ICARD vs. MASIGAN G.R. No. L-47442, April 8, 1941 MORAN,J.

, En Banc FACTS: For services rendered in connection with the development and location of certain mining claims, Joseph K. Icard filed a claim of P2000 against the estate of his deceased father George M. Icard. The claim having been allowed by the commissioner on claims, the administrator appealed to the Court of First Instance, where it was likewise allowed. ISSUE: Whether the probate court erred in allowing the claimant to testify to the services rendered by him in favor of his father, because the action being one against the administrator of a deceased person. HELD: No. It is undisputed that the Antamok Central Group of mining claims, situated in the subprovince of Benguet, were originally owned in common by Fred M. Harden, the deceased George M. Icard, and plaintiff-appellee Joseph K. Icard. These mining claims were later sold to the Big Wedge Mining Company, the deed of sale having been executed jointly by the common owners, Fred M. Harden, George M. Icard, and Joseph K. Icard, the latter represented by his attorney-in-fact, George M. Icard. A dispute arose as to the price still due under the contract of sale, thus, the Big Wedge Mining Company filed an action for rescission. The case was, however, settled between the parties, and a compromise agreement was duly approved by the court. It is thus clear that Joseph K. Icard had an interest in the mining claims aforementioned, as evidenced by the deed of sale executed in favor of the Big Wedge Mining Company and the compromise agreement approved by the court. The amount of this interest being undetermined, Joseph K. Icard may, if he wishes to, properly claim one-half of P39,478.16, under the legal provision that "the interests of the co owners shall be presumed to be equal until the contrary is proved.". Instead, he claims P2,000 only, and it is this reduced claim which he seeks to establish by his oral testimony. Section 383, par. 7, of the Code of Civil Procedure, which is now Rule

123, section 26, paragraph (c), of the Rules of Court, is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. Where, as in the instant case, the purpose of the oral testimony is to prove a lesser claim than what might be warranted by clear written evidence, to avoid prejudice to the estate of the deceased, the law has certainly no reason for its application. Ratione cessante, cessat ipsa lex (when the reason for the law ceases, the law itself ceases).

G.R. No. L-29512

January 17, 1929

ONG CHUA, plaintiff-appellee, vs. EDWARD CARR, ET AL., defendants-appellants. W. A. Armstrong for appellants. Feria & La O for appellee. OSTRAND, J.: This is an appeal by the defendants from a decision of the Court of First Instance of Zamboanga ordering the reformation of the deed of sale executed by the plaintiff in favor of Edward Carr for lots Nos. 135, 136 and 137 of cadastral case No. 8695, West Extension, and for a house of strong materials constructed on another parcel of land, lot No. 132 of the same. A copy of the deed is attached to the record and is marked Exhibit A. Lots Nos. 136 and 137 and the house on lot No. 132 originally belonged to one Henry E. Teck, and lot No. 135 was the property of Teck's wife, Magdalena Lim. Sometime prior to June 20, 1923, it seems that the spouses sold the property in question to the plaintiff, Ong Chua, and on June 17, 1923, the latter executed a public document granting to Magdalena Lim the right to repurchase lot 135 for the sum of P6,500 within four years from that date, and on the 20th of the same month, he executed

another public document in which he agreed to sell lots Nos. 136, 137, and the house on lot 132 to Henry E. Teck for the sum of P13,500 at any time within four years from date. Neither one of the documents was placed on record with the register of deeds. In the month of July, 1925, Edward Carr came to Zamboanga, bringing with him letters of introduction addressed to P. J. Moore, a practising attorney in that town. With said letters Carr went to the office of Moore and sought the advice and assistance of the latter in regard to purchasing coconut lands. After various interviews, Moore called Carr's attention to the lots above-mentioned and told him that he could buy the lots for P20,000, the amount which Ong Chua paid for them to Henry E. Teck and Magdalena Lim. Carr entered into negotiations with Ong Chua and Moore, and many conversation took place in which Moore, among other things, informed Carr that Teck and his wife had the right to repurchase the property in question from Ong Chua and that such rights would expire in June, 1927. On December 14, 1925, Ong Chua and Carr went to the office of Moore, to whom they delivered copies of the documents under which Teck and Lim acquired their rights to repurchase the property involved, and requested him to draw the deed of sale of the property from Ong Chua to Carr. Before the drafting of the deed, Ong Chua stated to Moore that he consented to sell the properties to Carr on the condition that the sale should be subject to the rights of Teck and Lim to have the property reconveyed to them and that said rights were to be respected by the vendee. According to Moore's own testimony, Carr was fully aware of those rights even before the execution of the deed, December 14, 1925, and that he consented to embody stipulations to the effect in said deed. The purchase price of the property stipulated between vendor and vendee was P20,000. When the deed of sale was about to be drafted, Carr informed Moore that he had only P13,500 on hand and that he desired to obtain a loan of P6,500 from the Zamboanga Mutual Building and Loan Association of which Moore was the secretary. Moore told him in effect that the loan could not be made upon property the titles to which were not clear and that the right of Teck and Lim to repurchase were not entered upon the certificates of title to the property. Moore also told Carr that the deed of sale could be made in such a form that Carr's title to the property purchased would appear to be absolute but that Carr was to bear in mind that the rights of Teck and Lim still existed and that the deed and other documents must be left in his,

Moore's, possession until the expiration of the term for the right of repurchase and that, if the deed were made in that form, the loan of P6,500 could be obtained. Moore thereupon instructed his clerk, C. E. Darlucio, to prepare and typewrite the deed of sale without including therein the condition that sale was subject to Teck's and Lim's rights to repurchase. The deed was signed by Ong Chua in the presence of Darlucio and duly acknowledged before Moore as notary public. It may be noted that Ong Chua did not understand English and was therefore ignorant of the arrangement arrived at between Moore and Carr in connection with the loan, but he asked Moore if the document contained the conditions in reference to Teck's right to repurchase the property and was told that the document was sufficient. After deed was prepared and signed, Ong Chua told Carr and Moore that lot No. 137 was mortgaged by him to the Bank of the Philippine Islands for P6,500, the rate of interest being 10 per cent per annum. Moore stated that the Zamboanga Building and Loan Association could not lend money at less than 13 per cent per annum. Ong Chua then stated that he was willing to let the mortgage on the lot given to the bank stand until the expiration of the term for the repurchase. As this arrangement would save Carr a considerable sum of money, he agreed to the proposition and paid only P13,500 in cash and promised, in writing, to pay to the vendor the balance of the purchase price, P6,500, with interest at 10 per cent per annum. On or before July 1, 1927. The loan from the Building and Loan Association thus became unnecessary, but instead of redrafting the deed, it was agreed that Moore would keep the deed and the other documents in his custody and would not deliver them to any one until the expiration of the period, for repurchase. In September, 1926, Moore was taken critically ill, and while he was under medical treatment in the Zamboanga Hospital, Carr came to him on various occasions and demanded that the documents be delivered to him. At first Moore refused to make the delivery on the ground that it was contrary to their agreement and might result to the prejudice of the rights of Teck and Lim, but Carr continued to molest Moore with his demand for the delivery of the papers, and finally, in order to escape further annoyances and insinuations of Carr, he surrendered the deed to the latter, who almost immediately presented it to the register of deeds for registration.

In July, 1926, Teck offered to repurchase the property in question from Ong Chua who thereupon demanded of Carr the reconveyance of the property to the spouses, Teck and Lim, but Carr refused to do so, claiming that he had an absolute title to said property, and Ong Chua then learned, for the first time, that the deed in question contained no reference to the rights of Teck and Lim to repurchase the property. On July 23, 1926, this action was brought, the plaintiff alleging in substance the principal facts hereinbefore stated and demanding that the deed in question be reformed in accordance therewith. The defendant demurred, but the demurrer was overruled. The defendant thereupon filed an answer pleading the general issue and setting up as special defenses that the deed in question contained no stipulation as to rights of repurchase and that if there was any agreement or promise on the part of the defendant to convey the property to Henry E. Teck and Magdalena Lim or to the plaintiff, as alleged in the complaint, such agreement and promise was for the sale of real property, or an interest therein, and that neither said agreement or promise, nor any note or memorandum was made in writing or subscribed by the defendant or by any authorized person for him. Subsequent to the filling of the answer, Carr died, and the administrator of his estate, Manuel Igual, was substituted as defendant. At the trial of the case, no evidence was offered by the defendant, and, consequently, the facts hereinbefore stated stand uncontradicted. Upon such facts the court below ordered the reformation of the deed, Exhibit A, in accordance with the plaintiff's demand. On appeal to this court the defendant-appellant presents six assignments of error, which may conveniently be reduced to two propositions, namely (1) that the court erred in permitting the plaintiff, Ong Chua, to testify, over the defendant's objections, to fact occuring prior to the death of the defendant Carr, and (2) that the facts proven do not justify the reformation of the deed in question. The first proposition rests on subsection 7 of section 383 of the Code of Civil Procedure, which bars parties to an action or proceeding against an executor or administrator or other representative of a deceased person upon a claim ore demand against the estate of such deceased person from testifying as to any matter of fact occuring before the death of such deceased person.

