1.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 95028 May 15, 1995 PEOPLE OF THE. PHILIPPINES, plaintiff-appellee, vs. MARLO COMPIL Y LITABAN, accused-appellant.

BELLOSILLO, J.: On the belief that the case for the prosecution depends in the main on his own extrajudicial confession which he claims is inadmissible, accused Marlo Compil y Litaban filed a demurrer to evidence instead of presenting evidence in his behalf. The trial court however denied his demurrer, admitted his extrajudicial confession, and found him guilty of robbery with homicide. Now before us, he maintains that his extrajudicial confession was extracted without the assistance of counsel, thus constitutionally flawed. As submitted by the prosecution, on 23 October 1987, just before midnight, robbers struck on MJ Furnitures located along Tomas Mapua Street, Sta. Cruz, Manila, which doubled as the dwelling of its proprietors, the spouses Manuel and Mary Jay. The intruders made their way into the furniture shop through the window grills they detached on the second floor where the bedroom of the Jays was located. Two (2) of the robbers forthwith herded the two (2) maids of the owners into the bathroom. Manuel Jay was not yet home. He was to come from their other furniture store, the Best Wood Furniture, along Tomas Pinpin Street, also in Sta. Cruz. His wife Mary had earlier retired to their bedroom. Sensing however that something unusual was going on outside, Mary opened the door to peek. Suddenly, a man placed his arms around her neck while another poked a balisong at her nape. She was pushed back into the bedroom and ordered to open the drawers where she kept money. A third man ransacked the bedroom. They then tied her hands behind her back, stuffed her mouth with a towel, and took off with some P35,000.00 in cash and pieces of jewelry worth P30,000.00. Afterwards, Mary who was gagged in the bedroom, and one of the housemaids herded into the bathroom, heard Manuel agonizing amid a commotion in the ground floor. After noticing that the two (2) men guarding them had already left, the helpers, Jenelyn Valle and Virginia Ngoho, dashed out of the bathroom and proceeded to the bedroom of their employers. Upon seeing Mary, the two (2) maids untied her hands and took out the towel from her mouth. They then rushed to the ground floor where they saw Manuel sprawled on the floor among the pieces of furniture which were in disarray. He succumbed to thirteen (13) stab wounds. In the investigation that followed, Jessie Bartolome, a furniture worker in MJ Furnitures, told operatives of the Western Police District (WPD) that just before the incident that evening, while with his girlfriend

Linda Hermoso inside an owner-type jeep parked near MJ Furnitures, he saw his co-workers Marlo Compil, Baltazar Mabini and Jose Jacale go to the back of the furniture shop. Linda then confirmed the information of Bartolome to the police investigators who also learned that the trio who were all from Samar failed to report for work the day after the incident, and that Baltazar Mabini was planning to go to Tayabas, Quezon, to be the baptismal godfather of his sister's child. Thus on 27 October 1987, WPD agents together with Tomas Jay, brother of the deceased, and Jenelyn Valle went to the parish church of Tayabas, Quezon, to look for Baltazar Mabini and his companions. From the records of the parish they were able to confirm that suspect Baltazar Mabini stood as godfather in the baptism of the child of his sister Mamerta and Rey Lopez. Immediately they proceeded to the house of Lopez who informed them that Baltazar Mabini and his companions already left the day before, except Compil who stayed behind and still planning to leave. After being positively identified by Jenelyn Valle as one of the workers of the Jay spouses, accused Marlo Compil who was lying on a couch was immediately frisked and placed under arrest. According to Jenelyn, Compil turned pale, became speechless and was trembling. However after regaining his composure and upon being interrogated, Compil readily admitted his guilt and pointed to the arresting officers the perpetrators of the heist from a picture of the baptism of the child of Mabini's sister. Compil was then brought to the Tayabas Police Station where he was further investigated. On their way back to Manila, he was again questioned. He confessed that shortly before midnight on 23 October 1987 he was with the group that robbed MJ Furnitures. He divulged to the police officers who his companions were and his participation as a lookout for which he received P1,000.00. He did not go inside the furniture shop since he would be recognized. Only those who were not known to their employers went inside. Compil said that his cohorts stabbed Manuel Jay to death. He also narrated that after the robbery, they all met in Bangkal, Makati, in the house of one Pablo Pakit, a brother of his co-conspirator Rogelio Pakit, where they shared the loot and drank beer until four-thirty in the morning. Then they all left for Quezon and agreed that from there they would all go home to their respective provinces. From Tayabas, Quezon, the arresting team together with accused Compil proceeded to the house of Pablo Pakit who confirmed that his younger brother Rogelio, with some six (6) others including Compil, went to his house past midnight on 23 October 1987 and divided among themselves the money and jewelry which, as he picked up from their conversation, was taken from Sta. Cruz, Manila. They drank beer until past four o'clock the next morning. On 28 October 1987, the day following his arrest, accused Compil after conferring with CLAO lawyer Melencio Claroz and in the presence of his sister Leticia Compil, brother Orville Compil and brotherin-law Virgilio Jacala, executed a sworn statement before Cpl. Patricio Balanay of the WPD admitting his participation in the heist as a lookout. He named the six (6) other perpetrators of the crime as Jose Jacale, Baltazar Mabini, Amancio Alvos, Rogelio Pakit, a certain "Erning" and one "Lando," and asserted that he was merely forced to join the group by Jose Jacale and Baltazar Mabini who were the masterminds: According to Compil, he was earlier hired by Mabini to work for MJ Furnitures where he was the foreman. Meanwhile WPD agents had gathered other leads and conducted follow-up operations in Manila, Paraaque and Bulacan but failed to apprehend the cohorts of Compil. On 12 November 1987 an Information for robbery with homicide was filed against Marlo Compil. Assisted by a counsel de oficio he entered a plea of "Not Guilty" when arraigned. After the prosecution had rested, the accused represented by counsel de parte instead of adducing evidence filed a demurrer to evidence.

