menstrual period on the day of the alleged rape. Thus, it was impossible that accused Joseph Leones
could have committed rape against her person.
_____________________________________________________________________________________

G.R. No. L-32243 April 15, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUGENIO CRISOSTOMO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Jose Ma. Abola for accused- appellant.

GANCAYCO, J.:

On Christmas day, December 25, 1967, between 6:00 and 7:00 o' clock in the evening at Sto. Rosario, Hagonoy, Bulacan, while Eugenio Crisostomo was passing
near the house of Romeo Geronimo, he met the latter and invited him to have a drink in the place of a friend. Romeo declined the offer. Suddenly Eugenio rushed
towards Romeo who was then standing near a store facing the street with his back towards Eugenio and shot him with a .22 caliber revolver at a distance of one
(1) meter. The bullet entered about two (2) inches below the axilla (armpit) and came out on the right side of the chest about one (1) inch to the sternum. Romeo
fell to the ground mortally wounded while Eugenio ran away. By-standers who were near the place such as Delfin Lopez, Ernesto Trillana Apolonio Santos and
Manuel Tamayo and others who were all friends of both the victim and assailant came to the aid of the fallen victim and brought him to the Reyes Hospital at the
Poblacion of Hagonoy where the doctor pronounced the victim dead upon arrival. Thus, they brought the victim's body to his home.

An information for murder was filed by the provincial fiscal in the Court of First Instance (CFI) of Bulacan against
Eugenio Crisostomo charging him of the crime of murder as follows:

That on or about the 25th day of December, 1967, in the municipality of Hagonoy, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Eugenio
Crisostomo, armed with a firearm and with intent to kill one Romeo Felipe Geronimo, did then and
there unlawfully and feloniously, with evident premeditation and treachery, attack, assault and shoot
the said Romeo Felipe Geronimo with the firearms he was then provided, hitting the latter on the
chest, causing serious physical injuries thereon, which directly caused the death of the said Romeo
Felipe Geronimo.

After the arraignment wherein accused entered a plea of not guilty and again during the trial, the accused signified
his intention to withdraw his plea of not guilty to the charge of murder and to substitute it with a plea of guilty to a
lesser charge of homicide and prayed that he be allowed to prove the mitigating circumstances. The same plea was
made by the accused after the prosecution had rested its case but the fiscal did not agree. Thus the court denied
the petition.
659

A decision was rendered on March 28, 1969 convicting the accused of the offense charged, the dispositive portion
of which reads as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the court finds the accused EUGENIO
CRISOSTOMO guilty beyond reasonable doubt of the crime of MURDER, punished under Art. 248
of the Revised Penal Code, without any modifying circumstance and hereby sentences him
to Reclusion Perpetua, with the accessories of the law: to indemnify the heirs of the deceased in the
sum of TWELVE THOUSAND PESOS (P12,000.00); and to pay the costs.

Not satisfied therewith the accused now interposed this appeal alleging that the trial court committed the following
assigned errors:

THE LOWER COURT ERRED IN FINDING THAT DEFENDANT- APPELLANT HAS ADMITTED
HAVING KILLED ROMEO GERONIMO, INSTEAD OF LIMITING ITS FINDING TO THE TRUE
EXTENT OF HIS ADMISSION.

II

THE LOWER COURT ERRED IN FINDING THAT THERE IS EVIDENCE BEYOND REASONABLE
DOUBT THAT DEFENDANT-APPELLANT KILLED ROMEO GERONIMO, INSTEAD OF FINDING
THAT NO EVIDENCE HAD BEEN PRESENTED AS TO THE ACTUAL CAUSE OF DEATH, THERE
HAVING BEEN NO AUTOPSY PERFORMED ON THE BODY OF ROMEO GERONIMO.

III

THE LOWER COURT ERRED IN FINDING THAT DEFENDANT- APPELLANT HAD ACTED WITH
TREACHERY.

IV

THE LOWER COURT ERRED IN NOT FINDING THAT DEFENDANT- APPELLANT IS ENTITLED
TO THE MITIGATING CIRCUMSTANCE OF DRUNKENNESS.

THE LOWER COURT ERRED IN NOT APPRECIATING IN FAVOR OF APPELLANT THE

MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.

VI

THE LOWER COURT ERRED IN NOT APPRECIATING DEFENDANT-APPELLANT'S OFFER TO

PLEAD GUILTY TO THE CHARGE OF HOMICIDE (THE TRUE CRIME COMMITTED IF ONE HAD
IN FACT BEEN COMMITTED AS A MITIGATING CIRCUMSTANCE.

VII

THE LOWER COURT ERRED IN NOT CREDITING DEFENDANT-APPELLANT WITH THE

PRIVILEGED MITIGATING CIRCUMSTANCE OF PRESENCE OF TWO ORDINARY MITIGATING
CIRCUMSTANCES WITHOUT THE PRESENCE OF ANY AGGRAVATING CIRCUMSTANCE.

Under the first assigned error appellant claims that the trial court erred in finding that he admitted having killed the
victim.

Testifying in his defense the appellant claims that at the time of the incident when he saw the victim he played a joke
on him by drawing his gun from his waist and pointing the same to the victim but the gun suddenly went off, its bullet
hitting the victim. Taken by surprise he fled.

No doubt from the said version of the appellant he effectively admitted having shot the victim Romeo Geronimo. In
fact he fled from the scene of the crime upon realizing the gravity of what he had committed. It is clear that it was
that single shot that felled the victim which was the immediate cause of his death.

Indeed, during the trial and as late as after the prosecution had rested its case, the appellant offered to withdraw his
plea of not guilty and substitute it with a plea of guilty of the lessor offense of homicide but the prosecution refused
to agree with his proposal.
660

Under the second assigned error the appellant claims that as no autopsy was performed on the body of the victim
the prosecution has not established the actual cause of death of the victim. He contends that the death certificate of
the victim (Exhibit A) to which he offered no objection is admissible only to establish the fact of death not the cause
of the death of the victim. He further avers that the testimony of Dr. Juan Santos who examined the body of the
victim but did not perform an autopsy shows that he did not qualify as an expert witness; and even if he were an
expert witness there was no basis for him to render an opinion as to the cause of death of the victim. Further,
appellant alleges that Dr. Santos mentioned two (2) wounds of different sizes but otherwise with exactly identical
characteristics from which the possibility may be deduced that the victim may have been shot twice, the second time
by a person other than the appellant.

These arguments are devoid of merit.

Dr. Santos, who was then the municipal health officer of Hagonoy, Bulacan, categorically testified that the cause of
death of the deceased was a through and through gunshot wound which was caused by a bullet.   Although he may
1

not be an expert witness, as a physician and health officer he is certainly qualified to give an opinion as to the cause
of death of the victim. He externally examined the body of the deceased on the same night of the incident, and
found no other sign of external violence except the shot wound.   Under such circumstances, one need not be an
2

expert to render an opinion that the said gunshot wound was the cause of death of the victim.

Contrary to the contention of the appellant, Dr. Santos pointed out the difference between the two (2) wounds on the
body of the victim in that the left axilla wound was only 2.5 milimeters, while the right chest wound was 8 milimeters
in diameter; that the former was round while the latter was oval; and that the former was deep while the latter was
shallower He denied that the wounds were of identical appearance.   Dr. Santos emphasized that the left axilla
3

wound is the point of entry of the bullet while the right chest wound is its point of exit and that the said wounds were
caused by one bullet. The trajectory of the bullet was from the left axilla to the right chest.   The speculation of the
4

appellant that the victim may have been shot twice is thus totally without basis.

The death certificate and the notes issued by Dr. Santos after his external examination of the body of the victim
establish the cause of death of the deceased contrary to the contention of the appellant.   In this jurisdiction such
5

death certificate and notes issued by said municipal health officer in the regular performance of his duty are prima
facie evidence of the cause of death of the victim. 6

Moreover, the said death certificate is not only confirmed by the testimony of Dr. Santos and by two (2)
eyewitnesses Manuel Tamayo and Delfin Lopez who stated that they saw the appellant rush at the victim and
suddenly shoot him; that the victim fell down after he was hit; and that they brought him to the hospital but the doctor
pronounced him dead on arrival. These two witnesses are mutual friends of both the deceased and the appellant so
that their testimonies are free from any suspicion of bias or prejudice.

The appellant assails the findings of the court a quo that he acted with treachery in the commission of the offense
as a third assigned error. He contends that while it may be true that he suddenly attacked the victim, it does not
appear that he had consciously adopted the mode of attack intended to facilitate the perpetuation of the offense
without risk to himself. In fact appellant claims that he was drunk and as such he could not have reflected on the
special means of the execution of the act.

There is treachery when the offender commits any of the crimes against the person, employing means, method 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.  7

The suddenness of the attack does not, of itself, suffice to support the findings of alevosia.   There must be evidence
8

that the mode of attack was consciously adopted by the appellant to make it impossible or hard for the person
attacked to defend himself or retaliate. 
9

In the present case, the appellant admitted that he had a previous altercation with the victim wherein he was hit by
the deceased with a bottle because of certain differences they had in a billiard hall although he claimed to have
resumed friendly relations with the victim thereafter.   Nevertheless, at the time of the incident, the appellant went
10

through the motion of inviting the victim to join him in a drinking spree which the victim declined and then suddenly,
without any ceremony, he shot the victim while his (the victim's) back was turned. The appellant used a gun, a lethal
weapon to insure his design to kill the victim. He fired at him at a short distance aiming at a vital spot of his body.
The victim was unarmed. From the environmental circumstances of the case, alevosia has been fully established.  11

Under the fourth assigned error appellant alleges that he is entitled to the mitigating circumstance of drunkenness.
He asserts that he had been drinking from one o'clock in the afternoon on that Christmas day and that he had been
drunk five (5) times in his entire life so that it is not habitual.

Under Article 15 of the Revised Penal Code, intoxication of the offender shall be taken into consideration as a
mitigating circumstance when the offender committed a felony in a state of intoxication, if the same is not habitual or
661

subsequent to the plan to commit said felony. Otherwise when habitual or intentional, it shall be considered as an
aggravating circumstance.

The allegation of the appellant that he was drunk when he committed the offense is self-serving and
uncorroborated. Besides, appellant admitted that at that time he was only dizzy,   and that he was on the way to
12

another drinking spree. Obviously he had not drunk enough. He remembers the details of the shooting, the time it
started and ended, how much wine he imbibed and the persons who were with him. He realized the gravity of the
offense he committed so he fled and hid from the authorities. He sought sanctuary in the chapel of Sto. Rosario,
boarded a tricycle going to the poblacion and took a La Mallorca bus to Manila. All these are acts of a man whose
mental capacity has not been impaired.

As the fifth assigned error appellant argues that he should be credited with the mitigating circumstance of voluntary
surrender stating that although he hid himself from the authorities for ten (10) days, he voluntarily surrendered to the
authorities thereafter upon the advice of his parents.

The requisites of voluntary surrender are: (a) that the offender had not actually been arrested; (b) that the offender
surrendered himself to a person in authority or the latter's agent; and (c) that the surrender was voluntary. 
13

The testimony of the appellant is not disputed by the prosecution that while in hiding, upon the advise of his parents,
he voluntarily surrendered on January 4, 1968, so he was detained in the municipal jail of Hagonoy.   The Court
14

agrees that the appellant is entitled to this mitigating circumstance.

However, he cannot be credited with the mitigating circumstance of a plea of guilty to a lesser offense of the charge
of homicide as invoked under the sixth assigned error. The requisites of the mitigating circumstance of voluntary
plea of guilty are: (1) that the offender spontaneously confessed his guilt; (2) that the confession of guilt was made
in open court, that is, before the competent court that is to try the case; and (3) that the confession of guilt was
made prior to the presentation of evidence for the prosecution.  15

In the present case the appellant offered to enter a plea of guilty to the lesser offense of homicide only after some
evidence of the prosecution had been presented. He reiterated his offer after the prosecution rested its case. This is
certainly not mitigating. 
16

In the light of the foregoing discussion, the seventh assigned error where the appellant claims that he should be
entitled to the privileged mitigating circumstance is consequently without merit.

The offense committed is the crime of murder as the killing was qualified by treachery.   Considering that the
17

commission of the offense is attended by the mitigating circumstance of voluntary surrender, applying the
Indeterminate Sentence Law, the appellant is hereby imposed the indeterminate penalty of imprisonment of Ten
(10) Years and One (1) Day of prision mayor as minimum to Seventeen (17) Years, Four (4) Months, and One (1)
Day of reclusion temporal as maximum. The indemnity for the death of the victim is increased to P30,000.00.

WHEREFORE, with the above modification as to the penalty and indemnity, the decision appealed from is
AFFIRMED in all other respects, with costs against accused-appellant.

SO ORDERED.

[G.R. Nos. 106314-15. October 8, 1999.]

HEIRS OF PEDRO CABAIS, NAMELY: MAGDALENA BONTO CABAIS, ANTONIO CABAIS,

PABLO CABAIS, ANDREA CABAIS, EFREN CABAIS, AGAPITA CABAIS, and ANDRES CABAIS,
represented by AVELINA CABAIS, Petitioners, v. THE HONORABLE COURT OF APPEALS,
CONSTANCIA PAGLINAWAN, PAULINO LORIA, AUREA NICOLAS, ANTONIO LO, SANTOS
WANTON, ZENAIDA BATALLER, ISABEL LORIA, ADELAIDA DAUS AND EMMA
CARALI, Respondents.

HEIRS OF PEDRO CABAIS, NAMELY: MAGDALENA BONTO CABAIS, CHILDREN: ANTONIO,

ANDREA, PABLO, AVELINA, EFREN, AGAPITA and ANDRES all surnamed
CABAIS, Petitioners, v. THE HONORABLE COURT OF APPEALS, HEIRS OF VICTORIA
CAÑETA, NAMELY: CELSO represented by his HEIRS, ISABEL, ARMANDO, ROGER,
SURNAMED LORIA, HEIRS OF MELECIO LORIA, NAMELY: NIMFA and JOEL, PAULINA LORIA
VDA. DE PAGLINAWAN, EMERITA LORIA and SPS. RUFINO NICOLAS and AUREA
GOYAL, Respondents.

DECISION
662

PURISIMA, J.:

At bar are Petitions for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking a
review of the Decision 1 of the Court of Appeals, dated November 13, 1991, and its Resolution 2 of
July 9, 1992, denying the motion for reconsideration in CA- G.R. SP Nos. 28109 and 28110. chanroblesvirtual|awlibrary

The two cases were tried jointly and decided by Branch 17 of the Regional Trial Court in Tabaco,
Albay.