Similar provisions are to be found in the statutes of practically all of the states of the Union, and the rule thus laid down is now unquestioned. But it has generally been given a liberal construction to promote justice, and it is held that it never was intended to serve as a shield for fraud. As stated in Jones on Evidence, 2d ed., sec. 744: The evidence of an adverse party is absolutely excluded by an independent, affirmative enactment making him incompetent as to transactions or communications with a deceased or incompetent person. These statutes, however, do not render the adverse party incompetent to testify to fraudulent transactions of the deceased, as the statutes are not designed to shield wrongdoers but the courts compel the adverse party to clearly establish the alleged fraudulent acts before admitting such testimony. And in case of Tongco vs. Vianzon (50 Phil. Rep., 698, 702) this court said: Counsel is eminently correct in emphasizing that the object and purpose of his statute is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party. He has, however, neglected the equally important rule that the law was designated to aid in arriving at the truth and was not designed to suppress the truth. In this case a number of credible witnesses testified to facts which conclusively showed that Carr's conduct was tainted with fraud. The plaintiff did not take the witness stand until after the existence of fraud on the part of Carr and been established beyond a doubt and not by a mere preponderance of evidence. In these circumstances, we cannot hold that the trial court erred in not excluding the plaintiff's testimony. In regard to the second proposition above-mentioned, counsel for the appellant says: It is our belief which is supported by the very exhibits themselves that at this conference the parties decided to enter into two separate agreements. One in writing Exhibit A being an absolute conveyance of the property from Ong Chua to Edward Carr; the other a verbal agreement by which all the documents, titles, etc. were left with P. J. Moore in escrow until the time fixed

in Exhibits B and C had lapsed. There was no mistake on the part of anyone in executing Exhibit A for while there has been a great deal of talk about the insertion of a clause no one has yet said what was to be said in that clause or condition. Again, Exhibit A not only said nothing about any right to redemption but contains a full warranty of title. . . It will be noted that counsel admits that the deed was left in escrow with Moore, and if it were true that there was no mistake on the part of the plaintiff at the time of the execution of the deed, a suit for reformation would hardly be appropriate. But that would not improve the appellant's position. It is well settled that the condition upon which a deed is delivered in escrow may be proved by parol evidence and that ordinarily the statute of frauds has no application to such an agreement, nor is it affected by the rule of evidence, which prohibits a written contract from being contradicted or varied by parol evidence (Devlin on Real Estate, 3d ed., par. 312 A and authorities there cited). It is also well established that an escrow delivered without authority or obtained fraudulently passes no title (Smith vs. South Royalton Bank, 32 Vt., 341; 76 Am. Dec., 179). That is what occurred here; Moore had no authority whatever to deliver the deed in escrow to Carr before the expiration of the time for redemption. It follows that the certificates of title issued to Carr were of no legal effect and that the suit for the rescission of the deed and that cancellation of the corresponding certificates of title would be in order (see the last two provisos in sec. 55 of Act No. 496). So much for the appellant's theory. We think, however, that the evidence is conclusive that the plaintiff had no clear conception of the contents of the deed. That he was anxious to protect the rights of redemption held by the parties who sold the land to him, is very obvious; indeed, if he had failed to do so, he would have laid himself open to an action for damages. But the deed was written in the English language, with which the plaintiff was unfamiliar, and he had to rely on the statements of Moore as to the contents and effect of the deed and was told that the document was sufficient. He had confidence in Moore, with whom he had previous business relations, and it was but natural for him to believe Moore's statement. Carr, on the other hand, knew the contents of the deed and fully agreed to Moore's plan to place it in escrow until the expiration of the term for the repurchase or redemption of the land. He, nevertheless, in violation of his own agreement, harassed

Moore, then a very sick man, into giving him possession of the deed prematurely. He took immediate advantage of that circumstances and hastened to have the document presented to the register of deeds for the issuance of certificates of title. It is elementary that such conduct constitutes fraud and was calculated to obtain an unfair advantage over the plaintiff. Reformation will be given "where there is a mistake on one side and fraud or unfair dealing on the other" (Devlin on Real Estate, 3d ed., par. 1238). That is this case, and it follows that the suit for reformation may be maintained. Certain minor points raised by appellant's counsel are so obviously without merit as to require no discussion; the sale of the property by the plaintiff to the defendant was subject to Teck's and Lim's right of redemption, and it was perfectly proper for the court below, in its judgment, to define the extent of these rights. Neither was it error on the part of the court to hold that the pendency of the action tolled the term for the right of redemption; that is an old and well established rule. The appealed judgment is affirmed with the costs against the appellant. So ordered.

Johnson, Street, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

REGALA v SANDIGANBAYAN Facts: Petitioners in this case and private respondent Roco were a l l t h e n p a r t n e r s o f t h e l a w f i r m A n g a r a , A b e l l o , Concepcion, Regala and Cruz Law Offices (commonly known as ACCRA) A CCRA p e rf orme d se rvice s f or clie n t s wh ich in clud ed a cqu irin g a nd /o r o rga n izin g bu sine ss asso cia t io n s an d/ o rorganizations where it acted as incorporators or simply as stockholders

 As members of the law firm, petitioners and Roco admit that they assisted in the organization and acquisition of companies included in Civil Case No. 0033. In keeping with the office practice, ACCRA lawyers acted as nominees-stockholders. o Civi l Ca se No . 0 03 3 RP v. E du a rdo Co jua n gco et . al. , f o r t he re co ve ry o f ill- got t en we a lt h , wh ich includes shares of stock in certain corporations P CG G la t e r on f ile d a m ot ion t o a dm it 3 rd am en de d co mp la int , wh ich e xclu d ed Ro co in Civil Ca se 33 as pa rt y de f e nd an t. P CG G wa s re mo vin g Ro co b e ca u se Ro co wa s go in g t o m ake co nf ession a nd re ve a l t he ide n t it y o f th e principals. The ACCRA lawyers then filed a comment and/or opposition saying that they should also be removed the way that Roco was. PCGG then said that it will ask for their exclusion only if they will also disclose the identity of their clients Du rin g th e p ro ce e d in gs, Ro co did no t a ctu a lly re ve a l t he ide n t it y o f t he clie nt f or wh om he act ed a s n om ine e -stockholder The ACCRA lawyers motion for exclusion was denied (they refused to comply with the PCGGs offer) by the PCGG and the court. Hence, this motion for certiorari issue: W/N the ACCRA lawyers should be excluded from the case Held: Ye s. I t is a pp a ren t th at t he A CCRA la wye rs we re on ly im p lea d ed to f orce t he m t o d isclo se t he id en t it y of th e ir clients. PCGG has no valid cause of action

Issue: W/N the attorney-client privilege prohibits the ACCRA lawyers from revealing the identity of their clients Held: General rule: a clients identity should not be shrouded in mystery o Exceptions: where a strong probability exists that revealing the clients name would implicate that client in the very activity for which he sought the lawyers advice o Where disclosure would open the client to civil liability o Where revealing the identity would furnish the only link that would be necessary to convict an individual of a crime S u in g th e la wye r to f orce h im t o d isclo se t he ide n t it y o f h is clie nt in a n y o f t he se in st an ce s is im p rop e r a nd th e suit, upon motion, may be dismissed on such ground. The prosecution should rely on the strength of their evidence and not on the weakness of the defense Ro co m e re ly st at e d t ha t he wa s a ct in g as n om in e e -sto ckh o ld e r f o r t he clie n t a nd is p a rt o f le git im a te la wye r in g. The ACCRA lawyers also made such statement and should also be dropped. the relation of attorney and client is strictly personal and highly confidential and fiduciary t he la wye r is mo re t ha n a me re a ge n t o r se rva n t b e ca u se h e p osse sse s sp e cia l p o we rs o f t ru st an d con f ide n ce reposed on him by his client

PEOPLE OF THE PHILIPPINES, appellee, vs. ARSENIO TOLEDO SR., JOHN DOE and PETER DOE, accused, ARSENIO TOLEDO SR., appellant. DECISION PANGANIBAN, J.: After carefully reviewing the records of this case and the arguments raised by the parties, this Court cannot fault the trial court for its assessment of the evidence and the credibility of the witnesses. However, it erred in convicting appellant of murder, because the qualifying circumstance of treachery had not been alleged in the Information. Without such qualifying circumstance, the crime committed was only homicide.