On 2 June 1988 the Regional Trial Court of Manila, Br. 49, 1 denied the demurrer, found the accused guilty of robbery with homicide, and sentenced him to reclusion perpetua. In his 75-page appellant's brief, accused Compil claims that "(he) was not apprised of his constitutional rights (to remain silent and seek the assistance of counsel) before the police officers started interrogating him from the time of his arrest at the house of Rey Lopez, then at the Tayabas Police Station, and while on their way to Manila . . . . (he) was made to confess and declare statements that can be used against him in any proceeding." 2 And, the belated arrival of counsel from the CLAO prior to the actual execution of the written extrajudicial confession did not cure the constitutional infirmity since the police investigators had already extracted incriminatory statements from him the day before, which extracted statements formed part of his alleged confession. He then concludes that "[w]ithout the admission of (his) oral . . . and . . . written extrajudicial (confessions) . . . (he) cannot be convicted beyond reasonable doubt of the crime of robbery with homicide based on the testimonies of other witnesses" 3 which are replete with "serious and glaring inconsistencies and contradictions." 4 In People v. Rous, 5 the Third Division of this Court held that an extrajudicial confession may be admitted in evidence even if obtained without the assistance of counsel provided that it was read and fully explained to confessant by counsel before it was signed. However we adopt our view in Gamboa v. Cruz 6 where the Court En Banc ruled that "[t]he right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting forced or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense." We maintained this rule in the fairly recent cases of People v. Macam 7 and People v. Bandula 8 where we further reiterated the procedure . . . At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf . . . Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be in admissible in evidence. In the case at bench, it is evident that accused-appellant was immediately subjected to an interrogation upon his arrest in the house of Rey Lopez in Tayabas, Quezon. He was then brought to the Tayabas Police Station where he was further questioned. And while on their way to Manila, the arresting agents again elicited incriminating information. In all three instances, he confessed to the commission of the crime and admitted his participation therein. In all those instances, he was not assisted by counsel. The belated arrival of the CLAO lawyer the following day even if prior to the actual signing of the uncounseled confession does not cure the defect for the investigators were already able to extract incriminatory statements from accused-appellant. The operative act, it has been stressed, is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements, and not the signing by the suspect