Petitioners are legal heirs of Pedro Cabais, who died on April 16, 1982, leaving a parcel of land
situated 3 in Basud, Tabaco, Albay, with an area of 1,638 square meters, and covered by Transfer
Certificate of Title No. T-55640 in the name of Pedro Cabais. The said property was inherited by
Pedro Cabais from his grandmother Eustaquia Cañeta by right of representation. His mother, Felipa
Cañeta Buesa, who was the only daughter of Eustaquia Cañeta, 4 predeceased the latter, leaving him
as the only legal heir of Eustaquia. Thus, Pedro Cabais executed a Deed of Self-Adjudication, 5
adjudicating in his favor subject property. By virtue thereof, Original Certificate of Title No. RO-3433
(23899) was cancelled and in lieu thereof, the aforementioned transfer certificate of title issued in his
name.

On October 15, 1979, shortly after Pedro Cabais had adjudicated to himself the property in question,
a complaint for partition and accounting was brought by Simon Bonaobra, Heirs of Victoria Cañeta
and Heirs of Anastacio Cañeta against Pedro Cabais, docketed as Civil Case No. T-567 before the
Regional Trial Court but the plaintiffs were declared non-suited, resulting to the dismissal of the case.

During the pendency of Civil Case No. T-567, Pedro Cabais died. Whereupon, the respondents herein
entered the property in dispute and constructed houses thereon, depriving petitioners of possession
thereof.

On April 15, 1987, petitioners filed with the lower court, 6 Civil Case No. T-1283, for quieting of title,
recovery of possession and ownership with a prayer for preliminary injunction, against the herein
respondents, alleging that the acts of the latter with regard to the disputed property cast a cloud on
their title thereto. In their Answer, respondents theorized that the petitioners have no cause of action
and were in estoppel, and that the issuance of Transfer Certificate of Title No. 55640 was in
derogation of respondents’ successional rights.

On April 21, 1987, the respondents, Heirs of Victoria Cañeta, Paulino Loria, Jose Loria, Constancia
Loria Vda. de Paglinawan, Emeterio Loria, and spouses Rufino Nicolas and Aurea Goyal, instituted
before the same lower court Civil Case No. T-1284, for annulment of title and damages, claiming to
be co-owners of subject property. The respondent spouses, Rufino Nicolas and Aurea Goyal, asserted
that they bought 806.5 square meters of Lot No. 2119 from Simplicia Casaul. The latter was said to
have acquired the said portion of the lot from Benigno Bonaobra, who, in turn, acquired the same
from Victoria Cañeta and Ciriaca Vda. de Gawan. chanrobles virtual lawlibrary

The respondent heirs of Victoria Cañeta averred that they purchased the remaining portion of Lot No.
2119 from their deceased grandmother, Ciriaca Vda. de Gawan, the first wife of Antonio Buesa.
According to them, the cancellation of Original Certificate of Title No. RO-3433 (23899) and issuance
of Transfer Certificate of Title No. 55640 were tainted by fraud.

Petitioners denied the allegations of respondents’ Answer in Civil Case No. T-1284. It was their
submission that the truth of the matter were those alleged in their Complaint in Civil Case No. T-
1283, and that Civil Case No. T-1284 is barred by Civil Case No. 567, which had been previously
dismissed.

In due time, the two cases were jointly tried and on September 28, 1989, the lower court came out
with a Joint Decision upholding the view of petitioners, quieting their title over the contested lot;
ordering the respondents to vacate the same, to pay the rents thereon to petitioners until they leave
the place, apart from litigation expenses. The trial court ruled that res judicata barred the institution
of Civil Case No. T-1284 by reason of the prior dismissal of Civil Case No. T-567.

Respondents seasonably presented a motion for reconsideration of the said disposition, which the
trial court granted 7 on November 26, 1989, upon the reasoning that res judicata as alluded to in the
decision did not apply and that the baptismal certificate of Felipa C. Buesa does not show her to be
the daughter of Eustaquia Cañeta. From such adverse action against them, petitioners went to the
Court of Appeals which rendered the assailed decision on November 13, 1991, affirming the decision
663

of the lower court. Petitioners filed a motion for reconsideration but the same was denied in the
Resolution dated July 9, 1992.

Undaunted, petitioners have come to this Court for relief.

The main issue for resolution here is whether or not the Order of the lower court reconsidering its
Joint Decision was proper. Firstly, petitioners maintain that the lower court erred in relying on the
Baptismal Certificate 8 of Felipa C. Buesa to establish the parentage and filiation of Pedro Cabais.
They contend that the grant of the motion for reconsideration and reversal of its own decision were
without legal basis. It is also petitioners’ submission that the dismissal of Civil Case No. 567
constituted a bar to Civil Case No. T-1284 on the ground of res judicata. chanroblesvirtuallawlibrary

The petition is impressed with merit.

The Order under attack disregarded the limited evidentiary value of a baptismal certificate in this
jurisdiction vis-à-vis a birth certificate.

A birth certificate, being a public document, offers prima facie evidence of filiation 9 and a high
degree of proof is needed to overthrow the presumption of truth contained in such public document.
10 This is pursuant to the rule that entries in official records made in the performance of his duty by
a public officer are prima facie evidence of the facts therein stated. 11 The evidentiary nature of such
document must, therefore, be sustained in the absence of strong, complete and conclusive proof of
its falsity or nullity. 12

On the contrary, a baptismal certificate, a private document, which, being hearsay, is not a
conclusive proof of filiation. 13 It does not have the same probative value as a record of birth, an
official or public document. 14 In US v. Evangelista, this Court held that church registers of births,
marriages, and deaths made subsequent to the promulgation of General Orders No. 68 15 and the
passage of Act No. 190, 16 are no longer public writings, nor are they kept by duly authorized public
officials. 17 Thus, in this jurisdiction, a certificate of baptism such as the one herein under
controversy is no longer regarded with the same evidentiary value as official records of birth.
Moreover, on this score, jurisprudence is consistent and uniform in ruling that the canonical
certificate of baptism is not sufficient to prove recognition. 18

The unjustified failure to present the birth certificate instead of the baptismal certificate now under
consideration or to otherwise prove filiation by any of the means recognized by law weigh heavily
against respondents. In Macadangdang v. Court of Appeals, Et Al., 19 this Court declared that a
baptismal certificate is evidence only to prove the administration of the sacrament on the dates
therein specified, but not the veracity of the declarations therein stated with respect to his kinsfolk.
The same is conclusive only of the baptism administered, according to the rites of the Catholic
Church, by the priest who baptized subject child, but it does not prove the veracity of the
declarations and statements contained in the certificate concerning the relationship of the person
baptized. 20 It is indispensable that such declarations and statements are shown by proof recognized
by law. 21

There is thus no reason to further sustain respondents stance in the face of the aforecited rulings
explaining the significance of baptismal certificates. The lower court erred in giving too much
credence on the baptismal certificate of Felipa Cañeta Buesa to prove that Felipa was the daughter of
one Gregoria Cañeta and not of Eustaquia Cañeta, the original registered owner of the property
under controversy. chanrobles virtual lawlibrary

The grant by the lower court of the motion for reconsideration from its own decision, quieting the
title of Pedro Cabais (and consequently of herein petitioners-successors in interest) to the said
property, on the basis mainly of such proof was unwarranted. To repeat, a baptismal certificate, like
all documents in general, attests the fact leading to its execution and the date thereof, the
administration of the sacrament on the day therein specified, but not to the veracity of the
statements therein contained regarding the kinsfolk of the person baptized. 22

Furthermore, the above findings of the courts below relying on the baptismal certificate in question to
establish the filiation of Pedro Cabais’ mother must of necessity yield to the inherent inconsistency
and unbelievable nature of the baptismal certificate in question. It appears that said baptismal
certificate of Felipa C. Buesa states that she was born on September 13, 1899, while the baptismal
certificate of Gregoria Cañeta, the supposed mother of Felipa, indicated that Gregoria was born on
May 9, 1898, or only a little more than one year ahead of her alleged daughter.
664

This Court need not overstress the point that it is simply improbable under the above circumstances
for Gregoria to have been the mother of Felipa, and thus, to have been the real grandmother of
Pedro. The lower court should have readily taken judicial notice of this fact, being one of those
matters which come to the ordinary experiences of life and which is generally accepted as true and is
capable of ready and unquestioned demonstration. 23

However, as regards the contention that Civil Case No. 567 barred the filing of Civil Case No. T-1284,
the Court holds that the Court of Appeals erred not. Thus, in ruling on the inapplicability of res
judicata, it ratiocinated:
jgc:chanrobles.com.ph

"Nor would the defense of res judicata prosper. For the doctrine of res Judicata to apply, (1) the
judgment or order must be final; (2) the court rendering it must have jurisdiction over the subject
matter and of the parties; (3) it must be a judgment on the merits; and (4) there must be identity of
parties, subject matter and cause of action. chanrobles.com.ph : virtual law library

While We agree with appellants that the dismissal of Civil Case No. T-567 for non-suit is an
adjudication on the merits, the fourth element, particularly the identity of causes of action, is absent
in the case at bar. Civil Case No. T-567 was an action for partition and accounting, while the instant
case is an action for the annulment of T.C.T. No. 55640. The evidence needed to sustain both the
former and the present causes of action are not the same." 24

Be that as it may, the said pronouncement by the Court of Appeals is rendered moot and academic
by the finding here that there was no basis for the grant by the trial court of the motion for
reconsideration of its Joint Decision of September 20, 1989.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV Nos. 28109 and 28110 is SET
ASIDE, and the Joint Decision of the Regional Trial Court of origin in Civil Case Nos. T-1283 and T-
1284, dated September 20, 1989, REINSTATED. No pronouncement as to costs.

SO ORDERED.

Melo and Gonzaga-Reyes, JJ., concur.

Vitug and Panganiban, JJ., concur in the result.

HEIRS OF PEDRO CABAIS v. CABAIS, GR Nos. 106314-15, 1999-10-08

Facts:
At bar are Petitions for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking a
review of the Decision[1] of the Court of Appeals, dated November 13, 1991, and its Resolution[2] of
July 9, 1992, denying the motion for reconsideration in CA- G.R. SP Nos. 28109 and 28110.
Petitioners are legal heirs of Pedro Cabais, who died on April 16, 1982, leaving a parcel of land situated[3]
in Basud, Tabaco, Albay, with an area of 1,638 square meters, and covered by Transfer Certificate of Title
No. T-55640 in the name of Pedro
Cabais. The said property was inherited by Pedro Cabais from his grandmother Eustaquia Cañeta by right
of representation. His mother, Felipa Cañeta Buesa, who was the only daughter of Eustaquia Cañeta,[4]
predeceased the latter, leaving him as the only... legal heir of Eustaquia. Thus, Pedro Cabais executed a
Deed of Self-Adjudication,[5] adjudicating in his favor subject property. By virtue thereof, Original
Certificate of Title No. RO-3433 (23899) was cancelled and in lieu thereof, the aforementioned... transfer
certificate of title issued in his name.
On October 15, 1979, shortly after Pedro Cabais had adjudicated to himself the property in question, a
complaint for partition and accounting was brought by Simon Bonaobra, Heirs of Victoria Cañeta and
Heirs of Anastacio Cañeta against Pedro Cabais, docketed as Civil Case No.
T-567 before the Regional Trial Court but the plaintiffs were declared non-suited, resulting to the dismissal
of the case.
During the pendency of Civil Case No. T-567, Pedro Cabais died. Whereupon, the respondents herein
entered the property in dispute and constructed houses thereon, depriving petitioners of possession
thereof.
665

On April 15, 1987, petitioners filed with the lower court,[6] Civil Case No. T-1283, for quieting of title,
recovery of possession and ownership with a prayer for preliminary injunction, against the herein
respondents, alleging that the acts of the... latter with regard to the disputed property cast a cloud on their
title thereto. In their Answer, respondents theorized that the petitioners have no cause of action and were
in estoppel, and that the issuance of Transfer Certificate of Title No. 55640 was in derogation of...
respondents' successional rights.
On April 21, 1987, the respondents, Heirs of Victoria Cañeta, Paulino Loria, Jose Loria, Constancia Loria
Vda. de Paglinawan, Emeterio Loria, and spouses Rufino Nicolas and Aurea Goyal, instituted before the
same lower court Civil Case No. T-1284, for annulment of title and... damages, claiming to be co-owners
of subject property. The respondent spouses, Rufino Nicolas and Aurea Goyal, asserted that they bought
806.5 square meters of Lot No. 2119 from Simplicia Casaul. The latter was said to have acquired the said
portion of the lot from Benigno
Bonaobra, who, in turn, acquired the same from Victoria Cañeta and Ciriaca Vda. de Gawan.
Issues:
The main issue for resolution here is whether or not the Order of the lower court reconsidering its Joint
Decision was proper. Firstly, petitioners maintain that the lower court erred in relying on the Baptismal
Certificate[8] of Felipa C. Buesa to... establish the parentage and filiation of Pedro Cabais. They contend
that the grant of the motion for reconsideration and reversal of its own decision were without legal basis. It
is also petitioners' submission that the dismissal of Civil Case No. 567 constituted a bar to Civil
Case No. T-1284 on the ground of res judicata.
Ruling:
Principles:
The Order under attack disregarded the limited evidentiary value of a baptismal certificate in this
jurisdiction vis-à-vis a birth certificate.
A birth certificate, being a public document, offers prima facie evidence of filiation[9] and a high degree of
proof is needed to overthrow the presumption of truth contained in such public document.[10] This is
pursuant to... the rule that entries in official records made in the performance of his duty by a public officer
are prima facie evidence of the facts therein stated.[11] The evidentiary nature of such document must,
therefore, be sustained in the absence of... strong, complete and conclusive proof of its falsity or nullity.
On the contrary, a baptismal certificate, a private document, which, being hearsay, is not a conclusive
proof of filiation.[13] It does not have the same probative value as a record of birth, an official or public
document.[14] In
US vs. Evangelista, this Court held that church registers of births, marriages, and deaths made
subsequent to the promulgation of General Orders No. 68[15] and the passage of Act No. 190,[16] are no
longer public writings, nor... are they kept by duly authorized public officials.[17] Thus, in this jurisdiction, a
certificate of baptism such as the one herein under controversy is no longer regarded with the same
evidentiary value as official records of birth. Moreover, on this score,... jurisprudence is consistent and
uniform in ruling that the canonical certificate of baptism is not sufficient to prove recognition.[1

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO SAN GABRIEL y ORTIZ, defendant-
appellant. GR No. l 107735 FEBRUARY 1, 1996

FACTS: 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. During the trial, the accused leans heavily on the Advance Information Sheet 6 prepared by Pat. Steve
Casimiro which did not mention him at all and named only "Ramon Doe" as the principal suspect. ISSUES:
Whether the Advance Information Sheet is admissible in evidence as an exception to the hearsay rule.
RULING: NO. 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
666

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
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. 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, the alleged eyewitness
who reported the crime to the police, 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.

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.

667

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
668

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.
669

[G.R. No. 122954. February 15, 2000.]