With the assistance of counsel,[3] appellant pleaded not guilty when arraigned on April 28, 1997. After trial, the RTC rendered its Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding ARSENIO TOLEDO, SR. guilty beyond reasonable doubt of the crime of [m]urder under Article 248 of the Revised Penal Code and therefore sentences him to suffer the penalty of reclusion perpetua with the accessories provided by law. The accused is further ordered to indemnify the heirs of victim Laila Rose Arco in the amount of P70,000.00; to pay them P50,000.00 moral damages and P30,000.00 exemplary damages; and to pay the cost. As the accused is presently under detention in the Provincial Jail, Amas, Kidapawan City, he is ordered committed to the Davao Penal Colony, Carmen, Davao del Norte. Hence, this appeal.[4]

The Case The Facts

Arsenio Toledo Sr. appeals the July 23, 1999 Decision[1] of the Regional Trial Court of Midsayap, Cotabato, Branch 18, in Criminal Case No. 97-044, finding him guilty of murder and sentencing him toreclusion perpetua. In an Information dated February 18, 1997, Assistant Provincial Prosecutor Rolando Y. Deiparine charged appellant with rape with homicide allegedly committed as follows: That on or about January 9, 1997, in the morning in the Municipality of Pikit, Province of Cotabato, Philippines, the said accused, in company with JOHN DOE and PETER DOE, whose real identities are still unknown and [who are] at large, [by] conspiring, confederating and mutually helping one another, did then and there [--] willfully, unlawfully and feloniously with the use of force and intimidation [-- succeed] in having carnal knowledge [of] LAILA ROSE B. ARCO, minor, five (5) years old, against her will[;] that on said occasion, the above-named accused, with intent to kill, choke[d] and thereafter threw her to the pond near the Purok, which is the direct and immediate cause of her death thereafter. [2]

Version of the Prosecution

In its Brief,[5] the Office of the Solicitor General summarized the prosecutions version of the facts as follows: Sometime on the morning of January 9, 1997, Ronnie Cabamungan, then . . . a Grade (I) [6] pupil of Pikit Central Elementary School, Cotabato, was ordered by his teacher Mrs. Cabana to return some plates to her house. He was accompanied by Jerry Saac, also a pupil of the same school. (pp. 8-10, TSN, July 2, 1997). While on their way to return the plates, Ronnie saw Laila Rose Arco urinating near a coconut tree at the bungtod or a higher portion of a land or a small hill. While Laila Rose was urinating, Ronnie saw appellant grab Laila Rose by carrying her head with his left hand as her feet were held by appellant with his right hand (pp. 11-12, TSN, Ibid.). Appellant brought Laila Rose inside the purok or a small hut where Ronnie noticed two other unidentified companions of the appellant waiting. Laila Rose shouted tabang (meaning help) but to no avail because appellant strangled (tuok) her and

covered her mouth. Thereafter, appellant came out of the hut and threw her body into a pond, and, together with his companions, ran away (pp. 12-16, TSN, Ibid; 29-39, TSN, Ibid). On January 9, 1997, at around 11:00 oclock in the morning, Jimmy Arco, who was then driving a trisicad, received information that his daughter (Laila Rose) was found drowned. He went to the Llaguno Medical Clinic where his daughter was being revived by nurses and attendants. The clinic personnel were pressing their hands over his daughters breast to resuscitate her. Thinking that Laila Rose was still alive, he helped the nurses and the attendants in pressing his daughters breast. While resuscitating Laila Rose, Jimmy noticed a blackened mark on her neck with what appeared to be three fingernail marks (pp. 12-16, TSN, July 1, 1997). After Laila Rose was pronounced dead, her body was brought to the National Bureau of Investigation (NBI). Dr. Tammy Uy, Senior Medico Legal Officer of the NBI in Cagayan de Oro City, conducted a post mortem examination (Exhibit F to F-9) at about 8:20 p.m. of January 9, 1997 on the cadaver. The results of her examination showed that the genital[ia] had fresh complete lacerations at 3:00 oclock, 6:00 oclock and 9:00 oclock position[s] with fibrin and with edematous congested edges. The cause of death [was] asphyxia, secondary to strangulation. Her autopsy showed the following: fresh hymenal lacerations are noted on the subject at the time of examination, ages of which are compatible with the alleged date and time of death on January 9, 1997 between 7:30 a.m. and 11:00 a.m. (pp. 4-10, TSN, April 21, 1997). Dr. Uy stated that the presence of fibrin [indicated] that the injuries were sustained by the victim while she was still alive. The abrasions and lacerations at the posterior could have been caused by a hard, blunt object like an erect penis or anything that was forcibly inserted on Laila Roses vagina (pp. 4-23 TSN, July 21, 1997). Dr. Uy further testified that she found three abrasions, toughly linear with fresh scabs located at the right side, mid aspect and left side in the adams apple. The first group of abrasions [were] found on the right side of the neck, the second group at the thyroid region of the neck and the other abrasion [was] .5 x .2 centimeter. The fourth abrasion [was] located at [the] right side of [the] chest below the nipple. The depressed fracture[d] body of the thyroid cartillage, anterior aspect, bilateral lined, [were] caused by strong pressure applied. Likewise, the application of strong pressure cause[d] the hemorrhages in the thyroid region.

The doctor also noted Tardieu spots on the body of Laila Rose. This meant that there was petecchial hemorrhage, extensive, subpleural, bilateral and subepicardial, which could have made it impossible for Laila Rose to breath[e] or inhale oxygen leading to hemorrhage on the surface of the lungs and of the heart. Laila Roses heart chamber was likewise full of dark fluid and clotted blood, indicati[ng] that there was no external blood loss and no bleeding. Dr. Uy opined that Laila Roses death was caused by manual strangulation because the abrasions on her neck were linear, and possibly caused by human fingernails. Baltazar Cabamungan, [who was] the older brother of Ronnie Cabamungan and who was 26 years old at the time of the trial, testified that sometime after lunch, in January, 1997, he accompanied his younger brother Ronnie [to] the 'cockpit. Ronnie pointed to the appellant Antonio Toledo, Sr., as the person who killed Laila Rose. Ronnie emphatically stated Kuya mao na Siya (Kuya, this is the one). The two brothers then went to the police station where they reported the matter to police authorities. The chief of police conducted an on the spot investigation (Exhibit I, pp. 32-35, TSN, Ibid.). During the trial, Baltazar identified appellant as the person his brother Ronnie earlier pointed to as the perpetrator of the crime (pp. 23-30, TSN, November 11, 1997). Later, two policemen went to Baltazar Cabamungans residence to interview Ronnie Cabamungan. Ronnie told SPO2 [Rudolfo] Milagrosa that he and his classmate, Jerry Saac saw an old man carrying Laila Rose while she was urinating. Ronnie said that the old man brought Laila Rose to the cottage (purok). Ronnie stated that he frequently saw the old man in the cockpit arena in their place with his fighting cock. The next day, Milagrosa requested four people, namely Atty. Samuel Perenal, Mayor Ong, the Principal of Pikit Elementary School, Mr. Gomez and Atty. Roberto Mellendez to observe the conduct of the investigation. As a result, an affidavit was executed by Ronnie Cabamungan which was witnessed and signed by the four witnesses aforementioned (pp. 18-27, TSN, Ibid.). [7]

Version of the Defense

On the other hand, appellants version of the facts, as summarized by the trial court in its Decision, is as follows:

Accused Arsenio Toledo, Sr. denied having grabbed Laila Rose Arco, brought her to the purok, strangulated her, covered her mouth and thr[own] her into the pond. He denied also having raped her. He testified that on January 9, 1997, he left his house at 8:20 in the morning to go to his farm at Calawag, about 3 kilometers or [a] 15-minute ride. He did not proceed because he passed by the house of Todo to buy [a] cock because Todo [was] also a cock breeder. However, he did not buy the cock because the classification of the cock [was] not suitable to him. At 9:30, a military man, Captain Leonardo Songcaya, with four men, arrived looking for Todo. At 10:30, M/Sgt. Pedro Cuisin arrived. He conversed with Capt. Songcaya who left at 11:00. He and Pedro Cuisin left the house of Todo at 12:00 noon. He went home because he was hungry. After taking his lunch, he slept and woke up at 1:00 and checked up his jeep until 5:00 oclock in the afternoon (TSN, April 8, 1998, pp. 16-24). To buttress his denial that he had not grabbed Laila Rose, brought her to the purok, strangulated her, covered her mouth and thr[own] her into the pond, Jerry Saac was presented. While Jerry admitted that he and Ronnie Cabamungan were requested by their teacher to return the plates to her house, he, however, denied that he saw Laila Rose urinating, that Toledo, Sr. grabbed her, brought her to the purok, strangulated her, and threw her into the pond (TSN, December 17, 1997, pp. 22-23). Eleanor Toledo, Toledo Sr.s wife, did not believe that the testimonies of the prosecution witnesses against her husband [were] true (TSN, April 6, 1998, p. 85). She testified that her husband [was] innocent of the crime charged (Ibid., p. 89). xxx xxx xxx

Joey Raul Unson testified that Rudy Milagrosa wanted him to testify against Arsenio Toledo, Jr. as the person who raped and killed Laila Rose in the purok (TSN, February 18, 1998, p. 18). Florencio Mamites testified that Rudy Milagrosa requested him to testify against Arsenio Toledo, Jr. as the rapist of Laila Rose Arco (TSN, February 18, 1998, p. 39) and that he was offered [a] P70,000.00 reward if he [would] testify against Toledo, Jr. (Ibid., p. 41). Rosalina Saac testified that the police told her son, Jerry Saac, to pi[n]point Arsenio Toledo, Sr. appearing in the picture shown to him as the person who raped Laila Rose (TSN, April 16, 1998, p. 7). Remus Unson testified that the police wanted his son, Joey Raul Unson, to testify against Arsenio Toledo, Jr. as the person responsible for the death of Laila Rose (TSN, April 6, 1998, p. 39).

Ruling of the Trial Court

The trial court gave credence to the testimony of prosecution Eyewitness Ronnie Cabamungan, whom it found to have testified in a categorical, straightforward and spontaneous manner. It disregarded Jerry Saacs testimony after finding that aside from being radically contradictory to the Sworn Statement he had previously executed, it was rehearsed and fabricated. The trial court ruled that the prosecution failed to prove the commission of rape beyond reasonable doubt. Finding only that Laila Rose Arco, then only five years old, was killed by strangulation, it convicted appellant of murder qualified by treachery.

"Witnesses Vena[n]cio Gabales, Joey Raul Unson, Florencio Mamites, Rosalina Saac and Remus Unson were presented by the defense to prove that the police framed-up Toledo, Sr. Vena[n]cio Gabales testified that the police forced him to testify against Arsenio Toledo, Sr. (TSN, January 6, 1998, pp. 11 and 16).

Assignment of Errors

In his Brief, appellant imputes to the trial court the following alleged errors:[8]

1. The trial court erred in finding appellant Arsenio Toledo, Sr. guilty [of] the crime of [m]urder under Article 248 of the Revised Penal Code of the Philippines; 2. The trial court erred in not appreciating the factual, logical and natural issues relevant to the evidence presented by the [d]efense. In the main, appellant questions (1) the credibility of the prosecutions eyewitness and (2) the trial courts disregard of Jerry Saacs testimony. The issue of whether rape was also committed is raised by the Office of the Solicitor General.

the defense to mislead him and shake his story during cross-examination, he remained steadfast. His spontaneity and consistency gave his testimony the ring of truth.

Circumstances Surrounding the Crime

Appellant also asserts that the testimony of Ronnie was inherently improbable. He insists that the circumstances existing at the crime scene -- broad daylight, full view of many persons inside the school compound, presence of inhabited houses around the purok -- were such that a crime could not be committed. For a number of reasons, we find no merit in this contention. First, appellants premise that there were many persons in the school compound is not supported by the evidence on record. Second, crimes are known to have been committed in broad daylight within the vicinity of inhabited houses. Third, although it would be illogical and unreasonable for normal persons in full control of their faculties to commit a crime under such circumstances, the same does not hold true for all, especially those under the grip of criminal impulses. We cannot expect the mind of such persons to work within the parameters of what is normal, logical or reasonable, as the commission of a crime is not normal, logical or reasonable. Hence, the circumstances present in this case do not rule out appellants commission of the crime. Furthermore, the medicolegal officers testimony ruled out accidental drowning, because no water was found in Laila Rose' stomach.[10] Considering this testimony, the indubitable facts of death -- the fractured thyroid cartilage and fingernail marks on Laila Roses neck -prove beyond reasonable doubt that Laila Rose was strangulated; hence, a crime was committed.

The Courts Ruling

The appeal is partially meritorious. Appellant is guilty only of homicide; but the penalty, pursuant to RA 7610, is still reclusion perpetua inasmuch as the victim was five years old.

Main Issue: Credibility of the Prosecution Eyewitness

In a long line of cases, the Court has declared that the assessment of the credibility of witnesses and their testimony is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. A trial courts findings on the credibility of witnesses carry great weight and respect and will be sustained by the appellate courts unless the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the result of the case.[9] Upon examining the transcript of stenographic notes and the records of this case, we see no reason to disturb the trial courts finding that Eyewitness Ronnie Cabamungans testimony was credible. Ronnie Cabamungan was steadfast in testifying that appellant grabbed Laila Rose, brought her to the purok, strangled her and then threw her into the pond. Despite attempts of

Identification of Appellant

Appellant also asserts that Ronnies identification of him as the malefactor was improbable and unbelievable.

Such assertion is devoid of merit. The records bear out that Ronnie saw a man strangling Laila Rose. At that time, he already knew the face, though not the name, of the man. Previously, that man had often been seen by Ronnie going to the cockpit arena near the latters place. But at the time he testified in court, Ronnie already knew the mans name to be Arsenio Toledo. This was because after Laila Rose death, he had been accompanied by his Kuya Junjun to the cockpit arena, where he saw and pointed out to the latter the man whom he had seen strangle Laila Rose. Junjun then informed him that the mans name was Arsenio Toledo. Considering that Ronnie is a child of tender years, it is understandable that he cannot qualify and explain the above in one instance, as appellant seemingly wants. The process by which the latter was identified as the malefactor becomes clear, however, when the testimony of Ronnie is considered together with the testimonies of Baltazar Cabamungan (also referred to as Junjun) and Rodolfo Milagrosa. Ronnie Cabamungan testified during direct examination as follows: Q: You said you saw Arsenio Toledo actually grabbing the girl clearly going to the purok and strangulating her[. D]o you know Arsenio Toledo? A: Q: A: Q: A: Q: A: Not yet, Maam. You mean that you did not know x x x yet that he [was] Arsenio Toledo during the time you saw him? Yes, Maam. But you know him by face? Yes, Maam. But later on did you know that he [was] Arsenio Toledo? Yes, Maam.[11]

Q: A:

In fact, Mr. Witness, you only know that person was Arsenio Toledo when the police told you, is that correct? The one who told me that that person [was] Arsenio Toledo [was] my Kuya Junjun when he was with me in the cockpit, sir.[12]

On the other hand, Baltazar Cabamungan, who was referred to by Ronnie as Kuya Junjun, testified: Q: You said that the purpose of your going to the cockpit was for Ronnie to pinpoint the guy whom he had seen responsible for the killing of Laila Rose. Now when you reached the cockpit what did you do? A: Upon reaching the cockpit he pointed to the person whom he saw as the one who killed Laila Rose and threw (her) into the water. He further said kuya, mao na siya. Meaning, [K]uya this is the one. So when he pointed to you the guy by saying []Kuya, mao na siya,[] did you know the guy? Yes sir yes maam. xxx Q: A: Who was that guy? Arsenio Toledo, maam. xxx xxx

Q: A:

SPO2 Rodolfo Milagrosa further explained the circumstances surrounding the identification of appellant in this wise: Q: When all of these persons were interviewed by you, what did you do next? A: Q: A: Q: [As a] result of the invitations that we conducted the six persons that we invited, I almost g[a]ve up [on] the investigation. What did you do then? Good that the last approach I have made materialized. What was that approach you have made?