of his supposed extrajudicial confession. Thus in People v. de Jesus 9 we said that admissions obtained during custodial interrogations without the benefit of counsel although later reduced to writing and signed in the presence of counsel are still flawed under the Constitution. What is more, it is highly improbable for CLAO lawyer Melencio Claroz to have fully explained to the accused who did not even finish Grade One, in less than ten (10) minutes as borne by the records, the latter's constitutional rights and the consequences of subscribing to an extrajudicial confession. While the extrajudicial confession of accused-appellant is so convincing that it mentions details which could not have been merely concocted, and jibes with the other pieces of evidence uncovered by the investigators, still we cannot admit it in evidence because of its implicit constitutional infirmity. Nevertheless, we find other sufficient factual circumstances to prove his guilt beyond reasonable doubt. We give credence to the testimonies of prosecution witnesses Linda Hermoso, Pablo Pakit and Jenelyn Valle. We believe that Linda Hermoso saw the accused and Mabini in the vicinity of MJ Furnitures just before the commission of the crime. While Hermoso may have contradicted herself on some minor incidents, she was straightforward on this specific instance FISCAL FORMOSO (re-direct): Q. You said that you saw Marlo and Puti (Baltazar Mabini) together with Jessie when you were inside the jeep, is it not? WITNESS HERMOSO: A. Yes, sir. Q. Was this before you went to sleep? A. Yes, sir. 10 Time and again it has been said that minor inconsistencies do not impair the credibility of witnesses, more so with witness Hermoso who only reached Grade Two and who as the trial court noted had difficulty understanding the questions being propounded to her. In fine, in the absence of evidence to show any reason why prosecution witnesses should falsely testify, it is fair to conclude that no improper motive exists and that their testimony is worthy of full faith and credit. We have repeatedly ruled that the guilt of the accused may be established through circumstantial evidence provided that: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proved; and, (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt. 11 And there can be a conviction based on circumstantial evidence when the circumstances proven form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused as the perpetrator of the crime. 12 In the instant case, the prosecution was able to prove the guilt of the accused through the following circumstances: First, accused Marlo Compil and Baltazar Mabini who are both from Samar worked in MJ Furnitures in Sta. Cruz, Manila, and were familiar with the floor plan of the shop. Second, on the night of the incident, they were seen in front of MJ Furnitures. Third, they were seen going to the rear of the furniture store. Fourth, robbers forcibly entered MJ Furnitures through the back window on the second floor. Fifth, some two (2) hours after the commission of the crime, at around two o'clock the following morning, they were in a house in Bangkal, Makati, dividing between themselves and their

five (5) other companions the money and jewelry taken from Sta. Cruz, Manila. Sixth, they all failed to show up for work the following day. Seventh, accuses Compil turned ashen, was trembling and speechless when apprehended in Tayabas, Quezon, for a crime committed in Manila. Certainly these circumstances as gleaned from the factual findings of the trial court form an unbroken chain which leads to a fair and reasonable conclusion pointing to the accused as one of the perpetrators of the crime. 13 Hence even disregarding accused-appellant's oral and written confessions, as we do, still the prosecution was able to show that he was a co-conspirator in the robbery with homicide. While it may be true that the arrest, search and seizure were made without the benefit of a warrant, accused-appellant is now estopped from questioning this defect after failing to move for the quashing of the information before the trial court. Thus any irregularity attendant to his arrest was cured when he voluntarily submitted himself to the jurisdiction of the trial court by entering a plea of "not guilty" and by participating in the trial. 14 The argument of accused-appellant that the trial court should have convicted the arresting police officers of arbitrary detention, if not delay in the delivery of detained persons, is misplaced. Suffice it to say that the law enforcers who arrested him are not being charged and prosecuted in the case at bench. Likewise devoid of merit is the contention of accused-appellant that granting that he had participated in the commission of the crime, he should be considered only as an accomplice. Disregarding his extrajudicial confession and by reason of his failure to adduce evidence in his behalf, the Court is left with no other recourse but to consider only the evidence of the prosecution which shows that the perpetrators of the crime acted in concert. For, direct proof is not essential to prove conspiracy 15 which may be inferred from the acts of the accused during and after the commission of the crime which point to a joint purpose, concert of action and community of interest. 16 Thus circumstantial evidence is sufficient to prove conspiracy. 17 And where conspiracy exists, the act of one is the act of all, and each is to be held in the same degree of liability as the others. 18 WHEREFORE, the Decision of the Regional Trial Court appealed from is AFFIRMED insofar as it finds accused-appellant MARLO COMPIL y LITABAN guilty beyond reasonable doubt of robbery with homicide. Consequently, he is sentenced to reclusion perpetua with all the accessory penalties provided by law. Accused-appellant is also directed to indemnify the heirs of the deceased Manuel Jay in the amount of P50,000.00, plus P35,000.00 as actual damages. He is further directed to return to Mary Jay the jewelry worth P30,000.00, and if he can no longer return the jewelry, to pay its value. Costs against accused-appellant. SO ORDERED.

2. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. Nos. 112801-11 April 12, 1996 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WONG CHUEN MING, AU WING CHEUNG, TAN SOI TEE, LIM CHAN FATT, CHIN KOK WEE, CHIN KIN YONG, YAP BOON AH, CHIN KONG SONG, CHIN KIN FAH, CHAI MIN HUWA, and LIM NYUK SUN, accused.

