Combinepdf

SECOND DIVISION
[G.R. No. 123924. December 11, 2003.]
HEIRS OF MIGUEL FRANCO, namely: MODESTA, LEONIDES

ROMULA, EMMA, JOHNNY, RAMON, BERNARDO, PACITA, all
surnamed FRANCO, petitioners, vs. COURT OF APPEALS and
HEIRS OF FAUSTINA CABADING, represented by VICTORIA
CABADING, respondents.
Paulino G. Gudmalin for petitioners.

Mejorada Mejorada & Mejorada Law Firm for respondents.
SYNOPSIS
Quintin Franco was a patentee of a parcel of public land located at Lianib,
Dipolog, Zamboanga Del Norte, containing an area of 70.6381 hectares.
Original Certificate of Title No. P-436 covering the subject property was issued
in Quintin's name. Quintin died intestate. His brother, Miguel Franco, filed a
Petition for Issuance of Letters of Administration before the then Court of First
Instance of Zamboanga del Norte, praying that he be appointed as
administrator of Quintin's estate. The petition was opposed by Faustina Franco
Vda. De Cabading, sister of decedent Quintin, on the ground that Miguel was
unfit to be the Administrator. The intestate court ruled that since Miguel was
claiming ownership over half of the subject property, his conflicting interest
rendered him incapable of rendering a true and faithful account of the estate.
Miguel filed a motion for reconsideration wherein he alleged for the first time
that one half of the subject property was transferred to him by virtue of a
document entitled "General Power of Administration," executed by Quintin in
1967. It was also discovered that on the basis of the said document, through a
petition filed before the Court of First Instance of Dipolog, Miguel was able to
obtain Transfer Certificate of Title No. T-20203, covering half of the subject
property. Consequently, private respondents filed a complaint seeking the
cancellation of TCT No. T-20203 in the name of Miguel, who died in the
meantime. The trial court found that the "General Power of Administration"
evinced an existing trust relation between Quintin and Miguel, with Quintin as
the signatory thereof acknowledging that he was holding half of the property
titled in his name for Miguel. The trial court concluded that a trust had been
created by force of law in favor of Miguel to the extent of one-half of the
property. On appeal, the Court of Appeals reversed the trial court's decision,
ordered the cancellation of TCT No. T-20203 and directed the issuance of a new
transfer certificate of title in the name of the heirs of Quintin. The appellate
court concluded that Miguel had succeeded in registering the property through
fraud, surreptitious conduct and bad faith. Hence, the present petition.
The Supreme Court affirmed the decision of the Court of Appeals. While
Miguel explicitly declared that the subject property belonged to his brother
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Quintin, at the same time he was remarkably silent about his claim that he
acquired one-half thereof during the lifetime of Quintin. He asserted his claim
to the subject property four years after he stated under oath in a court pleading
that it belonged in its entirety to his brother. The Court considered Miguel's
statement under oath and the accompanying silence as a declaration against
interest and a judicial admission combined. A declaration against interest, is
the best evidence which affords the greatest certainty of the facts in dispute. In
the same vein, a judicial admission binds the person who makes the same,
absent any showing that it was made through palpable mistake and no amount
of rationalization can offset it. There was no showing of palpable mistake on the
part of Miguel when he made the admission. The Court also found no document
in existence whereby the ownership of any portion of the subject property was
conveyed by Quintin to Miguel. The "General Power of Administration" does not
contain any language that operates as a conveyance of the subject property.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; JUDICIAL ADMISSION AND ADMISSIONS

AGAINST INTEREST; DECLARATION OF PETITIONERS' PREDECESSOR THAT THE
PROPERTY BELONGED TO HIS BROTHER AND AT THE SAME TIME WAS
REMARKABLY SILENT ABOUT HIS CLAIM MAY BE APPRECIATED AS A
DECLARATION AGAINST INTEREST AND A JUDICIAL ADMISSION COMBINED. —
While he explicitly declared that the subject property belonged to Quintin, at
the same time he was remarkably silent about his claim that he acquired one-
half thereof during the lifetime of Quintin. He asserted his claim to the subject
property quite belatedly, i.e., four years after he stated under oath and in a
court pleading that it belonged in its entirety to his brother. Thus, the
statement and the accompanying silence may be appreciated in more than one
context. It is a declaration against interest and a judicial admission combined. A
declaration against interest is the best evidence which affords the greatest
certainty of the facts in dispute. In the same vein, a judicial admission binds the
person who makes the same, and absent any showing that this was made thru
palpable mistake, no amount of rationalization can offset it. In the case at bar,
there is no showing of palpable mistake on the part of Miguel when he made
the admission. In his Motion to Admit Amended Petition, he merely alleged
inadvertence in failing to state his claim of co-ownership. Yet no evidence was
adduced to prove the alleged inadvertence. And even assuming there was
indeed such a mistake, Miguel had ample opportunity to make the rectification
in the initial stages of the intestate proceedings.
CDcHSa
2. ID.; ID.; ID.; FROM THE SUBSTANTIVE AND PROCEDURAL

STANDPOINTS ALIKE, THE STATEMENT BEING BOTH A DECLARATION AGAINST
INTEREST AND JUDICIAL ADMISSION SHOULD BE ACCORDED THE FULL
EVIDENTIARY VALUE IT DESERVES. — Bearing on the weight of the combined
declaration against interest and judicial admission is the assumption, arising
from his duty as special administrator of the estate of Quintin, that he had full
knowledge of the status and extent of the property holdings of the decedent.
The following observation of the Court of Appeals is worth citing: "This tolerant
silence militates against Miguel Franco's claim of 'co-ownership.' Juxtaposed
with his previous judicial admission of Quintin Franco's absolute ownership of
Lot No. 5172, it is not difficult to see that the act of Miguel Franco in registering
one-half of the property in his name was an insidious and surreptitious, if not
belated, maneuver to deprive the legal heirs of Quintin Franco of their lawful
share and interest in the property. As a matter of fact, Miguel Franco may well
be charged with laches." The statement under oath of Miguel was made in the
intestate proceedings. It was presented in evidence and utilized as such in Civil
Case No. 3847. Thus from the substantive and procedural standpoints alike, the
statement being both a declaration against interest and judicial admission
should be accorded the full evidentiary value it deserves:
3. ID.; ID.; ID.; INACTION BY PETITIONER'S PREDECESSOR
UNMISTAKABLY BOLSTERS THE UNSHAKEABLE WEIGHT THAT SHOULD BE
ACCORDED THE STATEMENT AS A DECLARATION AGAINST INTEREST AND A
JUDICIAL ADMISSION. — The intestate court in its Order dated 27 August 1973
declared that Quintin was the absolute owner of the property and accordingly
denied Miguel's claim of ownership over half the subject property. The Order
was apparently issued for the purpose of determining which properties should
be included for the inventory of the estate of Miguel. While the intestate court
does not have the authority to rule with finality on questions of ownership over
the property of the decedent, it is not precluded from making a provisional
determination over such questions for purposes relevant to the settlement of
the estate, such as ruling whether or not to include properties in the inventory
of the estate. And yet, at no time did Miguel file a motion for the
reconsideration of the 27 August 1973 Order of the intestate court which
denied Miguel's claim of ownership. It was the 1 September 1973 Order of the
intestate court, by virtue of which Miguel was removed as special
administrator, that he contested. While the 27 August 1973 O r d e r is a
provisional determination of ownership over the subject property, yet
conformably to ordinary experience any prudent claimant is expected to
dispute such an order which rejects his claim of ownership. Miguel's inaction
unmistakably bolsters the unshakeable weight that should be accorded the
statement as a declaration against interest and a judicial admission.
4. CIVIL LAW; LAND REGISTRATION; RESORT TO THE PROCEDURE LAID

DOWN UNDER SECTION 112 OF THE OLD LAND REGISTRATION ACT WOULD BE
AVAILABLE ONLY IF THERE IS UNANIMITY AMONG THE PARTIES, OR IF THERE IS
NO ADVERSE CLAIM OR SERIOUS OBJECTION ON THE PART OF ANY PARTY IN
INTEREST. — It is clear from reading Section 112 of the old Land Registration
Act that the same may be utilized only under limited circumstances.
Proceedings under Section 112 are summary in nature, contemplating
corrections or insertions of mistakes which are only clerical but certainly not
controversial issues. More importantly, resort to the procedure laid down in
Section 112 would be available only if there is a "unanimity among the parties,
or there is no adverse claim or serious objection on the part of any party in
interest." Such unanimity among the parties has been held to mean "the
absence of serious controversy between the parties in interest as to the title of
the party seeking relief under said section." Clearly, there was no such
unanimity among the parties in interest, namely, all the heirs of Quintin. The
surreptitious registration by Miguel of the property had worked to the prejudice
of the other heirs of Quintin.
5. ID.; ID.; THE "GENERAL POWER OF ADMINISTRATION" DOCUMENT

DOES NOT SUFFICE TO PROVE OWNERSHIP OF ANY PORTION OF THE SUBJECT
PROPERTY; THE DOCUMENT DOES NOT CONTAIN ANY LANGUAGE THAT
OPERATES AS A CONVEYANCE OF THE SUBJECT PROPERTY. — There is no
document in existence whereby the ownership of any portion of the subject
property was conveyed by Quintin to Miguel. The "General Power of
Administration" does not suffice in that regard. Indeed, it does not contain any
language that operates as a conveyance of the subject property. The RTC
ruling, from which petitioners draw heavy support, maintained that Miguel
owned half of the property because the document entitled "General Power of
Administration" states that it "admits of an existing trust relation between the
signatory Quintin Franco on the one hand, and Miguel Franco on the other
hand." The RTC cited Article 1452 of the Civil Code. Article 1452 presupposes
the concurrence of two requisites before a trust can be created, namely: that
two or more persons agree to purchase a property, and that they consent that,
one should take the title in his name for everyone's benefit. The
aforementioned provision is not applicable in this case, as it clearly speaks of
an instance when the property is acquired through a joint purchase by two or
more persons. That circumstance is not present in this case since the subject
property was acquired through Quintin's application for a patent. There is no
proof that Miguel had joined Quintin in acquiring the property. Lastly, as noted
by the Court of Appeals, while tax receipts and declarations and receipts and
declarations of ownership for taxation purposes are not, in themselves,
incontrovertible evidence of ownership, they constitute at least proof that the
holder has a claim of title over the property. The subject property had been
consistently declared for taxation purposes in the name of Quintin, and this fact
taken in conjunction with the other circumstances inexorably lead to the
conclusion that Miguel's claim of ownership cannot be sustained. Thus, even
without having to inquire into the authenticity and due execution of the
"General Power of Administration," it is safe to conclude that Miguel did not
have any ownership rights over any portion of the subject property and that the
registration of half of the property in his name was baseless and afflicted with
fraud. EAICTS
DECISION
TINGA, J : p
Before us is a Petition for Review on Certiorari seeking to overturn a

Decision rendered by the Fourteenth Division of the Court of Appeals 1 on 6
October 1995 in CA G.R. CV No. 37609. The Court of Appeals reversed the
decision of the Regional Trial Court of Dipolog City, Branch 7 2 ("RTC") and
ordered the cancellation of TCT No. T-20203 issued in the name of Miguel
Franco (whose heirs are the petitioners herein), and the issuance of a new
transfer certificate of title for Lot No. 5172-B, PSD-64806, in favor of the heirs
of Quintin Franco 3 ("Quintin"). Quintin was the patentee 4 of a parcel of public
land, surveyed as Lot No. 5172, Cad. 85 Ext. ("subject property"), located at
Lianib, Dipolog, Zamboanga del Norte, and containing an area of 70.6381
hectares. Being the patentee, Original Certificate of Title No. P-436 covering
subject property was issued in Quintin's name on 9 July 1954.
Quintin died intestate on 8 December 1967. His brother, Miguel Franco
("Miguel"), filed a Petition for Issuance of Letters of Administration on 17
October 1968, before the Court of First Instance of Zamboanga del Norte
("intestate court"), praying that he be appointed as administrator of Quintin's
estate. This Petition, docketed as Sp. Proc. No. R-531, was opposed by Faustina
Franco Vda. De Cabading ("Faustina"), the sister of the decedent, on the ground
that Miguel was unfit to be the administrator. 5 She prayed for her own
appointment as administratrix instead of Miguel. Upon motion of Miguel, the
intestate court appointed him as special administrator of the estate on 3
December 1969. 6 However, on 23 July 1971, Faustina, then apparently joined
by the other heirs of Quintin except Miguel, 7 moved for the latter's removal as
special administrator.
On 27 August 1973, the intestate court issued an Order 8 declaring inter
alia that, based on the evidence, Quintin was the absolute owner of the subject
property. This finding was subsequently used by the intestate court as one of
the grounds for granting the motion to remove Miguel as special administrator,
per the Order dated 1 September 1973. In the latter Order, the intestate court
said that since Miguel was claiming ownership over half of the subject property,
his conflicting interest rendered him incapable of rendering a true and faithful
account of the estate. 9
Miguel filed a Motion for Reconsideration 10 of the 1 September 1973
Order, wherein he alleged for the first time that one-half of the subject property
was transferred to him by virtue of a document entitled "General Power of
Administration" and executed by Quintin in 1967. It was also discovered that on
the basis of this "General Power of Administration" Miguel had filed a Petition
dated 2 January 1972 before Branch 1 of the Dipolog Court of First Instance,
docketed as Misc. Sp. No. 2993, 11 seeking the cancellation of OCT No. P-436.
This Petition was granted in the Order 12 of 6 January 1973, wherein it was
directed that the new transfer certificates of title be issued, one in the name of
the heirs of Quintin and the other name of Miguel. Thus, Miguel was able to
obtain Transfer Certificate of Title No . (TCT) T-20203, covering half of the
subject property, on 13 February 1973. 13
The other heirs asked the intestate court to cancel TCT No. T-20203
shortly after learning about it through a Motion for Reconsideration filed in the
estate proceedings. On 4 May 1977, the intestate court issued an order 14
cancelling TCT No. T-20203 issued in the name of Miguel, on the ground that
Miguel's acquisition of the title was fraudulent. The Court of Appeals reversed
the Order in its Decision 15 of 29 February 1984. According to the appellate
court, the intestate court had no jurisdiction to settle questions of property
ownership. 16 This Court, in a Resolution 17 dated 1 October 1984, affirmed the
ruling of the Court of Appeals.
Consequently, private respondents as plaintiffs, filed before the RTC a

complaint, docketed as Civil Case No. 3847, seeking the cancellation of TCT No.
T-20203 in the name of Miguel, who had died in the meantime. 18 After trial, the
RTC rendered a decision dismissing the complaint. 19 The RTC found that the
"General Power of Administration" evinced an existing trust relation between
Quintin and his brother Miguel, with Quintin as the signatory thereof
acknowledging that he was holding half of the property titled in his name in
trust for Miguel. Applying Article 1452 20 of the Civil Code, the RTC concluded
that a trust had been created by force of law in favor of Miguel to the extent of
one-half of the property.
On appeal, the Court of Appeals rendered on 6 October 1995 the
challenged Decision 21 reversing the RTC decision, ordering the cancellation of
TCT No. T-20203 and directing the issuance of a new transfer certificate of title
in the name of the Heirs of Quintin. The appellate court concluded that Miguel
had succeeded in registering the property through fraud, surreptitious conduct,
and bad faith. As basis, it recited the following circumstances:
1. In his petition for the issuance of letters of administration, Miguel
admitted that the subject property in its entirety belonged to his brother,
Quintin, with his inclusion of the entire property in the list of properties left
behind by Quintin, without asserting ownership over it or any part thereof; 22
2. The intestate court had declared that Quintin was the absolute
owner of the subject property and dismissed, for lack of sufficient evidence, the
claim of Miguel to half of the property; 23
3. OCT No. P-436, covering the entire subject property, was registered
as early as 9 July 1954 but it was only on 13 February 1973 that Miguel Franco
obtained the TCT covering half of the property in his name. His silence for 19
years had militated against his claim of ownership and may well be indicative of
laches on his part; 24
4. The subject property was solely declared for taxation purposes in
the name of Quintin; 25
5. The "General Power of Administration," on which Miguel anchored
his claim of ownership, had simply documented a delegated power to
administer property and could not be a source of ownership; 26
6. The Order dated 6 January 1973 of Judge Rafael Mendoza in Misc.
Sp. Proc. No. 2993, which directed the cancellation of OCT No. P-436 was
issued without factual basis. Section 112 of the old Land Registration Act which
was the apparent basis of the Order contemplated only summary proceedings
for non-controversial erasures, alterations or amendment of entries in a
certificate of title and therefore could not be invoked if there is no unanimity
among the parties, or if one of them had posed an adverse claim or serious
objection which would render the case controversial. 27
After their motion for reconsideration was denied by the Court of Appeals,
the petitioners brought forth the present petition. While asserting that the
transfer and registration of one-half of the subject property in the name of
Miguel was not done through fraud or in bad faith, they point out that at no
time did the respondents question the execution or genuineness of the
"General Power of Administration" which purportedly admits of the existence of
a trust relation between Quintin and Miguel. They also claim that the Court of
Appeals failed to appreciate the recognition which Quintin had accorded to the
rights and interest of Miguel. CDTSEI
The findings of the RTC and the Court of Appeals are contradictory;
hence, the review of the case is in order. 28 After a thorough examination of the
case, we hold that the petition lacks merit and affirm the Decision of the Court
of Appeals.
Miguel's claim of ownership to half of the subject property is belied by his
statement in the Verified Petition 29 for issuance of letters administration that
he filed on 17 October 1968. Therein, he stated:
"7. — That said Quintin Franco left the following properties:
a — A parcel of agricultural land located at Pinan, Zamboanga
del Norte known as Lot No. 5172, Dipolog Cadastre-85 Ext., Cad.
Case No. 9. LRC Cad. Rec. No. 769, (S.A. 7612), covered by
Original Certificate of Title No. P-436, under Tax Dec. No. 676,
assessed at P26,120.00, with an area of 706,381 sq. m. (citations
omitted)
While he explicitly declared that the subject property belonged to Quintin,

at the same time he was remarkably silent about his claim that he acquired
one-half thereof during the lifetime of Quintin. He asserted his claim to the
subject property quite belatedly, i.e., four years after he stated under oath and
in a court pleading that it belonged in its entirety to his brother. Thus, the
statement and the accompanying silence may be appreciated in more than one
context. It is a declaration against interest 30 and a judicial admission
combined.
A declaration against interest is the best evidence which affords the
greatest certainty of the facts in dispute. 31 In the same vein, a judicial
admission binds the person who makes the same, and absent any showing that
this was made thru palpable mistake, no amount of rationalization can offset it.
32
In the case at bar, there is no showing of palpable mistake on the part of