NORBERTO FERIA Y PACQUING, Petitioner, v. THE COURT OF APPEALS, THE DIRECTOR OF

THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL
WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL
TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF MANILA, Respondents.

DECISION

QUISUMBING, J.:

The mere loss or destruction of the records of a criminal case subsequent to conviction of the
accused will not render the judgment of conviction void, nor will it warrant the release of the convict
by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which
is as much a duty of the prosecution as of the defense. chanrobles.com : virtuallawlibrary

Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the
Eighth Division of the Court of Appeals, which affirmed the dismissal of the petition for habeas corpus
filed by petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995, which
denied the Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of
respondent appellate court.

Based on the available records and the admissions of the parties, the antecedents of the present
petition are as follows:
chanrob1es virtual 1aw library

Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to present 1
by reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No. 60677, by
the Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United States
Peace Corps Volunteer Margaret Viviene Carmona.

Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the Manila
City Jail to the Bureau of Corrections in Muntinlupa City, 2 but the Jail Warden of the Manila City Jail
informed the Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be effected
without the submission of the requirements, namely, the Commitment Order or Mittimus, Decision,
and Information. 3 It was then discovered that the entire records of the case, including the copy of
the judgment, were missing. In response to the inquiries made by counsel of petitioner, both the
Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch
2 attested to the fact that the records of Criminal Case No. 60677 could not be found in their
respective offices. Upon further inquiries, the entire records appear to have been lost or destroyed in
the fire which occurred at the second and third floor of the Manila City Hall on November 3, 1986. 4

On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus 5 with the
Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch 2,
Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from
confinement on the ground that his continued detention without any valid judgment is illegal and
violative of his constitutional right to due process.

In its Resolution dated October 10, 1994, 6 the Second Division of this Court resolved —

". . . (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the Regional Trial
Court of Manila to conduct an immediate RAFFLE of this case among the incumbent judges thereof;
and (c) to REQUIRE [1] the Judge to whom this case is raffled to SET the case for HEARING on
Thursday, October 13, 1994 at 8:30 A.M., try and decide the same on the merits and thereafter
FURNISH this Court with a copy of his decision thereon; [2] the respondents to make a RETURN of
the Writ on or before the close of office hours on Wednesday, October 12, 1994 and APPEAR
PERSONALLY and PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date and time
670

of hearing to the Judge to whom this case is raffled, and [3] the Director General, Philippine National
Police, through his duly authorized representative(s) to SERVE the Writ and Petition, and make a
RETURN thereof as provided by law and, specifically, his duly authorized representative(s) to APPEAR
PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the aforesaid date and time
of hearing." chanrobles virtual lawlibrary

The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November 15,
1994, after hearing, issued an Order 7 dismissing the case on the ground that the mere loss of the
records of the case does not invalidate the judgment or commitment nor authorize the release of the
petitioner, and that the proper remedy would be reconstitution of the records of the case which
should be filed with the court which rendered the decision.

Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the
assailed Decision 8 affirming the decision of the trial court with the modification that "in the interest
of orderly administration of justice" and "under the peculiar facts of the case" petitioner may be
transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements
(Mittimus, Decision and Information) but without prejudice to the reconstitution of the original
records.

The Motion for Reconsideration of the aforesaid Order having been denied for lack of merit, 9
petitioner is now before us on certiorari, assigning the following errors of law: 10

I WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS
OF CONVICTION WERE LOST, THE PETITIONER’S CONTINUED INCARCERATION IS JUSTIFIED UNDER
THE LAW.

COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS’ RESOLUTION, AFFIRMING THE
DENIAL OF HEREIN APPELLANT’S PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW,
A JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR
HIS INCARCERATION.

II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/DESTROYED SHOULD BE

INITIATED BY THE GOVERNMENT AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE
PRISONER, WHOSE LIBERTY IS RESTRAINED.

Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as
required by Sections 1 and 2 of Rule 120 of the Rules of Court, 11 and that the evidence considered
by the trial court and Court of Appeals in the habeas corpus proceedings did not establish the
contents of such judgment. Petitioner further contends that our ruling in Gunabe v. Director of
Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution as of
the defense" has been modified or abandoned in the subsequent case of Ordoñez v. Director of
Prisons, 235 SCRA 152, 155 (1994), wherein we held that" [i]t is not the fault of the prisoners that
the records cannot now be found. If anyone is to be blamed, it surely cannot be the prisoners, who
were not the custodians of those records." cralaw virtua1aw library

In its Comment, 12 the Office of the Solicitor General contends that the sole inquiry in this habeas
corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains that
public respondents have more than sufficiently shown the existence of a legal ground for petitioner’s
continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the
Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not
authorized. Petitioner’s remedy, therefore, is not a petition for habeas corpus but a proceeding for
the reconstitution of judicial records. chanroblesvirtuallawlibrary

The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom. 13 It secures to a prisoner the right to have the
cause of his detention examined and determined by a court of justice, and to have the issue
ascertained as to whether he is held under lawful authority. 14 Consequently, the writ may also be
availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose
the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such
excess. 15 Petitioner’s claim is anchored on the first ground considering, as he claims, that his
continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative
of his constitutional right to due process.
671

Based on the records and the hearing conducted by the trial court, there is sufficient evidence on
record to establish the fact of conviction of petitioner which serves as the legal basis for his
detention. Petitioner made judicial admissions, both verbal and written, that he was charged with and
convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang
buhay" .

In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that —16

"During the trial and on manifestation and arguments made by the accused, his learned counsel and
Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears clear and indubitable
that: chanrob1es virtual 1aw library

(A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal
Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867. .
. . In Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a
decision was read to him in open Court by a personnel of the respondent Court (RTC Branch II)
sentencing him to Life Imprisonment (Habang buhay) . . ." (Emphasis supplied) chanrobles virtuallawlibrary

Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal
Case dated June 8, 1993, 17 petitioner himself stated that —

"COMES NOW, the undersigned accused in the above entitled criminal case and unto this Honorable
Court most respectfully move: chanrob1es virtual 1aw library

1. That in 1981 the accused was charge of (sic) Robbery with Homicide;

2. That after four years of trial, the court found the accused guilty and given a Life Sentence in a
promulgation handed down in 1985; (Emphasis supplied)

3. That after the sentence was promulgated, the Presiding Judge told the councel (sic) that accused
has the right to appeal the decision;

4. That whether the de officio counsel appealed the decision is beyond the accused comprehension
(sic) because the last time he saw the counsel was when the decision was promulgated.

5. That everytime there is change of Warden at the Manila City Jail attempts were made to get the
Commitment Order so that transfer of the accused to the Bureau of Corrections can be affected, but
all in vain;"

Petitioner’s declarations as to a relevant fact may be given in evidence against him under Section 23
of Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would declare
anything against himself, unless such declaration were true, 18 particularly with respect to such
grave matter as his conviction for the crime of Robbery with Homicide. Further, under Section 4 of
Rule 129," [a]n admission, verbal or written, made by a party in the course of the proceedings in the
same case, does not require proof. The admission may be contradicted only by a showing that it was
made through palpable mistake or that no such admission was made." Petitioner does not claim any
mistake nor does he deny making such admissions.

The records also contain a certified true copy of the Monthly Report dated January 1985 19 of then
Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of Robbery
with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official records
under Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facie evidence of facts
therein stated. chanrobles virtual lawlibrary

Public respondents likewise presented a certified true copy of People’s Journal dated January 18,
1985, page 2, 20 issued by the National Library, containing a short news article that petitioner was
convicted of the crime of Robbery with Homicide and was sentenced to "life imprisonment." However,
newspaper articles amount to "hearsay evidence, twice removed" 21 and are therefore not only
inadmissible but without any probative value at all whether objected to or not, 22 unless offered for a
purpose other than proving the truth of the matter asserted. In this case, the news article is
admissible only as evidence that such publication does exist with the tenor of the news therein
stated.

As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner
who attacks such restraint. In other words, where the return is not subject to exception, that is,
672

where it sets forth process which on its face shows good ground for the detention of the prisoner, it
is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent
effect of such process. 23 If the detention of the prisoner is by reason of lawful public authority, the
return is considered prima facie evidence of the validity of the restraint and the petitioner has the
burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of
Court provides: jgc:chanrobles.com.ph

"SECTION 13. When the return evidence, and when only a plea. — If it appears that the prisoner is in
custody under a warrant of commitment in pursuance of law, the return shall be considered prima
facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private
authority, the return shall be considered only as a plea of the facts therein set forth, and the party
claiming the custody must prove such facts." cralaw virtua1aw library

Public respondents having sufficiently shown good ground for the detention, petitioner’ s release from
confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which provides that
—

"SECTION 4. When writ not allowed or discharge authorized. — If it appears that the person alleged
to be restrained of his liberty is in the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction
to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment." cralaw virtua1aw library

In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), Accused was convicted by the trial
court of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the
Court of Appeals, the records of the case were, for reasons undisclosed, completely destroyed or lost.
Accused then filed a petition for the issuance of the writ of habeas corpus with the Supreme Court.
The Court denied the petition, ruling thus: jgc:chanrobles.com.ph

"The petition does not make out a case. The Director of Prisons is holding the prisoner under process
issued by a competent court in pursuance of a lawful, subsisting judgment. The prisoner himself
admits the legality of his detention. The mere loss or destruction of the record of the case does not
invalidate the judgment or the commitment, or authorize the prisoner’s release."  chanrobles virtuallawlibrary

Note further that, in the present case, there is also no showing that petitioner duly appealed his
conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment
has already become final and executory. When a court has jurisdiction of the offense charged and of
the party who is so charged, its judgment, order, or decree is not subject to collateral attack by
habeas corpus. 24 Put another way, in order that a judgment may be subject to collateral attack by
habeas corpus, it must be void for lack of jurisdiction. 25 Thus, petitioner’s invocation of our ruling in
Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and ordered
the release of the prisoner on the ground that" [i]t does not appear that the prisoner has been
sentenced by any tribunal duly established by a competent authority during the enemy occupation"
and not because there were no copies of the decision and information. Here, a copy of the mittimus
is available. And, indeed, petitioner does not raise any jurisdictional issue.

The proper remedy in this case is for either petitioner or public respondents to initiate the
reconstitution of the judgment of the case under either Act No. 3110, 26 the general law governing
reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time
the records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court.
27 Judicial records are subject to reconstitution without exception, whether they refer to pending
cases or finished cases. 28 There is no sense in limiting reconstitution to pending cases; finished
cases are just as important as pending ones, as evidence of rights and obligations finally adjudicated.
29

Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the
missing records of the trial court. We reiterate, however, that "reconstitution is as much the duty of
the prosecution as of the defense." 30 Petitioner’s invocation of Ordoñez v. Director of Prisons, 235
SCRA 152 (1994), is misplaced since the grant of the petition for habeas corpus therein was
premised on the loss of records prior to the filing of Informations against the prisoners, and
therefore" [t]he government has failed to show that their continued detention is supported by a valid
conviction or by the pendency of charges against them or by any legitimate cause whatsoever." In
673

this case, the records were lost after petitioner, by his own admission, was already convicted by the
trial court of the offense charged. Further, the same incident which gave rise to the filing of the
Information for Robbery with Homicide also gave rise to another case for Illegal Possession of
Firearm, 31 the records of which could be of assistance in the reconstitution of the present case.

WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is
AFFIRMED. chanrobles virtuallawlibrary

SO ORDERED.

Feria vs CA, GR No. 122954, February 15, 2000; 525 SCRA 525_digested
Posted by Pius Morados on April 29, 2012
(Special Proceedings –Habeas Corpus)

Facts: After discovering that his entire criminal records, including the copy of the judgment, was lost or destroyed,
petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus with the SC against the Jail Warden of the Manila
City Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for
his discharge from confinement on the ground that his continued detention without any valid judgment is illegal and
violative of his constitutional right to due process.

The RTC dismissed the case on the ground that the mere loss of the records of the case does not invalidate the judgment
or commitment nor authorize the release of the petitioner, and that the proper remedy would be reconstitution of the
records of the case which should be filed with the court which rendered the decision.

Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as required by Sections 1
and 2 of Rule 120 of the Rules of Court, and that the evidence considered by the trial court and Court of Appeals in the
habeas corpus proceedings did not establish the contents of such judgment.

In a comment, OSG maintains that public respondents have more than sufficiently shown the existence of a legal ground
for petitioner’s continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the
Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not authorized.

Issue: WON there is legal basis to detain petitioner after the destruction or loss of his criminal records.

Held: Yes. The writ of habeas corpus, was devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of personal freedom. It secures to a prisoner the right to
have the cause of his detention examined and determined by a court of justice, and to have the issue ascertained as to
whether he is held under lawful authority. Consequently, the writ may also be availed of where, as a consequence of a
judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person, (b) the
court had no jurisdiction to impose the sentence, or (c) an excessive penalty has been imposed, as such sentence is void
as to such excess. Petitioner’s claim is anchored on the first ground considering, as he claims, that his continued
detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative of his constitutional right to
due process.Based on the records and the hearing conducted by the trial court, there is sufficient evidence on record to
establish the fact of conviction of petitioner which serves as the legal basis for his detention.

As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such
restraint. In other words, where the return is not subject to exception, that is, where it sets forth process which on its
face shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter
that tends to invalidate the apparent effect of such process. If the detention of the prisoner is by reason of lawful public
authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden
of proof to show that the restraint is illegal.

When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order, or decree is
not subject to collateral attack by habeas corpus.

1. Rule 130 Section 45 – Commercial List

Meralco v. Quisumbing (336 SCRA 172)

G.R. No. 127598           February 22, 2000

674

MANILA ELECTRIC COMPANY, petitioner,

vs.
Hon. SECRETARY OF LABOR LEONARDO QUISUMBING and MERALCO EMPLOYEES and WORKERS
ASSOCIATION (MEWA), respondent.