PADILLA, J.:p Wong Chuen Ming and Au Wing Cheung appeal from a decision * of the Regional Trial Court, Branch 109 of Pasay City, finding them, as well as their co-accused, guilty beyond reasonable doubt of violating Section 15, Article III of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. Appellants Wong Chuen Ming and Au Wing Cheung, both British (Hongkong) nationals, together with Tan Soi Tee, Chin Kok Wee, Lim Chan Fatt, Chin Kin Yang, Yap Boon Ah, Chin Kong Song, Chin Kin Fah, Chai Min Huwa and Lim Nyuk Sun, all Malaysian nationals, were charged with unlawfully transporting into the country Methamphetamine Hydrochloride or "shabu". Eleven (11) separate criminal informations were filed against all of the accused individually, setting forth similar allegations: That on or about the 7th day of September, 1991, about 1:00 o'clock in the afternoon in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously transport without lawful authority [3.40 kilograms in Criminal Case No. 91-1524 filed against Wong Chuen Ming; 3.45 kilograms in Criminal Case No. 91-1525 to 91-1534 filed against all other accused individually], more or less of Methamphetamine Hydrochloride, as (sic) regulated drug commonly known as "SHABU." CONTRARY TO LAW. 1 At their respective arraignments, all accused with the assistance of their counsels, pleaded not guilty to the charge. The counsel of accused-appellant Au Wing Cheung earlier filed a petition for reinvestigation and deferment of his arraignment but the same was denied by the trial court for lack of merit. Accused-appellant Au Wing Cheung was arraigned on 20 September 1991 and with the assistance of counsel, he likewise entered a plea of not guilty. The trial court conducted a joint and/or consolidated trial of all the cases upon motion by the prosecution considering that the State had common testimonial and documentary evidence against all accused. The prosecution presented four (4) witnesses, namely, (1) Danilo Gomez, a customs

examiner assigned at the Ninoy Aquino International Airport (NAIA) Customs Office; (2) Zenaida Reyes Bonifacio, Chief of the Collection Division and Acting Duty Collector of the Customs Office at the NAIA; (3) Elizabeth Ayonon, a forensic chemist at the Philippine National Police Crime Laboratory, and (4) Capt. Rustico Francisco, Officer in Charge (OIC) of the Philippine National Police Narcotics Command Detachment at the NAIA. The case for the prosecution, as culled from the testimonies of its witnesses, may be summarized as follows: On 7 September 1991, at about 1:00 o'clock in the afternoon, Philippine Air Lines (PAL) Flight PR No. 301 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA) in Pasay City, Metro Manila. Among the many passengers who arrived on board said flight were the eleven (11) accused, namely, Wong Chuen Ming, Au Wing Cheung, Tan Soi Tee, Chin Kok Wee, Lim Chan Fatt, Chin Kin Yong, Yap Boon Ah, Chin Kong Song, Chin Kin Fah, Chai Min Huwa and Lim Nyuk Sun. Their respective passports showed that Wong Chuen Ming and Au Wing Cheung are the only British (Hongkong) nationals in the group while the rest are all Malaysian nationals. Their passports also revealed that all the accused Malaysians (except Lim Chan Fatt) originally came from Malaysia, travelled to Singapore and Hongkong before proceeding to Manila. Upon the other hand, Wong Chuen Ming and Au Wing Cheung, as well as Lim Chan Fatt, directly came from Hongkong to Manila. All accused arrived in Manila as a tour group arranged by Select Tours International Co., Ltd. Accused-appellant Au Wing Cheung, an employee of Select Tours International Co., Ltd. acted as their tour guide. After passing through and obtaining clearance from immigration officers at the NAIA, the tour group went to the baggage claim area to retrieve their respective checked-in baggages. They placed the same in one pushcart and proceeded to Express Lane 5 which at that time was manned by customs examiner Danilo Gomez. Au Wing Cheung handed to Gomez the tour group's passenger's manifest, their baggage declarations and their passports. Gomez testified that he instructed the tour group to place their baggages on the examiner's table for inspection. They were directed to hold on to their respective baggages while they wait for their turn to be examined. Chin Kong Song's baggage was first to be examined by Gomez. Gomez put his hand inside the baggage and in the course of the inspection, he found three (3) brown colored boxes similar in size to powdered milk boxes underneath the clothes. The boxes were marked Alpen Cereals and as he found nothing wrong with them, Gomez returned them inside the baggage and allowed Chin Kong Song to go. Following the same procedure, Gomez next examined the baggage of Wong Chuen Ming. Gomez again found and pulled out two (2) boxes of Alpen Cereals from said baggage and like in the previous inspection, he found nothing wrong with them and allowed Wong Chuen Ming to go. The third baggage to be examined belonged to Lim Nyuk Sun. When Gomez pulled out another three (3) boxes of Alpen Cereals from said baggage, he became suspicious and decided to open one of the boxes with his cutter. Inside the box was a plastic bag containing white crystalline substance. Alarmed, Gomez immediately called the attention of Appraiser Oreganan Palala and Duty Collector Zenaida Reyes Bonifacio to his discovery. 2 Bonifacio testified that upon learning about the boxes containing the white crystalline substance, she immediately ordered the tour group to get their baggages and proceed to the district collector's office. Chin Kong Song and Wong Chuen Ming, who were previously cleared by Gomez, were also brought inside together with the rest of the group. Inside the collector's office, Gomez continued to examine the baggages of the other members of the tour group. He allegedly found that each baggage contained one (1), two (2) or three (3) boxes similar to those previously found in the baggages of Chin Kong Song, Wong Chuen Ming and Lim Nyuk Sun. A total of thirty (30) boxes of Alpen Cereals containing white crystalline substance were allegedly recovered from the baggages of the eleven (11) accused. As Gomez pulled out these boxes from their respective baggages, he bundled said boxes by putting masking tape around them and handed them over to Bonifacio. Upon receipt of these bundled boxes, Bonifacio called out the names of accused as listed in the passengers' manifest and ordered them to sign on the masking tape placed on the boxes allegedly