Miguel when he made the admission. In his Motion to Admit Amended Petition,
he merely alleged inadvertence in failing to state his claim of co-ownership. Yet
no evidence was adduced to prove the alleged inadvertence. And even
assuming there was indeed such a mistake, Miguel had ample opportunity to
make the rectification in the initial stages of the intestate proceedings.
Bearing on the weight of the combined declaration against interest and
judicial admission is the assumption, arising from his duty as special
administrator of the estate of Quintin, that he had full knowledge of the status
and extent of the property holdings of the decedent. 33 The following
observation of the Court of Appeals is worth citing:
"This tolerant silence militates against Miguel Franco's claim of

'co-ownership.' Juxtaposed with his previous judicial admission of
Quintin Franco's absolute ownership of Lot No. 5172, it is not difficult to
see that the act of Miguel Franco in registering one-half of the property
in his name was an insidious and surreptitious, if not belated,
maneuver to deprive the legal heirs of Quintin Franco of their lawful
share and interest in the property. As a matter of fact, Miguel Franco
may well be charged with laches." 34
The statement under oath of Miguel was made in the intestate

proceedings. It was presented in evidence and utilized as such in Civil Case No.
3847. 35 Thus from the substantive and procedural standpoints alike, the
statement being both a declaration against interest and judicial admission
should be accorded the full evidentiary value it deserves.
Another important point, albeit simply corollary. The intestate court in its
Order 36 dated 27 August 1973 declared that Quintin was the absolute owner of
the property and accordingly denied Miguel's claim of ownership over half the
subject property. The O r d e r was apparently issued for the purpose of
determining which properties should be included for the inventory of the estate
of Miguel. While the intestate court does not have the authority to rule with
finality on questions of ownership over the property of the decedent, it is not
precluded from making a provisional determination over such questions for
purposes relevant to the settlement of the estate, such as ruling whether or not
to include properties in the inventory of the estate. 37 And yet, at no time did
Miguel file a motion for the reconsideration of the 27 August 1973 Order of the
intestate court which denied Miguel's claim of ownership. It was the 1
September 1973 Order of the intestate court, by virtue of which Miguel was
removed as special administrator, that he contested. 38 While the 27 August
1 9 7 3 Order is a provisional determination of ownership over the subject
property, yet conformably to ordinary experience any prudent claimant is
expected to dispute such an order which rejects his claim of ownership.
Miguel's inaction unmistakably bolsters the unshakeable weight that should be
accorded the statement as a declaration against interest and a judicial
admission.
Now, the issue viewed from the perspective of the Torrens system of
registration. Under the Land Registration Act, title to the property covered by a
Torrens title becomes indefeasible after the expiration of one year from the
entry of the decree of registration. The decree is incontrovertible and becomes
binding on all persons whether or not they were notified of, or participated in,
the in rem registration process. 39 OCT No. P-436, covering the subject property
in its entirety, was registered as early as 9 July 1954 in the name of Quintin. A
Torrens title is the best evidence of ownership of registered land. 40 Whatever
claim of ownership Miguel had raised should have been weighed against
Quintin's title. Unfortunately, the Dipolog RTC, Branch 1 apparently ignored this
fundamental principle when on 6 January 1973 it issued the Order directing the
registration of half of the subject property in the name of Miguel.
The undue haste which characterized Miguel's success in obtaining

judicial registration of his ownership over half of the subject property is
noticeable. His petition seeking the issuance of a title over his purported half of
the property was dated 2 January 1973, and yet incredibly, it was granted only
four days later, or on 6 January 1973. As the Court of Appeals correctly noted:
"The order dated January 6, 1973 of Judge Rafael T. Mendoza in
Misc. Sp. Proc. No. 2993, directing the Register of Deeds to cancel OCT
No. P-436 and to issue new separate transfer certificates of title for Lot
No. 5172-A and Lot No. 5172-B to the Heirs of Quintin Franco and
Miguel Franco, respectively, was therefore without factual basis.
Besides, it would appear that the order was based on Section 112 of
the Land Registration Act (Act No. 496) which contemplates summary
proceeding for non-controversial erasures, alterations, or amendments
of entries in a certificate of title . . ." 41
It is clear from reading Section 112 of the old Land Registration Act 42
that the same may be utilized only under limited circumstances. 43 Proceedings
under Section 112 are summary in nature, contemplating corrections or
insertions of mistakes which are only clerical but certainly not controversial
issues. 44 More importantly, resort to the procedure laid down in Section 112
would be available only if there is a "unanimity among the parties, or there is
no adverse claim or serious objection on the part of any party in interest." 45
Such unanimity among the parties has been held to mean "the absence of
serious controversy between the parties in interest as to the title of the party
seeking relief under said section." 46 Clearly, there was no such unanimity
among the parties in interest, namely, all the heirs of Quintin. The surreptitious
registration by Miguel of the property had worked to the prejudice of the other
heirs of Quintin.
There is no document in existence whereby the ownership of any portion
of the subject property was conveyed by Quintin to Miguel. The "General Power
of Administration" does not suffice in that regard. Indeed, it does not contain
any language that operates as a conveyance of the subject property.
The RTC ruling, from which petitioners draw heavy support, maintained
that Miguel owned half of the property because the document entitled "General
Power of Administration" states that it "admits of an existing trust relation
between the signatory Quintin Franco on the one hand, and Miguel Franco on
the other hand." 47 The RTC cited Article 1452 of the Civil Code which reads,
thus:
ART. 1452. If two or more persons agree to purchase property
and by common consent the legal title is taken in the name of one of
them for the benefit of all, a trust is created by force of law in favor of
the others in proportion to the interest of each.

Article 1452 presupposes the concurrence of two requisites before a trust
can be created, namely: that two or more persons agree to purchase a
property, and that they consent that one should take the title in his name for
everyone's benefit. 48 The aforementioned provision is not applicable in this
case, as it clearly speaks of an instance when the property is acquired through
a joint purchase by two or more persons. That circumstance is not present in
this case since the subject property was acquired through Quintin's application
for a patent. There is no proof that Miguel had joined Quintin in acquiring the
property.
Lastly, as noted by the Court of Appeals, while tax receipts and
declarations and receipts and declarations of ownership for taxation purposes
are not, in themselves, incontrovertible evidence of ownership, they constitute
at least proof that the holder has a claim of title over the property. 49 The
subject property had been consistently declared for taxation purposes in the
name of Quintin, and this fact taken in conjunction with the other
circumstances inexorably lead to the conclusion that Miguel's claim of
ownership cannot be sustained.
Thus, even without having to inquire into the authenticity and due
execution of the "General Power of Administration," it is safe to conclude that
Miguel did not have any ownership rights over any portion of the subject
property and that the registration of half of the property in his name was
baseless and afflicted with fraud.
WHEREFORE, the above premises considered, the petition is DISMISSED
for lack of merit and the decision of the Court of Appeals is AFFIRMED. Costs
against petitioners.
SO ORDERED.
Puno, Quisumbing, Austria-Martinez, and Callejo, Sr., JJ ., concur.
Footnotes
1. The Decision in CA G.R. CV No. 37609 was penned by Justice O. Agcaoili,

concurred in by Justices C. Francisco and E. Verzola.
2. The RTC Decision was rendered by Judge J. Angeles.
3. Rollo , p. 9.
4. Under the provisions of Chapter V of the Public Land Act (CA No. 141, as
amended). See Rollo, p. 23.
5. Records, p. 166.
6. Id. at p. 173.
7. Id. at p. 24. The Records do not indicate at which stage of the proceedings
the other heirs joined Faustina Franco in her opposition.
8. Id. at p. 188.
9. Id. at p. 190.
10. Id. at p. 192.
11. This particular proceeding was apparently misdocketed. Considering that
an original certificate of title had already been issued, any petition to reopen
the same, or amend the decree of registration should have been docketed as
G.L.R.O. Rec. No. or L.R.C. Rec. No. in accordance with Sec. 112, Act No. 496.
12. Records, p. 207.
13. Id. at p. 208.

14. Id. at p. 234.
15. Id. at p. 273.
16. Id. at p. 257.
17. Id. at p. 274.
18. While Civil Case No. 3847 was initiated by all of the heirs of Quintin Franco
save Miguel Franco, it appears that only the heirs of Faustina Franco Vda. De
Cabading actively pursued litigation of the case. On 19 July 1990, the RTC
issued an order declaring as non-suited the plaintiff-heirs of Maria Franco
Agdinaoy, Juan Franco, and Eudofia Franco Agdinaoy, respectively, while
archived the case with respect to Julia Franco Mata, who had died. Id. at p.
132.
19. Id. at p. 41.

20. "If two or more persons agree to purchase property and by common
consent the legal title is taken in the name of one of them for the benefit of
all, a trust is created by force of law in favor of the others in proportion to the
interest of each." Art. 1452, New Civil Code.
21. Records, p. 23.
22. Rollo , p. 28.

23. Ibid.
24. Id., pp. 28-29.
25. Id., p. 29.
26. Ibid.
27. Id. at pp. 29-30.
28. Among the exceptional circumstances that would compel the Supreme
Court to review the findings of fact of the lower courts is when the findings of
fact are conflicting. See e.g., Sacay v. Sandiganbayan, 226 Phil. Rep. 496,
510 (1986).
29. Records, p. 164; Rollo , p. 75.
30. See Sec. 25, Rule 130. "The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him."
31. Noda v. Cruz-Arnaldo, G.R. No. L-57322, June 22, 1987.

32. Yuliongsu v. PNB, 130 Phil. Rep. 575, 580 (1968).
33. A special administrator is required to make and return to the court a true
and complete inventory of all goods, chattels, rights, credits, and estate of
the deceased which shall come to his possession or knowledge or to the
possession of any other person for him. See Section 1(a), Rule 81, Rules of
Court.
34. Rollo , pp. 28-29.

35. Private respondents alleged in their Complaint that Miguel had admitted in
his petition for issuance of letters administration that Quintin was the owner
of the entire subject property. See Records, p. 5. The actual Petition is
likewise offered by private respondents as Exhibit "X", and paragraph 7 of
the petition marked as Exhibit "X-1". Records, p. 146.
36. Id. at p. 188.

37. See In the Matter of the Intestate of Deceased Ismael Reyes v. Reyes, G.R.
No. 139587, 22 November 2000.
38. See Records, p. 192. It is also in this Motion for Reconsideration that Miguel
first reveals the existence of the Special Power of Administration executed by
Quintin.
39. David v. Malay, G.R. No. 132644, November 19, 1999.
40. Sps. Villanueva v. Court of Appeals, G.R. No. 84464, June 21, 1991.
41. Rollo , pp. 29-30.
42. Act No. 496. Sec. 112 thereof is now Sec. 108, P.D. No. 1529, otherwise
known as the Property Registration Decree.
43. Sec. 112 reads in full: "No erasure, alteration, or amendment shall be made
upon the registration book after the entry of a certificate of title or of a
memorandum thereon and the attestation of the same by the clerk or any
register of deeds, except by order of the court. Any registered owner or other
person in interest may at any time apply by petition to the court, upon the
ground that registered interests of any description, whether vested,
contingent, expectant, or inchoate, have terminated and ceased; or that new
interests have arisen or been created which do not appear upon the
certificate; or that any error, omission, or mistake was made in entering a
certificate or any memorandum thereon, or on any duplicate certificate; or
that the registered owner has been married; or if registered as married, that
the marriage has been terminated or that a corporation which owned
registered land and has been dissolved has not conveyed the same within
three years after its dissolution; or upon any other reasonable ground; and
the court shall have jurisdiction to hear and determine the petition after
notice to all parties in interest, and may order the entry of a new certificate,
the entry or cancellation of a memorandum upon a certificate, or grant any
other relief upon such terms and conditions, requiring security if necessary,
as it may deem proper: Provided, however, that this section shall not be
construed to give the court authority to open the original decree of
registration, and that nothing shall be done or ordered by the court which
shall impair the title or other interest of a purchaser holding a certificate for
value and in good faith, or his heirs or assigns, without his or their written
consent.
Any petition filed under this section and all petitions and motions filed under
the provisions of this Act after original registration shall be filed and entitled
in the original case in which the decree of registration was entered."
44. Quevada v. Glorioso, G.R. No. 121270, August 27, 1998 citing Republic v.
CFI of Baguio-Benguet, 119 SCRA 405 (1982).
45. This doctrine enunciated in Taguman v. Republic, 94 Phil. 171, 175 (1953)
has been subsequently upheld in a long line of cases. See e.g., Government
v. Laperal, 108 Phil. Rep. 860, 862 (1960); Lamera v. Callanga, 153 Phil. Rep.
306, 308-309 (1973); Fojas v. De Gray, 217 Phil. Rep. 76, 80 (1984);
Quevada v. Glorioso, 356 Phil. Rep. 107, 188 (1998).
46. See Enriquez v. Atienza (1957), 100 Phil. 1072, 1077-1078.
47. Records, p. 500.
48. Nito v. Court of Appeals, G.R. No. 102657, 9 August 1993, 225 SCRA 231,
235. See also Ceniza v. Court of Appeals, G.R. No. 46345, 30 January 1990,
181 SCRA 552, 555.
49. See also Ranola v. Court of Appeals, 379 Phil. Rep. 1, 11 (2000).

FIRST DIVISION
[G.R. No. 111692. February 9, 1996.]
ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS

and PEOPLE OF THE PHILIPPINES, respondents.
Public Attorney's Office for petitioner.

The Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; NOT ADVERSELY

AFFECTED BY INCONSISTENCIES ON MINOR DETAILS. — Petitioner points to an
alleged inconsistency between the testimonies of prosecution witnesses Alberto
Toling and Honorio Osok to the effect that they saw petitioner stab Malaspina
on the right lumbar region, and the testimony of the attending physician that
the victim was stabbed on the left lumbar region. This discrepancy is
inconsequential. What is material is that Malaspina was stabbed to death and
that three (3) prosecution witnesses positively identified petitioner as the knife
wielder. It must be stressed that these witnesses had known petitioner for quite
some time and never had any personal misunderstanding nor altercation with
the latter as to create any suspicion that they were impelled by ill motives to
falsely implicate him. cdll
2. ID.; ID.; DECLARATION AGAINST INTEREST, EXCEPTION TO THE

HEARSAY RULE. — One of the recognized exceptions to the hearsay rule is that
pertaining to declarations made against interest. (Sec. 38 of Rule 130 of the
Rules of Court) The admissibility in evidence of such declaration is grounded on
necessity and trustworthiness.
3. ID.; ID.; ID.; REQUISITES FOR ADMISSIBILITY. — There are three (3)
essential requisites for the admissibility of a declaration against interest: (a)
the declarant must not be available to testify; (b) the declaration must concern
a fact cognizable by the declarant; and (c) the circumstances must render it
improbable that a motive to falsify existed.
4. ID.; ID.; ID.; ID.; CASE AT BAR. — In the instant case, we find that
the declaration particularly against penal interest attributed to Zoilo Fuentes Jr.
is not admissible in evidence as an exception to the hearsay rule. One striking
feature that militates against the acceptance of such a statement is its patent
untrustworthiness. Zoilo who is related to accused-appellant had every motive
to prevaricate. The same can be said of accused-appellant and his uncle
Felicisimo. But more importantly, the far weightier reason why the admission
against penal interest cannot be accepted in the instant case is that the
declarant is not "unable to testify." There is no showing that Zoilo is either
dead, mentally incapacitated or physically incompetent which Sec. 38 obviously
contemplates. His mere absence from the jurisdiction does not make him ipso
facto unavailable under this rule. For it is incumbent upon the defense to
produce each and every piece of evidence that can break the prosecution and
assure the acquittal of the accused. Other than the gratuitous statements of
accused-appellant and his uncle to the effect that Zoilo admitted having killed
Malaspina, the records show that the defense did not exert any serious effort to
produce Zoilo as a witness. Thus, for this case at least, exclusion is the prudent
recourse.
5. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY;
MANIFEST BY THE SUDDENNESS OF THE ATTACK WITHOUT ANY PROVOCATION
FROM THE VICTIM. — The Court of Appeals as well as the trial court correctly
determined the crime to be murder qualified by treachery. The suddenness of
the attack, without any provocation from the unsuspecting victim, made the
stabbing of Malaspina treacherous.
6. ID.; MURDER; PENALTY WHERE NO OTHER MODIFYING
CIRCUMSTANCE IS PROVED. — The court a quo erred in imposing an
indeterminate prison term of ten (10) years and one (1) day of prision mayor as
minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum. Murder under Art. 248 of The Revised Penal Code is punishable by
reclusion temporal in its maximum period to death. Since aside from treachery
qualifying the crime to murder there is no other modifying circumstance
proved, the medium period of the penalty, i.e., reclusion perpetua, should have
been imposed on petitioner.
7. CIVIL LAW; DAMAGES; IN CRIMES AND QUASI-DELICT, DEFENDANT
IS LIABLE FOR ALL DAMAGES WHICH ARE NATURAL AND PROBABLE
CONSEQUENCES OF HIS ACT. — In crimes and quasi-delicts, the defendant is
liable for all damages which are the natural and probable consequences of the
act or omission complained of.
8. ID.; ID.; ACTUAL DAMAGES; ACTUAL AMOUNT OF LOSS MUST BE
PROVED WITH REASONABLE DEGREE OF CERTAINTY. — To seek recovery for
actual damages it is essential that the injured party proves the actual amount
of loss with reasonable degree of certainty premised upon competent proof and
on the best evidence available. Courts cannot simply rely on speculation,
conjecture or guesswork in determining the fact and amount of damages.
9. ID.; ID.; ID.; ID.; NOT PROVED BY MERE TESTIMONY OF WITNESS. —
The award by the court a quo of P8,300.00 as actual damages is not supported
by the evidence on record. We have only the testimony of the victim's elder
sister stating that she incurred expenses of P8,300.00 in connection with the
death of Malaspina. However, no proof of the actual damages was ever
presented in court. Of the expenses alleged to have been incurred, the Court
can only give credence to those supported by receipts and which appear to
have been genuinely expended in connection with the death of the victim.
Since the actual amount was not substantiated, the same cannot be granted.