During cross-examination, he further declared as follows: Q: In fact that person whom you saw and whom you know as Arsenio Toledo, during that time you did not know that his name [was] Arsenio Toledo, is that correct? A: Not yet, sir.

A:

I went to the school campus particularly to the canteen 60 meters more or less from the crime scene. I bought Pop Cola and wait[ed] for sometime until the bell rang for recess. Could you estimate what time was that? I am not sure but I think it was 9:30 to 10:00 oclock. Now what did you do then while drinking [P]op [C]ola? When it was already x x x recess, the pupils were already in their canteen, I ha[d] to go down to their level and I said: Dong, dong tan-awa tong bata didto crush to nimo no and he answered Dili uy[.] Why did you talk that way to the children? What was your purpose? Because I ha[d] a hard time to approach them because the moment they knew that I [was] a policeman so I ha[d] to go down to their level first using that strategy and I said: Wala gyoy nakakita ni Laila Rose no[,] kon unsay nahitabo[]? When you asked [if] no one ha[d] seen [the incident], what happened? Almost all of them answered in chorus Naa sir, naa sir, Grade I naay duha ka buok. []

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q:

Did you locate them? Yes, we were able to reach the house of Mr. Baltazar Cabamungan. And then what happened when you reached the house of Mr. Cabamungan? I requested x x x that I x x x be allowed to interview Ronnie Cabamungan. And were you able to interview Ronnie Cabamungan? The mother was hesitant that their son be interviewed maam. What did Ronnie tell you? He told me that he and Jerry Saac saw an old man [take] and carry Laila Rose Arco while she was urinating and [bring her] to the cottage. Now what else transpired after that? When Ronnie Cabamungan told you about what he saw[,] what else did you ask him? I asked him if he [knew] the name of that old man he [was] referring to. And what did Ronnie Cabamungan tell you? He told me that he did not know the name but he always saw this old man in the cockpit arena always bringing [a] fighting cock. Upon learning from Ronnie Cabamungan that the person who grabbed Laila Rose Arco was the very person whom he always saw in the cockpit bringing [a] fighting cock, what did you do? xxx xxx xxx

Q: A: Q: A:

Q: A:

Q: A:

RTC INTERPRETER: Almost all of these pupils simultaneously said: Naa, sir, na [a] sir, meaning: There is, sir, there is, sir. Q: A: What did they [chorus]? Naa sir, naay duha ka buok.

RTC INTERPRETER: There [were] sir, there were two pupils who witnessed. Q: A: Q: A Did they mention the names of these two children [who] they said in chorus x x x ha[d] seen the incident? Yes, they answered that [they were] Ronnie Cabamungan and Jerry Saac. Upon knowing from these children that there were two children who ha[d] seen the incident involving Laila Rose Arco, what did you do? I called up my back-up PO3 Eramis to help me in locating these two children.

A: Q: A: Q:

I requested and instructed his older brother Baltazar Cabamungan, Jr. to accompany his younger brother to the cockpit area. Did you go with them to the cockpit? No. . . . In the cockpit what happened?

A:

While I was already at the road, Baltazar Cabamungan, Jr. and Ronnie Cabamungan, left the place and Baltazar Cabamungan, Jr. told me that he ponted to Arsenio Toledo, Sr. Who pointed to Arsenio Toledo, Sr.? Ronnie Cabamungan [pointed] to his brother and when I look[ed] x x x there I saw also Arsenio Toledo, Sr. in that area.[13]

Q: A:

. . . A document or an article is valueless unless it is formally offered in evidence, and the opposing counsel is given an opportunity to object to it and to cross-examine any witness called to present or identify it. Evidence not formally offered before the trial court cannot be considered on appeal, for to consider it at such stage will deny the other parties their right to rebut it.

Indeed, Ronnie positively identified appellant as the person who had strangled Laila Rose. Positive [i]dentification where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter prevails over a denial.[14] Where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.[15] There being no evidence to prove ill motive on the part of Ronnie, his identification of appellant as the killer prevails over the latters denial.

Jerry Saacs Testimony

Additional Evidence Submitted on Appeal

The trial court was correct in not giving any weight to Defense Witness Jerry Saacs testimony, which appellant submits as more worthy of credence. It is on record that Jerry had previously given a Sworn Statement[18] that was totally inconsistent with his testimony in open court. The inconsistencies between the Sworn Statement and the testimony cannot be reconciled. Jurisprudence forewarns that when serious and inexplicable discrepancies are present between a previously executed sworn statement of a witness and testimonial declarations with respect to ones participation in a serious imputation such as murder, there is raised a grave doubt on the veracity of the witness account.[19] Aside from this, during the previous preliminary examination[20] conducted by MCTC Judge Charito Untal, Jerry had also implicated Arsenio Toledo Sr. in the death of Laila Rose. Pertinent is the ruling in People v. Peralta,[21] in which this Court stated: Besides, it is settled that where a witness testifies for the prosecution and retracts his testimony and subsequently testifies for the defense, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. The well settled rule is that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. In the case before us, Siony testified during the preliminary examination conducted by Judge Paano that the appellant choked her mother to death. Her subsequent retraction was an afterthought and has no probative value at all. In the same vein, we find that Jerrys testimony in open court has no probative value at all.

The Certification attached to the Appellants Brief as Annex B, [16] which appellant wants to use to prove that Ronnie Cabamungan lied, cannot be considered at this late stage. It was not presented during the trial or offered in evidence before the trial court. In Ong v. Court of Appeals,[17] this Court stated: Section 34, Rule 132 of the Rules of Court, provides that [t]he court shall consider no evidence which has not been formally offered. A formal offer is necessary, since judges are required to base their findings of fact and their judgment solely and strictly upon the evidence offered by the parties a[t] the trial. To allow parties to attach any document to their pleadings and then expect the court to consider it as evidence, even without formal offer and admission, may draw unwarranted consequences. Opposing parties will be deprived of their chance to examine the document and to object to its admissibility. On the other hand, the appellate court will have difficulty reviewing documents not previously scrutinized by the court below. xxx xxx xxx

Alleged Frame-up

The trial court correctly found that the defense of frame-up was not proven. The fact that so many persons were investigated but not charged merely shows that the police investigators did a thorough job. They did it by listing the suspects and, as the investigation progressed, eliminating those they found to be probably not responsible for the crime. This fact was clearly explained by the prosecution rebuttal witness, SPO2 Rodolfo Milagrosa.

Crime and Punishment

Rape

The trial court, however, erred in appreciating treachery as a qualifying circumstance and in convicting appellant of murder. A cursory examination of the Information shows that the qualifying circumstance of treachery was not alleged therein. Following the settled rule that a qualifying circumstance cannot be appreciated unless alleged in the information, [26] appellant can be convicted of homicide only for the death of Laila Rose. The penalty imposable for homicide in this case, however, is reclusion perpetua. As explained in People v. Cariquez:[27] Previous to its amendment by R.A. 7610, the penalty for homicide under Article 249 of the Revised Penal Code, was reclusion temporal. As amended by R.A. 7610, the penalty for homicide in cases where the victim is a child below twelve (12) years of age is reclusion perpetua. The second paragraph of Section 10 of Article VI of R.A. 7610 provides, as follows: For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph[s] 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. x x x. In the present case, it was alleged in the Information and proven during trial that Laila Rose was only five (5) years old when she was killed. Thus, although appellant can be convicted of homicide only, the impossable penalty is still reclusion perpetua.