recovered from their respective baggages. Also present at this time were Capt. Rustico Francisco and his men, agents of the Bureau of Customs and several news reporters. A few minutes later, District Collector Antonio Marquez arrived with General Job Mayo and then NBI Deputy Director Mariano Mison. 3 Capt. Francisco testified that shortly after all boxes of Alpen Cereals were recovered, he conducted a field test on a sample of the white crystalline substance. His test showed that the substance was indeed "shabu." Capt. Francisco immediately informed the eleven (11) accused that they were under arrest. Thereafter, all accused, as well as the Alpen Cereals boxes which were placed inside a big box, were brought to Camp Crame. 4 At Camp Crame, accused were asked to identify their signatures on the boxes and after having identified them, they were again made to sign on the plastic bags containing white crystalline substance inside the boxes bearing their signatures. The examination by Elizabeth Ayonon, a forensic chemist at the Philippine National Police Crime Laboratory at Camp Crame, confirmed that the white crystalline substance recovered from accused was "shabu." 5 The total weight of "shabu" recovered was placed at 34.45 kilograms. 6 For their part, the defense interposed by all accused was basically anchored on the testimony of their co-accused Lim Chan Fatt, a technician and self-confessed "call boy", who admitted being responsible for bringing the boxes of Alpea Cereals into the country although he denied any knowledge that they contained "shabu." Lim Chan Fatt testified that except for Chin Kong Song and Lim Nyuk Sun, all other accused were unknown or complete strangers to him until their trip to the Philippines on 7 September 1991. With respect to Chin Kong Song and Lim Nyuk Sun, Lim Chan Fatt allegedly met them at his boarding house in Hongkong where the two (2) temporarily lived a few days before said trip. According to Lim Chan Fatt, prior to their departure date, a certain Ah Hong, a co-boarder and a Hongkong businessman, approached him and asked him if he could kindly bring with him boxes of cereals to the Philippines. Ah Hong promised Lim Chan Fatt that a certain Ah Sing will get these boxes from him at the Philippine airport and for this trouble, Ah Sing will see to it that Lim Chan Fatt will have a good time in the Philippines. Ah Hong allegedly even opened one (1) box to show that it really contained cereals. Lim Chan Fatt acceded to Ah Hong's request as he allegedly found nothing wrong with it. Consequently, Ah Hong delivered to Lim Chan Fatt thirty (30) boxes of Alpen Cereals. Since his baggage could not accommodate all thirty (30) boxes, Lim Chan Fatt requested Chin Kong Song and Lim Nyuk Sun to accommodate some of the boxes in their baggages. Lim Chan Fatt claimed that he entrusted five (5) boxes to Chin Kong Song and another five (5) to Lim Nyuk Sun. He allegedly placed four (4) boxes inside a hand carried plastic bag while the rest were put inside his baggage. 7 On the basis of this testimony, the defense endeavored to show that only Lim Chan Fatt, Chin Kong Song and Lim Nyuk Sun were responsible for bringing boxes of Alpen Cereals into the country and even then they cannot be held liable for violation of Section 15, Article II of R.A. No. 6425, as amended, as they allegedly had no knowledge that these boxes contained "shabu." The defense also presented as witnesses accused Chin Kong Song and Lim Nyuk Sun and accusedappellants Au Wing Cheung and Wong Chuen Ming. Accused-appellants denied that boxes of Alpen Cereals were recovered from their baggages. They claimed that they affixed their signatures on the boxes only because they were threatened by police authorities who were present during the examination inside the collector's office. Accused-appellant Au Wing Cheung maintained that he was a bona fide employee of Select Tours International Co., Ltd. and that he had no prior knowledge that the tour group he was supposed to accompany to the Philippines brought boxes containing "shabu." 8 For his part, accused-appellant Wong Chuen Ming tried to dissociate himself from the other accused by testifying that he was not a part of their group. He claimed that he was originally booked with another travel agency, Wing Ann Travel Co., for a five-day Cebu tour. This Cebu tour was