DECISION
BELLOSILLO, J : p
Still professing innocence and insisting that he is a victim of mistaken

identity, petitioner Alejandro Fuentes, Jr., seeks reversal of the decision of the
Court of Appeals affirming his conviction for murder. 1
At four o'clock in the morning of 24 June 1989 Julieto Malaspina together

with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit
dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina
and placed his right arm on the shoulder of the latter saying, "Before, I saw you
with a long hair but now you have a short hair." 2 Suddenly petitioner stabbed
Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground
and his companions rushed to his side. Petitioner fled. Before the victim
succumbed to the gaping wound on his abdomen he muttered that Alejandro
Fuentes, Jr., stabbed him. 3
Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the
cadaver of Julieto Malaspina on 24 July 1989, reported that death was due to
"stab wound at left lumbar region 1-½ in. in length with extracavitation of the
small and large intestines." 4
Petitioner claims on the other hand that it was his cousin Zoilo Fuentes,
Jr., alias "Jonie" who knifed Malaspina; that when the victim was killed he was
conversing with him; that he was compelled to run away when he heard that
somebody with a bolo and spear would "kill all those from San Isidro" because
"Jonie," the killer, was from that place; that since he was also from San Isidro
he sought refuge in his brother's house where he met "Jonie;" that "Jonie"
admitted spontaneously that he stabbed Malaspina because after a boxing
match before the latter untied his gloves and punched him; that as there were
many persons milling around the house "Jonie" jumped out and escaped
through the window; that he was arrested at eight o'clock in the morning of 24
June 1989 while he was in a store in the barangay. 5
The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner
guilty of murder qualified by treachery and imposed on him an indeterminate
prison term of ten (10) years and one (1) day of prision mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal as maximum,
to indemnify the heirs of the victim Julieto Malaspina the amount of P50,000.00
and to pay P8,300.00 as actual damages plus costs. 6
The Court of Appeals affirmed the judgment of the trial court; hence, this
petition for review.
Petitioner contends that the appellate court erred when it held that
petitioner was positively and categorically identified as the killer of Malaspina,
in affirming the judgment of conviction and in holding petitioner liable for
damages to the heirs of the victim.

Petitioner points to an alleged inconsistency between the testimonies of
prosecution witnesses Alberto Toling and Honorio Osok to the effect that they
saw petitioner stab Malaspina on the right lumbar region, and the testimony of
the attending physician that the victim was stabbed on the left lumbar region.
This discrepancy is inconsequential. What is material is that Malaspina
was stabbed to death and that three (3) prosecution witnesses positively
identified petitioner as the knife wielder. It must be stressed that these
witnesses had known petitioner for quite some time and never had any
personal misunderstanding nor altercation with the latter as to create any
suspicion that they were impelled by ill motives to falsely implicate him. cda
That it was another person who committed the offense is too incredible.
No less than petitioner's own witness, Nerio Biscocho who claimed he also saw
the killing, testified that Alejandro Fuentes, Jr., the petitioner, and "Jonie"
Fuentes are one and the same person. Thus —
COURT:
Q. Who is this Joni Fuentes and Alejandro Fuentes?

A. That Joni Fuentes is the same of that or the accused Alejandro
Fuentes. I do not know his real name but he is called as Joni, sir, .
..7
On cross-examination witness Biscocho further admitted that he himself

would call petitioner Alejandro Fuentes, Jr., as "Joni" or "Jonie" Fuentes, as
some of his friends did, but victim Malaspina occasionally called petitioner
"Junior." 8
Petitioner would make much of the alleged confession of Zoilo Fuentes,

Jr., since it is a declaration against penal interest and therefore an exception to
the hearsay rule. The so-called confession of Zoilo was allegedly given to
Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed the
matter to P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989
while he was at Barangay San Isidro, Zoilo Fuentes, Jr., confessed that he killed
Malaspina in "retaliation"; that he even showed him the knife he used and
asked his help in finding a lawyer, in securing bail and, if possible, in working
out a settlement with the relatives of the deceased. The following day however
he learned that the self-confessed killer was gone and that petitioner had been
arrested for a crime he did not commit. 9
For his part, Station Commander P/Sgt. Conde, Jr., testified that after the
criminal information for murder was filed on 26 July 1989, petitioner met
Felicisimo who informed him of the disclosure by Zoilo. Conde then advised
Felicisimo that if it was true that it was Zoilo who fatally stabbed Malaspina
Felicisimo must persuade Zoilo to surrender. Conde then personally went to
Barangay San Isidro to investigate. There he was told by the townsfolk that
Zoilo had already fled. 10
One of the recognized exceptions to the hearsay rule is that pertaining to

declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court
provides that "(t)he 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." The
admissibility in evidence of such declaration is grounded on necessity and
trustworthiness. 11
There are three (3) essential requisites for the admissibility of a
declaration against interest: (a) the declarant must not be available to testify;
(b) the declaration must concern a fact cognizable by the declarant; and (c) the
circumstances must render it improbable that a motive to falsify existed.
In the instant case, we find that the declaration particularly against penal
interest attributed to Zoilo Fuentes Jr. is not admissible in evidence as an
exception to the hearsay rule. We are not unaware of People v. Toledo, 12 a
1928 case, where Justice Malcolm writing for the Court endeavored to
reexamine the declaration of third parties made contrary to their penal interest.
In that case, the protagonists Holgado and Morales engaged in a bolo duel.
Morales was killed almost instantly. Holgado who was seriously wounded gave
a sworn statement (Exh. 1) before the municipal president declaring that when
he and Morales fought there was nobody else present. One (1) month later
Holgado died from his wounds. While the Court was agreed that Toledo, who
reportedly intervened in the fight and dealt the mortal blow, should be
exonerated on reasonable doubt, the members did not reach an accord on the
admissibility of Exh. 1. One group would totally disregard Exh. 1 since there
was ample testimonial evidence to support an acquittal. The second group
considered Exh. 1 as part of the res gestae as it was made on the same
morning when the fight occurred. A third group, to which Justice Malcolm
belonged, opined that the court below erred in not admitting Exh. 1 as the
statement of a fact against penal interest.
For all its attempt to demonstrate the arbitrariness behind the rejection in
certain cases of declarations against penal interest, the Toledo case cannot be
applied in the instant case which is remarkably different. Consider this factual
scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant,
verbally admitted to the latter, and later to their common uncle Felicisimo
Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he
disappeared. One striking feature that militates against the acceptance of such
a statement is its patent untrustworthiness. Zoilo who is related to accused-
appellant had every motive to prevaricate. The same can be said of accused-
appellant and his uncle Felicisimo. Secondly, we need not resort to legal
rhetorics to find that the admission of such a statement may likewise be,
according to Wigmore, "shocking to the sense of justice." 13 Let us assume that
the trial court did admit the statement of Zoilo and on that basis acquitted
accused-appellant. Let us assume further that Zoilo was subsequently captured
and upon being confronted with his admission of guilt readily repudiated the
same. There is nothing, absolutely nothing, that can bind Zoilo legally to that
statement.
But more importantly, the far weightier reason why the admission against
penal interest cannot be accepted in the instant case is that the declarant is
not "unable to testify." There is no showing that Zoilo is either dead, mentally
incapacitated or physically incompetent which Sec. 38 obviously contemplates.
His mere absence from the jurisdiction does not make him ipso facto
unavailable under this rule. 14 For it is incumbent upon the defense to produce
each and every piece of evidence that can break the prosecution and assure
the acquittal of the accused. Other than the gratuitous statements of accused-
appellant and his uncle to the effect that Zoilo admitted having killed
Malaspina, the records show that the defense did not exert any serious effort to
produce Zoilo as a witness. Lest we be misunderstood, the Court is always for
the admission of evidence that would let an innocent declaration of guilt by the
real culprit. But this can be open to abuse, as when the extrajudicial statement
is not even authenticated thus increasing the probability of its fabrication; it is
made to persons who have every reason to lie and falsify; and it is not
altogether clear that the declarant himself is unable to testify. Thus, for this
case at least, exclusion is the prudent recourse as explained in Toledo —
The purpose of all evidence is to get at the truth. The reason for
the hearsay rule is that the extrajudicial and unsworn statement of
another is not the best method of serving this purpose. In other words,
the great possibility of the fabrication of falsehoods, and the inability to
prove their untruth, requires that the doors be closed to such evidence.
15
The Court of Appeals as well as the trial court correctly determined the
crime to be murder qualified by treachery. The suddenness of the attack,
without any provocation from the unsuspecting victim, made the stabbing of
Malaspina treacherous. 16 However, the court a quo erred in imposing an
indeterminate prison term of ten (10) years and one (1) day of prision mayor as
minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum. Murder under Art. 248 of The Revised Penal Code is punishable by
reclusion temporal in its maximum period to death. Since aside from treachery
qualifying the crime to murder there is no other modifying circumstance
proved, the medium period of the penalty, i.e., reclusion perpetua, should have
been imposed on petitioner. 17
Petitioner maintains that assuming that he committed the crime it is error
to hold him answerable for P8,300.00 as actual damages on the basis of the
mere testimony of the victim's sister, Angelina Serrano, without any tangible
document to support such claim. This is a valid point. In crimes and quasi-
delicts, the defendant is liable for all damages which are the natural and
probable consequences of the act or omission complained of. 18 To seek
recovery for actual damages it is essential that the injured party proves the
actual amount of loss with reasonable degree of certainty premised upon
competent proof and on the best evidence available. 19 Courts cannot simply
rely on speculation, conjecture or guesswork in determining the fact and
amount of damages. 20
The award by the court a quo of P8,300.00 as actual damages is not
supported by the evidence on record. We have only the testimony of the
victim's elder sister stating that she incurred expenses of P8,300.00 in
connection with the death of Malaspina. 21 However, no proof of the actual
damages was ever presented in court. Of the expenses alleged to have been
incurred, the Court can only give credence to those supported by receipts and
which appear to have been genuinely expended in connection with the death of
the victim. Since the actual amount was not substantiated, the same cannot be
granted. 22
WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO
FUENTES JR. guilty of MURDER and directing him to indemnify the heirs of
Julieto Malaspina in the amount of P50,000.00 plus costs is AFFIRMED with the
modification that the penalty imposed should be as it is corrected to reclusion
perpetua, and the award of actual damages is deleted.
SO ORDERED.
Padilla, Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.
Footnotes
1. Decision penned by Justice Quirino D. Abad Santos, Jr., with Justices Oscar M.
Herrera and Alfredo J. Lagamon concurring, prom. 28 July 1993; Rollo, pp. 34-
39.
2. TSN, 11 July 1991, pp. 9-10.
3. TSN, 18 June 1991, pp. 2-6; 11 July 1991, pp. 8-11; 8 August 1991, pp. 3-5.
4. Exhs. "A" and "B," Records, pp. 69-71; see TSN, 11 July 1991, pp. 2-4.
5. TSN, 3 September 1991, pp. 3-7.

6. Judge Evangeline S. Yuipco presiding; Records, pp. 107-108.
7. TSN, 29 August 1991, pp. 7-8.
8. Id., pp. 13-14.
9. TSN, 29 August 1991, pp. 3-5.
10. Id., 4 September 1991, pp. 2-3.
11. Jones on Evidence, 2nd Ed., Sec. 1164, cited in Francisco, The Revised
Rules of Court in the Philippines, Vol. III, 1990 Ed., p. 554.
12. 51 Phil. 825 (1928).
13. Id., p. 836.
14. See Weber v. Chicago, R. I. & P. RY. Co., 151 N.W. 852, 862, cited in 20 Am.
Jur. 468; People v. Catalino, No. L-25403, 15 March 1968, 22 SCRA 1091,
1107.
15. Id., p. 838.
16. People v. Ronquillo, G.R. No. 96125, 31 August 1995; People v. Loto, G.R.
Nos. 114523-24, 5 September 1995.
17. People v. Laspona, G.R. No. 108084, 14 August 1995; People v. Mirabite,
G.R. Nos. 111294-95, 7 September 1995.
18. Art. 2202, New Civil Code.
19. Art. 2199, id.
20. People v. Degoma, G.R. Nos. 89404-05, 22 May 1992, 209 SCRA 266;
People v. Arguelles, G.R. No. 102539, 17 May 1993, 222 SCRA 166; Dichoso
v. Court of Appeals, G.R. No. 55613, 10 December 1990, 192 SCRA 169.
21. TSN, 19 June 1991, p. 4.
22. In People v. Wenceslao, G.R. No. 95583, 12 August 1992, 212 SCRA 560,
the Court disallowed claim for actual damages, the same being merely based
on a typewritten list of expenses submitted by the father of the deceased
without any competent proof presented in court.

SECOND DIVISION
[G.R. No. 113685. June 19, 1997.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

THEODORE BERNAL, JOHN DOE and PETER DOE, accused-
appellants.
The Solicitor General for plaintiff-appellee.

Johnny P. Landero for accused-appellants.
SYLLABUS
1. CRIMINAL LAW; CRIME AGAINST PERSONAL LIBERTY; KIDNAPPING;

ELEMENTS THEREOF; PRESENT IN CASE AT BAR. — 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 victim's bodies. For the charge of kidnapping to
prosper, the deprivation of the victim's 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."
(People v. Puno, 219 SCRA 85 [1993]). Proof of conspiracy is perhaps most
frequently made by evidence of a chain of circumstances only. The
circumstances present in this case sufficiently indicate the participation of
Bernal in the disappearance of Openda, Jr.
2. ID.; ID.; MOTIVE; WHEN SUFFICIENT TO SUPPORT CONVICTION. —

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. prcd
3. REMEDIAL LAW; EVIDENCE; DECLARATION AGAINST INTEREST;

REQUISITES; WHEN ADMISSIBLE; CASE AT BAR. — Openda, Jr.'s revelation to
Enriquez regarding his elicit relationship with Bernal's 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
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. 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 because no sane person will
be presumed to tell a falsehood to his own detriment.
4. ID.; ID.; TESTIMONY; CREDIBILITY OF A WITNESS; FINDINGS OF FACT
OF A TRIAL COURT; CARRY GREAT WEIGHT ON APPEAL. — Evidence, to be
believed must not only proceed from the mouth of a credible witness, but must
be credible in itself. 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. CaDATc
DECISION
ROMERO, J : p
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 information 1 dated July 13, 1992, which
reads as follows:
"That on or about August 5, 1991, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, armed with hand guns, conspiring,
confederating and cooperating together and helping one another, and
by means of force, violence, intimidation and threat, wilfully,
unlawfully, and feloniously grabbed and kidnapped one Bienvenido
Openda, Jr., while the latter was drinking liquor with his friends at
Bolton Isla, this City and was brought, handcuffed and carried away
using a PU then fled together with Bienvenido Openda, Jr., thereby
depriving the said Bienvenido Openda, Jr. of his liberty against his will.
CONTRARY TO LAW."
A plea of not guilty having been entered by Bernal during his

arraignment, trial ensued. The prosecution presented four witnesses. 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 latter's
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
Bernal's wife Naty and this was the motive behind the former's kidnapping.
Until now, Openda, Jr. is still missing.
On the other hand, the defense asserts that Openda Jr. was a drug-pusher
arrested by the police on August 5, 1991, and hence, was never kidnapped. 4
On December 10, 1993, the court a quo rendered judgment 5 finding
Bernal "guilty beyond reasonable doubt of the crime of kidnapping for the
abduction and disappearance of Bienvenido Openda Jr. under Article 267 of the
Revised Penal Code and hereby sentences him to reclusion perpetua and to
indemnify his mother Teresita Openda in the amount of P50,000.00 for her
mental anguish and moral suffering. 6
Bernal assails the lower court for giving weight and credence to the
prosecution witnesses' allegedly illusory testimonies and for convicting him
when his guilt was not proved beyond reasonable doubt.
We find no compelling reason to overturn the decision of the lower court.
The Court notes that up to this day, neither the victim nor his body has
been found. This, however, does not preclude the Court from ruling on the
merits of the case. In kidnapping, what is important is to determine and prove
the fact of seizure, and the subsequent disappearance of the victim will not
exonerate an accused from prosecution therefor. Otherwise, kidnappers can
easily avoid punishment by the simple expedient of disposing of their victims'
bodies.
Article 267 of the Revised Penal Code provides thus:

"ART. 267. Kidnapping and serious illegal detention. —
Any private individual who shall kidnap or detain another, or in
any other manner deprive him of his liberty, shall suffer the penalty of
reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than
five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted
upon the person kidnapped or detained, or if threats to kill him shall
have been made.
4. If the person kidnapped or detained shall be a minor,
female or a public officer.
The penalty shall be death where the kidnapping or detention
was committed for the purpose of extorting ransom from the victim or
any other person, even if none of the circumstances above-mentioned
were present in the commission of the offense."
For the charge of kidnapping to prosper, the deprivation of the victim's

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 proffered 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 "Tarsing's Store" to
check if a certain person was still there. This person later turned out to be
Openda, Jr. He added that after the latter's presence was confirmed, the three
men left the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed
by the billiard hall with Bernal's companions. LibLex
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
"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.
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 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.
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 Bernal's 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 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. 11
A statement may be admissible when it complies with the following
requisites, to wit: "(1) that the declarant is dead or unable to testify; (2) that it
relates to a fact against the interest of the declarant; (3) that at the time he
made said declaration the declarant was aware that the same was contrary to
his aforesaid interest; and (4) that the declarant had no motive to falsify and
believed such declaration to be true. 12
Openda, Jr., having been missing since his abduction, cannot be called
upon to testify. His confession to Enriquez, definitely a declaration against his
own interest, since his affair with Naty Bernal was a crime, is admissible in
evidence 13 because no sane person will be presumed to tell a falsehood to his
own detriment. 14
In his brief, Bernal highlights supposed inconsistencies in Sagarino's

testimony. He alleges that the latter could not have seen the actual handcuffing
because "Tarsing's Store" could not be seen from the billiard hall. Sagarino's
testimony shows that after Bernal and two others left the billiard hall, the latter
came back with Openda, Jr., already handcuffed.
"Q. The three of them together?
A. Yes, sir.
Q. And what about you, where did you stay?
A. I just stayed in the billiard hall.