On the matter of rape, we again find no reason to disturb the trial courts finding. The only evidence presented by the prosecution to prove it consisted of the lacerations on Laila Rose hymen. We must stress that there was no eyewitness account or any other evidence to establish this charge. It is on record that the lacerations on Laila Rose hymen could have been caused by any blunt hard object like a test tube or a penis. Since the hymen of a five-year-old girl admits a glass tube with a diameter of 1.5 centimeters with moderate resistance, if a hard blunt object with a 2.5-centimeter diameter (the average size of an erect adult male penis) had completely penetrated the victims vagina it would have caused injuries so much more severe than those present in this case. The record also shows that after Laila Rose was fished out of the pond that same morning, Dr. Edwin Crusado[22] tried to insert his little finger into her vagina[23] and, through other procedures,[24] found out that there was no spermatozoa. It must be noted that he did these before the medicolegal officer, Dr. Tammy Uy, conducted her own examination later in the evening of that same day and found the lacerations. Although it is possible that the lacerations could have been caused by an incomplete penetration of an adult males sex organ, there is also a reasonable possibility that they were caused by the examination and other procedures earlier performed by Dr. Crusado. This Court has consistently ruled that if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[25] Absent any other evidence, the presence of hymenal lacerations alone is not sufficient to establish rape in this case. In this light, we agree with the trial court that appellant cannot be held guilty of rape.

Civil Liability

Pursuant to current jurisprudence, the award of indemnity ex delicto is P50,000, not P70,000 as determined by the trial court. The award of moral damages in the sum of P50,000, is backed up by evidence; we cannot, however, sustain the award of exemplary damages, absent any showing of aggravating circumstances.[29]
[28]

WHEREFORE, the appeal is partially GRANTED and the assailed Decision is hereby MODIFIED as follows: (1) appellant is CONVICTED of homicide, (2) the award of indemnity ex delicto isREDUCED to P50,000, and (3) the award of exemplary damages is DELETED. The Decision is AFFIRMED in all other aspects, including the penalty of reclusion perpetua. SO ORDERED. Melo (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur Estrada v. Disierto April 3, 2001

problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. ISSUE: Whether or not Arroyo is a legitimate (de jure) president. HELD: The SC holds that the resignation of Estrada cannot be doubted. It was confirmed by his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with the reservation about its legality; (2) he emphasized he

De Jure vs De Facto President

Estrada alleges that he is the President on leave while respondent Gloria MacapagalArroyo claims she is the President. From the beginning of Eraps term, he was plagued by problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Singson, a longtime friend of the Estrada, went on air and accused the Estrada, his family and friends of receiving millions of pesos from jueteng lords. The expos immediately ignited reactions of rage. On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. January 20 turned to be the day of surrender. On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and duties of the Presidency. After his fall from the pedestal of power, the Eraps legal

was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Estradas reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioners valedictory, his final act of farewell. His presidency is now in the past tense. Even if Erap can prove that he did

not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court. JOSEPH E. ESTRADA, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, PAUL ELMER CLEMENTE, JENNIFER A. AGUSTIN-SE, PELAGIO S. APOSTOL and ROBERTO E. KALLOS, in their capacities as EPIB officers, LILIAN B. HEFTI, PACITA M. EQUILLOS, ARCHANGEL A. ALBIENTO, ANICETO T. DAGDAG, JR., RIZA P. DEL ROSARIO, VICTOR Q. LIM and CATHERINE WEIR. respondents. DECISION CHICO-NAZARIO, J.: Before Us is an Appeal by Certiorari filed by former President Joseph Ejercito Estrada on 20 December 2002 from the 20 November 2002 resolution of the Court of Appeals[1]dismissing his motion for reconsideration of the resolution of the appellate court dated 29 July 2002,[2] which in turn, dismissed for lack of jurisdiction his petition for certiorari. The petition with the Court of Appeals questioned the Office of the Ombudsmans dismissal of petitioners criminal complaint against the private respondents herein. Culled from the respective pleadings of the parties herein, the following antecedent facts are undisputed:[3] 1. On 23 January 2001, the Bureau of Internal Revenue (BIR) placed petitioners foreign currency deposit account at Citibank Greenhills Branch under constructive distraint;

2.

Contending that the BIR action was unlawful, petitioner filed on 31 January 2001 a complaint against respondent BIR officials (Deputy Commissioner Lilian Hefti, Revenue Officer I Archangel A. Albiento and Revenue Officer II Aniceto T. Dagdag, Jr.) and respondent Citibank officers (Riza P. Del Rosario, Victor Q. Lim and Catherine Weir) before the Office of the Ombudsman for allegedly violating (a) Section 8 of the Foreign Currency Deposits Act (Republic Act No. 6426); (b) Article 177 of the Revised Penal Code; and (c) Section 3(e) of the Anti-Graft and Corrupt Practices Act (Rep. Act No. 3019); On 17 September 2001, the Evaluation and Preliminary Investigation Bureau (EPIB) of the Office of the Ombudsman issued a Resolution recommending the dismissal of the aforesaid complaint for want of probable cause to indict respondent bank and BIR officials; On 19 November 2001, Paul Elmer Clemente, Legal Counsel, Acting Director Office of the Chief Legal Counsel (OCLC), issued a Memorandum approving EPIBs recommendation, a copy of which was received by petitioner on 01 February 2002; On 15 February 2002, petitioner filed a Motion for Reconsideration of said Resolution, upon the ground that errors of fact and law were committed prejudicial to the interest of petitioner; On 26 February 2002, respondents EPIB officers issued an order, approved by respondent Desierto, denying petitioners Motion for Reconsideration, a copy of which was received by petitioner on 06 June 2002; On 12 July 2002, petitioner filed a petition for certiorari under Rule 65[4] before the Court of Appeals; On 29 July 2002, the Court of Appeals promulgated the assailed resolution dismissing the petition on the ground that it did not fall under its jurisdiction pursuant to Rep. Act No. 6770. The Court of Appeals held --

3.

4.

5.

6.

7.

8.

Considering the allegations of the petition for certiorari, the Court Resolved to DISMISS the same in the light of Our view that the petition does not fall under any law as coming within the jurisdiction of the Court of Appeals. ... Under the Fabian versus Desierto case (295 SCRA 470), there is the remedy of appeal from the Office of the Ombudsman in administrative disciplinary cases, in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in Rule 43 of the 1997 Rules of Civil Procedure. Stated in another way, the Court of Appeals is now vested with exclusive appellate jurisdiction involving a review of decisions or orders of the Office of the Ombudsman in administrative disciplinary cases only. ... Since jurisdiction must exist as a matter of law, and there is no law whatsoever expressly extending the remedy of this so-called special civil action of certiorari from the Office of the Ombudsman to the Court of Appeals, petitioner in this case could not invoke this remedy of certiorari. By the passage of Republic Act No. 6770, this Court is expressly divested of any jurisdiction over the subject matter of these controversies.[5] 9. On 15 August 2002, petitioner moved for the reconsideration of the Court of Appeals resolution; On 20 November 2002, the Court of Appeals dismissed the motion for reconsideration reiterating its earlier ruling on the ground that petitioners arguments were not substantial enough to warrant the reversal of the earlier resolution; On 11 December 2002, petitioner filed with this Court a Motion for Extension of Time of fifteen (15) days to file Petition for Review which was granted on 14 January 2003; and

12.

The instant petition for review on certiorari was filed on 20 December 2002 praying that the Court of Appeals take cognizance of the petition for certiorari under Rule 65 filed therein by petitioner.