allegedly cancelled due to insufficient number of clients and accused-appellant was subsequently transferred to and accommodated by Select Tours. 9 The other accused who did not take the witness stand opted to adopt as their own all testimonial and documentary evidence presented in court for the defense. On 29 November 1991, the trial court rendered judgment, the dispositive part of which reads as follows: xxx xxx xxx In view of all the foregoing evidences, the Court finds that the prosecution has proven the guilt of all the accused in all the criminal cases filed against them for Violation of Section 15, Art. III, RA 6425 as amended and hereby sentences them as follows: In Criminal Case No. 91-1524 entitled People of the Philippines vs. WONG CHUEN MING, the Court sentences Wong Cheun Ming to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15 Art. III of RA 6425 as amended. In Criminal Case No. 91-1525 entitled People of the Philippines vs. CHIN KIN YONG, the Court hereby sentences Chin Kin Yong to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation 15 (sic), Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1526 entitled People of the Philippines vs. AU WING CHEUNG, the Court hereby sentences Au Wing Cheung to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1527 entitled People of the Philippines vs. YAP BOON AH, the Court hereby sentences Yap Boon Ah to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1528 entitled People of the Philippines vs. TAN SOI TEE, the Court hereby sentences Tan Soi Tee to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1529 entitled People of the Philippines vs. CHIN KONG SONG, the Court hereby sentences Chin Kong Song to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1530 entitled People of the Philippines vs. CHIN KOK WEE, the Court hereby sentences Chin Kok Wee, to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No: 91-1531 entitled People of the Philippines vs. CHIN KIN FAH, the Court sentences Chin Kin Fah to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1532 entitled People of the Philippines vs. LIM CHAN FATT, the Court hereby sentences Lim Chan Fatt to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section. 15, Art. III, R.A. 6425 as amended.

In Criminal Case No. 91-1533 entitled People of the Philippines vs. CHAI MIN HUWA, the Court hereby sentences Chai Min Huwa to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1534 entitled People of the Philippines vs. LIM NYUK SUN, the Court hereby sentences Lim Nyuk Sun, to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, R.A. 6425 as amended. Likewise, the thirty (30) alpen cereal boxes found to contain a total of 34.450 kilograms of Methamphetamine Hydrocloride or shabu is hereby forfeited and the same is hereby ordered burned and/or destroyed in the presence of this Court, representative of the Department of Justice, National Bureau of Investigation, Dangerous Drugs Board, Bureau of Customs and the Narcotics Command (Narcom) at the San Lazaro crematorium before the same falls in the hands of future victims and further compound the already epidemic proportions of the drug menace in the country. SO ORDERED. 10 Thereafter, all accused through counsel filed with the trial court their joint notice of appeal. 11 However, on 7 April 1992, accused Chin Kong Song, Lim Nyuk Sun, Chin Kok Wee and Chai Min Huwa withdrew their notice of appeal. 12 This Court then directed those accused who did not withdraw their appeal to file their respective appellant's brief. Only accused-appellants Wong Chuen Ming and Au Wing Cheung filed their joint appeal brief, hence, the Court was constrained to dismiss the appeal pertaining to accused Lim Chan Fatt, Ching Kin Yong, Tan Soi Tee, Yap Boon Ah and Chin Kin Fah. 13 Consequently, the Court is now only concerned with the appeal of accused-appellants Wong Chuen Ming and Au Wing Cheung as the decision of the trial court has already become final and executory with respect to accused Chin Kong Song, Lim Nyuk Sun, Chin Kok Wee, Chai Min Huwa, Lim Chan Fatt, Chi Kin Yong, Tan Soi Tee, Yap Boon Ah and Chin Kin Fah. In their appeal brief, accused-appellants Wong Chuen Ming and Au Wing Cheung make the following assignment of errors: I. THE LOWER COURT ERRED WHEN IT FAILED TO REALIZE THAT THE JOINT REPRESENTATION BY PREVIOUS COUNSEL OF APPELLANTS WITH THE GROUP OF NINE MALAYSIAN ACCUSED NOT ONLY PREJUDICED THE FORMER BUT ALSO AMOUNTED TO THE DEPRIVATION OF THEIR CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL AND DUE PROCESS. II. THE LOWER COURT ERRED IN FAILING TO HOLD THAT THE APPREHENDING CUSTOMS OFFICERS VIOLATED APPELLANTS' MIRANDA RIGHTS. III. THE LOWER COURT ERRED IN NOT EXCLUDING THE INADMISSIBLE EVIDENCE OBTAINED IN VIOLATION OF APPELLANTS' MIRANDA RIGHTS. IV.