Q. While you stay (sic) in the billiard hall, after a while, what did
you see next?
A. The two came back.
Q. Who were these two whom you said who (sic) came back?
A. The companions of Bernal.
Q. And what did these two men do?

A. They apprehended Junjun Openda." 15

From this proceeding, Bernal wrongly inferred that Sagarino actually saw
Openda, Jr. arrested. The lower court correctly rejected this argument by
holding that:
"But Sagarino has not said that he saw the actual handcuffing of
Openda, Jr. at the Tarsing or Tarcing store. On the contrary, he says
that he had not known who the person was that Bernal referred to
when he requested one of this two companions to go see if that person
was still there at the store, and that he came to know that he was
Openda, Jr. only after he saw Openda, Jr. pass by the billiard hall
already handcuffed, with the two unidentified companions of Bernal
with him, on their way out to the main road." 16
If one had a direct view of "Tarsing's 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." 17
On the other hand, Sagarino averred that:

"Q. When Theodore Bernal left the place, how long (sic) were you
able to see him again?
A. Quite a time, sir, because when they left, his two companions
came back and proceeded to Tarcing Store and arrested Junjun
Openda. When these two men brought out Junjun 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." 18
The testimonies of Racasa and Sagarino are not absolutely inconsistent

with each other as to be irreconcilable. Considering the proximity of the store
from the billiard hall, there is a possibility that when Racasa saw Bernal with his
son at the store, the latter could have already brought home his son before
proceeding alone to the billiard hall where he was seen by Sagarino. 19
Bernal would like the Court to dismiss Sagarino's testimony by imputing
revenge as his motive for testifying. He alleges that on July 29, 1991, or six
days before the alleged kidnapping, five policemen arrived at Kasilak, Bucana
on board a patrol car asking for Openda, Jr., Sagarino, Joseph Mendoza, Dansoy
Madelo and Dagoy Balagan. He replied that they were residents of the place
and staying at the billiard hall and mahjong house. The policemen departed and
went to the places he mentioned.
"Q. Minutes later do you know what happened?
"A. They came back.
"Q. What did you do after they came back?
"A. I asked these police officers if they found these (sic) persons
they were looking (for)?
"Q. What was their answer?
"A. They answered in the negative.

"Q. Since the answer is in the negative, what did you do?
"A. I asked the police officers why they were looking for these
persons.(?)
"Q. What was the answer of the policemen?
"A. The police officer said that those people were wanted by them
because accordingly (sic) they were marijuana pushers." 20
Bernal's 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 latter's 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 Sagarino's
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. 22
We note that after a lapse of a considerable length of time, the victim has
yet to resurface. Considering the circumstances, it is safe to assume that
Openda, Jr. is already dead.
Finally, the Solicitor General, pursuant to the Indeterminate Sentence
Law, recommended to this Court the penalty of seventeen (17) years of
reclusion temporal, as minimum, to reclusion perpetua, as maximum. The
maximum penalty must be determined in accordance with rules and provisions
of the Revised Penal Code. With respect to the minimum penalty, however, "it is
left entirely within the discretion of the court to fix it anywhere within the range
of the penalty next lower without reference to the periods into 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 DISMISSED
and the appealed decision dated November 18, 1993, is AFFIRMED in toto.
Costs against accused-appellant Theodore Bernal.
SO ORDERED.
Regalado, Puno, Mendoza and Torres, Jr., JJ ., concur.
Footnotes
1. Rollo , p. 5.
2. Namely, Salito Enriquez, a tailor and resident of Kasilac, Bucana, Davao City;
Roberto Racasa, a mason and resident of Kasilac, Bucana, Davao City;
Adonis Sagarino, a student and resident of Boston Isla; and Teresita Openda,
the mother of Bienvenido Openda Jr.
3. TSN, May 10, 1993, p. 9.
4. Rollo , p. 9.
5. Penned by Judge Augusto V. Breva.
6. Rollo , p. 24.
7. People v. Puno , 219 SCRA 85 (1993).
8. People v. Minanday , 242 SCRA 620(1995).
9. TSN, May 10, 1993, p. 5.
10. People v. Evangelista , 256 SCRA 611 (1996).
11. Francisco on Evidence, 1993 edition, p. 275.
12. Regalado, Remedial Law Compendium, 7th Revised Ed., p. 609.
13. Rollo , p. 11.
14. People v. Toledo and Holgado , 51 Phil. 825.
15. TSN, July 28, 1993, pp. 7-8.
16. TSN October 13, 1993, pp. 3-5.

17. TSN, May 10, 1993, p. 13.
18. TSN, July 28, 1993, pp. 21-22.
19. Rollo , p. 90.
20. TSN October 13, 1993. P 4
21. People v. Ulpindo , 256 SCRA 201 (1996).
22. People v. Catoltol, Sr ., G.R. No. 122359, November 28, 1996; People v.
Belisnomo, G.R. No. 118990, November 28, 1996; People v. Vallena, 244
SCRA 685 (1995).
23. People v. Ducosin , 59 Phil. 109.

SECOND DIVISION
[G.R. No. 121027. July 31, 1997.]
CORAZON DEZOLLER TISON and RENE R. DEZOLLER ,

petitioners, vs. COURT OF APPEALS and TEODORA DOMINGO,
respondents.
Benjamin P. Quitoriano for petitioners.

Ramoso Law Office for private respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; FILIATION; LEGITIMACY; GENERAL

PRESUMPTION THAT CHILDREN BORN IN WEDLOCK ARE LEGITIMATE; ISSUE
THEREOF CANNOT BE ATTACKED COLLATERALLY. — There is no presumption of
the law more firmly established and founded on sounder morality and more
convincing reason than the presumption that children born in wedlock are
legitimate. And well settled is the rule that the issue of legitimacy cannot be
attacked collaterally. The issue whether petitioners are the legitimate children
of Hermogenes Dezoller cannot be properly controverted in the present action
for re-conveyance. This is aside from the further consideration that private
respondent is not the proper party to impugn the legitimacy of herein
petitioners. The presumption consequently continues to operate in favor of
petitioners unless and until it is rebutted.
2. ID.; ID.; ID.; ID.; ID.; BURDEN OF PROOF. — The burden of proof
rests not on herein petitioners who have the benefit of the presumption in their
favor, but on private respondent who is disputing the same. The presumption of
legitimacy is so strong that it is clear that its effect is to shift the burden of
persuasion to the party claiming illegitimacy. And in order to destroy the
presumption, the party against whom it operates must adduce substantial and
credible evidence to the contrary. Where there is an entire lack of competent
evidence to the contrary, and unless or until it is rebutted, it has been held that
a presumption may stand in lieu of evidence and support a finding or decision.
Perforce, a presumption must be followed if it is uncontroverted. This is based
on the theory that a presumption is prima facie proof of the fact presumed, and
unless the fact thus established prima facie by the legal presumption of its truth
is disproved, it must stand as proved. Indubitably, when private respondent
opted not to present countervailing evidence to overcome the presumption, by
merely filing a demurrer to evidence instead, she in effect impliedly admitted
the truth of such fact.
3. REMEDIAL LAW; EVIDENCE; TESTIMONIES; EXCEPTION TO THE
HEARSAY RULE; DECLARATION ABOUT PEDIGREE; CONDITIONS. — The primary
proof to be considered in ascertaining the relationship between the parties
concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora
Dezoller Guerrero in her lifetime categorically declared that the former is
Teodora's niece. Such a statement is considered a declaration about pedigree
which is admissible, as an exception to the hearsay rule, under Section 39, Rule
130 of the Rules of Court, subject to the following conditions: (1) that the
declarant is dead or unable to testify; (2) that the declarant be related to the
person whose pedigree is the subject of inquiry; (3) that such relationship be
shown by evidence other than the declaration; and (4) that the declaration was
made ante litem motam, that is, not before the commencement of the suit
involving the subject matter of the declaration, but before any controversy has
arisen thereon.
4. ID.; ID.; ID.; ID.; ID.; SUFFICIENCY DISCUSSED. — American
jurisprudence has it that a distinction must be made as to when the relationship
of the declarant may be proved by the very declaration itself, or by other
declarations of said declarant, and when men It must be supported by evidence
aliunde. The general rule is that where the party claiming seeks recovery
against a relative common to both claimant and declarant, but not from the
declarant himself or the declarant's estate, the relationship of the declarant's
estate, the relationship of the proved by the declaration itself. There must be
some independent proof of this fact. As an exception, the requirement that
there be other proof than the declarations of the declarant as to the
relationship, does not apply where it is sought to reach the estate of the
declarant himself and not merely to establish a right through his declarations to
the property of some other member of the family.
5. ID.; ID.; ID.; ID.; ID.; REQUIRES NO FURTHER EVIDENCE IN CASE AT
BAR. — The present case is one instance where the general requirement on
evidence aliunde may be relaxed. Petitioners are claiming a right to part of the
estate of the declarant herself. Conformably, the declaration made by Teodora
Dezoller Guerrero that petitioner Corazon is her niece, is admissible and
constitutes sufficient proof of such relationship, notwithstanding the fact that
there was no other preliminary evidence thereof, the reason being that such
declarant is rendered competent by virtue of the necessity of receiving such
evidence to avoid a failure of justice. More importantly, there is in the present
case an absolute failure by all and sundry to refute that declaration made by
the decedent. Where the subject of the declaration is the declarant's own
relationship to another person. it seems absurd to require, as a foundation for
the admission of the declaration, proof of the very fact which the declaration is
offered to establish. The preliminary proof would render the main evidence
unnecessary.
6. ID.; ID.; RULES OF ADMISSIBILITY; DOCUMENTARY EVIDENCE;
INSUFFICIENCY ADMITTED WHEN NOT TIMELY OBJECTED. — While the
documentary evidence submitted by petitioners do not strictly conform to the
rules on their admissibility, we are however of the considered opinion that the
same may be admitted by reason of private respondent's failure to interpose
any timely objection thereto at the time they were being offered in evidence. It
is elementary that an objection shall be made at the time when an alleged
inadmissible document is offered in evidence, otherwise, the objection shall be
treated as waived, since the right to object is merely a privilege which the party
may waived. The proper time is when from the question addressed to the
witness, or from the answer thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be inferred. Thus, a failure to except
to the evidence because it does not conform with the statute is a waiver of the
provisions of the law. That objection to a question put to a witness must be
made at the time the question is asked. An objection to the admission of
evidence on the ground of incompetency, taken after the testimony has been
given, is too late. Thus, for instance, failure to object to parol evidence given on
the stand, where the party is in a position to object, is a waiver of any
objections thereto.
7. ID.; CIVIL PROCEDURE; JUDGMENT ON DEMURRER TO EVIDENCE. —
Private respondent may no longer be allowed to present evidence by reason of
the mandate under Section I of revised Rule 38 of the Rules of Court which
provides that "if the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence."
DECISION
REGALADO, J : p
The present appeal by certiorari seeks the reversal of the judgment

rendered by respondent Court of Appeals on June 30, 1995 1 which affirmed the
Order of December 3, 1992 issued by the Regional Trial Court of Quezon City,
Branch 98, granting herein private respondent's Demurrer to Plaintiff's
Evidence filed in Civil Case No. Q-88-1054 pending therein.
The present appellate review involves an action for reconveyance filed by

herein petitioners against herein private respondent before the Regional Trial
Court of Quezon City, Branch 98, docketed as the aforesaid Civil Case No. Q-88-
1054, over a parcel of land with a house and apartment thereon located at San
Francisco del Monte, Quezon City and which was originally owned by the
spouses Martin Guerrero and Teodora Dezoller Guerrero. It appears that
petitioners Corazon Tison and Rene Dezoller are the niece and nephew,
respectively, of the deceased Teodora Dezoller Guerrero who is the sister of
petitioners' father, Hermogenes Dezoller. Teodora Dezoller Guerrero died on
March 5, 1983 without any ascendant or descendant, and was survived only by
her husband, Martin Guerrero, and herein petitioners. Petitioners' father,
Hermogenes, died on October 3, 1973, hence they seek to inherit from Teodora
Dezoller Guerrero by right of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her
surviving spouse, Martin, executed on September 15, 1986 an Affidavit of
Extrajudicial Settlement 2 adjudicating unto himself, allegedly as sole heir, the
land in dispute which is covered by Transfer Certificate of Title No. 66886, as a
consequence of which Transfer Certificate of Title No. 358074 was issued in the
name of Martin Guerrero. On January 2, 1988, Martin Guerrero sold the lot to
herein private respondent Teodora Domingo and thereafter, Transfer Certificate
of Title No. 374012 was issued in the latter's name.
Martin Guerrero died on October 25, 1988. Subsequently, herein
petitioners filed an action for reconveyance on November 2, 1988, claiming
that they are entitled to inherit one-half of the property in question by right of
representation. cdtai
At the pre-trial conference, the following issues were presented by both

parties for resolution:
(1) whether or not the plaintiffs (herein petitioners) are the
nephew and niece of the late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right

of representation from the estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent)
must reconvey the reserved participation of the plaintiffs to the estate
of the late Teodora Dezoller under Section 4, Rule 74 of the Rules of
Court which was duly annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages,
moral and exemplary, plus attorney's fees for the willful and malicious
refusal of defendant to reconvey the participation of plaintiffs in the
estate of Teodora Dezoller, despite demands and knowing fully well
that plaintiffs are the niece and nephew of said deceased; and
(5) whether or not the subject property now in litigation can
be considered as conjugal property of the spouses Martin Guerrero and
Teodora Dezoller Guerrero. 3
During the hearing, petitioner Corazon Dezoller Tison was presented as

the lone witness, with the following documentary evidence offered to prove
petitioners' filiation to their father and their aunt, to wit: a family picture;
baptismal certificates of Teodora and Hermogenes Dezoller; certificates of
destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller; death
certificates of Hermogenes Dezoller and Teodora Dezoller Guerrero;
certification of destroyed records of live birth of Corazon and Rene Dezoller;
joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the parents, date
and place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana
Cariaga and Manuela Cariaga attesting to the fact of marriage between Martin
Guerrero and Teodora Dezoller; and the marriage certificate of Martin and
Teodora Guerrero. 4 Petitioners thereafter rested their case and submitted a
written offer of these exhibits to which a Comment 5 was filed by herein private
respondent.
Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence

on the ground that petitioners failed to prove their legitimate filiation with the
deceased Teodora Guerrero in accordance with Article 172 of the Family Code.
It is further averred that the testimony of petitioner Corazon Dezoller Tison
regarding her relationship with her alleged father and aunt is self-serving,
uncorroborated and incompetent, and that it falls short of the quantum of proof
required under Article 172 of the Family Code to establish filiation. Also, the
certification issued by the Office of the Local Civil Registrar of Himamaylan,
Negros Occidental is merely proof of the alleged destruction of the records
referred to therein, and the joint affidavit executed by Pablo Verzosa and
Meliton Sitjar certifying to the date, place of birth and parentage of herein
petitioners is inadmissible for being hearsay since the affiants were never
presented for cross-examination. 6
On December 3, 1992, the trial court issued an order granting the