RESOLUTION

YNARES-SANTIAGO, J.:

In the Decision promulgated on January 27, 1999, the Court disposed of the case as follows:

WHEREFORE, the petition is granted and the orders of public respondent Secretary of Labor dated August
19, 1996 and December 28, 1996 are set aside to the extent set forth above. The parties are directed to
execute a Collective Bargaining Agreement incorporating the terms and conditions contained in the
unaffected portions of the Secretary of Labor's orders of August 19, 1996 and December 28, 1996, and the
modifications set forth above. The retirement fund issue is remanded to the Secretary of Labor for reception
of evidence and determination of the legal personality of the MERALCO retirement fund. 1

The modifications of the public respondent's resolutions include the following:

January 27, 1999 decision Secretary's resolution

Wages - P1,900.00 for 1995-96 P2,200.00
X'mas bonus - modified to one month 2 months
Retirees - remanded to the Secretary granted
Loan to coops - denied granted
GHSIP, HMP and
Housing loans - granted up to P60,000.00 granted
Signing bonus - denied granted
Union leave - 40 days (typo error) 30 days
High voltage/pole - not apply to those who are members of a team
not exposed to the risk
Collectors - no need for cash bond, no
need to reduce quota and MAPL
CBU - exclude confidential employees include
Union security - maintenance of membership closed shop
Contracting out - no need to consult union consult first
All benefits - existing terms and conditions all terms
Retroactivity - Dec. 28, 1996-Dec. 27, 199(9) from Dec. 1, 1995

Dissatisfied with the Decision, some alleged members of private respondent union (Union for brevity) filed a motion
for intervention and a motion for reconsideration of the said Decision. A separate intervention was likewise made by
the supervisor's union (FLAMES2) of petitioner corporation alleging that it has bona fide legal interest in the outcome
of the case.3 The Court required the "proper parties" to file a comment to the three motions for reconsideration but
the Solicitor-General asked that he be excused from filing the comment because the "petition filed in the instant
case was granted" by the Court.4 Consequently, petitioner filed its own consolidated comment. An "Appeal Seeking
Immediate Reconsideration" was also filed by the alleged newly elected president of the Union. 5 Other subsequent
pleadings were filed by the parties and intervenors.

The issues raised in the motions for reconsideration had already been passed upon by the Court in the January 27,
1999 decision. No new arguments were presented for consideration of the Court. Nonetheless, certain matters will
be considered herein, particularly those involving the amount of wages and the retroactivity of the Collective
Bargaining Agreement (CBA) arbitral awards.

Petitioner warns that if the wage increase of P2,200.00 per month as ordered by the Secretary is allowed, it would
simply pass the cost covering such increase to the consumers through an increase in the rate of electricity. This is
a non sequitur. The Court cannot be threatened with such a misleading argument. An increase in the prices of
electric current needs the approval of the appropriate regulatory government agency and does not automatically
result from a mere increase in the wages of petitioner's employees. Besides, this argument presupposes that
675

petitioner is capable of meeting a wage increase. The All Asia Capital report upon which the Union relies to support
its position regarding the wage issue cannot be an accurate basis and conclusive determinant of the rate of wage
increase. Section 45 of Rule 130 Rules of Evidence provides:

Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other published compilation is admissible as tending to
prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged
in that occupation and is generally used and relied upon by them therein.

Under the afore-quoted rule, statement of matters contained in a periodical, may be admitted only "if that
compilation is published for use by persons engaged in that occupation and is generally used and relied upon by
them therein." As correctly held in our Decision dated January 27, 1999, the cited report is a mere newspaper
account and not even a commercial list. At most, it is but an analysis or opinion which carries no persuasive weight
for purposes of this case as no sufficient figures to support it were presented. Neither did anybody testify to its
accuracy. It cannot be said that businessmen generally rely on news items such as this in their occupation. Besides,
no evidence was presented that the publication was regularly prepared by a person in touch with the market and
that it is generally regarded as trustworthy and reliable. Absent extrinsic proof of their accuracy, these reports are
not admissible.6 In the same manner, newspapers containing stock quotations are not admissible in evidence when
the source of the reports is available. 7 With more reason, mere analyses or projections of such reports cannot be
admitted. In particular, the source of the report in this case can be easily made available considering that the same
is necessary for compliance with certain governmental requirements.

Nonetheless, by petitioner's own allegations, its actual total net income for 1996 was P5.1 billion. 8 An estimate by
the All Asia financial analyst stated that petitioner's net operating income for the same year was about P5.7 billion, a
figure which the Union relies on to support its claim. Assuming without admitting the truth thereof, the figure is higher
than the P4.171 billion allegedly suggested by petitioner as its projected net operating income. The P5.7 billion
which was the Secretary's basis for granting the P2,200.00 is higher than the actual net income of P5.1 billion
admitted by petitioner. It would be proper then to increase this Court's award of P1,900.00 to P2,000.00 for the two
years of the CBA award. For 1992, the agreed CBA wage increase for rank-and-file was P1,400.00 and was
reduced to P1,350.00; for 1993; further reduced to P1,150.00 for 1994. For supervisory employees, the agreed
wage increase for the years 1992-1994 are P1,742.50, P1,682.50 and P1,442.50, respectively. Based on the
foregoing figures, the P2,000.00 increase for the two-year period awarded to the rank-and-file is much higher than
the highest increase granted to supervisory employees. 9 As mentioned in the January 27, 1999 Decision, the Court
does "not seek to enumerate in this decision the factors that should affect wage determination" because collective
bargaining disputes particularly those affecting the national interest and public service "requires due consideration
and proper balancing of the interests of the parties to the dispute and of those who might be affected by the
dispute."10 The Court takes judicial notice that the new amounts granted herein are significantly higher than the
weighted average salary currently enjoyed by other rank-and-file employees within the community. It should be
noted that the relations between labor and capital is impressed with public interest which must yield to the common
good.11 Neither party should act oppressively against the other or impair the interest or convenience of the
public.12 Besides, matters of salary increases are part of management prerogative. 13

On the retroactivity of the CBA arbitral award, it is well to recall that this petition had its origin in the renegotiation of
the parties' 1992-1997 CBA insofar as the last two-year period thereof is concerned. When the Secretary of Labor
assumed jurisdiction and granted the arbitral awards, there was no question that these arbitral awards were to be
given retroactive effect. However, the parties dispute the reckoning period when retroaction shall commence.
Petitioner claims that the award should retroact only from such time that the Secretary of Labor rendered the award,
invoking the 1995 decision in Pier 8 case14 where the Court, citing Union of Filipino Employees v. NLRC,15 said:

The assailed resolution which incorporated the CBA to be signed by the parties was promulgated on June 5,
1989, the expiry date of the past CBA. Based on the provision of Section 253-A, its retroactivity should be
agreed upon by the parties. But since no agreement to that effect was made, public respondent did not
abuse its discretion in giving the said CBA a prospective effect. The action of the public respondent is within
the ambit of its authority vested by existing law.

On the other hand, the Union argues that the award should retroact to such time granted by the Secretary, citing the
1993 decision of St. Luke's.16

Finally, the effectivity of the Order of January 28, 1991, must retroact to the date of the expiration of the
previous CBA, contrary to the position of petitioner. Under the circumstances of the case, Article 253-A
cannot be properly applied to herein case. As correctly stated by public respondent in his assailed Order of
April 12, 1991 dismissing petitioner's Motion for Reconsideration —

Anent the alleged lack of basis for the retroactivity provisions awarded; we would stress that the
provision of law invoked by the Hospital, Article 253-A of the Labor Code, speaks of agreements by
and between the parties, and not arbitral awards . . .
676

Therefore, in the absence of a specific provision of law prohibiting retroactivity of the effectivity of arbitral
awards issued by the Secretary of Labor pursuant to Article 263(g) of the Labor Code, such as herein
involved, public respondent is deemed vested with plenary and discretionary powers to determine the
effectivity thereof.

In the 1997 case of Mindanao Terminal,17 the Court applied the St. Luke's doctrine and ruled that:

In St. Luke's Medical Center v. Torres, a deadlock also developed during the CBA negotiations between
management and the union. The Secretary of Labor assumed jurisdiction and ordered the retroaction of the
CBA to the date of expiration of the previous CBA. As in this case, it was alleged that the Secretary of Labor
gravely abused its discretion in making his award retroactive. In dismissing this contention this Court held:

Therefore, in the absence of a specific provision of law prohibiting retroactive of the effectivity of
arbitral awards issued by the Secretary of Labor pursuant to Article 263(g) of the Labor Code, such
as herein involved, public respondent is deemed vested with plenary and discretionary powers to
determine the effectivity thereof.

The Court in the January 27, 1999 Decision, stated that the CBA shall be "effective for a period of 2 years counted
from December 28, 1996 up to December 27, 1999." Parenthetically, this actually covers a three-year period. Labor
laws are silent as to when an arbitral award in a labor dispute where the Secretary had assumed jurisdiction by
virtue of Article 263 (g) of the Labor Code shall retroact. In general, a CBA negotiated within six months after the
expiration of the existing CBA retroacts to the day immediately following such date and if agreed thereafter, the
effectivity depends on the agreement of the parties. 18 On the other hand, the law is silent as to the retroactivity of a
CBA arbitral award or that granted not by virtue of the mutual agreement of the parties but by intervention of the
government. Despite the silence of the law, the Court rules herein that CBA arbitral awards granted after six months
from the expiration of the last CBA shall retroact to such time agreed upon by both employer and the employees or
their union. Absent such an agreement as to retroactivity, the award shall retroact to the first day after the six-month
period following the expiration of the last day of the CBA should there be one. In the absence of a CBA, the
Secretary's determination of the date of retroactivity as part of his discretionary powers over arbitral awards shall
control.

It is true that an arbitral award cannot per se be categorized as an agreement voluntarily entered into by the parties
because it requires the interference and imposing power of the State thru the Secretary of Labor when he assumes
jurisdiction. However, the arbitral award can be considered as an approximation of a collective bargaining
agreement which would otherwise have been entered into by the parties. 19 The terms or periods set forth in Article
253-A pertains explicitly to a CBA. But there is nothing that would prevent its application by analogy to an arbitral
award by the Secretary considering the absence of an applicable law. Under Article 253-A: "(I)f any such agreement
is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof." In other words, the
law contemplates retroactivity whether the agreement be entered into before or after the said six-month period. The
agreement of the parties need not be categorically stated for their acts may be considered in determining the
duration of retroactivity. In this connection, the Court considers the letter of petitioner's Chairman of the Board and
its President addressed to their stockholders, which states that the CBA "for the rank-and-file employees covering
the period December 1, 1995 to November 30, 1997 is still with the Supreme Court," 20 as indicative of petitioner's
recognition that the CBA award covers the said period. Earlier, petitioner's negotiating panel transmitted to the
Union a copy of its proposed CBA covering the same period inclusive. 21 In addition, petitioner does not dispute the
allegation that in the past CBA arbitral awards, the Secretary granted retroactivity commencing from the period
immediately following the last day of the expired CBA. Thus, by petitioner's own actions, the Court sees no reason
to retroact the subject CBA awards to a different date. The period is herein set at two (2) years from December 1,
1995 to November 30, 1997.

On the allegation concerning the grant of loan to a cooperative, there is no merit in the union's claim that it is no
different from housing loans granted by the employer. The award of loans for housing is justified because it pertains
to a basic necessity of life. It is part of a privilege recognized by the employer and allowed by law. In contrast,
providing seed money for the establishment of the employee's cooperative is a matter in which the employer has no
business interest or legal obligation. Courts should not be utilized as a tool to compel any person to grant loans to
another nor to force parties to undertake an obligation without justification. On the contrary, it is the government that
has the obligation to render financial assistance to cooperatives and the Cooperative Code does not make it an
obligation of the employer or any private individual. 22

Anent the 40-day union leave, the Court finds that the same is a typographical error. In order to avoid any confusion,
it is herein declared that the union leave is only thirty (30) days as granted by the Secretary of Labor and affirmed in
the Decision of this Court.

The added requirement of consultation imposed by the Secretary in cases of contracting out for six (6) months or
more has been rejected by the Court. Suffice it to say that the employer is allowed to contract out services for six
months or more. However, a line must be drawn between management prerogatives regarding business
operations per se and those which affect the rights of employees, and in treating the latter, the employer should see
677

to it that its employees are at least properly informed of its decision or modes of action in order to attain a
harmonious labor-management relationship and enlighten the workers concerning their rights. 23 Hiring of workers is
within the employer's inherent freedom to regulate and is a valid exercise of its management prerogative subject
only to special laws and agreements on the matter and the fair standards of justice. 24 The management cannot be
denied the faculty of promoting efficiency and attaining economy by a study of what units are essential for its
operation. It has the ultimate determination of whether services should be performed by its personnel or contracted
to outside agencies. While there should be mutual consultation, eventually deference is to be paid to what
management decides.25 Contracting out of services is an exercise of business judgment or management
prerogative.26 Absent proof that management acted in a malicious or arbitrary manner, the Court will not interfere
with the exercise of judgment by an employer. 27 As mentioned in the January 27, 1999 Decision, the law already
sufficiently regulates this matter.28 Jurisprudence also provides adequate limitations, such that the employer must be
motivated by good faith and the contracting out should not be resorted to circumvent the law or must not have been
the result of malicious or arbitrary actions.29 These are matters that may be categorically determined only when an
actual suit on the matter arises.

WHEREFORE, the motion for reconsideration is PARTIALLY GRANTED and the assailed Decision is MODIFIED as
follows: (1) the arbitral award shall retroact from December 1, 1995 to November 30, 1997; and (2) the award of
wage is increased from the original amount of One Thousand Nine Hundred Pesos (P1,900.00) to Two Thousand
Pesos (P2,000.00) for the years 1995 and 1996. This Resolution is subject to the monetary advances granted by
petitioner to its rank-and-file employees during the pendency of this case assuming such advances had actually
been distributed to them. The assailed Decision is AFFIRMED in all other respects. 1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Melo, Kapunan and Pardo, JJ., concur.