On 06 May 2003, after the parties filed their respective comments[6] and after petitioner filed his reply[7] thereto, this Court gave due course to the petition and required the parties to submit their respective memoranda.[8] Petitioner postulates that the Court of Appeals has concurrent jurisdiction with this Court in original actions for certiorari concerning dispositions made by the Office of the Ombudsman of criminal cases that underwent preliminary investigation. In support thereof, petitioner argues that Section 14 of Rep. Act No. 6770 (The Ombudsman Act of 1989), which was made the basis by the Court of Appeals in dismissing his petition, is unconstitutional as it allegedly provides for direct appeal to this Court in contravention of Section 5(2), Article VIII of the Constitution which contains an exclusive list of cases falling under the appellate jurisdiction of the Supreme Court. Following the ruling in Fabian v. Desierto,[9]petitioner concludes that Section 14 has effectively increased the appellate jurisdiction of this Court without its advice and concurrence in violation of Section 30, Article VI of the Constitution. Petitioner then went on to state that the proper recourse from an adverse decision of the Ombudsman in criminal cases is a petition for certiorari under Rule 65 before the Court of Appeals pursuant to Tirol, Jr. v. Del Rosario[10] where we declared that a party aggrieved by a resolution of the Ombudsman in criminal cases may avail himself of such remedy. Petitioner contends that as the doctrine of hierarchy of courts precludes the immediate invocation of this Courts power of review, he correctly filed his petition for certiorari with the Court of Appeals. The threshold legal issue to be resolved in the instant petition, therefore, is whether or not the Court of Appeals has jurisdiction to entertain original petitions for certiorari from decisions of the Office of the Ombudsman in criminal cases. In Tirol, Jr. v. Del Rosario,[11] we had occasion to rule that Rep. Act No. 6770 does not provide for the remedy of appeal from decisions of the Ombudsman in criminal or non-administrative cases. The aggrieved party may instead avail himself of the original petition for certiorari when the circumstances would warrant the use thereof:

10.

11.

. . . As we ruled in Fabian, the aggrieved party is given the right to appeal to the Court of Appeals. Such right of appeal is not granted to parties aggrieved by orders and decisions of the Ombudsman in criminal cases, like finding probable cause to indict accused persons. However, an aggrieved party is not without recourse where the finding of the Ombudsman as to the existence of probable cause is tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction. An aggrieved party may file a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. (Emphasis supplied) But in which court should this special civil action be filed? Petitioner contends that certiorari under Rule 65 should first be filed with the Court of Appeals as the doctrine of hierarchy of courts precludes the immediate invocation of this Courts jurisdiction. Unfortunately for petitioner, he is flogging a dead horse as this argument has already been shot down in Kuizon v. Ombudsman[12] where we decreed In dismissing petitioners petition for lack of jurisdiction, the Court of Appeals cited the case of Fabian vs. Desierto. The appellate court correctly ruled that its jurisdiction extends only to decisions of the Office of the Ombudsman in administrative cases. In the Fabian case, we ruled that appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure. It bears stressing that when we declared Section 27 of Republic Act. No. 6770 as unconstitutional, we categorically stated that said provision is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action. In fine, we hold that the present petition should have been filed with this Court.[13] Kuizon and the subsequent case of Mendoza-Arce v. Office of the Ombudsman (Visayas)[14] drove home the point that the remedy of aggrieved parties from resolutions of the Office of the Ombudsman finding probable cause in criminal cases or non-administrative cases, when tainted with grave abuse of discretion, is to file an original action for certiorari with this Court and not with the Court of Appeals.[15] In cases when the aggrieved party is questioning the Office of the Ombudsmans finding

of lack of probable cause, as in this case, there is likewise the remedy of certiorari under Rule 65 to be filed with this Court and not with the Court of Appeals following our ruling in Perez v. Office of the Ombudsman.[16] As this Court had already resolved said issue of jurisdiction in the above-cited cases, it is a salutary and necessary judicial practice to apply the rulings therein to the subject petition. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled.[17] Undaunted, petitioner now harps on the validity of Section 14 of Rep. Act No. 6770 claiming it to be unconstitutional. The Court of Appeals, it must be recalled, relied quite heavily on Section 14 of Rep. Act No. 6770 in relation to Fabian v. Desierto[18] in ruling that it had no jurisdiction to entertain the petition filed thereat. Section 14 of Rep. Act No. 6770 states Sec. 14. Restrictions. - . . . No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law. Basic is the principle that a constitutional issue may only be passed upon if essential to the decision of a case or controversy.[19] Even if all the requisites for judicial review are present, this Court will not entertain a constitutional question unless it is the very lis mota of the case or if the case can be disposed of on some other grounds, such as the application of a statute or general law. [20] Thus, in Sotto v. Commission on Elections,[21] we held . . . It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties, and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable. (Emphasis supplied) In herein case, the question of who has jurisdiction to entertain petitions for certiorari questioning the Ombudsmans orders or resolutions in criminal cases can be answered by resorting to the aforecited cases of Kuizon v. Ombudsman,

[22]

Mendoza-Arce v. Office of the Ombudsman[23] and Perez v. Office of the Ombudsman.[24] Consequently, there is no need to delve into the constitutionality of Section 14 of Rep. Act No. 6770 as case law already supplies the key. Applying the foregoing, the Court of Appeals did not err in dismissing petitioners original action for certiorari for lack of jurisdiction. Petitioner should have filed the same directly with this Court. Even if the petition for certiorari had been correctly filed in this Court, we would have dismissed it just the same[25] as we do not perceive any clear case of abuse of discretion on the part of the public respondents when they issued the Resolution dated 17 September 2001 and the Order dated 19 September 2001 recommending the approval of the 17 September 2001 resolution dismissing, for lack of probable cause, petitioners complaint for Usurpation of Official Function under Article 177 of the Revised Penal Code, for violation of Section 3(e) of Rep. Act No. 3019, and for violation of Section 8 of Rep. Act No. 6426. The same holds true for the Order dated 26 February 2002 which denied petitioners motion for reconsideration of the 19 September 2001 resolution. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[26] In dismissing petitioners complaint for Usurpation of Official Function against private respondents, public respondents reasoned[27] -Under Art. 177 of the Revised Penal Code, in order for one to be held liable for Usurpation of Official Function, there must be a clear showing that the person being charged had performed an act pertaining to any person in authority or public officer of the Philippine government or any agency thereof, under pretense of official position, and without being lawfully entitled to do so. In this instant case, respondent Hefti was the one specifically charged with Usurpation of Official Function, in view of her act of issuing the notice of constructive distraint against the foreign currency deposit of complainant with the Citibank. The rest of the public respondents

and all the private respondents were merely charged in conspiracy with the said respondent. Hence, the issue that must be resolved is whether or not respondent Hefti being the Deputy Commissioner of BIR had indeed usurped the duty of the BIR Commissioner when she issued the notice of distraint. While it is true that under Sec. 206 of the NIRC as amended, the Commissioner of the BIR and not any Officer of the BIR was the one granted with the power to issue a notice of distraint, it bears to stress, however, that when respondent Hefti exercised such function of the BIR Commissioner, she was then designated Officer-In-Charge of the BIR by President Gloria Macapagal-Arroyo, as evidenced by a photocopy of her Memorandum of Appointment dated January 23, 2001. By virtue of her appointment as Officer-In-Charge of BIR, it necessary follows that respondent Hefti can now legally exercise the duties and functions pertaining to the BIR Commissioner, including the issuance of a constructive distraint. Whether the issuance of the notice of distraint is valid or not, such issue is no longer within the power of this Office to decide inasmuch as the power to review the decision of the BIR Commissioner on matters of distraint lies within the jurisdiction of the Court of Tax Appeals. Suffice it to say that when respondent Hefti issued the notice of distraint, she was clothed with authority to issue the same in view of her appointment as the then Officer-In-Charge of the BIR. Hence, the charge for Usurpation of Official Function does not apply to said respondent. With the establishment of respondent Heftis authority in the issuance of the constructive distraint, the subsequent act of respondent Dagdag in serving the said distraint to the Citibank, as well as the act of respondents Equillos and Albiento in witnessing the service of the same to the said bank, can not be construed as act in agreement to commit the crime of Usurpation of Authority in the light of the foregoing discussion. The same thing holds true to the bank officers who were made respondents in this case, considering that their act in informing complainant regarding the existence of the constructive distraint as well as in implementing the said distraint against the latters account with the said bank, [were] merely in compliance to an order issued by a competent authority. And:[28] As the officer-in-charge of the BIR duly-designated by the President, respondent Hefti was the incumbent head of BIR. By operation of law, she was the possessor of the office of the