demurrer to evidence and dismissing the complaint for reconveyance. 7
In upholding the dismissal, respondent Court of Appeals declared that the

documentary evidence presented by herein petitioners, such as the baptismal
certificates, family picture, and joint affidavits are all inadmissible and
insufficient to prove and establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondent's demurrer to evidence is

whether or not herein petitioners failed to meet the quantum of proof required
by Article 172 of the Family Code to establish legitimacy and filiation. There are
two points for consideration before us: first is the issue on petitioner's
legitimacy, and second is the question regarding their filiation with Teodora
Dezoller Guerrero.
I. It is not debatable that the documentary evidence adduced by
petitioners, taken separately and independently of each other, are not per se
sufficient proof of legitimacy nor even of pedigree. It is important to note,
however, that the rulings of both lower courts in the case are basically
premised on the erroneous assumption that, in the first place, the issue of
legitimacy may be validly controverted in an action for reconveyance, and, in
the second place, that herein petitioners have the onus probandi to prove their
legitimacy and, corollarily, their filiation. We disagree on both counts.
It seems that both the court a quo and respondent appellate court have
regrettably overlooked the universally recognized presumption on legitimacy.
There is no presumption of the law more firmly established and founded on
sounder morality and more convincing reason than the presumption that
children born in wedlock are legitimate. 8 And well settled is the rule that the
issue of legitimacy cannot be attacked collaterally.
The rationale for these rules has been explained in this wise:
"The presumption of legitimacy in the Family Code . . . actually
fixes a civil status for the child born in wedlock, and that civil status
cannot be attacked collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the
proper parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of
defense or as a collateral issue in another action for a different
purpose. The necessity of an independent action directly impugning
the legitimacy is more clearly expressed in the Mexican Code (Article
335) which provides: 'The contest of the legitimacy of a child by the
husband or his heirs must be made by proper complaint before the
competent court; any contest made in any other way is void.' This
principle applies under our Family Code. Articles 170 and 171 of the
code confirm this view, because they refer to "the action to impugn the
legitimacy." This action can be brought only by the husband or his
heirs and within the periods fixed in the present articles.
Upon the expiration of the periods provided in Article 170, the

action to impugn the legitimacy of a child can no longer be brought.
The status conferred by the presumption, therefore, becomes fixed,
and can no longer be questioned. The obvious intention of the law is to
prevent the status of a child born in wedlock from being in a state of
uncertainty for a long time. It also aims to force early action to settle
any doubt as to the paternity of such child, so that the evidence
material to the matter, which must necessarily be facts occurring
during the period of the conception of the child, may still be easily
available.
xxx xxx xxx

Only the husband can contest the legitimacy of a child born to
his wife. He is the one directly confronted with the scandal and ridicule
which the infidelity of his wife produces; and he should decide whether
to conceal that infidelity or expose it, in view of the moral and
economic interest involved. It is only in exceptional cases that his heirs
are allowed to contest such legitimacy. Outside of these cases, none —
even his heirs — can impugn legitimacy; that would amount to an
insult to his memory." 9
The issue, therefore, as to whether petitioners are the legitimate children

of Hermogenes Dezoller cannot be properly controverted in the present action
for reconveyance. This is aside, of course, from the further consideration that
private respondent is not the proper party to impugn the legitimacy of herein
petitioners. The presumption consequently continues to operate in favor of
petitioners unless and until it is rebutted.
Even assuming that the issue is allowed to be resolved in this case, the
burden of proof rests not on herein petitioners who have the benefit of the
presumption in their favor, but on private respondent who is disputing the
same. This fact alone should have been sufficient cause for the trial court to
exercise appropriate caution before acting, as it did, on the demurrer to
evidence. It would have delimited the issues for resolution, as well as the time
and effort necessitated thereby. cdtai
Ordinarily, when a fact is presumed, it implies that the party in whose

favor the presumption exists does not have to introduce evidence to establish
that fact, and in any litigation where that fact is put in issue, the party denying
it must bear the burden of proof to overthrow the presumption. 10 The
presumption of legitimacy is so strong that it is clear that its effect is to shift
the burden of persuasion to the party claiming illegitimacy. 11 And in order to
destroy the presumption, the party against whom it operates must adduce
substantial and credible evidence to the contrary. 12
Where there is an entire lack of competent evidence to the contrary,13

and unless or until it is rebutted, it has been held that a presumption may stand
in lieu of evidence and support a finding or decision. 14 Perforce, a presumption
must be followed if it is uncontroverted. This is based on the theory that a
presumption is prima facie proof of the fact presumed, and unless the fact thus
established prima facie by the legal presumption of its truth is disproved, it
must stand as proved. 15
Indubitably, when private respondent opted not to present countervailing

evidence to overcome the presumption, by merely filing a demurrer to evidence
instead, she in effect impliedly admitted the truth of such fact. Indeed, she
overlooked or disregarded the evidential rule that presumptions like judicial
notice and admissions, relieve the proponent from presenting evidence on the
facts he alleged and such facts are thereby considered as duly proved.
II. The weight and sufficiency of the evidence regarding petitioner's
relationship with Teodora Dezoller Guerrero, whose estate is the subject of the
present controversy, requires a more intensive and extensive examination.
Petitioners' evidence, as earlier explained, consists mainly of the
testimony of Corazon Dezoller Tison, the baptismal, death and marriage
certificates, the various certifications from the civil registrar, a family picture,
and several joint affidavits executed by third persons all of which she identified
and explained in the course and as part of her testimony.
The primary proof to be considered in ascertaining the relationship
between the parties concerned is the testimony of Corazon Dezoller Tison to the
effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946,
categorically declared that the former is Teodora's niece. 16 Such a statement
is considered a declaration about pedigree which is admissible, as an exception
to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to
the following conditions: (1) that the declarant is dead or unable to testify; (2)
that the declarant be related to the person whose pedigree is the subject of
inquiry; (3) that such relationship be shown by evidence other than the
declaration; and (4) that the declaration was made ante litem motam, that is,
not only before the commencement of the suit involving the subject matter of
the declaration, but before any controversy has arisen thereon.
There is no dispute with respect to the first, second and fourth elements.
What remains for analysis is the third element, that is, whether or not the other
documents offered in evidence sufficiently corroborate the declaration made by
Teodora Dezoller Guerrero in her lifetime regarding the pedigree of petitioner
Corazon Dezoller Tison or, if at all, it is necessary to present evidence other
than such declaration.
American jurisprudence has it that a distinction must be made as to when

the relationship of the declarant may be proved by the very declaration itself,
or by other declarations of said declarant, and when it must be supported by
evidence aliunde. The rule is stated thus:
"One situation to be noted is that where one seeks to set up a
claim through, but not from, the declarant and to establish the
admissibility of a declaration regarding claimant's pedigree, he may
not do so by declarant's own statements as to declarant' s relationship
to the particular family. The reason is that declarant's declaration of
his own relationship is of a self-serving nature. Accordingly there must
be precedent proof from other sources that declarant is what he
claimed to be, namely, a member of the particular family; otherwise
the requirement to admissibility that declarant's relationship to the
common family must appear is not met. But when the party claiming
seeks to establish relationship in order to claim directly from the
declarant or the declarant's estate, the situation and the policy of the
law applicable are quite different. In such case the declaration of the
decedent, whose estate is in controversy, that he was related to the
one who claims his estate, is admissible without other proof of the fact
of relationship. While the nature of the declaration is then disserving,
that is not the real ground for its admission. Such declarations do not
derive their evidential value from that consideration, although it is a
useful, if not an artificial, aid in determining the class to which the
declarations belong. The distinction we have noted is sufficiently
apparent; in the one case the declarations are self-serving, in the other
they are competent from reasons of necessity." 17 (Emphasis ours.)
The general rule, therefore, is that where the party claiming seeks
recovery against a relative common to both claimant and declarant, but not
from the declarant himself or the declarant's estate, the relationship of the
declarant to the common relative may not be proved by the declaration itself.
There must be some independent proof of this fact. 18 As an exception, the
requirement that there be other proof than the declarations of the declarant as
to the relationship, does not apply where it is sought to reach the estate of the
declarant himself and not merely to establish a right through his declarations to
the property of some other member of the family. 19
We are sufficiently convinced, and so hold, that the present case is one
instance where the general requirement on evidence aliunde may be relaxed.
Petitioners are claiming a right to part of the estate of the declarant herself.
Conformably, the declaration made by Teodora Dezoller Guerrero that
petitioner Corazon is her niece, is admissible and constitutes sufficient proof of
such relationship, notwithstanding the fact that there was no other preliminary
evidence thereof, the reason being that such declaration is rendered competent
by virtue of the necessity of receiving such evidence to avoid a failure of
justice. 20 More importantly, there is in the present case an absolute failure by
all and sundry to refute that declaration made by the decedent. cdtai
From the foregoing disquisitions, it may thus be safely concluded, on the

sole basis of the decedent's declaration and without need for further proof
thereof, that petitioners are the niece and nephew of Teodora Dezoller
Guerrero. As held in one case, 21 where the subject of the declaration is the
declarant's own relationship to another person, it seems absurd to require, as a
foundation for the admission of the declaration, proof of the very fact which the
declaration is offered to establish. The preliminary proof would render the main
evidence unnecessary.
Applying the general rule in the present case would nonetheless produce
the same result. For while the documentary evidence submitted by petitioners
do not strictly conform to the rules on their admissibility, we are however of the
considered opinion that the same may be admitted by reason of private
respondent's failure to interpose any timely objection thereto at the time they
were being offered in evidence. 22 It is elementary that an objection shall be
made at the time when an alleged inadmissible document is offered in
evidence, 23 otherwise, the objection shall be treated as waived, 24 since the
right to object is merely a privilege which the party may waive. 25
As explained in Abrenica vs. Gonda, et al. , 26 it has been repeatedly laid
down as a rule of evidence that a protest or objection against the admission of
any evidence must be made at the proper time, otherwise it will be deemed to
have been waived. The proper time is when from the question addressed to the
witness, or from the answer thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be inferred.
Thus, a failure to except to the evidence because it does not conform with
the statute is a waiver of the provisions of the law. That objection to a question
put to a witness must be made at the time the question is asked. An objection
to the admission of evidence on the ground of incompetency, taken after the
testimony has been given, is too late. 27 Thus, for instance, failure to object to
parol evidence given on the stand, where the party is in a position to object, is
a waiver of any objections thereto. 28
The situation is aggravated by the fact that counsel for private respondent
unreservedly cross-examined petitioners, as the lone witness, on the
documentary evidence that were offered. At no time was the issue of the
supposed inadmissibility thereof, or the possible basis for objection thereto,
ever raised. Instead, private respondent's counsel elicited answers from the
witness on the circumstances and regularity of her obtention of said
documents: The observations later made by private respondent in her
comment to petitioners' offer of exhibits, although the grounds therefor were
already apparent at the time these documents were being adduced in evidence
during the testimony of Corazon Dezoller Tison but which objections were not
timely raised therein, may no longer serve to rectify the legal consequences
which resulted therefrom. Hence, even assuming ex gratia argumenti that
these documents are inadmissible for being hearsay, but on account of herein
private respondent's failure to object thereto, the same may be admitted and
considered as sufficient to prove the facts therein asserted. 29
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated

that the parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as
well as the Certificates of Baptism of Teodora Dezoller 30 (Exhibit H) and
Hermogenes Dezoller (Exhibit J) which both reflect the names of their parents
as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the
brother of Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes
Dezoller (Exhibit K) the entries wherein were made by petitioner Corazon
Dezoller Tison as his daughter, together with the Joint Affidavits of Pablo
Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein petitioners
are the children of Hermogenes Dezoller — these can be deemed to have
sufficiently established the relationship between the declarant and herein
petitioners. This is in consonance with the rule that a prima facie showing is
sufficient and that only slight proof of the relationship is required. 31 Finally, it
may not be amiss to consider as in the nature of circumstantial evidence the
fact that both the declarant and the claimants, who are the subject of the
declaration, bear the surname Dezoller. 32
III. The following provisions of the Civil Code provide for the manner by
which the estate of the decedent shall be divided in this case, to wit:
"Art. 975. When children of one or more brothers or sisters of
the deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if they
alone survive, they shall inherit in equal portions."
"Art. 995. In the absence of legitimate descendants and
ascendants, and illegitimate children and their descendants, whether
legitimate or illegitimate, the surviving spouse shall inherit the entire
estate, without prejudice to the rights of brothers and sisters, nephews
and nieces, should there be any, under Article 1001."
"Art. 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be entitled to one-
half of the inheritance and the brothers and sisters or their children to
the other half."
Upon the death of Teodora Dezoller Guerrero, one-half of the subject

property was automatically reserved to the surviving spouse, Martin Guerrero,
as his share in the conjugal partnership. Applying the aforequoted statutory
provisions, the remaining half shall be equally divided between the widower
and herein petitioners who are entitled to jointly inherit in their own right.
Hence, Martin Guerrero could only validly alienate his total undivided three-
fourths (3/4) share in the entire property to herein private respondent.
Resultantly, petitioners and private respondent are deemed co-owners of the
property covered by Transfer Certificate of Title No. 374012 in the proportion of
an undivided one-fourth (1/4) and three-fourths (3/4) share thereof,
respectively. cdrep
All told, on the basis of the foregoing considerations, the demurrer to

plaintiffs' evidence should have been, as it is hereby, denied. Nonetheless,
private respondent may no longer be allowed to present evidence by reason of
the mandate under Section 1 of revised Rule 3 of the Rules of Court which
provides that "if the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence." 33
WHEREFORE, the questioned judgment of respondent Court of Appeals is

hereby REVERSED and SET ASIDE, and herein petitioners and private
respondent are declared co-owners of the subject property with an undivided
one-fourth (1/4) and three-fourth (3/4) share therein, respectively.
SO ORDERED.
Romero, Puno and Mendoza, JJ ., concur.
Torres, Jr., J ., is on leave.
Footnotes
1. Penned by Associate Justice Gloria C. Paras, with Associate Justices Quirino
Abad Santos, Jr. and Delilah Vidallon Magtolis, concurring; Annex K, Petition,
Rollo , 74.
2. Annex B, id .; ibid., 41.
3. Original Record, 207-208.
4. Ibid., 224-229.
5. Ibid., 233-234.
6. Ibid., 259-267.
7. Ibid., 275.
8. Jones, Commentaries on Evidence, Vol. 1, 2nd ed., 118-119.
9. Tolentino, A., Civil Code of the Philippines, Commentaries and Jurisprudence,

Vol. 1, 1990 ed., 535-537.
10. Op. cit ., 535.

11. Jones on Evidence, Vol. 1, 5th ed., 178.
12. 95 ALR 883.
13. 31A CJS, Evidence, Sec. 114, 195.

14. Ibid., Sec. 119, 216.
15. Brawsell vs. Tindall, 294 SW 2d 685.
16. TSN, February 14, 1992, 5-8.
17. Jones, Commentaries on Evidence, Vol. 3, 2nd ed., 2094-2095.
18. Op. cit ., 2096.

19. Op. cit ., 2098.
20. In re Clark's Estate, 110 P 828.
21. Hartman's Estate, 107 P 105, cited in Moran, Comments on the Rules of
Court, Vol. 5, 1980 ed., 322.
22. On offer of evidence, the Rules of Court pertinently provide:
"Sec. 35. When to make offer. — . . .

Documentary and object evidence shall be offered after the
presentation of a party's testimonial evidence. Such offer shall be done
orally unless allowed by the Court to be done by writing.
"Sec. 36. Objection. — Objection to evidence offered orally must

be made immediately after the offer is made.
Objection to a question propounded in the course of the oral

examination of a witness shall be made as soon as the grounds therefor
shall become reasonably apparent."
23. Martin, Rules of Court, Vol. 5, 3rd ed., 611.
24. People vs. De la Cruz, G.R. No. 108180, February 8, 1994, 229 SCRA 754.
25. Moran, Comments on the Rules of Court, Vol. 6, 1980 ed., 125.
26. 34 Phil. 745 (1916).
27. Conlu vs. Araneta, et al., 15 Phil. 387 (1910).

28. See Talosig vs. Vda. De Nieba, et al., G.R. No. L-29557, February 29, 1972,
43 SCRA 472.
29. Op. cit ., 128.

30. This parochial record is an official document, having been made prior to the
passage of G.O. No. 68 and Act No. 190 (U.S. vs. Evangelista, 29 Phil. 215
(1915), and cases therein cited).
31. Fulkerson, et al. vs. Holmes, et al., 117 US 389.

32. Francisco, Rules of Court, Vol. 7, 1973 ed., 494.
33. This amendatory provision under the 1997 Rules of Civil Procedure, which
took effect on July 1, 1997, is substantially the same as the antecedent
provision in Sec. 1, Rule 35: "However, if the motion is granted and the order
of dismissal is reversed on appeal, the movant loses his right to present
evidence in his behalf."

EN BANC
[G.R. No. L-24989. July 21, 1967.]
PEDRO GRAVADOR , petitioner-appellee , vs. EUTIQUIO

MAMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA.
CATALINA SCHOOL DISTRICT, THE DIVISION
SUPERINTENDENT OF SCHOOLS OF NEGROS ORIENTAL, THE
DIRECTOR OF PUBLIC SCHOOLS and THE SECRETARY OF
EDUCATION, (all sued in their official and personal
capacities), respondents-appellants.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General I.C .