MANILA ELECTRIC COMPANY, petitioner, -versus- Hon. SECRETARY OF LABOR LEONARDO

QUISUMBING and MERALCO EMPLOYEES and WORKERS ASSOCIATION (MEWA), respondent.
G.R. No. 127598, SPECIAL FIRST DIVISION, February 22, 2000, YNARES-SANTIAGO, J.
DEAN’S CIRCLE 2019 – UST FACULTY OF CIVIL LAW
163
Section 45 of Rule 130 Rules of Evidence provides:
“Commercial lists and the like.—–Evidence of statements of matters of interest to persons engaged in
an occupation contained in a list, register, periodical, or other published compilation is admissible as
tending to prove the truth of any relevant matter so stated if that compilation is published for use by
persons engaged in that occupation and is generally used and relied upon by them therein.”
Under the afore-quoted rule, statement of matters contained in a periodical may be admitted only “if
that compilation is published for use by persons engaged in that occupation and is generally used and
relied upon by them therein.”
FACTS:
Manila Electric Company (MERALCO) and its union Meralco Employees and Workers Association
(MEWA) renegotiated its 1992-1997 CBA insofar as the last two-year period was concerned. The
Secretary of Labor assumed jurisdiction and granted the arbitral awards. There was no question that
these arbitral awards were to be given retroactive effect.
However, the parties dispute the reckoning period when retroaction shall commence. Meralco claims
that the award should retroact only from such time that the Secretary of Labor rendered the award.
The union argues should retroact to such time granted by the Secretary who has plenary and
discretionary power to determine the effectivity of the arbitral award. The union cited the case of St.
Luke’s and Mindanao Terminal where the Secretary ordered the retroaction of the CBA to the date
of expiration of the previous CBA. While the All Asia Capital report was used to support its position
regarding the wage issue.
ISSUE:
Whether or not the All Asia Capital report may be an accurate basis and conclusive determinant of
the rate of wage issue.
RULING:
Section 45 of Rule 130 Rules of Evidence provides:
“Commercial lists and the like.—–Evidence of statements of matters of interest to persons engaged in
an occupation contained in a list, register, periodical, or other published compilation is admissible as
tending to prove the truth of any relevant matter so stated if that compilation is published for use by
persons engaged in that occupation and is generally used and relied upon by them therein.”
Under the afore-quoted rule, statement of matters contained in a periodical may be admitted only “if
678

that compilation is published for use by persons engaged in that occupation and is generally used
and relied upon by them therein.”
As correctly held in our Decision dated January 27, 1999, the cited report is a mere newspaper
account and not even a commercial list. At most, it is but an analysis or opinion which carries no
persuasive weight for purposes of this case as no sufficient figures to support it were presented.
Neither did anybody testify to its accuracy. It cannot be said that businessmen generally rely on news
items such as this in their occupation. Besides, no evidence was presented that the publication was
DEAN’S CIRCLE 2019 – UST FACULTY OF CIVIL LAW
164
regularly prepared by a person in touch with the market and that it is generally regarded as
trustworthy and reliable. Absent extrinsic proof of their accuracy, these reports are not admissible.
In the same manner, newspapers containing stock quotations are not admissible in evidence when
the source of the reports is available. With more reason, mere analyses or projections of such reports
cannot be admitted. In particular, the source of the report in this case can be easily made available
considering that the same is necessary for compliance with certain governmental requirements

1. Rule 130 Section 47 – Testimony or Deposition at Formal Proceeding

People v. De Leon (210 SCRA 151 [1992]

G.R. No. L-66020 June 22, 1992

FLAVIO DE LEON, GREGORIO DE LEON and APOLONIO SANTOS, petitioners,

vs.
THE PEOPLE OF THE PHILIPPINES, and INTERMEDIATE APPELLATE COURT, respondents.

GUTIERREZ, JR., J.:

This is a petition for review seeking the reversal of the decision of the Intermediate Appellate Court of Appeals in
A.C.-G.R. No. 23524 entitled Flavio de Leon, et al. v. People which affirmed the decision of the Court of First
Instance of Rizal, Branch XIII convicting the petitioners of the crime of homicide and sentencing them to suffer the
indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal as maximum and to indemnify the heirs of the victim.

The facts as established by the trial court and adopted by the Court of Appeals are as follows:

From the testimony of Dr. Mariano Cueva, Jr., Medico-legal Officer of the NBI, it was established
that a post-mortem examination of the body of Benjamin Aguinaldo was conducted and pictures of
the cadaver were taken (Exhibit A, A-1 to A-5). As a result of his examination, he found on the body
of the deceased nine (9) separate and distinct gunshot wounds, seven (7) of which constituted
entrance and exit wounds; and two (2) entrances wherein at the end were bullet tracks, two (2) slugs
of which were recovered and these slugs were found to be of .45 caliber bullets (Exhibits C and C-
1). (pp. 9-18, tsn, Jan. 9, 1973). Two of the gunshot wounds had entrances at the back of the
deceased. There were two (2) fatal wounds, one (1) at the lower lip which fractured the lower jaw
and one at the back of the body just below the left shoulder blade which broke a rib, perforated the
left lung and heart. The approximate distance of the assailant to the deceased was beyond twenty-
four (24) inches since the entrance (sic) of the bullets were clean cut (pp. 20-30, tsn, Jan. 30, 1973)

Mariano Mata, Jr., an NBI Agent, substantially testified that he received a sworn complaint from one
Teresa Aguinaldo in connection with the death of her husband Benjamin Aguinaldo (Exhibit D). Their
office conducted an investigation and in the course thereof, they were able to secure the sworn
testimony if three (3) witnesses, namely, Ricardo Reyes y Ancheta; Marcelino Quinto, Jr. y Taylo;
and Eduardo Flores y Garcia (pp. 2-48, tsn, Jan. 11, 1973). From these sworn statements, they
extracted the following:

Ricardo Reyes pointed to Flavio de Leon, Gregorio de Leon and Apolonio Santos as three (3) of the
five (5) men who had forcibly taken Benjamin Aguinaldo in the evening of March 2, 1970 and that
was the last time Aguinaldo was seen alive (Exhibit E). Reyes Identified the three (3) accused and
was corroborated by Marcelino Quinto, Jr., who saw the three (3) accused with Aguinaldo in a jeep
which was then driven by Flavio de Leon (Exhibit G). On the other hand, Eduardo Flores testified
that in the evening of March 2, 1970, while inside his house, he heard some commotion outside but
was not able to go out to inquire about it as his wife prevented him. The following morning, however,
679

he learned from Isidro Ramos that Benjamin Aguinaldo was manhandled by Flavio de Leon and
Gregorio de Leon and others whom he could not identify (Exh. F). A rough sketch was prepared
wherein Reyes and Quinto indicated the position of Aguinaldo who was being forcibly taken by five
(5) men and the relative position of the jeep driven by Flavio de Leon while in the vicinity of San
Dionisio, Parañaque, Rizal. The corresponding report on the result of the investigation and a letter
for the corresponding filing of criminal charges were sent by the NBI to the provincial Fiscal of Rizal
(Exhibits H and I).

Teresita Aguinaldo, wife of the victim, Benjamin Aguinaldo, testified that on March 2,1970 her
husband, Benjamin, left their residence at Zapote, Bacoor, Cavite, driving a PUJ jeepney owned by
Isidro Ramos plying the Bacoor-Cubao route. When Benjamin Aguinaldo failed to return that night,
she made inquiries the following morning as to the whereabouts of her husband. She went to the
house of Ricardo Reyes at Pulang Lupa, Las Piñas, Parañaque. She was advised to ask Isidro
Ramos to accompany her to Flavio de Leon to find out where Benjamin was taken. Isidro Ramos,
however, denied knowledge about the whereabouts of Benjamin Aguinaldo. Ramos thereafter
accompanied her to see Flavio de Leon who, however, could not give any information because he
(Flavio de Leon) was allegedly playing mahjong on March 2. 1970 (pp. 3-13, tsn, Feb. 26, 1973). On
the way home, a school boy from Sto. Niño informed her that a cadaver was found on the garbage
dumping area at Wawa, Sto. Niño. She immediately proceeded to the Municipal Hall of Parañaque
to verify the information. but she will informed that the body had been transferred to Funeraria
Popular. She went to said funeral parlor where she saw the body of the man burned beyond
recognition. But she recognized the cadaver as that of her husband who has small toes on both the
right and left feet which are similar to Benjamin's mother (pp. 16-18, tsn, Feb. 26, 1973).

In connection with the investigation of both Reyes and Quinto before then Assistant Fiscal Luis
Victor, she was able to secure the stenographic transcript of said preliminary investigation and that
both Reyes and Quinto are now deceased.

Aquilina Quinto testified that the last time she saw her son Marcelino Quinto, Jr., was on April 14,
1971, when he left for work. Two (2) days thereafter, several men, some of whom were in PC
uniforms, told her that her son just died. They could not tell the cause of her son's death (pp. 209,
tsn, July 3, 1973).

Anita Reyes testified that Benjamin Aguinaldo is the compadre of her late husband Ricardo, Reyes.
After the burial of Benjamin Aguinaldo, the mother of Benjamin went to their house at San Dionisio,
Parañaque, to request her husband to testify about the death of Benjamin. Her husband agreed to
do so. Later, a group of men, some of whom were in PC uniforms, attempted to take her husband
Ricardo from their house, but she vehemently refused to let go of Ricardo. The following morning,
she reported the incident to Mrs. Rosalinda Aguinaldo, who thereafter, provided them a place at 57
Araneta Avenue, Quezon City to live in. Marcelino Quinto, Jr. never stayed at their place, but he only
went there whenever an investigation was to be conducted by Fiscal Victor. There was also another
occasion when a group of men claiming to be CIS agents had a talk with her husband Ricardo who
later recounted to her that the group of men had told him to desist from testifying in favor of Mrs.
Aguinaldo. It was sometime thereafter when she was informed by the Bacoor Police that her
husband was shot and killed at Bacoor. Her husband was identified thru his drivers license (pp. 4-17,
tsn, May 9, 1973). Her husband, Ricardo, was once confined at the Bulacan Provincial Jail at
Malolos for involvement in a hold-up. Her husband's real name was Reynaldo but he was later
baptized as Ricardo. (pp. 20-30, tsn, May 9, 1973)

Angeles Vicencio testified that he is the stenographer who took down the stenographic notes of the
preliminary investigation conducted before Fiscal Luis Victor under IS No. 70-1193,
entitled 'Rosalinda Panganiban vs. Flavio de Leon, et. al.' In this preliminary investigation, Ricardo
Reyes and Marcelino Quinto, Jr., testified under oath regarding the circumstances under which they
saw Benjamin Aguinaldo in the company of the three (3) accused and with two (2) other unidentified
persons. These two (2) prosecution witnesses were cross-examined by counsel for all the accused.
There were six (6) sessions in this preliminary investigation, namely, on May 7, 14, 20, and June 9,
24 and July 27, 1970, the transcripts of which were secured by both complainant and respondents
(Exhibit L, L-1 to L-6; pp. 18-28, tsn, Aug. 15, 1973).

Isidro Ramos testified that he is a jeepney operator and employer of the late Benjamin Aguinaldo.
He had no knowledge about the abduction and killing of Benjamin Aguinaldo. He saw Benjamin
Aguinaldo in the evening of March 2, 1970 when the latter came to remit the day's boundary and to
return the radio and jeepney. After Benjamin left, he (Isidro, Ramos) went to sleep. He described his
house and garage. The walls of his house fronting Daanan Street consist of eight (8) layers of hollow
blocks, and the front has a steel gate. On the eastern side, is a wall consisting of eight (8) layers of
hollow blocks. The fence of the garage is lower than the jeepney, but the roof of the jeepney could
be seen outside. If one is outside, however, he will not see the people inside the jeepney as only the
roof could be seen.
680

Rosalinda Aguinaldo testified that she is the mother of the late Benjamin Aguinaldo who was found
dead in the garbage dumping area in Wawa, Sto. Niño, Parañaque. Ricardo Reyes and his family
stayed at their residence at Araneta Avenue, Quezon City. for several months because of the threats
on Reyes' life as a result of his testifying against the accused in this case. During this period when
Reyes was staying with her, there were two (2) occasions when a group of men came to her house
to inquire about the whereabouts of Reyes (pp. 1-11, tsn, June 25, 1973).

From the transcripts of stenographic notes of the proceedings at the preliminary investigation
(Exhibits L, L-1 to L-6), the following facts were testified to by Ricardo Reyes, now deceased:

At about 6:30 in the afternoon of March 2, 1970, he was with Benjamin Aguinaldo, a PUJ jeep driver
plying the route at Baclaran. He had known Aguinaldo at that time for approximately seven (7)
months, On that date, they made several trips, the first was at Baclaran-Cubao route and back; the
second was in Quiapo (sic) and then back to Baclaran; the third was to Sta. Cruz; and the fourth was
to Divisoria. By the time they were back at Baclaran, it was about quarter to 10:00 P.M. At that time,
Aguinaldo decided to return the jeepney to its owner, Isidro Ramos at Sto. Niño. When they were
about thirty (30) meters from the house of Ramos, Aguinaldo gave him P0.60 to buy one-half (1/2)
pack of cigarettes. He got out of the jeep and went to two (2) stores, but they were already closed,
so he walked towards the garage. When he had about twenty (20) meters away, he saw five (5) men
in a jeep approach Aguinaldo who had parked his jeep. He moved closer and sought cover on the
fence of a house just across the house of Ramos about ten (10) meters away. Four (4) men
surrounded the jeepney where Aguinaldo was and Gregorio de Leon hit Aguinaldo with the butt of a .
45 caliber pistol. When Aguinaldo protested, Gregorio hit him again. Thereafter, Isidro Ramos and
his wife came out of the house and decided to interfere but were unable to do anything. Apolonio
Santos, a Barrio Policeman, boarded the jeepney and helped push Aguinaldo out of the vehicle.
Aguinaldo was dragged by Gregorio de Leon and two (2) other men towards the other jeep where
Flavio de Leon was waiting. Apolonio Santos at that time was holding a revolver. Aguinaldo was
placed in between the two (2) men at the back seat with Apolonio Santos seated beside him.
Gregorio sat beside Santos. Flavio then started the engine and passed the portion of the road he
was hidden (sic) proceeding towards the dumping area. He witnessed the incident because the
fence along the side of the house of Ramos is made of hollow blocks about two (2) and one-half
(1/2) feet high on top of it. After a few minutes he left his hiding place and walked along Daan Ilaya
going towards the main road when he heard five (5) shots in succession coming from the direction of
the dumping area. He got apprehensive, and hid himself at the compound of a school which was
about eighty (80) meters away from the dumping area. After several minutes, he walked towards the
national road where he boarded a jeepney and went home. He did not report what he saw because
of fear. The following morning, that is March 3, 1970, Teresita Aguinaldo, wife of Benjamin
Aguinaldo, went to his house accompanied by a certain Eddie to inquire about her husband. He
advised Teresita to inquire from Mang Abio (Flavio de Leon) and in the afternoon of the same day,
Teresita returned to him saying that Mang Abio denied knowing where her husband was. It was only
at that moment when Teresita was told of the incident he witnessed the night before. Flavio de Leon
is the father of Gregorio de Leon.