Commissioner by virtue of her lawful designation and was thus legally authorized to discharge the duties of such office (cf. Blacks Law Dictionary, 6th Ed., at 768). In other words, she was authorized to temporarily act as the head of the said bureau until the appointment of the regular Commissioner. Her official acts as the duly-designated head of the BIR are deemed as acts of the bureaus Commissioner, and enjoy the presumptions of legality, validity and regularity. With respect to the alleged violation of Sec. 3(e) of Rep. Act No. 3019, the resolution[29] of public respondents states in part: Under Sec. 3(e) of R.A. 3019, the concurrence of the following elements are essential for the commission of the said offense. 1. The respondent is a public officer discharging administrative, judicial or official functions, or any private individual in conspiracy with the public officer; 2. The respondent must have acted with manifest partiality, evident bad faith, or gross inexcusable negligence; and 3. The respondents action has caused any undue injury to any party including the government, or has given any party unwarranted benefits, advantage or preference in the discharge of his functions. In this present case, public respondents are public officers within the contemplation of the law, and private respondents are charged in conspiracy with public respondents. Thus, the first element for the commission of the said offense is present. Be it emphasized, however, that the issuance of the notice of distraint by respondent Hefti was done in accordance with her function as the then Officer-In-Charge of the BIR. In issuing the said distraint, it appears that said respondent was guided not by her own unilateral and whimsical act as what the complainant is trying to impress to this Office, but on her observation regarding the huge disparity of complainants income as declared by him in his Annual Income Tax Return, and the amount of his income as established in the impeachment trial, which is said to be concealed under fictitious name. In addition thereto, there are

various news reports about the plan of complainant to flee the country bringing with him the money he amassed during his presidency. Clearly, the foregoing circumstance are matters that this Office can not simply ignore for this are informations already known to the public, and the cognizance of it by respondent Hefti which led to the issuance of the subject distraint is just a prudent act expected from somebody tasked to protect the coffers of the government, and such can not be considered as an act tainted with manifest partiality, evident bad faith, and gross inexcusable negligence. Furthermore, complainant failed to show the alleged undue injury he suffered because of the said distraint. There is nowhere in the records of this case to show that he was deprived by the Citibank Greenhills branch to withdraw any amount from his own foreign currency account deposit, nor was there a record of his attempt to withdraw from his foreign currency deposit with the said bank. The failure of the complainant to establish the actual injury he suffered by virtue of the subject distraint will necessarily give rise to a reasonable conclusion that the injury he claimed to have suffered is merely illusory and imaginary. Hence, the charge for violation of Sec. 3(e) under R.A. 3019 can not prosper for failure to establish the actual damage or injury suffered by the complainant. Finally, with respect to the complaint for violation of Section 8 of Rep. Act No. 6426 (Foreign Currency Deposits Act of the Philippines), public respondents ratiocinated[30] -At this point, it is worth stressing, that this office in its previous Order dated 20 February 2001, ruled that the absolute confidentiality of foreign currency deposit account provided for under R.A. 6426 does not apply to the foreign currency deposit accounts of herein complainant, since the protection under the said law is intended only for depositors who are non residents and are not engaged in trade and business in the Philippines. In coming out with such ruling, this office has as its basis one of the Whereas clauses of P.D. 1246 which amended Sec. 8 of R.A. 6426. For emphasis, the pertinent provision of the said law is hereby quoted: WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and offshore Banking System in the Philippines, certain incentives were provided for under the two systems such as confidentiality of deposits subject to certain

exceptions and tax exemptions on the interest of the income of depositors who are nonresidents and are not engaged in trade or business in the Philippines. Considering the previous Order of this Office, it necessarily follows that the accusation for violation of Sec. 8 of R.A. 6426 against herein respondents has no leg to stand on, thus, the dismissal of the charge for violation of Sec. 8 of R.A. 6426 is therefore in order. And:[31] In Salvacion v. Central Bank and China Bank, 278 SCRA 27 (1997), the Highest Tribunal adopted the opinion of the Office of the Solicitor General (OSG) that only foreign currency deposits of foreign lenders and investors are given protection and incentives by the law, and further ruled that the Foreign Currency Deposits Act cannot be utilized to perpetuate injustice. [32] Following such pronouncements, it is respectfully submitted that foreign currency deposits of Filipino depositors, including herein complainant, are not covered by the Foreign Currency Deposits Act, and are thus not exempt from the processes duly-issued by the BIR. We do not perceive any grave abuse of discretion on the part of the public respondents when they issued the aforecited rulings. We, thus, defer to the policy of non-interference in the conduct of preliminary investigations. We have invariably stated that it is not sound practice to depart from the policy of non-interference in the Ombudsman's exercise of discretion to determine whether or not to file information against an accused. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. [33] Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be absolutely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decided to file an information in court or dismissed a complaint by a private complainant.[34] Thus, in the absence of a clear case of abuse of discretion, this Court will not interfere with the discretion of the Ombudsman, who, depending on his own findings and considered evaluation of the case, either dismisses a complaint or proceeds with it.[35] A cautionary word. A declaration by this Court that the public respondents did not gravely abuse their discretion in issuing the resolutions dismissing petitioners

complaint does not necessarily translate to a declaration of assent in the findings of fact and conclusions of law contained therein. With respect specifically to the resolution for violation of Section 8 of Rep. Act. No. 6426, public respondents relied on the whereas clause of P.D. No. 1246 which amended Rep. Act No. 6426 and on the Salvacion case to conclude that only non-residents who are not engaged in trade and business are under the mantle of protection of Section 8 of Rep. Act. No. 6426. Assuming that such reliance is erroneous as contended by petitioner, [36] this Court, on petition for certiorari, cannot correct the same as the error is not of a degree that would amount to a clear case of abuse of discretion of the grave and malevolent kind. It is axiomatic that not every erroneous conclusion of law or fact is abuse of discretion.[37] As adverted to earlier, this Court will interfere in the Ombudsmans findings of fact and conclusions of law only in clear cases of grave abuse of discretion. WHEREFORE, premises considered, the instant petition is hereby DISMISSED for lack of merit and the resolutions of the Court of Appeals in CA-G.R. SP No. 71722 dated 29 July 2002 and 20 November 2002 are hereby AFFIRMED. Costs against petitioner. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Garcia, JJ.,concur. Corona, J., on leave.

G.R. No. 119359 December 10, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROBERT CLOUD, accused-appellant. Facts: One Josephine Aguilar was at St. Lukes Hospital to have some stitches removed from her daughters head. Her attention was caught by a very young boy, less than three years old, who was brought to the hospital by his grandmother. The boy was all covered with dried blood. What struck Josephine was that the grandmother was hysterically yelling, "Pinatay siya ng sariling ama!", Putang ina ang ama niya . . . walang awa sa anak niyahayop siya". This bothered Josephines conscience so she asked for help from a civil liberties organization lawyer. The

defense of the defendant father was he was not at home when the incident happened and it was possible that the child fell from the stairs. He mentioned that his son was a very sickly child and has difficulty in breathing. The prosecution's primary evidence that it was appellant who beat up and killed the boy was the testimony of its principal witness Josephine Aguilar who declared that she heard appellant's grandmother herself shouting that it was appellant who killed his own son by beating him to death. The said grandmother, Rufina Alconyes, was not presented in court, since at the time of the trial she was already dead. The Solicitor General posits the view that the outbursts of that grandmother constituted exceptions to the hearsay rule since they were part of theres gestae . Those inculpatory and spontaneous statements were: (1) "Pinatay siya ng kanyang ama " (he waskilled by his own father); (2)Putang ina ang ama niya walang awa sa anak niya hayop siya "(His father is a son of a bitch . . . without pity for his son . . . he is an animal); and (3) Appellant did not allow his son, John Albert, to accompany her and when the boy started to cry and would not stop, appellant beat his son very hard, tied his hands, and continued beating him until excreta came out of his anus. The trial court was of the opinion that what Ms.Aguilar heard or saw does not merely constitute an independently relevant statement which it considered as an "exception to the hearsay rule, only as to the tenor rather than the intrinsic truth or falsity of its contents." Issue: WON the testimony on the outburst of the grandmother has evidentiary value. Held: Rufina Alconyes are concerned, they are admissible as part of the Res gestae , they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court. Her accounts of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim. As a question in one Bar Reviewer: Q: X was beaten by Y to death, but before he died, he was brought by his grandmother to the hospital, limp and bloodied. The

grandmother had a hysterical outburst at the emergency room that Y was the one who beat X. State the evidentiary value of such outburst. ANS: The hysterical outburst of a grandmother at the emergency room of the hospital that it was the accused who beat to death his own son (who was brought there limp and bloodied by the grandmother) is admissible as part of the res gestae. The testimony of the witness as to the said statements of the grandmother is not hearsay, and is admissible as an independently relevant statement. (The grandmother was already dead at the time o the trial.