Borromeo and Solicitor F. J . Bautista for respondents-appellants.
Newton E. Serion for petitioner-appellee.
SYLLABUS
1. ADMINISTRATIVE LAW; FINDINGS OF FACT OF ADMINISTRATIVE

OFFICIALS; EFFECT. — That the findings of fact of administrative officials are
binding on the courts if supported by substantial evidence, is a settled rule
of administrative law.
2. ID.; EVIDENCE; DATE OF BIRTH; CIRCUMSTANCES EVIDENCING
THE SAME. — Although a person can have no personal knowledge of the
date of his birth, he may testify as to his age as he had learned it from his
parents and relatives, and his testimony in such case is an assertion of
family tradition. Indeed, even in his application for backpay, filed through the
Office of the Superintendent of Schools, on October 7, 1948, the petitioner
stated that the date of his birth is December 11, 1901. He repeated the
same assertion in 1956 and again in 1960 when he asked the Government
Service Insurance System and the Civil Service Commission to correct the
date of his birth to December 11, 1901. Again the import of the declaration
of the petitioner's brother, contained in a verified pleading in a cadastral
case way back in 1924, to the effect that the petitioner was then 23 years
old, cannot be ignored. Made ante litem motam by a deceased relative, this
statement is at once a declaration regarding pedigree within the intendment
and meaning of section 33 of Rule 130 of the Rules of Court. Thus,
December 11, 1901 is established as the date of birth of the petitioner not
only by evidence of family tradition but also by the declaration ante litem
motam of a deceased relative.
3. ID.; QUO WARRANTO; PERIOD WITHIN WHICH ACTION MAY BE
BROUGHT. — Suits for quo warranto to recover a public office must be
brought within one year.
4. ID.; RULE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES;
APPLICATION OF RULE WHERE RIGHT ASSERTED MAY BE NULLIFIED IF
OBSERVANCE THEREOF IS INSISTED UPON. — The rule on exhaustion of
administrative remedies does not apply where insistence on its observance
would result in the nullification of the claim being asserted.
DECISION
CASTRO, J : p
The petitioner Pedro Gravador was the principal of the Sta. Catalina
Elementary School in Sta. Catalina, Negros Oriental on August 15, 1964
when he was advised by the then Superintendent of Schools Angel Salazar,
Jr., through the respondent Supervisor Teodulfo E. Dayao, of his separation
from the service on the ground that he had reached the compulsory
retirement age of 65. The advice reads:
"According to your pre-war records as a teacher in the public
schools, including your Employee's Record Card, which has just been
found in connection with the verification of the services of all school
officials including elementary school principals in this division, you
were born on November 26, 1897. As of this date, therefore, you are
now 66 years, 8 months, and 22 days old.
"In view of the above, you are hereby advised of your separation
from the service effective immediately unless you can show valid proof
in the form of a baptismal or birth certificate that you are below sixty-
five of age today."
A few days later, the respondent Eutiquio Mamigo was designated teacher-
in-charge of the said elementary school.
On August 31, 1964 the petitioner wrote the Director of Public Schools,
protesting his forced retirement on the ground that the date of his birth is
not November 26, 1897 but December 11, 1901. Attached to his letter was
the affidavit, executed on July 26, 1962, of Lazaro Bandoquillo and Pedro A.
Sienes, both of Amlan, Negros Oriental, in which these two affiants declared
that they knew that the petitioner "was born on December 11, 1901, in the
Municipality of Amlan, formerly known as New Ayuquitan, Province of Negros
Oriental, Philippines" because "we were the neighbors of the late spouses,
NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents]
and that we were present when said PEDRO GRAVADOR was born;
furthermore, we were also invited during the baptismal party a few weeks
after the birth of said PEDRO GRAVADOR."
On October 19, 1964 the petitioner wrote to the Division
Superintendent of Schools, reiterating his claim that he had not reached the
age of 65 and enclosing some papers in support thereof.
On April 13, 1965 he filed this suit for quo warranto, mandamus and
damages in the Court of First Instance of Negros Oriental. He asked the
court to adjudge him entitled to the office of principal of the Sta. Catalina
Elementary School and to order payment to him of not only his back salaries
but also damages in the total amount of P52,400. Named as respondents
were Eutiquio Mamigo, the District Supervisor, the Superintendent of
Schools, the Director of Public Schools and the Secretary of Education.
The respondents filed their answer, entered into a stipulation of facts
with the petitioner, and thereafter the case was submitted for decision. The
trial court concluded that the petitioner was born on December 11, 1901 and
accordingly granted his petition. Immediate execution was ordered, as a
result of which the petitioner was reinstated.
The respondents appealed directly to this Court.
On July 6, 1967 the petitioner asked for the dismissal of the appeal on
the ground that the issues posed thereby had become moot with his
retirement from the service on December 11, 1966 and the payment to him
of the corresponding retirement benefits. We deem it necessary, however, to
review the trial court's decision on the merits, considering that the
computation of retirement annuities is based, among other things, on the
number of years of service of a retiree, 1 and that payment of benefits
already made to the petitioner on the basis of December 11, 1901 as the
date of his birth would not exempt him from the obligation to make a refund
should this Court ultimately rule that he was actually born on November 26,
1897, as the respondents claim.
The controversy on the petitioner's date of birth arose as a result of the
conflicting records of the Division of Schools of Negros Oriental. On the one
hand the pre-war records show his date of birth to be November 26, 1897.
These records consist of two Insular Teacher's Cards 2 and one Employee's
Record Card. 3 It is on the basis of these records that the Superintendent of
Schools determined the petitioner's age to be 66 years, 8 months and 22
days on August 15, 1964.
On the other hand, the post-war records, consisting of an Elementary
Teacher's Report Card, 4 an Employee's Record Card 5 and an Employee's
Record of Qualifications 6 state that the petitioner was born on December 11,
1901. These are the records on which the petitioner bases his claim.
The problem is aggravated by two uncontroverted facts, namely, that
the records of the church where the petitioner was baptized were destroyed
by fire, and that the municipal civil register contains no record of the
petitioner's birth.
According to the trial court, the post-war records were intended to
replace the pre-war records and therefore the correct date of birth of the
petitioner is December 11, 1901. The court also took into account the
verified answer in a cadastral proceeding in the Court of First Instance of
Negros Oriental, dated March 15, 1924, filed by the petitioner's brother,
Romulo Gravador, now deceased. It is therein stated that the petitioner, said
to be one of the co-owners of a piece of land, was at the time 23 years old.
The respondents now contend that the trial court erred in placing full
reliance on the post-war records to establish the date of birth (December 11,
1901) of the petitioner. They argue that these records were made only
because it was thought that the pre-war records had been lost or destroyed,
but as some pre-war records had since been located, the date contained in
the pre-war records should be regarded as controlling; and that the finding
of the Superintendent of Schools that the petitioner was born on November
26, 1897 is an administrative finding that should not be disturbed by the
court.
That the findings of fact of administrative officials are binding on the
courts if supported by substantial evidence, is a settled rule of
administrative law. But whether there is substantial evidence supporting the
finding of the Superintendent of Schools is precisely the issue in this case.
The school official based his determination of the petitioner's age on the pre-
war records in the preparation of which the petitioner does not appear to
have taken a part. 7 On the other hand, the petitioner relies on post-war
records which he personally accomplished to prove the date of his birth. 8
It is our considered view that the lower court correctly relied upon the
post-war records, for three cogent reasons.
In the first place, as Moran states, although a person can have no
personal knowledge of the date of his birth, he may testify as to his age as
he had learned it from his parents and relatives and his testimony in such
case is an assertion of a family tradition. 9 Indeed, even in his application for
back pay which he filed with the Department of Finance, through the Office
of the Superintendent of Schools, on October 7, 1948, the petitioner stated
that the date of his birth is December 11, 1901. He repeated the same
assertion in 1956 and again in 1960 when he asked the Government Service
Insurance System and the Civil Service Commission to correct the date of his
birth to December 11, 1901.
In the second place, the import of the declaration of the petitioner's
brother, contained in a verified pleading in a cadastral case way back in
1924, to the effect that the petitioner was then 23 years old, can not be
ignored. Made ante litem motam by a deceased relative, this statement is at
once a declaration regarding pedigree within the intendment and meaning of
section 33 of Rule 130 of the Rules of Court.
Thus, December 11, 1901 is established as the date of birth of the
petitioner only by evidence of family tradition but also by the declaration
ante litem motam of a deceased relative.
Finally, the parties are agreed that the petitioner has a brother,
Constantino, who was born on June 10, 1898 and who retired on June 10,
1963 with full retirement pay. The petitioner then could not have been born
earlier than Constantino, say in 1897 as the pre-war records indicate,
because Constantino is admittedly older than he. 10
Still it is argued that the petitioner's action was prematurely brought
because he had not availed of all administrative remedies. This argument is
without merit. Suits for quo warranto to recover a public office must be
brought within one year. 11 Before filing this case the petitioner waited for
eight months for the school officials to act on his protest. To require him to
tarry a little more would obviously be unfair to him since on April 13, 1965,
when this case was filed, he had only four months left within which to bring
the case to court. There was neither manner nor form of assurance that the
decision of the Director of Public Schools would be forthcoming. The rule on
exhaustion of administrative remedies does not apply where insistence on
its observance would result in the nullification of the claim being asserted. 12
Accordingly, the judgment a quo is affirmed. No pronouncement as to
costs.
Reyes, J .B.L., Makalintal, Bengzon, J .P., Zaldivar, Sanchez, Angeles and
Fernando, JJ ., concur.
Concepcion, C .J . and Dizon, J ., did not take part.
Footnotes
1. See Government Service Insurance Act (Com. Act No. 186), sec. 11 (1936).
The amount of monthly annuity at the age of 57 is P20 plus, for each
year of service rendered after June 16, 1951, 1.6% of the average monthly
salary received during the last five years, plus, for each year of service
rendered prior to June 16, 1951, if such service lasted for at least seven
years, 1.2%, of the average monthly salary. This amount is adjusted
actuarially if retirement is at an age other than 57, but the maximum
amount of the monthly salary is in no case more than 2/3 of the average
monthly salary or P500, whichever is the smaller amount.
The formula is —
R = P20 + [(1.6% x M) + (1.2%, x P] [A]

Where —
R = Monthly annuity at 57
A = Average monthly salary for the last 5 years
M = No. of years of service after June 16, 1951
P = No. of years of service before June 16, 1951 if at least 7 years

If retirement is at an age other than 57, the monthly annuity at 57 is
first computed after which the amount obtained is multiplied by the
actuarial adjustment factor corresponding to the age at retirement in
accordance with the following table:
Age Adj. Factor Age Adj. Factor
52 years .87 59 years 1.06

53 years .89 60 years 1.09
54 years .92 61 years 1.12
55 years .94 62 years 1.16
56 years .97 63 years 1.20
57 years 1.00 64 years 1.24
58 years 1.03 65 years 1.24
(GSIS Handbook of Information on Retirement Insurance, 14-15

[1965]).
2. Stipulation of Facts (hereinafter cited as Stipulation), Annexes G & I.
3. Id., Annex I-1.

4. Id., Annex I-2.
5. Id., Annex I-3.
6. Id., Annex J.
7. Id., par. 7.
8. Id., par. 8.
9. M. Moran, Comments on the Rules of Court 314 (1963).
10. Stipulation, Annex P.
11. E.g., De la Maza vs. Ochave G.R. L-22336, May 23, 1967; Unabia vs. City
Mayor, 99 Phil. 253 (1956).
12. Alzate vs. Aldana, 107 Phil. 298.

THIRD DIVISION
[G.R. Nos. 93030-31. August 21, 1991.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO

ALEGADO Y DELIMA, accused-appellant.
DECISION
GUTIERREZ, JR., J : p
The accused-appellant stands charged and convicted of two counts of rape by

the Regional Trial Court of San Carlos City, Branch 58 in its decision
promulgated on October 26, 1989 with the following dispositive portion:
"WHEREFORE, finding the accused guilty beyond reasonable doubt of
the crime of rape punished under Article 335 paragraphs 1 & 3 of the
Revised Penal Code, said accused is hereby sentenced to RECLUSION
PERPETUA on both counts, the sentences to be served successively, to
pay the offended party the sum of Twenty Thousand Pesos
(P20,000.00), and to pay costs of suit." (RTC Decision, p. 8; Rollo, p.
32) LLjur
This appeal prays for a reversal of the trial court's judgment of conviction and
submits before us the following assignment of errors, to wit.:
I
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF
STATUTORY RAPE AS DEFINED AND PENALIZED UNDER ART. 335,
PARAGRAPH 3 OF THE REVISED PENAL CODE DESPITE THE
PROSECUTION'S FAILURE TO PROVE WITH CERTAINTY THE ACTUAL AGE
OF THE OFFENDED PARTY.
II
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT OF

THE CRIMES CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT (Appellant's Brief, p. 1, Rollo, p.
55)
The accused-appellant, in two criminal complaints filed by the offended party

herself and docketed as Criminal Cases Nos. RTC-437 and RTC 438, was
charged with rape on two counts committed as follows:
"That on or about 7:00 p.m., April 20, 1988 at the Public Market, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did, then and there
willfully, unlawfully and feloniously have carnal knowledge of the
herein offended party, CRISTINA DEANG y VILLAROSA, a girl below
twelve (12) years of age, against her will and without her consent.
(Criminal Case No. RTC-437; Rollo, p. 14)
"That on or about 6:00 p.m., April 14, 1988 at the Public Market, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did, then and there
willfully, unlawfully and feloniously have carnal knowledge of the
herein offended party, CRISTINA DEANG y VILLAROSA, a girl below
twelve (12) years of age, against her will and without her consent."
(Criminal Case No. RTC-438; Rollo, p. 16)
At the pre-trial, both the prosecution and the defense agreed on a joint trial and
stipulated on only one fact, i.e., that the accused, as watchman of the San
Carlos City public market was inside the said premises during the two occasions
when the alleged rapes transpired. Both parties presented two common issues
for the trial court's consideration, namely: (1) whether the offended party was
actually below 12 years old at the time of the incidents; and (2) whether the
accused had carnal knowledge of the offended party by means of force and
intimidation (Pre-trial Order dated June 2, 1988; Records, p. 16)
The antecedent facts as stated by the Solicitor General in the People's brief are
as follows:
"On April 14, 1988, at about 6:00 o'clock in the afternoon, complainant
was playing at the Freedom Square inside the public market of San
Carlos City when appellant, a 170-pound, 53 year old market watchman
at the time, held her by the hand and took her upstairs to the second
floor of the public market building which houses some government
offices and which at the time was expectedly deserted (tsn, May 17,
1989, pp. 13, 21-22). When they reached the upper floor of the
building, appellant ordered complainant to hold his penis and
masturbate it (ibid, p. 22). Thereafter, appellant ordered complainant
to lie down, and when she refused, he pushed her down on the floor
(ibid). When complainant was lying prostrate on her back, appellant
placed himself on top of her while she was still wearing her 'pedal
pusher' shorts and panty (ibid, p. 23). So, appellant forced her to take
off her pedal pushers and panty (ibid, pp. 26-27) and thereupon he lay
on top of her (ibid). Appellant then tried to insert his penis into her
vagina but it did not penetrate fully before he ejaculated (ibid, pp. 23,
27-28). Complainant bled a little (ibid, p. 52) Thereafter, appellant
gave complainant P2.00 and left (ibid, p. 28). Complainant stood up
and went down the building but never told anybody about it because
she was afraid appellant would kill her (ibid, p. 28)
On April 20, 1988, at about 7:00 o'clock in the evening, complainant

was sitting at the Freedom Square when appellant approached her and
told her to go with him upstairs to the second floor of the public market
(tsn, May 17, 1989, pp. 11-12). Complainant refused but appellant
shoved her towards the stairs, held her by the left arm, and brought
her to the upper floor near the civic center (ibid, pp. 12-13). There,
appellant ordered complainant to take off her shorts and panty, but
she refused (ibid, p. 14). Appellant then tried to take off her shorts and
panty by himself but she resisted and told the former she would not
submit to his evil desires (ibid). Thereupon, appellant threatened to kill
complainant if she would not take off her shorts and panty (ibid). Then
appellant again tried to remove complainant's shorts and panty and
the latter out of fear allowed him to do it (ibid). When appellant
succeeded in removing complainant's shorts and panty, he forced her
to lie down and then placed himself on top of her (ibid, p. 15).
Appellant was then already without his pants on (ibid). Appellant
inserted his penis into complainant's vagina but it took sometime
before his organ could penetrate the girl (ibid). When it did,
complainant felt excruciating pain and begged appellant to stop (ibid,
p. 16). Appellant just ignored her and continued on without saying
anything (ibid). Complainant felt some liquid oozing out from
appellant's organ and into her being (ibid, p. 17). And after appellant
had withdrawn his sex organ, complainant discovered that her vagina
was bleeding (ibid). Appellant then stood up and told her not to tell
anybody about it (ibid, pp. 17-18). Then appellant gave her P2.00 and
left (ibid, p. 18). cdll
As appellant was going downstairs, he was seen by Patrolwoman

Evangeline Alfaro, a member of the San Carlos City INP assigned at
Precinct No. 1, a police outpost near the main entrance of the public
market (tsn, September 28, 1988, pp. 4-5). Pat. Alfaro knew appellant
well because he was the public market watchman at the time (ibid, p.
5). A minute later, Pat. Alfaro saw complainant coming down the same
stairs (tsn, September 28, 1988, p. 6; May 17, 1989, pp. 18-19). Pat.
Alfaro noticed that complainant was pale, with blood flowing to her
thighs and legs, and was reeling as if feeling dizzy (tsn, September 28,
1988, p. 6)
Pat. Alfaro approached complainant and asked what happened to her