Likewise, on the basis of the transcript presented by the prosecution, the following facts appear to
have been testified to by Marcelino Quinto, Jr., at the preliminary investigation:

Sometime on March 2, 1970, he went to Wawa to look for Efren Zamora who just won in a race bet,
but was not able to see him. That evening, he saw Mang Abio, Apolonio, Goring and Benjamin
Aguinaldo on board a jeep. He was then at that time coming out of Wawa proceeding towards
Quirino Avenue. He recognized Benjamin Aguinaldo, so he shouted "Ben". "Ben ano ang
nangyayari?" Since the jeep was moving slowly, it stopped and Goring alighted from the jeep poking
towards him a .45 caliber pistol with a warning not to interfere or he might get involved. He was
unable to move until the jeep left towards the direction of the fields (bukid). Although the jeep had its
dim lights on, there was a fluorescent lamp in the street and he recognized Benjamin inside the jeep
with the accused. He did not report the incident to the police because he thought Benjamin
Aguinaldo had committed something wrong since two (2) barrio policemen were on board the jeep
with Aguinaldo. At first, he did not know the first names of Flavio, Goring and Apolonio and Saro. But
in the morning of March 3, 1970, he asked a tricycle driver who knew those persons and they were
identified respectively as Flavio de Leon, Gregorio de Leon, Apolonio Santos, while the first name of
Saro could not be given. He inquired about the first names of those people because he received
information that they will liquidate all witnesses. It was only on March 4, 1970 when he learned that
Benjamin Aguinaldo died. On that date when he saw the wife of Benjamin with Eddie Flores waiting
for a ride, he approached them and told them of what he saw in the evening of March 2, 1970. The
two (2) then invited him to go to the parents of Benjamin Aguinaldo at Araneta Avenue.
Subsequently, on March 16, 1970, he was informed that he, together with Toring, Fabian, Ricardo
Reyes and Boy Bungi and another one were being hunted by Goring and Mang Abio. He did not
know anyone of these people except Ricardo Reyes. According to his information, Goring planned to
liquidate them all. At first, he did not believe the information. But one day he saw Goring riding a blue
681

owner jeep with two (2) companions. A stout man alighted with a carbine, asking for Quinto. He
became frightened, so he went no Sta. Rita to hide. When he was told that the people looking for
him were gone, he proceeded to Cubao to the parents of Aguinaldo, telling them that he will testify
as a witness in this case against the accused. He did not report the incident that happened to him
because the accused were officers in the company of policemen. (Rollo, p. 20-28)

The defense's version, on the other hand, as narrated by the accused and summarized by the lower court is as
follows:

Flavio de Leon, one of the accused, testified that as far as he can recall, he was at their home in the
evening of March 2, 1970 suffering pain due to stomach ulcer which had afflicted him since the
Japanese occupation. He was certain that March 2 was a Monday because at that time he was
watching a TV program called "Tawag ng Tanghalan" and after the program he went to bed and
woke up in the morning about 4:00 o'clock, The following day, Teresita Aguinaldo sought his help
informing him that her husband failed to come home the night before. He did not know this Teresita
Aguinaldo or her husband Benjamin. But he assured his visitor that he will assist her the moment his
stomach pain ceased. It was only after the third (3rd) day that he was able to leave his house when
he went to see Isidro Ramos whom Teresita claimed was the owner of the jeep which her husband
Benjamin was driving. It was then then Ramos informed him that the body of Benjamin Aguinaldo lay
in state at a funeral parlor in Pasay City. He came to know of the charge against him when he
received a subpoena from the Fiscal's Office and the accusation was against him together with
Gregorio de Leon (sic). Apolonio Santos and tow (2) other unknown persons, charging them for the
killing of Benjamin Aguinaldo on March 2, 1970 at Barrio Sto. Niño, Parañaque, Rizal (sic).

He further testified that he came to know of a person called Benjamin Aguinaldo only during the
preliminary investigation conducted by Assistant Fiscal Luis Victor. However, if Benjamin Aguinaldo
was a former driver of his son, Gregorio, he would personally know Benjamin Aguinaldo. He had
never left his residence in Sto. Niño, Parañaque, to belie the testimony of the prosecution witness
that he could not be found there at. He did not know of the incident between. Gregorio de Leon and
Benjamin Aguinaldo. Ricardo Reyes implicated him in the preliminary investigation because of a
grudge which he harbored regarding the refusal of Flavio to pay the balance of an account for the
recovery of Flavio's jeep. Flavio's jeep was stolen and Eduardo Flores approached him with the
information that his jeep could be recovered for P3,000.00. He agreed to his proposal only if the jeep
would be returned without being cannibalized. The initial payment of P2,000.00 was paid and the
jeep was returned by Eduardo Flores, Ricardo Reyes and one Jessie Parañaque or Marcelino
Quinto. Flavio refused to pay the balance of P1,000.00 when he fund out that some parts of his
stolen jeep were replaced by old and worn out parts. His refusal to pay the balance made Reyes
angry and even threatened him. Three (3) days thereafter, Ricardo Reyes returned not to demand
for the balance but to borrow (dilihensia) some money. Reyes informed him that the money was
necessary to settle a matter in order to avoid being suspected as having caused the death of a
friend, Benjamin Aguinaldo. Flavio learned that the Benjamin referred to by Ricardo Reyes and the
Benjamin subject of the case referred to one and the same person. Flavio contends that this Ricardo
Reyes was a bad man, a holdupper and also suspected as one of those who stole his jeep. He
arrived at this conclusion on the basis of the information given by Marcelino Quinto who told him
about this after Ricardo Reyes was found missing, he had no particular person yet in mind who had
a hand in the theft (sic). When Aguinaldo was found dead, his jeep was still missing. It was
Marcelino Quinto who reported to him that Jessie Parañaque, a certain Ricardo Reyes, Benjamin
Aguinaldo, Toning Parañaque and many others who took this jeep (sic). Marcelino Quinto further
told him that this Ricardo Reyes had already killed several persons. Marcelino Quinto asked for
forgiveness for having testified falsely against him in the Fiscal's Office. Quinto promised to retract
his testimony given in the Fiscal's Office, Unfortunately, before Quinto could make any retraction, he
was arrested by ANCAR and detained at Camp Crame. Subsequently, he learned that Marcelino
Quinto died.

Gregorio de Leon in his defense testified that in the evening of March 2, 1970, he was taking his
supper at his house at Sto. Niño, Parañaque. He did not go out of his house since the following day
was a working day. The following morning, he reported for work. He also reported for work in the
succeeding working days as shown by his daily time record (Exhibit 16). At the time, he was working
as a market laborer. He admitted however, that the person in charge of the daily time record is the
Municipal Health Officer, Dr. Felimon de Leon, a cousin of his. He never knew a person by the name
of Benjamin Aguinaldo until he received a subpoena to appear at the preliminary investigation
(Exhibit 14). Prior to his receipt of the subpoena, he was never investigated by any police agency or
the NBI in connection with the death of Benjamin Aguinaldo. At the preliminary investigation, he
learned for the first time that Benjamin Aguinaldo was a driver of a jeepney owned by Isidro Ramos
who is his uncle and ninong. The wife of Isidro Ramos and his mother are sisters. The house of
Isidro is located at Danganan Street about 200 meters from his house which is inside an alley. The
jeepneys of Ramos are usually parked at night at the side of Ramos' house. There is a fence made
of hollow blocks along side the alley and a person of average height cannot see beyond this fence.
682

He contended that Ricardo Reyes testified against him in the preliminary investigation, because he
had previously terminated the services of Reyes in driving his PUJ jeepney as he was reliably
informed that his jeepney was being used by Reyes in committing hold-ups. Furthermore, upon
inquiry with the Pasay LTC agency, he found that Ricardo Reyes did not have any license. With
respect to Marcelino Quinto, he testified that he met said person only at the preliminary investigation
conducted by Fiscal Luis Victor. When Ricardo Reyes was reported dead, Marcelino Quinto
approached him one evening at the Baclaran market to inform him that since Ricardo Reyes is
already dead, he did not fear anybody anymore. Quinto informed him that Ricardo Reyes had forced
him to testify against the de Leons and it was his suspicion that Ricardo Reyes was responsible for
the death of Benjamin Aguinaldo. Quinto promised to retract what he testified to before the Fiscal,
but before he could do so, Quinto met his death.

Apolonio Santos, the third accused testified that in the evening of March 2, 1970, at past 7:00
o'clock, he and the Barrio Captain of Sto. Niño, Gerardo Basilio were patroling around the barrio
when they chanced upon a vehicular accident. A scooter driven by Eddie Cariño and a tricycle
driven by Sony Ompico, collided with each other. As barrio policeman, he was instructed by their
barrio captain to look for Ompico who had left the scene of the incident. An hour thereafter, he was
able to locate Ompico and the two (2) then proceeded to the scene of the accident to settle the
matter since the parties involved came from their barrio. When the parties could not settle, they
brought the parties to the Municipal Hall of Parañaque accompanied by Pat. Prudencio de Leon
whom they met on their way to the Police Station. At about 10:00 P.M. they reached the Police
Station and the accident was recorded in the Police Blotter. Thereafter, Pat. Balagtas brought Cariño
to the hospital for treatment of his injuries. At about 11:00 that evening, he and Basilio left the Police
Station to continue with their patrol. At about 11:30 that same evening, Basilio left him at the Police
Outpost where he stayed up to 5:00 o'clock in the morning of March 3, 1970. During this time, he did
not see nor hear anything unusual that occurred. As barrio policeman, he was only armed with a
nightstick, flashlight and whistle. He never owned a gun. It was only in the evening of March 3, that
he learned about the body of a man found at the garbage dumping area at Wawa. Nobody
requested him to identify the body. Their outpost where he was, is about one (1) and one-half
(1/2)kilometers away from the dumping area. He knew Flavio and Gregorio de Leon but not too
closely. He knew Isidro Ramos who is the brother-in-law of Flavio de Leon. The house of Isidro
Ramos is about fifty (50) meters away from that of Flavio de Leon. He knew Ricardo Reyes since he
transferred residence to Sto. Niño for the reason that neighbors had reported that Ricardo Reyes is
engaged in nefarious activities. He contended that Ricardo Reyes testified against him because he
had accompanied the ANCAR agents to the residence of Ricardo's mother located at Francisco
Garcia compound on two (2) instances, the first was in the evening of February 15, 1970. On this
occasion, he was then at the outpost when a car with two (2) men, a woman and a child stopped in
front of him requesting that he accompany them to the Garcia compound. He boarded the car and it
was then that he was informed that the persons therein were agents of the ANCAR and they were
looking for Ricardo Reyes who was reported to be involved in carnapping and hold-ups. The woman
was reported to be the wife of Ricardo Reyes. The other incident was about the end of February,
1970, when he received news from his barrio mates that Flavio de Leon lost his jeep. He was,
however, unable to verify this from Flavio because they seldom meet each other. (Rollo, pp. 28-33)

The lower court, relying primarily on the testimonies of prosecution witnesses Ricardo Reyes and Marcelino Quinto,
rejected the alibi interposed by the defense and rendered a decision finding all of the accused guilty of the crime of
homicide. On appeal, the Intermediate Appellate Court, affirmed the lower courts decision and subsequently denied
the Motion for Reconsideration filed by the accused. Hence, the present petition.

Meanwhile, on July 2, 1968, Flavio de Leon who is one of the petitioners herein, died. Flavio's death occurring
during the pendency of his appeal, his criminal as well as civil liability are extinguished (Article 89 Revised Penal
Code; Tangan v. People, 155 SCRA 435 [1987]; People v. Jose, 71 SCRA 273 [1976]). The present petition, then,
involves only Gregorio de Leon and Apolonio Santos.

The petitioners raise the following assignment of errors:

THE RESPONDENT COURT ERRED IN SUSTAINING THE ADMISSION BY THE TRIAL COURT
OF THE NBI SWORN STATEMENTS AND PRELIMINARY INVESTIGATION TESTIMONIES OF
RICARDO REYES AND MARCELINO QUINTO, JR.

II

EVEN ASSUMING THAT THE RESPONDENT COURT DID NOT ERR IN SUSTAINING THE
ADMISSION OF THE NBI SWORN STATEMENTS AND PRELIMINARY INVESTIGATION
TESTIMONIES OF RICARDO REYES AND MARCELINO QUINTO, JR., IT ERRED IN ADOPTING
683

THE TRIAL COURT'S FINDING THAT SUCH STATEMENTS AND TESTIMONIES DESERVE TO
BE GIVEN CREDENCE AND WEIGHT.

III

THE RESPONDENT COURT ERRED IN HOLDING THAT THE INCONSISTENCIES AND

CONTRADICTIONS IN THE DECLARATIONS OF RICARDO REYES AND MARCELINO QUINTO,
JR. REFER ONLY TO MINOR AND COLLATERAL MATTERS AND IN NOT FINDING THAT,
APART FROM SAID INCONSISTENCIES AND CONTRADICTIONS BEING INDICATIVE OF
WILFUL FALSEHOODS ON THEIR PART, THEIR DECLARATIONS ARE INHERENTLY
IMPROBABLE AND UNWORTHY OF CREDENCE AS WELL AS PURELY SPECULATIVE AND
CONJECTURAL.

IV

THE RESPONDENT COURT ERRED IN HOLDING THAT THE TESTIMONIES OF RICARDO

REYES AND MARCELINO QUINTO, JR. STOOD UNREBUTTED AND UNCONTRADICTED.

THE RESPONDENT COURT ERRED IN HOLDING THAT THE FACT THAT RICARDO REYES
WAS A HOLD-UPPER AND A PERSON OF BAD REPUTE AND THAT MARCELINO QUINTO, JR.
HAD AN UNSAVORY REPUTATION DID NOT DETRACT FROM THE TRUTH OF THEIR
TESTIMONIES.

VI

THE RESPONDENT COURT ERRED IN AFFIRMING THE TRIAL COURT'S REJECTION OF THE
DEFENDANTS-APPELLANT'S ALIBI.

VII

THE RESPONDENT COURT ERRED IN NOT HOLDING THAT THE GUILT OF THE
DEFENDANTS HAS NOT BEEN PROVED BEYOND REASONALBE DOUBT.

VIII

THE RESPONDENT COURT ERRED IN EVERY MANNER OR RESPECT THAT, UNDER

SETTLED JURISPRUDENCE, JUSTIFIES REVIEW OF ITS FINDINGS ON ISSUES OF FACT AND
CREDIBILITY. (Rollo, p. 165-166)

It is worthy of note that except for the question as to the admissibility of the sworn statements taken during the NBI
investigation which comprised the direct testimony of Reyes and Quinto during the preliminary investigation, as well
as the admissibility of the rest of the testimonies taken during the said proceeding, the issues raised are factual.

It is a well-settled rule that findings of fact of the Court of Appeals are conclusive and binding on the Supreme Court
(Fernan v. Court of Appeals, 181 SCRA 546 [1990]; De Ocsio v. Court of Appeals, 170 SCRA 729 [1989]), save only
in certain instances, among them:

1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures; 2) when the
inference made is manifestly absurd, mistaken or impossible; and 3) when the judgment is premised on a
misapprehension of facts (Dichoso v. Court of Appeals, 192 SCRA 169, [1990]).

After a very thorough review of the records, we find that no circumstance exists to warrant a deviation from the
general rule enunciated above as to the conclusiveness of the factual findings of the Court of Appeals.

The petitioners admit that the contradictory and inconsistent statements attributed to Reyes and Quinto have no
direct bearing on the commission of the crime. They argue, however, that the manner by and the occasion in which
the contradictory statements were uttered (Reyes' statements regarding his age, place of birth, educational
attainment, relationship with the victim and incarceration at the Bulacan provincial Jail; Quinto's statements
regarding his previous criminal charges) are such that they indicate the patent propensity on the part of these
claimed eyewitnesses to wilfully falsify, prevaricate and perjure.