THE LOWER COURT ERRED WHEN IT RELIED ON THE PRESUMPTION OF REGULARITY IN THE DISCHARGE OF OFFICIAL DUTIES, DESPITE THE PAUCITY AND LACK OF CREDIBILITY OF THE PROSECUTION'S EVIDENCE. V. THE LOWER COURT ERRED WHEN IT DISREGARDED THE CLEAR ABSENCE OF ANIMUS POSSIDENDI ON THE PART OF THE APPELLANTS. 14 Accused-appellants' contention that they were deprived of their right to counsel and due process when their previous counsels also represented the other accused despite "conflicting interests" is not well-taken. After going over the lengthy transcripts taken during the trial, the Court is satisfied that said counsels tried to present all the defenses available to each of the accused and that they did not, in any way, put in jeopardy accused-appellants' constitutional right to counsel. It does not appear from the records that the effectiveness of accused-appellants' previous counsels was diminished by the fact that they also jointly represented the other accused. The Court, however, finds merit in the other contentions raised by accused-appellants in their appeal brief. These contentions shall be discussed jointly considering that the issues they raise are interrelated and deal with the question of whether or not the guilt of accused-appellants was proven beyond reasonable doubt. At the outset, the Court holds that the signatures of accused on the boxes, as well as on the plastic bags containing "shabu", are inadmissible in evidence. A careful study of the records reveals that accused were never informed of their fundamental rights during the entire time that they were under investigation. Specifically, accused were not informed of their Miranda rights i.e. that they had the right to remain silent and to counsel and any statement they might make could be used against them, when they were made to affix their signatures on the boxes of Alpen Cereals while they were at the NAIA and again, on the plastic bags when they were already taken in custody at Camp Crame. Prosecution witness Danilo Gomez admitted this fatal lapse during cross-examination: Atty. Tomas: What did you tell these passengers before you made them sign this bunch of cartons? A It was Collector Bonifacio who call (sic) their names and as soon as their luggage are examined and pulled, the three boxes, I wrap it in a masking tape and requested them to sign their names. Q You just told them to sign this matter? A Yes. Q No preliminaries? A No. Q At that time that each one of the passengers were made to sign, was there any lawyer representing them?

A None. Q You did not even inform them of their constitutional rights? A No. 15 (Emphasis supplied) Capt. Rustico Francisco also admitted that he did not inform the accused of their rights when he placed them under arrest: Atty. Zoleta: So, after the result of that sample examined which yielded positive result, you immediately placed the accused under arrest, is that correct? A I informed that that they are under arrest for bringing transporting to the country suspected methamphetamine hydrochloride or shabu. xxx xxx xxx Q How did you announce your authority to the accused? A I told Mr. Paul Au to tell his companions that we are placing them under arrest for transporting methamphetamine hydrochloride into the country. Q And it is at this very moment that you informed them of their right, is that correct? A I did not inform them of their right. 16 (Emphasis supplied) It is also not shown from the testimony of Elizabeth Ayonon that accused were informed of their rights when they were again made to affix their signatures on the plastic bags: Atty. Tomas: You said all the signatures were already there when brought to your laboratory for examination. With that answer, do you mean to tell even the signature inside the cereal box and transparent plastic bag were already there when you examined said specimen? A Only the brown box labelled Alpen. Q Who made the signature inside the cereal box and on the transparent plastic bag? A Me, sir, because I asked them to identify. The interpreter asked them to identify their signature. So, in return I have to tell them please affix your signature for proper identification since they are reflected on the box. Q What did you tell the accused when you required them to make their signatures?

A The interpreter told them to affix their signature for proper identification on the transparent plastic bag since their signature appeared on the carton box. 17 By affixing their signatures on the boxes of Alpen Cereals and on the plastic bags, accused in effect made a tacit admission of the crime charged for mere possession of "shabu" is punished by law. These signatures of accused are tantamount to an uncounselled extra-judicial confession which is not sanctioned by the Bill of Rights (Section 12 [1][3], Article III, 1987 Constitution). They are, therefore, inadmissible as evidence for any admission wrung from the accused in violation of their constitutional rights is inadmissible against them. 18 The fact that all accused are foreign nationals does not preclude application of the "exclusionary rule" because the constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens. 19 Without the signatures of accused on the boxes of Alpen Cereals and on the transparent plastic bags, the prosecution is left with the testimonies of its witnesses to establish that all the eleven (11) accused transported "shabu" into the country. Among the prosecution witnesses, only customs examiner Danilo Gomez testified that all the seized baggages, including those owned by accusedappellants Wong Chuen Ming and Au Wing Cheung, contained a box or boxes of "shabu." His testimony was given credence by the trial court since he was presumed to have performed his duties in a regular manner. However, Gomez' testimony inculpating accused-appellants as not corroborated by other prosecution witnesses. Customs collector Zenaida Bonifacio stated during cross-examination that she cannot recall if each and everyone of accused were found in possession of any box or boxes of Alpen Cereals. 20 More significantly, the testimony of NARCOM officer Capt. Rustico Francisco casts doubt on the claim of Gomez that he recovered boxes of "shabu" from the baggages of accused-appellants: COURT: Clarificatory questions from the Court, you said that you were at the arrival area immediately after the arrival of all these accused when your attention was called by the customs examiner, is that correct? A Yes. Your Honor. Court: So that you can truly say that you could note or witness the actual examinations of the baggages of all the accused persons here? A Yes, Your Honor. Court: You realize, of course, the seriousness of the charges against these persons? A Yes, Your Honor. Court: As a matter of fact, they could stay in jail for life?