(tsn, September 28, 1988, p. 6; May 17, 1989, pp. 19-20). Complainant
answered that she was taken upstairs and raped by appellant (ibid).
Immediately, Pat. Alfaro brought complainant to the city hospital where
she was examined by Dr. Oscar Jagdon in the presence of two medical
technologists (tsn, September 28, 1988, pp. 7-8; May 17, 1989, p. 20).
Dr. Jagdon confirmed the report that indeed complainant was raped
(ibid). Thereafter, Pat. Alfaro reported the incident to the Station Guard
by phone then took complainant to the police station after the medical
examination (tsn, September 28, 1988, p. 8; May 7, 1989, p. 20). When
they reached the station, appellant who had already been taken into
custody was readily identified by complainant as the rapist (tsn,
September 28, 1988, pp. 8-10; May 17, 1989, pp. 20-21). Complainant
was then investigated and she rendered her statement to the police.
Dr. Oscar Jagdon, who examined complainant at about 8:40 o'clock in

the evening of April 20, 1988, found some secretion inside complaint's
vagina along the cervical wall which, upon laboratory examination,
turned out to be sperm cells and that complainant's vagina was
lacerated, one (1) centimeter long, at 9:00 o'clock position although
there was only partial penetration of the male organ into complainant's
vagina (tsn, August 10, 1988, pp. 4-9; Exhibit 'E')." (Rollo, pp. 84-89).
On the other hand, the accused-appellant's version as summarized in his brief

reads:
"Evidence for the Defense:

Alfredo Alegado testified that on April 14, 1988 at
about 6:00 p.m., he was on duty, he being a watchman of
the public market. His tour of duty is from 6:00 p.m. to 6:00
a.m. the following day. Before 7:00 p.m. of that day, he and
his co-watchman roamed around the area checking the
padlocks of the stores if they are in order. At about 8:30
p.m., they closed all the doors of the vegetables section,
meat section and the dried fish section. He knows Cristina
Deang who used to sell calamansi in the area. On April 14,
1988, he did not meet Cristina Deang as he and his
companions were then busy roving around the area. On April
20, 1988, at about 5:00 p.m., he was having snacks at
Valdevia Street, with Cpl. Allarce and Lito Alvarez. They
stayed there until about 7:30 p.m. when to his surprise, he
was arrested and brought to the station by Pat. Apuhin and
companions including Pfc. Evangeline Alfaro. From 5:00
p.m., to 7:30 p.m. on April 20, 1988, he never met and/or
saw Cristina Deang. Pfc. Evangeline Alfaro has been
harboring ill-feelings on him when on a certain occasion, he
turned down her request to ask the four (4) armed men
whom they saw in the market (what they wanted) (t.s.n., pp.
2-3, September 14, 1989).
Sgt. Rolando Allarce testified that he knew accused
because he is assigned at the police precinct in the public
market. At about 5:00 p.m. on April 20, 1988, he was invited
by Alfredo Alegado to have a snack at Namie's Lunch. They
finished having snack at about 6:00 p.m. Thereafter, Alfredo
Alegado and Lito Alvarez invited him to go to Valdevia Street
for a drinking spree. He accepted their invitation and went
with them. He went out at about 7:00 p.m., leaving behind
Alfredo Alegado in the store. (t.s.n. pp. 25-27, ibid)" (Rollo,
pp. 59-60)
Whether or not any cogent reason exists to constrain us to reverse the trial
court's verdict of conviction under paragraphs 1 and 3 of Article 335 of the
Revised Penal Code is the issue in this appeal.
Firstly, the accused-appellant contends that the offended party's actual age at
the time of the alleged incidents of rape was not established with certainty,
hence, it was error on the part of the trial court to convict the accused-
appellant of statutory rape as defined and penalized under paragraph 3, Article
335 of the Revised Penal Code.
We are not persuaded. The testimonies of the prosecution witnesses, the
offended party herself and her maternal grandfather, Cornelio Villarosa, as to
the fact that the victim was born on September 5, 1976 do not constitute
hearsay evidence as claimed by the accused-appellant but rather fall under the
exceptions to the hearsay rule as provided under sections 39 and 40 of Rule
130 of the Revised Rules on Evidence. Under Section 40 of the said Rule, it is
provided, in part, that:

"SEC. 40. — Family reputation or tradition regarding pedigree — The
reputation or tradition existing in a family previous to the controversy,
in respect to the pedigree of any of its members, may be received in
evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity."
The word "pedigree" under Section 39 of the same Rule includes relationship,
family genealogy, birth, marriage, death, the dates when and the places where
these facts occurred and the names of the relatives. LexLib
In the case of Lazatin v. Campos, 92 SCRA 250, 261 [1979], we stated that:
". . . [D]eclarations in regard to pedigree, although hearsay, are
admitted on the principle that they are natural expressions of persons
who must know the truth (See Sec. 33, Rule 130 Revised Rules of Court
now Sec. 39, Rule 130 under the new Rules). Pedigree testimony is
admitted because it is the best that the nature of the case admits and
because greater evil might arise from the rejection of such proof than
from its admission. (Wigmore on Evidence, Sec. 1420)"
In the present case, the applicability of Rule 130, Section 39 of the Revised
Rules on Evidence to prove the victim's age is beyond question. The said
provision contains three requisites for its admissibility, namely: (1) that there is
controversy in respect to the pedigree of any of the members of a family; (2)
that the reputation or tradition of the pedigree of the person concerned existed
previous to the controversy; and (3) that the witness testifying to the reputation
or tradition regarding the pedigree of the person must be a member of the
family of said person. All these preconditions are obtaining in the case at bar
considering that the date of birth of the rape victim is being put in issue; that
the declaration of the victim's grandfather relating to tradition (sending a child
to school upon reaching the age of seven) existed long before the rape case
was filed; and that the witness testifying to the said tradition is the maternal
grandfather of the rape victim.
Thus, we quote the pertinent portions of Cornelio Villarosa's testimony:

"PROSECUTOR FABROZ: (to witness)
Q Mr. Villarosa, how many children do you have?

A I have 5 children.
Q How old is the eldest?

A Thirty Nine (39) years old.
Q How about the youngest?

A May be 24 years old because I forgot the birth date.
Q The complainant in this case is a certain Cristina Deang. Do
you know her?
A Yes, sir.
Q Why do you know her?

A She is my granddaughter.
Q If she is in court, would you able to point her?

A Yes, sir.(At this juncture the witness is pointing to a person
sitting inside the courtroom who when asked answered by
the name of Cristina Deang.).
Q Who is the mother of Cristina Deang?
A Angelita.
Q Angelita Villarosa?
A Yes, sir.
Q Is she your daughter?

A Yes, sir.
Q Is she here?
A No, she is not here.
Q Where is she now?
A I don't know where she work now, because she did not send
a letter to me.
Q The last time, where is her whereabouts?

A She was in Manila, my last knowledge about her
whereabouts.
Q You said, Cristina Deang was the daughter of your daughter,

Angelita. Do you know how many children does Angelita
have?
A She has five (5) children.
Q With whom is this Cristina Deang living now?

A In our residence.
Q How did it happen that Cristina Deang has been living with
you?
A The mother left her to me.
Q When was it that the mother left her to you?
A In 1983.
Q How old was Cristina Deang at the time her mother left her
to you?
A The mother of Cristina Deang told me that she was born in
1976 and please let her go to school.
ATTY. BRIONES:
I would like to make it of record that the information gathered by

the mother, Angelita, is a hearsay your Honor.
PROSECUTOR FABROZ:
I would like to prove the fact about the birth of the child..
COURT:
Let it stay in record.
PROSECUTOR FABROZ:
Q By the way, do you have a talk or conversation with your
daughter, Angelita, the mother of the complainant Cristina
Deang, when was Cristina Deang born?
A We did not talk about the birth of Cristina, but she told me to
let her daughter Cristina go to school because she is already
7 years old.
Q Did you ask her about the birth of Cristina Deang?
ATTY. BRIONES:
I think that is misleading your Honor.

COURT:
Witness may answer.
WITNESS:
A That is what she told me, she was born on September 5,
1976.
PROSECUTOR FABROZ:
Q So based from the information you get from your mother

Angelita, did you in fact send your granddaughter Cristina
Deang to school?
A Yes, sir.
Q Where?
A SMAC Elementary School.

Q What grade did you send her?
A Grade I.
Q Was she able to finish Grade I?
A No, sir.(TSN, January 31, 1989, pp. 4-7).
Moreover, the offended party herself categorically stated in open court that she
was born on September 5, 1976 (TSN, May 17, 1989, p. 8). As correctly
submitted by the Solicitor General:
"It is long-settled, as early as in the cases of U.S. v. Bergantino (3 Phil.
118 [1903] and U.S. v. Angeles (sic) and Sabacahan (36 Phil. 246, 250
[1917] citing U S. v. Estavillo and Perez (10 O.G. 1984), that the
testimony of a person as to his age is admissible although hearsay and
though a person can have no personal knowledge of the date of his
birth as all the knowledge a person has of his age is acquired from
what he is told by his parents (U.S. vs. Evangelista, 32 Phil. 321, 326
[1915] — he may testify as to his age as he had learned it from his
parents and relatives and his testimony in such case is an assertion of
family tradition (Gravador v. Mamigo, 20 SCRA 742) . . ." (Rollo, p. 93-
94)
Inasmuch as the accused-appellant failed to present contrary evidence to

dispute the prosecution's claim that the victim in this case was below twelve
(12) years old at the time of the rape incidents under consideration, we affirm
the trial court's finding that the victim in these rape cases was under twelve
years of age. LexLib
Time and again we have held that the gravamen of the offense of statutory
rape as provided under Article 335, paragraph 3 of the Revised Penal Code is
the carnal knowledge of a woman below twelve years old. (People v. Edgardo
Puedan y Lalongisip, G.R. No. 92586, April 26, 1991 citing People v. Villegas, Jr.,
127 SCRA 195, 200 [1984]; People v. Mangalino, 182 SCRA 329 [1990] citing
People v. San Buenaventura, 164 SCRA 150 [1988] and People v. Villegas, Jr.,
supra). Hence, the only elements of statutory rape are: (1) that the offender
had carnal knowledge of a woman; and (2) that such woman is under twelve
(12) years of age. (People v. Santos, 183 SCRA 25 [1990] It is not necessary to
prove that the victim was intimidated or that force was used against her
because in statutory rape the law presumes that the victim on account of her
tender age, does not and cannot have a will of her own. (People v. Bacani, 181
SCRA 393 [1990]; People v. Lualhati, 171 SCRA 277 [1989]; People v. Derpo,
168 SCRA 447 [1988])
Considering that in the instant case there is clear and competent evidence that
the victim was under twelve (12) years old at the time of the rape incidents
complained of, the second argument purported by the accused-appellant that
the alleged rapes were not attended by any force or intimidation must also fail.
Proof of carnal knowledge of the victim in this case who was only eleven (11)
years old on the two separate occasions reported (April 14 and 20, 1988) is
overwhelming while unnecessary force and intimidation also appear in the
records. The offended party s testimony regarding the abominable and wicked
acts of the accused-appellant against her chastity on the two occasions
indicated in the separate informations filed by the victim herself was given in a
straightforward manner without any indication that the same was motivated by
any ill-feeling toward the pinpointed perpetrator. The fact of rape on the said
occasions related by the offended party was corroborated by the examining
physician whose medical finding revealed the presence of sperm cells inside
the victim's sexual organ due to partial penetration of the male organ into it.
It is axiomatic in rape cases that the slightest penetration of the female's

private organ is sufficient to consummate the crime. (People v. Jun Aquino [John
Aquino], G.R. No. 83214, May 28, 1991 citing People v. Cruz, 180 SCRA 765
[1989]; People v. Paton-og, 155 SCRA 675 [1987]; People v. Alvarez, 163 SCRA
745 [1988]; People v. Bacani, supra). A careful review of the evidence on record
readily shows that the trial court did not commit any reversible error in
disregarding the defenses of denial and alibi given by the accused-appellant
and in finding that the accused-appellant was guilty beyond reasonable doubt
of two counts of statutory rape. We affirm the trial court's verdict of conviction
in consonance with our oft-repeated pronouncement that we accord great
respect to the trial court's findings of fact in the absence of a showing that
certain facts of substance and value were erroneously overlooked that, if
considered, might affect the result of the case (see People v. Eleuterio Raptus y
Jeray, G.R. Nos. 92169-70, June 19, 1991 citing People v. Aboga, et. al., 147
SCRA 404 [1987]; People v. Estenzo, et al., 72 SCRA 428 [1976]; see also
People v. Frankie Arenas, et al., G.R. No. 92068, June 5, 1991, citing People v.
Somera, 173 SCRA 684 [1989]; People v. Baysa, 172 SCRA 706 [1989]; Aguirre
v. People, 155 SCRA 337 [1987])
Lastly, we commend the trial court's additional finding that the commission of
the rapes in question was attended by force and intimidation although for
connection under Article 335 paragraph 3 of the Revised Penal Code such
finding is no longer necessary. It bears emphasis, therefore, that the accused-
appellant not only took advantage of the offended party's tender age in giving
vent to his aberrant sexual behavior but also perpetrated the carnal acts
complained of through force and intimidation. There is no merit in the accused-
appellant's contention that the trial court abused its discretion in concluding
that there was force and intimidation since the information did not contain any
allegation to that effect simply because the phrase "against her will and without
her consent" contained in both informations charging the accused-appellant of
rape connotes the attendance of force and intimidation.
The absence of external signs of physical injuries and the failure of the victim to
shout for help at the first opportunity do not negate the commission of rape
contrary to the accused-appellant's propositions. The force used in rape cases
need not be absolutely overpowering or irresistible. What is essential is simply
that the force employed was sufficient to allow the offender to consummate his
lewd purpose (see People v. Cpl. Mario Ramos, G.R. Nos. 92626-29, May 27,
1991 citing People v. Mendoza, 163 SCRA 568 [1988]; People v. Tablizo, 182
SCRA 739 [1990] citing People v. Pasco, et al., 181 SCRA 233 [1990]; People v.
Villaflores, 174 SCRA 70 [1989] citing People v. Abonada, 169 SCRA 530
[1989]). Cdpr
We further note with approval the trial court's observation that the accused-
appellant's act of giving the offended party the sum of P2.00 after each of the
aforestated "forcible copulation" apparently as "full atonement for his dastardly
act" smacks of "insult a hundred times compounded." The accused-appellant,
despite the trial court's strong words, even had the gall to reiterate before us
his claim that the acceptance of the said measly amount of P2.00 was
tantamount to a tacit consent on the part of his victim. We deplore such a
highly offensive and depraved argument for we cannot allow the innocent and
helpless victims of unsolicited and forcible defloration to be brutally insulted
while yet nursing their irreparably wounded sexual purity. Considering the age
of the victim, the depravity of the crimes, and the psychological trauma
involved, we increase the indemnity to P50,000.00 In accordance with the
recent rulings in the cases of People v. Cpl. Mario Ramos, supra; People v.
Edgardo Puedan y Lalongisip, supra; and People v. Rodante Felipe, G.R. No.
90390, October 31, 1990.
WHEREFORE, in view of the foregoing, the appealed decision is AFFIRMED with
MODIFICATION that the amount of civil indemnity which the accused shall pay
to the offended party in each of the two rape cases is hereby increased to
P50,000.00.
SO ORDERED.
Fernan, C . J ., Feliciano, Bidin and Davide, Jr .,JJ ., concur.

EN BANC
[A.C. No. 533 . September 12, 1974.]
IN RE: FLORENCIO MALLARE, respondent.
RESOLUTION
FERNANDEZ, J : p
On complaint of then Acting Immigration Commissioner, Martiniano P.