After' a perusal of the testimonies of Reyes and Quinto, this Court concludes otherwise. The narrations are
straightforward and consistent. Petitioners' insistence as to the improbability and incredibility of Reyes' and Quinto's
testimonies in misplaced. There is nothing incredible in Reyes' capacity to observe an incident at a distance of about
684

ten (10) meters. There is no showing that Reyes suffers from any infirmity that would impair his vision. Isidro Ramos'
testimony as to the impossibility for any person in any Reyes' location to witness the alleged incident due to the
fence which obstructs the view could not be given much credence. In the first place, Ramos cannot be altogether
regarded as a disinterested witness inasmuch as he is the brother-in-law of Flavio de Leon's wife. Secondly, as
between the statement of Reyes on his actual experience and the answer of Ramos to a hypothetical question, the
former should definitely be given more weight inasmuch as it pertains to the specific incident in question while the
latter is a mere generalization expressed by someone who even denied his presence at the scene of the alleged
incident.

The petitioners, then, question Reyes' testimony regarding the victim being whipped on the head with a pistol. They
stress the fact that in the certificate of post-mortem examination, there is no indication that the victim suffered from
any wound or trauma on the head and face area. Such discrepancy could be explained by the fact that the victims
face and other parts of his body were burned which Indicates a plan to make identification impossible. A complete
examination, then, of the corpse of the victim is extremely difficult.

At any rate, the Court of Appeals correctly observed that the inconsistencies and contradictions in the declarations
of Reyes and Quinto refer only to minor and collateral matters that do not impair the credibility of the sworn
statements and testimonies. This Court has consistently held that minor inconsistencies in the testimony of a
witness do not affect his credibility as they refer only to collateral matters which do not touch upon the commission
of the crime itself (People v. Arbolante, G.R. No. 96713, October 17, 1991; People v. Velasco, 175 SCRA 442
[1989]; People v. Natipravat, 145 SCRA 483 [1986]).

The petitioner next challenge the fact that Reyes and Quinto failed to report immediately what they claimed to have
witnessed. According to the petitioners, Reyes should have called the aid of the barrio residents so that the victim
could be rescued. Such action would have been too much of a demand on the witnesses who stated that they were
gripped with fear when they were confronted with the incident. It is uncommon for a witness who is afraid for his life
not to report to the police authorities what he has witnessed. Such action should not detract from his credibility
(People v. Bustarde, 182 SCRA 554 [1990]; People v. Coronado, 145 SCRA 250 [1986]).Moreover, both witnesses
explained that the group of men who accosted the victim included barrio policemen such that they were uncertain if
going to the police was advisable. Quinto even thought that Aguinaldo was arrested so he did not find it proper to
interfere. The foregoing reasons sufficiently explain Reyes' and Quinto's reaction to the incident.

It is finally suggested by the petitioners that the testimonies of Reyes and Quinto should be totally rejected
considering the witnesses' questionable reputation and personal background as evidenced by the previous criminal
charges against them. Reyes even died in an encounter with the authorities while Quinto died in the custody of anti-
carnapping (ANCAR) agents at Camp Crame.

A witness cannot be impeached by evidence of particular wrongful acts; there must be a showing of previous
conviction by final judgment such that not even the existence of a pending information may be shown to impeach
him (People v. Arceo, 187 SCRA 265 [1990]; citing Sec. 15 Rule 132 of the Rules of Court). In the present case,
Reyes and Quinto are not shown to have been previously convicted by final judgment. Therefore, the facts
established as to their alleged illicit activities will not detract from their competence as witnesses.

Moreover, as the Appellate Court has correctly observed:

xxx xxx xxx

In this particular case, while both Ricardo Reyes and Marcelino Quinto, Jr. may have been shown to
be persons of questionable repute and that they may have a hand in the loss of the jeep of Flavio de
Leon which must have culminated in the death of Benjamin Aguinaldo in the evening of March 2,
1970, this Court cannot close its eyes to the principle that a person must not take the law in his
hand. . . . (Rollo, p. 43)

The issue as to the admissibility of the sworn statements and testimonies of Reyes and Quinto deserves scant
consideration at this stage of the case because this Court had already put the issue to rest when it denied the
petition for certiorari earlier filed by herein petitioners questioning the decision of the Court of First Instance to admit
the transcripts in question. By the express provision of section 1 (f) Rule 115 of the Rules of Court, the testimonies
given by witnesses during the preliminary investigation of the case on trial should be admitted into evidence when
such testimony was taken by question and answer in the presence of defendant or his attorney, and there was an
opportunity for the defendant to cross examine the witness "who is dead or incapacitated to testify or cannot with
due diligence be found in the Philippines" (People v. Villaluz, 125 SCRA 116 [l983]).

On the defense of alibi, we quote with approval the lower court's ruling adopted by the appellate court insofar as
petitioners Gregorio de Leon and Apolonio Santos are concerned, in the following manner:

xxx xxx xxx

685

This Court finds that the evidence, for the prosecution has sufficiently established the participation of
these three (3) accused in the abduction of Benjamin Aguinaldo in the evening of March 2, 1970 and
of having caused the liquidation of said abducted person. Their claim of not knowing Benjamin
Aguinaldo or of having heard of him except during the preliminary investigation is for incredible to
warrant belief. Benjamin Aguinaldo was the driver of a PUJ jeepney owned and operated by Isidro
Ramos. The De Leons are also in the transportation business while Santos is Barrio Policeman. All
these people must have known each other in the community especially those engaged in the same
business. The testamony of Ricardo Reyes and Marcelino Quinto. Jr., at the preliminary
investigation have established in ouch detail sufficient facts to link these three (3) accused, Flavio de
Leon, Gregorio de Leon and Apolonio Santos, to the death of Benjamin Aguinaldo. Although
Marcelino Quinto, Jr. and Ricardo Reyes may have been persons of unsavory reputation and had
previously been implicated in robberies and carnapping, nonetheless, there has been no showing
that these two (2) witnesses had prevaricated when they gave their version of the abduction of
Benjamin Aguinaldo in the evening of March 2, 1970. These witnesses were subjected to cross-
examination by counsel for the accused in the preliminary investigation and their testimonies linking
the three (3) accused with the death of Benjamin Aguinaldo stood unrebutted and uncontradicted.
The narration given by these witnesses at the preliminary investigation was clear and devoid of any
contradictions. There is no showing that they were coached to give their separate testimonies before
the Provincial Fiscal or to give their sworn statement before the investigating officers at the NBI.
Their detailed narration of the circumstances that took place on the evening of March 2, 1970 could
only come from an These two (2) distinctly and unerringly pointed to accused Flavio de Leon,
Gregorio de Lean and Apolonio Santos as among this group of persons who were in a jeep and who
took Benjamin Aguinaldo and brought him towards the dumping area of Wawa, Parañaque, Rizal,
where the body of said Benjamin Aguinaldo was finally recovered the following morning. The alibis of
these three (3) accused cannot stand in the light of this direct testimonial evidence of the two (2)
eyewitnesses. (Rollo, pp. 41-43)

Additionally, Gregorio de Leon relied solely on his uncorroborated testimony which in the light of the direct
testimonies of Reyes and Quinto can only be viewed as self-serving statements. Apolonio Santos' alibi, on the other
hand, although corroborated by the former barrio captain and a member of the traffic division of the Parañaque
police force, should likewise fail. It must be noted that the police blotter of the accident which Santos allegedly
helped bring to the attention of the authorities does not bear any indication of his participation therein. Moreover, it is
not shown that it was physically impossible for him to have participated in the crime considering that the alleged
accident happened in the same small barrio. The foregoing circumstances strengthen the conclusion that Santos'
testimony cannot prevail over that of Reyes and Quinto.

Well-entrenched in our jurisprudence is the rule that alibi is a considerably weak defense which cannot prevail over
the positive identification of the accused (People v. Bugho, G.R. No. 91849, September 30, 1991; People v.
Camarao, 188 SCRA 671 [1990]; People v. Repe, 175 SCRA 422 [1989]; People v. Khan, 161 SCRA 406 [1988])

Although the positive identification made by the key witnesses is not on the actual killing of the deceased, all the
circumstances testified to are sufficient to convince this Court that the petitioners are the authors of the act charged.
It is not only by direct evidence upon which the guilt may be predicated (People v. Cagadas, 193 SCRA 216 [1991]).
The accused may be convicted on circumstantial evidence (People v. Torre, 184 SCRA 525 [1990]).

This case was assigned to the Third Division fairly recently.

At this point, this Court would like to stress that it is aware of the fact that the surviving petitioners have advanced in
age, the act complained of in the present case having been perpetrated about twenty years ago. At present,
Apolonio Santos would be in his late seventies while Gregorio de Leon would be in his late forties. Be that as it may,
this Court's duty to apply the full force of the law shall not be compromised. However, it is precisely the province of
the indeterminate sentence law to give considerations to the personal circumstances of each convict. And after are
view of the sentence which the lower court has imposed, this Court is of the considered opinion that the minimum
and maximum periods imposed are still applicable. This Court expresses its confidence that the authorities shall
execute this Courts decision in a manner that shall consider the relative conditions of each petitioner.

WHEREFORE, all the foregoing Premises considered, the challenged decision of the Court of Appeals is hearby
AFFIRMED with respect to petitioners Gregorio de Leon and Apolonio Santos with the sole modification that the
indemnity awarded to the complainant should be increased to P50,000.00 consonant with recent case law.

SO ORDERED.

[G.R. Nos. 115338-39. September 16, 1997]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LANIE ORTIZ-MIYAKE accused-appellant.

DECISION
686

REGALADO, J.:

Accused-appellant Lanie Ortiz-Miyake was charged with illegal recruitment in large scale in the Regional Trial Court of
Makati on a complaint initiated by Elenita Marasigan, Imelda Generillo and Rosamar del Rosario. In addition, she was
indicted for estafa by means of false pretenses in the same court, the offended party being Elenita Marasigan alone.

The information in the charge of illegal recruitment in large scale in Criminal Case No. 92-6153 reads as follows:

That in or about the period comprised from June 1992 to August 1992, in the Municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, falsely representing herself to
have the capacity and power to contract, enlist and recruit workers for employment abroad did then and there willfully,
unlawfully, and feloniously collect for a fee, recruit and promise employment/job placement abroad to the following
persons, to wit: 1) Rosamar del Rosario; 2) Elenita Marasigan; 3) Imelda Generillo, without first securing the required
license or authority from the Department of Labor and Employment, thus amounting to illegal recruitment in large scale,
in violation of the aforecited law. 1chanroblesvirtuallawlibrary

The information in the charge for estafa in Criminal Case No. 92-6154 alleges:

That in or about or sometime in the month of August, 1992, in the Municipality of Paraaque, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, by means of false pretenses executed
prior to or simultaneously with the commission of the fraud, falsely pretending to have the capacity and power to send
complainant Elenita Marasigan to work abroad, succeeded in inducing the latter to give and deliver to her the total sum
of P23,000.00, the accused knowing fully well that the said manifestations and representation are false and fraudulent
and calculated only to deceive the said complainant to part with her money, and, once in possession thereof, the said
accused did then and there willfully, unlawfully and feloniously appropriate, apply and convert the same to her own
personal use and benefit, to the damage and prejudice of the said Elenita Marasigan, in the aforementioned amount of
P23,000.00. 2chanroblesvirtuallawlibrary

Upon arraignment, appellant pleaded not guilty to the charges and the cases were tried jointly in Branch 145 of the
Regional Trial Court of Makati.

Of the three complainants in the case for illegal recruitment in large scale, Marasigan was the only one who testified at
the trial. The two other complainants, Generillo and Del Rosario, were unable to testify as they were then abroad.

Marasigan testified that she was a 32 year-old unmarried sales representative in 1992 when she was introduced to
appellant by her co-complainants. 3 Appellant promised Marasigan a job as a factory worker in Taiwan for a P5,000.00
fee. At that time, Marasigan had a pending application for overseas employment pending in a recruitment agency.
Realizing that the fee charged by appellant was much lower than that of the agency, Marasigan withdrew her money
from the agency and gave it to appellant. 4chanroblesvirtuallawlibrary

Marasigan paid appellant P5,000.00, but she was later required to make additional payments. By the middle of the year,
she had paid a total of P23,000.00 on installment basis. 5 Save for two receipts, 6 Marasigan was not issued receipts for
the foregoing payments despite her persistence in requesting for the same.

Marasigan was assured by appellant that obtaining a Taiwanese visa would not be a problem. 7 She was also shown a
plane ticket to Taiwan, allegedly issued in her name. 8 Appellant issued Marasigan a photocopy of her plane ticket, 9 the
original of which was promised to be given to her before her departure. 10chanroblesvirtuallawlibrary

Marasigan was never issued a visa. 11 Neither was she given the promised plane ticket. Unable to depart for Taiwan, she
went to the travel agency which issued the ticket and was informed that not only was she not booked by appellant for
the alleged flight, but that the staff in the agency did not even know appellant.

Later, Marasigan proceeded to the supposed residence of appellant and was informed that appellant did not live there.
12 Upon verification with the Philippine Overseas Employment Administration (POEA), it was revealed that appellant
was not authorized to recruit workers for overseas employment. 13 Marasigan wanted to recover her money but, by
then, appellant could no longer be located.
687

The prosecution sought to prove that Generillo and Del Rosario, the two other complainants in the illegal recruitment
case, were also victimized by appellant. In lieu of their testimonies, the prosecution presented as witnesses Lilia
Generillo, the mother of Imelda Generillo, and Victoria Amin, the sister of Del Rosario.

Lilia Generillo claimed that she gave her daughter P8,000.00 to cover her application for placement abroad which was
made through appellant. 14 Twice, she accompanied her daughter to the residence of appellant so that she could meet
her; however, she was not involved in the transactions between her daughter and appellant. 15 Neither was she around
when payments were made to appellant. Imelda Generillo was unable to leave for abroad and Lilia Generillo concluded
that she had become a victim of illegal recruitment.

The prosecution presented Victoria Amin, the sister of Rosamar Del Rosario, to show that the latter was also a victim of
illegal recruitment. Victoria Amin testified that appellant was supposed to provide her sister a job abroad. She claimed
that she gave her sister a total of P10,000.00 which was intended to cover the latters processing fee.
16chanroblesvirtuallawlibrary

Victoria Amin never met appellant and was not around when her sister made payments. She assumed that the money
was paid to appellant based on receipts, allegedly issued by appellant, which her sister showed her. 17 Del Rosario was
unable to leave for abroad despite the representations of appellant. Victoria Amin claimed that her sister, like Marasigan
and Generillo, was a victim of illegal recruitment.

The final witness for the prosecution was Riza Balberte, 18 a representative of the POEA, who testified that appellant
was neither licensed nor authorized to recruit workers for overseas employment, POEA certificate certification.
19chanroblesvirtuallawlibrary

Upon the foregoing evidence, the prosecution sought to prove that although two of the three complainants in the illegal
recruitment case were unable to testify, appellant was guilty of committing the offense against all three complainants
and, therefore, should be convicted as charged.