Vivo, this Court ordered the investigation of the matter of citizenship of
Florencio Mallare, who was admitted to the Philippine Bar on March 5, 1962,
for the purpose of determining whether his name should be stricken from the
roll of persons authorized to practice law in the Philippines.
After an investigation conducted by this Court's Legal Officer
Investigator, a decision was rendered by this Court on April 29, 1968, holding
that by preponderance of evidence, it appeared that respondent Mallare's
father, Esteban Mallare, was a Chinese up to his death; and his mother
admittedly being a Chinese, respondent is likewise a Chinese national.
Consequently, respondent Florencio Mallare was declared excluded from the
practice of law; his admission to the bar was revoked, and he was ordered to
return to this Court, the lawyer's diploma previously issued to him.
Respondent moved for reconsideration of the decision, which was
denied by the Court in its resolution of January 10, 1969. On February 4,
1969, respondent petitioned the Court for the reopening of the case and for
new trial on the ground, inter alia, of newly discovered evidence, the
introduction of which could alter the decision previously promulgated. The
evidence proposed to be presented consisted of (1) an entry in the registry
of baptism of the Immaculate Concepcion Church at Macalelon, Quezon,
purporting to show that Esteban Mallare (respondent's father) is the natural
son of Ana Mallare, a Filipina; and (2) testimonies of certain persons who has
a known Esteban Mallare and his mother during their lifetime.
By resolution of July 31, 1969, this Court ruled:
"Considering, that the respondent, as a duly admitted member of
the bar, should be given ample opportunity to establish the true facts
about his citizenship and that no effort should be spared to ascertain
the truth before strippling him of the privilege granted to him by this
Court since 1962, and denying him the practice of his chosen
profession which he has honorably discharged as far as the records
show:
The Court Resolved to set aside the decision of April 29, 1968
and to grant the re-opening and new trial prayed for, which shall take
place before the Court's Investigating Officer on the days specified by
him upon notice to respondent Mallare, the Commissioner of
Immigration and the Solicitor General, wherein said parties may
adduce all proper additional evidence that they may desire to present.
The proofs taken at the original investigation shall not be retaken, but
considered as part of the evidence in the new trial. Thereafter, the
Court Investigator shall submit his report on this Tribunal." (Italics
supplied)
Accordingly, the parties submitted their respective additional

evidences before the Court's investigator.
Respondent's petition to set aside the decision of this Court of April 29,
1968, as well as the resolution of January 10, 1969 is premised upon three
basic arguments, to wit: (a) Respondent's father, Esteban Mallare, being the
natural son of Ana Mallare, a Filipino, was a Filipino citizen; (b) Esteban
Mallare, the son of a Filipino mother, by his own overt acts, had chosen
Philippine citizenship; and (c) respondent, a legitimate san of Esteban
Mallare, is a Filipino citizen.
The determinative issue in this controversy, therefore, revolves around
the citizenship of respondent's father, Esteban Mallare, for if Esteban were a
Filipino as respondent claims, the latter axiomatically would also be a
Filipino and the objection against his inclusion in the Roll of Attorneys in the
Philippines would lose legal basis.
After a painstaking study of the original and additional evidences
herein presented, the Court finds sufficient grounds to warrant a definite
setting aside of Our decision of April 29, 1968, and a definitive declaration
that respondent Florencio Mallare is a Filipino citizen and therefore with
qualification and right to continue the practice of law in the Philippines.
To support his contention that respondent Florencio Mallare is not a
Filipino, the Commissioner of Immigration presented:
Exhibits "A" and "B", Opinions Nos. 90 and 166 of the Secretary of
Justice dated March 31, 1955 and July 10, 1959, respectively, to the effect
that respondent and his brothers and sisters had failed to establish their
claim to Philippine citizenship;
Exhibit "C", the death certificate of Esteban Mallare dated June 7, 1945,
wherein he was reported to be of Chinese nationality;
Exhibits "D", "E", "F" and "G", the birth certificates of respondent, his
brothers and sisters, dated October 23, 1929, November 8, 1932, October
26, 1939, and February 10, 1943, respectively, stating that their father was
a Chinese citizen, born in Amoy, China, and wherein respondent was
reported to be a Chinese, born in Macalelon, Quezon;
Exhibits "H" to "M" — the records of Civil Case No. 329-G and Special
Proceeding No. 3925, both of the Court of First Instance of Quezon; and
Exhibit "N", respondent's alien certificate of registration, dated August
25, 1950.
Upon the other hand respondent submitted —
Exhibit "1", the decision of the Court of First Instance of Quezon in Civil
Case No. 329-G, dated November 18, 1959, upholding the validity of a
contract of sale, the vendees therein (including respondent) being citizens of
the Philippines;
Exhibit "2", an order by the Acting Commissioner of Immigration,
cancelling respondent's alien certificate of registration on the strength of the
court's decision in Civil Case No. 329-G;
Exhibit "3", identification certificate No. 11712 issued by the Bureau of
Immigration, declaring respondent "as a citizen of the Philippines by birth
being the legitimate son of Esteban Mallare, a Filipino citizen as 'per order of
this office dated 8 June 1960 CEBNO 4223-R' ";
Exhibit "4", final order of the Court of First Instance of Quezon, dated
November 28, 1960, in Special Proceedings No. 3925, ordering the Municipal
Treasurer of MacaleLon, Quezon, to correct the entry in the Registry of Birth
book of the municipality by changing respondent's nationality from
"Chinese" to "Filipino";
Exhibit "5", respondent's affidavit dated October 7, 1961 showing him
to be a registered voter of Macalelon, Quezon;
Exhibit "6", respondent's passport issued on March 5, 1962, showing
that he is a citizen of the Philippines;
Exhibit "7", opinion of the Solicitor General, dated July 25, 1962,
recognizing respondent Florencio Mallare as a Filipino citizen;
Exhibit "L", landing certificate of Te Na (respondent's mother), dated
July 7, 1926, wherein she was certified as "wife of P.I. citizen";
Exhibit "K-9", certification by the municipal treasurer of Macalelon,
Quezon that Esteban Mallare was registered in the Registry List of Voters on
April 14, 1928; and
The entry in the baptismal registry of the Immaculate Concepcion
Church at Macalelon, Quezon, purporting to show that Esteban Mallare was
the natural child of Ana Mallare, a Filipina.
Respondent also presented the following residents of Macalelon,
Quezon:
(a) Damiana Cabangon, 80 years old — who declared that she was with
her mother, the "hilot" who attended to Ana Mallare during her delivery,
when Esteban Mallare was born; 1 that she was present when Esteban was
baptized; 2 that Ana Mallare had lived continuously in Macalelon and was
reputed to be unmarried; 3 that she had never met (seen) Esteban's father, a
certain Mr. Dy. 4
(b) Rafael Catarroja, 77 years old and former mayor of Macalelon who
declared that he knew Esteban Mallare even as a child; 5 that Esteban was
then living with his mother, Ana Mallare, a Tagala, who was cohabiting with a
Chinese; 6 that Esteban started voting in 1934, and became one of his (the
witness') campaign leaders when he ran for the mayorship in 1934. 7
(c) Salomon Gimenez, 75 years old and former mayor of Macalelon,
who declared having known Esteban Mallare; that in the elections of 1925,
when Esteban campaigned for a rival candidate against him, he (the
witness) wanted to seek for Esteban's disqualification; that he sought the
counsel of Judge Gaudencio Eleazar (a relative of the witness), who advised
him that a disqualification move would not prosper because Esteban's
mother was not married to Esteban's Chinese father; 8 that as of 1940, when
witness was municipal mayor, there were only about 3,000 residents in
Macalelon. 9
(d) Joaquin Enobal, 69 years old, who declared that he was a classmate
and playmate of Esteban Mallare, whose house was only about five houses
away from theirs; 10 that he had not seen the husband of Ana Mallare; 11
that Ana was a Tagalog who had lived in Macalelon. 12
In Our decision of April 29, 1968, respondent's claim that he is a
Filipino was denied for lack of evidence proving the Philippine citizenship of
his father, Esteban Mallare. It was ruled that Ana Mallare (Esteban's mother)
can not be considered a Filipino, there being no proof that she was "an
inhabitant of the Philippines continuing to reside therein who was a Spanish
subject on the eleventh day of April, eighteen hundred and ninety-nine"; that
the landing certificate issued by the Bureau of Immigration which referred to
respondent's mother, Te Na, as "wife of Dy Esteban, P.I. citizen", was based
upon an ex parte determination of the evidence presented by therein
applicant and consequently carries little evidentiary weight as to the
citizenship of her said husband; and that the affidavit of Esteban Mallare,
executed on February 20, 1939, to the effect that he had chosen to follow
the citizenship of his Filipino mother was not only self-serving, but also it can
not be considered a re-affirmation of the alleged election of citizenship since
no previous election of such citizenship has been proved to exist.
With the additional evidence submitted by respondent pursuant to the
authority granted by this Court, the aforementioned void in the proof of
respondent's citizenship has been duly filled.
The witnesses, all natives of Macalelon, who had personal knowledge of
the person, birth ana residency of both Ana Mallare and her son Esteban,
were one in their declaration that Ana Mallare is a Tagalog who had
continuously resided in the place, and that Esteban, her son, was reputedly
born out of wedlock. Such declarations constitute admissible evidence of the
birth and illegitimacy of Esteban Mallare. Reputation has been held
admissible as evidence of age, birth, race, or race ancestry, and on the
question of whether a child was born alive. Unlike that of matters of
pedigree, general reputation of marriage may proceed from persons who are
not members of the family - the reason for the distinction is the public
interest that is taken in the question of the existence of marital relations. 13
The principle could not have been more true than in a Philippine rural
community where relationships not in conformity with established
conventions become the subject of criticisms and public cynosure. Thus, the
public reputation in Macalelon that Esteban was Ana's natural child, testified
to by the witnesses, would constitute proof of the illegitimacy of the former.
Besides, if Esteban were really born out of legal union, it is highly improbable
that he would be keeping the surname "Mallare" after his mother, instead of
adopting that of his father. And it would be straining the imagination to
perceive that this situation was purposedly sought by Esteban's parents to
suit some ulterior motives. In 1903, we can not concede that alien
inhabitants of his country were that sophisticated or legally-oriented.
The assertion of the witnesses, which have not been controverted, that
Ana Mallare is a Tagalog (and, therefore, a Filipino citizen), cannot be
assailed as being mere conclusions devoid of evidentiary value. The
declarations were not only based on the reputation in the community
regarding her race or race-ancestry, which is admissible in evidence, but
they must have certain factual basis. For it must be realized that in this
Philippine society, every region possesses certain characteristics all its own.
Thus, a Tagalog would normally detect if a person hails from the same
region even from the way the latter speaks. Considering that the witnesses
testified having known, and lived with, Ana Mallare in Macalelon, their
declaration that she is a Tagalog should receive a high degree of credibility.
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore
himself a Filipino, and no other act would be necessary to confer on him all
the rights and privileges attached to Philippine citizenship (U.S. vs. Ong
Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands, 42
Phil. 543; Serra vs. Republic, L-4223, May 12, 1952; Sy Quimsuan vs.
Republic, L-4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28,
1954). Neither could any act taken on the erroneous belief that he is a non-
Filipino divest him of the citizenship privileges to which he is rightfully
entitled. 14
And even assuming arguendo that Ana Mallare were legally married to
an alien, Esteban's exercise of the right of suffrage when he came of age,
constitutes a positive act of election of Philippine citizenship. It has been
established that Esteban Mallare was a registered voter as of April 14, 1928
(Exh. "K-9"), and that as early as 1925 (when he was about 22 years old),
Esteban was already participating in the elections and campaigning for
certain candidate. These acts are sufficient to show his preference for
Philippine citizenship. 15 Indeed, it would be unfair to expect the
presentation of a formal deed to that effect considering that prior to the
enactment of Commonwealth Act 625 on June 7, 1941, no particular
proceeding was required to exercise the option to elect Philippine citizenship,
granted to the proper party by Section 1, subsection 4, Article IV of the 1935
Philippine Constitution.
It is true that in the death certificate of Esteban Mallare (Exh. "C"), he
was referred to as a Chinese national, and in the birth certificates of
respondent and his brothers and sister (Exhs. "D", "E", "F" and "G"), they
were declared to be of Chinese nationality. Respondent likewise appeared to
have applied for alien registration on August 25, 1950 (Exh. "N"). While said
documents are public and the entries therein are, consequently, presumed
to be correct, such presumption is merely disputable and will have to yield to
more positive evidence establishing their inaccuracy.
Artemio Mallare, Esteban' eldest son and who supposedly supplied the
data appearing in Exhibit "C", denied having any hand in the funeral
arrangements and the preparation of the said death certification of his
father. He declared that he was merely 16 years old when his father met his
death in an accident in 1945, and he came to know of it only when he was
brought to the funeral parlor on the following day. 16 The entries in the birth
certificates (Exhs. "D", "E", and "G"), on the other hand, appeared to have
been prepared upon information given by the nurse or midwife who attended
to respondent's mother during her deliveries and who would have no
knowledge of the actual fact of the place of birth and the citizenship of
Esteban, the father; and in the case of respondent Florencio Mallare, the
informant was neither his father or mother; it was Maria Arana, a "hilot". In
the case of the birth certificate of Esperanza Mallare (Exh. "F"), the
informant appeared to be Esteban Mallare himself. It is noted, however, that
no proof has been presented to show that it was Esteban Mallare who
personally gave the information that the child's and parents' nationality is
Chinese. And any error on his part can not affect respondent Florencio
Mallare. With respect to the registration of respondent as a citizen of China
in 1950 (Exh. "N"), it was explained that this was secured by respondent's
mother, on the belief that upon the death of her husband, Esteban Mallare,
she and her children reverted to Chinese citizenship. At any rate, even
assuming that said documents were prepared with actual knowledge and
consent by respondent or by his parents, on the erroneous belief that
Esteban was a non-Filipino, such acts would not cause the 1099 or forfeiture
of Philippine citizenship 17 which Esteban acquired from his Filipino mother.
Complainant places much emphasis on the conflicting testimonies of
the expert witnesses on the entry in the baptismal registry of the
Immaculate Concepcion church. The discrepancy in the testimonies of said
witnesses, however, loses significance in the face of the finding, based on
other evidence that Esteban Mallare is the natural child of Ana Mallare, born
to her in 1903 at Macalelon, Quezon.
Upon the foregoing considerations, and on the basis of the original and
additional evidence herein adduced the decision of this Court dated April 29,
1968, is hereby definitely set aside, and the complaint in this case is
DISMISSED, without pronouncement as to costs.
Makalintal, C.J., Zaldivar, Castro, Fernando, Teehankee, Barredo,
Antonio, Esguerra, Muñoz Palma and Aquino, JJ., concur.
Makasiar, J., took no part.
Footnotes
1. T.s.n., p. 3, Hearing of September 14, 1971.
2. p. 8, id .
3. T.s.n., pp. 4-5, Hearing of September 14, 1971.
4. p. 7, id .
5. T.s.n., p. 2, Hearing of October 26, 1971.
6. Id., pp. 3, 9.
7. Id., p. 3.
8. T.s.n., pp. 3-4, Hearing of December 1, 1971.
9. Id., p. 8.
10. T.s.n., p. 2, Hearing of March 2, 1972.
11. Id., p. 3.
12. Id., pp. 3-9.
13. Vol. 9, Am. Jur., Proof of Facts Anno., pp. 3-4.
14. Palanca vs. Republic, 80 Phil. 578.
15. Opinion No. 328, s. 1940, of the Secretary of Justice.

16. T.s.n., pp. 3-4, Hearing of September 28, 1971.
17. Palanca vs. Republic, supra.

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SECOND DIVISION

[G.R. No. 123924. December 11, 2003.]

HEIRS OF MIGUEL FRANCO, namely: MODESTA, LEONIDES

Paulino G. Gudmalin for petitioners.

1. REMEDIAL LAW; EVIDENCE; JUDICIAL ADMISSION AND ADMISSIONS

2. ID.; ID.; ID.; FROM THE SUBSTANTIVE AND PROCEDURAL

4. CIVIL LAW; LAND REGISTRATION; RESORT TO THE PROCEDURE LAID

5. ID.; ID.; THE "GENERAL POWER OF ADMINISTRATION" DOCUMENT

Before us is a Petition for Review on Certiorari seeking to overturn a

Consequently, private respondents as plaintiﬀs, ﬁled before the RTC a

While he explicitly declared that the subject property belonged to Quintin,

In the case at bar, there is no showing of palpable mistake on the part of

"This tolerant silence militates against Miguel Franco's claim of

The statement under oath of Miguel was made in the intestate

The undue haste which characterized Miguel's success in obtaining

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1. The Decision in CA G.R. CV No. 37609 was penned by Justice O. Agcaoili,

13. Id. at p. 208.

19. Id. at p. 41.

22. Rollo , p. 28.

29. Records, p. 164; Rollo , p. 75.

31. Noda v. Cruz-Arnaldo, G.R. No. L-57322, June 22, 1987.

34. Rollo , pp. 28-29.

36. Id. at p. 188.

47. Records, p. 500.

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[G.R. No. 111692. February 9, 1996.]

ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS

Public Attorney's Office for petitioner.

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; NOT ADVERSELY

2. ID.; ID.; DECLARATION AGAINST INTEREST, EXCEPTION TO THE

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Still professing innocence and insisting that he is a victim of mistaken

At four o'clock in the morning of 24 June 1989 Julieto Malaspina together

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Q. Who is this Joni Fuentes and Alejandro Fuentes?

On cross-examination witness Biscocho further admitted that he himself

Petitioner would make much of the alleged confession of Zoilo Fuentes,

One of the recognized exceptions to the hearsay rule is that pertaining to

5. TSN, 3 September 1991, pp. 3-7.

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[G.R. No. 113685. June 19, 1997.]

THE PEOPLE OF THE PHILIPPINES, plaintiﬀ-appellee, vs.

The Solicitor General for plaintiff-appellee.

1. CRIMINAL LAW; CRIME AGAINST PERSONAL LIBERTY; KIDNAPPING;

2. ID.; ID.; MOTIVE; WHEN SUFFICIENT TO SUPPORT CONVICTION. —

3. REMEDIAL LAW; EVIDENCE; DECLARATION AGAINST INTEREST;

Accused-appellant Theodore Bernal, together with two other persons

A plea of not guilty having been entered by Bernal during his

The theory of the prosecution, as culled from the testimony of a certain

Article 267 of the Revised Penal Code provides thus:

For the charge of kidnapping to prosper, the deprivation of the victim's

The prosecution has proﬀered suﬃcient evidence to show that, indeed,

Equally important is the testimony of Roberto Racasa, a resident of

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr.,

In his brief, Bernal highlights supposed inconsistencies in Sagarino's

A. I just stayed in the billiard hall.

Q. And what did these two men do?

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On the other hand, Sagarino averred that:

Q. He has with him his son?

The testimonies of Racasa and Sagarino are not absolutely inconsistent

"A. They answered in the negative.