On the other hand, appellant, who was the sole witness for the defense, denied that she recruited the complainants for
overseas employment and claimed that the payments made to her were solely for purchasing plane tickets at a
discounted rate as she had connections with a travel agency. 20chanroblesvirtuallawlibrary

She denied that she was paid by Marasigan the amount of P23,000.00, claiming that she was paid only P8,000.00, as
shown by a receipt. She further insisted that, through the travel agency, 21 she was able to purchase discounted plane
tickets for the complainants upon partial payment of the ticket prices, the balance of which she guaranteed. According
to her, the complainants were supposed to pay her the balance but because they failed to do so, she was obliged to pay
the entire cost of each ticket.

The evidence presented by the parties were thus contradictory but the trial court found the prosecutions evidence more
credible. On December 17, 1993, judgment was rendered by said court convicting appellant of both crimes as charged.
22chanroblesvirtuallawlibrary

In convicting appellant of illegal recruitment in large scale, the lower court adopted a previous decision of Branch 78 of
the Metropolitan Trial Court of Paraaque as a basis for the judgment. Said previous decision was a conviction for estafa
promulgated on July 26, 1993, 23 rendered in Criminal Cases Nos. 74852-53, involving the same circumstances in the
instant case, wherein complainants Generillo and Del Rosario charged appellant with two counts of estafa. This decision
was not appealed and had become final and executory.

In thus convicting appellant in the illegal recruitment case, the decision therein of the Regional Trial Court stated that
the facts in the foregoing estafa cases were the same as those in the illegal recruitment case before it. It, therefore,
adopted the facts and conclusions established in the earlier decision as its own findings of facts and as its rationale for
the conviction in the case before it. 24chanroblesvirtuallawlibrary

In Criminal Case No. 92-6153, the Makati court sentenced appellant to serve the penalty of life imprisonment for illegal
recruitment in large scale, as well as to pay a fine of P100,000.00. Appellant was also ordered to reimburse the
complainants the following payments made to her, viz.: (a) Marasigan, P23,000.00; (b) Generillo, P2,500.00; and (c) Del
Rosario, P2,500.00.
688

In the same judgment and for the estafa charged in Criminal Case No. 92-6154, the Makati court sentenced appellant to
suffer imprisonment of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of
prision mayor, as maximum, and to pay the costs.

In the instant petition, appellant seeks the reversal of the foregoing judgment of the Regional Trial Court of Makati
convicting her of illegal recruitment in large scale and estafa. Specifically, she insists that the trial court erred in
convicting her of illegal recruitment in large scale as the evidence presented was insufficient.

Moreover, appellant claims that she is not guilty of acts constituting illegal recruitment, in large scale or otherwise,
because contrary to the findings of the trial court, she did not recruit the complainants but merely purchased plane
tickets for them. Finally, she contends that in convicting her of estafa, the lower court erred as she did not
misappropriate the money paid to her by Marasigan, hence there was no damage to the complainants which would
substantiate the conviction.

We uphold the finding that appellant is guilty but we are, compelled to modify the judgment for the offenses she should
be convicted of and the corresponding penalties therefor.

Appellant maintains that her conviction for illegal recruitment in large scale is erroneous. It is her view that in the
prosecution of a case for such offense, at least three complainants are required to appear as witnesses in the trial and,
since Marasigan was the only complainant presented as a witness, the conviction was groundless.

The Solicitor General also advocates the conviction of appellant for simple illegal recruitment which provides a lower
penalty. The Court finds the arguments of the Solicitor General meritorious and adopts his position.

The Labor Code defines recruitment and placement as x x x any act of canvassing, enlisting, contracting transporting,
utilizing, hiring or procuring workers and includes referrals, contract services, promising or advertising for employment,
locally or abroad, whether for profit or not x x x. 25chanroblesvirtuallawlibrary

Illegal recruitment is likewise defined and made punishable under the Labor Code, thus:

Art. 38. Illegal Recruitment. -

(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be
undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this
Code. x x x.

(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving
economic sabotage and shall be penalized in accordance with Article 39 hereof.

x x x Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually
or as a group.

Art. 39. Penalties. -

(a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000.00) shall be imposed if Illegal
Recruitment constitutes economic sabotage as defined herein;

xxx

(c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or
its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less
than four (4) years nor more than eight (8) years or a fine of not less than P20,000.00 nor more than P100,000.00, or
both such imprisonment and fine, at the discretion of the court. x x x 26chanroblesvirtuallawlibrary

During the pendency of this case, Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995, was passed increasing the penalty for illegal recruitment. This new law, however, does not apply to
the instant case because the offense charged herein was committed in 1992, before the effectivity of said Republic Act
No. 8042. Hence, what are applicable are the aforecited Labor Code provisions.
689

It is evident that in illegal recruitment cases, the number of persons victimized is determinative. Where illegal
recruitment is committed against a lone victim, the accused may be convicted of simple illegal recruitment which is
punishable with a lower penalty under Article 39(c) of the Labor Code. Corollarily, where the offense is committed
against three or more persons, it is qualified to illegal recruitment in large scale which provides a higher penalty under
Article 39(a) of the same Code.

The position of the Solicitor General is that the conviction of appellant should be merely for the lesser offense of simple
illegal recruitment. He submits that the Regional Trial Court of Makati erred in convicting appellant of illegal recruitment
in large scale because the conviction was based on an earlier decision of the Metropolitan Trial Court of Paraaque where
appellant was found guilty of estafa committed against Generillo and Del Rosario.

It is argued that the Makati court could not validly adopt the facts embodied in the decision of the Paraaque court to
show that illegal recruitment was committed against Generillo and Del Rosario as well. Illegal recruitment was allegedly
proven to have been committed against only one person, particularly, Elenita Marasigan. Appellant, therefore, may only
be held guilty of simple illegal recruitment and not of such offense in large scale.

He further submits that the adoption by the Makati court of the facts in the decision of the Paraaque court for estafa to
constitute the basis of the subsequent conviction for illegal recruitment is erroneous as it is a violation of the right of
appellant to confront the witnesses, that is, complainants Generillo and Del Rosario, during trial before it. He cites the
pertinent provision of Rule 115 of the Rules of Court, to wit:

Section 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled:

xxx

(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence
the testimony of a witness who is deceased, out of or cannot, with due diligence be found in the Philippines, unavailable
or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties
and subject matter, the adverse party having had the opportunity to cross-examine him.

xxx

It will be noted that the principle embodied in the foregoing rule is likewise found in the following provision of Rule 130:

Section 47. Testimony or deposition at a former proceeding. - The testimony or deposition of a witness deceased or
unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject
matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.

Under the aforecited rules, the accused in a criminal case is guaranteed the right of confrontation. Such right has two
purposes: first, to secure the opportunity of cross-examination; and, second, to allow the judge to observe the
deportment and appearance of the witness while testifying. 27chanroblesvirtuallawlibrary

This right, however, is not absolute as it is recognized that it is sometimes impossible to recall or produce a witness who
has already testified in a previous proceeding, in which event his previous testimony is made admissible as a distinct
piece of evidence, by way of exception to the hearsay rule. 28 The previous testimony is made admissible because it
makes the administration of justice orderly and expeditious. 29chanroblesvirtuallawlibrary

Under these rules, the adoption by the Makati trial court of the facts stated in the decision of the Paraaque trial court
does not fall under the exception to the right of confrontation as the exception contemplated by law covers only the
utilization of testimonies of absent witnesses made in previous proceedings, and does not include utilization of previous
decisions or judgments.

In the instant case, the prosecution did not offer the testimonies made by complainants Generillo and Del Rosario in the
previous estafa case. Instead, what was offered, admitted in evidence, and utilized as a basis for the conviction in the
case for illegal recruitment in large scale was the previous decision in the estafa case.

A previous decision or judgment, while admissible in evidence, may only prove that an accused was previously convicted
of a crime. 30 It may not be used to prove that the accused is guilty of a crime charged in a subsequent case, in lieu of
the requisite evidence proving the commission of the crime, as said previous decision is hearsay. To sanction its being
used as a basis for conviction in a subsequent case would constitute a violation of the right of the accused to confront
the witnesses against him.
690

As earlier stated, the Makati courts utilization of and reliance on the previous decision of the Paraaque court must be
rejected. Every conviction must be based on the findings of fact made by a trial court according to its appreciation of the
evidence before it. A conviction may not be based merely on the findings of fact of another court, especially where what
is presented is only its decision sans the transcript of the testimony of the witnesses who testified therein and upon
which the decision is based.

Furthermore, this is not the only reason why appellant may not be held liable for illegal recruitment in large scale. An
evaluation of the evidence presented before the trial court shows us that, apart from the adopted decision in the
previous estafa case, there was no other basis for said trial courts conclusion that illegal recruitment in large scale was
committed against all three complainants.

The distinction between simple illegal recruitment and illegal recruitment in large scale are emphasized by
jurisprudence. Simple illegal recruitment is committed where a person: (a) undertakes any recruitment activity defined
under Article 13(b) or any prohibited practice enumerated under Articles 34 and 38 of the Labor Code; and (b) does not
have a license or authority to lawfully engage in the recruitment and placement of workers. 31 On the other hand, illegal
recruitment in large scale further requires a third element, that is, the offense is committed against three or more
persons, individually or as a group. 32chanroblesvirtuallawlibrary

In illegal recruitment in large scale, while the law does not require that at least three victims testify at the trial, it is
necessary that there is sufficient evidence proving that the offense was committed against three or more persons. This
Court agrees with the trial court that the evidence presented sufficiently proves that illegal recruitment was committed
by appellant against Marasigan, but the same conclusion cannot be made as regards Generillo and Del Rosario as well.

The testimonies of Generillos mother, Lilia Generillo, and Del Rosarios sister, Victoria Amin, reveal that these witnesses
had no personal knowledge of the actual circumstances surrounding the charges filed by Generillo and Del Rosario for
illegal recruitment in large scale. Neither of these witnesses was privy to the transactions between appellant and each of
the two complainants. The witnesses claimed that appellant illegally recruited Generillo and Del Rosario. Nonetheless,
we find their averments to be unfounded as they were not even present when Generillo and Del Rosario negotiated with
and made payments to appellant.

For insufficiency of evidence and in the absence of the third element of illegal recruitment in large scale, particularly,
that the offense is committed against three or more persons, we cannot affirm the conviction for illegal recruitment in
large scale. Nonetheless, we agree with the finding of the trial court that appellant illegally recruited Marasigan, for
which she must be held liable for the lesser offense of simple illegal recruitment.

Appellants defense that she did not recruit Marasigan but merely purchased a plane ticket for her is belied by the
evidence as it is undeniable that she represented to Marasigan that she had the ability to send people to work as factory
workers in Taiwan. Her pretext that the fees paid to her were merely payments for a plane ticket is a desperate attempt
to exonerate herself from the charges and cannot be sustained.

Furthermore, no improper motive may be attributed to Marasigan in charging appellant. The fact that Marasigan was
poor does not make her so heartless as to contrive a criminal charge against appellant. She was a simple woman with big
dreams and it was appellants duplicity which reduced those dreams to naught. Marasigan had no motive to testify
falsely against appellant except to tell the truth. 33chanroblesvirtuallawlibrary

Besides, if there was anyone whose testimony needed corroboration, it was appellant as there was nothing in her
testimony except the bare denial of the accusations. 34 If appellant really intended to purchase a plane ticket and not to
recruit Marasigan, she should have presented evidence to support this claim. Also, in her testimony, appellant named an
employee in the travel agency who was allegedly her contact person for the purchase of the ticket. She could have
presented that person, or some other employee of the agency, to show that the transaction was merely for buying a
ticket. Her failure to do the foregoing acts belies her pretensions.

The Court likewise affirms the conviction of appellant for estafa which was committed against Marasigan. Conviction
under the Labor Code for illegal recruitment does not preclude punishment under the Revised Penal Code for the felony
of estafa. 35 This Court is convinced that the prosecution proved beyond reasonable doubt that appellant violated
Article 315(2)(a) of the Revised Penal Code which provides that estafa is committed:

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud:
691

(a) By using fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency,
business or imaginary transactions, or by means of other similar deceits.

The evidence is clear that in falsely pretending to possess power to deploy persons for overseas placement, appellant
deceived the complainant into believing that she would provide her a job in Taiwan. Her assurances made Marasigan
exhaust whatever resources she had to pay the placement fee required in exchange for the promised job. The elements
of deceit and damage for this form of estafa are indisputably present, hence the conviction for estafa in Criminal Case
No. 92-6154 should be affirmed.

Under the Revised Penal Code, an accused found guilty of estafa shall be sentenced to:

x x x The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of
the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos x x
x. 36chanroblesvirtuallawlibrary

The amount involved in the estafa case is P23,000.00. Applying the Indeterminate Sentence Law, the maximum penalty
shall be taken from the maximum period of the foregoing basic penalty, specifically, within the range of imprisonment
from six (6) years, eight (8) months and twenty-one (21) days to eight (8) years.

On the other hand, the minimum penalty of the indeterminate sentence shall be within the range of the penalty next
lower in degree to that provided by law, without considering the incremental penalty for the amount in excess of
P22,000.00. 37 That penalty immediately lower in degree is prison correccional in its minimum and medium periods,
with a duration of six (6) months and one (1) day to four (4) years and two (2) months. On these considerations, the trial
court correctly fixed the minimum and maximum terms of the indeterminate sentence in the estafa case.

While we must be vigilant and should punish, to the fullest extent of the law, those who prey upon the desperate with
empty promises of better lives, only to feed on their aspirations, we must not be heedless of the basic rule that a
conviction may be sustained only where it is for the correct offense and the burden of proof of the guilt of the accused
has been met by the prosecution.

WHEREFORE, the judgment of the court a quo finding accused-appellant Lanie Ortiz-Miyake guilty beyond reasonable
doubt of the crimes of illegal recruitment in large scale (Criminal Case No. 92-6153) and estafa (Criminal Case No. 92-
6154) is hereby MODIFIED, as follows:

1) Accused-appellant is declared guilty beyond reasonable doubt of simple illegal recruitment, as defined in Article 38(a)
of the Labor Code, as amended. She is hereby ordered to serve an indeterminate sentence of four (4) years, as
minimum, to eight (8) years, as maximum, and to pay a fine of P100,000.00.

2) In Criminal Case No. 92-6154 for estafa, herein accused-appellant is ordered to serve an indeterminate sentence of
four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum,
and to reimburse Elenita Marasigan the sum of P23,000.00.

In all other respects, the aforestated judgment is AFFIRMED, with costs against accused-appellant in both instances.

SO ORDERED.

Puno, Mendoza, and Torres, Jr., JJ., concur.

692