A Yes, Your Honor. Court : Now in all candor and sincerity, did you actually see with your own two eyes any box being recovered from the bag of Au Wing Cheung? If you are not sure, don't answer. A I am not sure. Court: How about from the bag of Wong Chuen Ming, the other tourist from Hongkong. In all candor and sincerity did you actually see with your own two eyes a box being recovered from his bag? A I am not sure. Court: There are nine other accused in these cases. In all fairness and sincerity, other than the two, did you actually see with your own two eyes boxes of cereals being recovered from the bags of the other Malaysians accused in these cases? A For the nine others, I am very sure, I am very sure that cereal boxes containing shabu, I am very sure. Court: Without any exception? A Yes, Your Honor, for the nine. 21 (Emphasis supplied) While Capt. Francisco was categorical in stating that boxes of "shabu" were recovered from the baggages belonging to the other nine (9) accused Malaysians, he admitted that he was not sure whether Gomez actually recovered boxes of "shabu" from accused-appellants' baggages. Hence, the presumption of regularity in the performance of duties accorded to Gomez cannot, by itself, prevail over the constitutional right of accused-appellants to be presumed innocent especially in the light of the foregoing testimonies of other prosecution witnesses. 22 There are other circumstances that militate against the conviction of accused-appellants. First, accused-appellants are British (Hongkong) nationals while all the other accused are Malaysians. It is difficult to imagine how accused-appellants could have conspired with the other accused, who are total strangers, when they do not even speak the same language. Second, overwhelming evidence consisting of testimonies of accused-appellant Piu Wing Cheung's superiors was presented to show that he was a bona fide employee of Select Tours International Co., Ltd. Third, evidence showed that accused-appellant Wong Chuen Ming was not originally part of the tour group arranged by Select Tours but he was only accommodated by the latter at the last minute when his package tour to Cebu was cancelled by Wing Ann Travel Co. Finally, as testified to by Capt. Francisco, both accusedappellants adamantly refused to sign on the transparent plastic bags containing "shabu":

Court: You made mention about two persons two of the accused who refused to sign the plastic bags containing the suspected shabu. Did you say that? A Yes, Your Honor. Court: Did you not go out of your way to inquire the reasons of the two for not wanting to sign knowing of course that your duty as a law officer is not only to see to it that the guilty are prosecuted but to spare the innocent? Did you inquire why they refused to sign? A I inquired. Court: What was the reason of the two? A They told me their baggages did not contain any prohibited drugs. Court: Now again, think very carefully and try to recall vividly the time when these two refused to sign and go over the faces of the eleven accused and tell the Court if you can remember or recall the looks of the two accused who refused to sign. Before you do that look very carefully at their faces. A Wong Chuen Ming, the one with the tattoo. Q Now, you mentioned two persons look at the faces of the 10 others. Aside from the one with a tattoo and look for the other one. A The other one is the tour leader. 23 All the foregoing circumstances taken together with the findings of the Court persuade us to hold that accused-appellants' participation in the illegal transportation of "shabu" into the country has not been proven beyond reasonable doubt. To paraphrase an admonition expressed by the Court in a recent case, "[m]uch as We share the abhorrence of he disenchanted public in regard to the proliferation of drug pushers (or drug smugglers, as in this case), the Court cannot permit the incarceration of individuals based on insufficient factual nexus of their participation in the commission of an offense." 24 WHEREFORE, the decision appealed from is hereby REVERSED and another one entered ACQUITTING Wong Chuen Ming and Au Wing Cheung of the crime charged, based on reasonable doubt. Their immediate release is hereby ORDERED unless they are detained for some other lawful cause. Costs de oficio. SO ORDERED.

3. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 112983 March 22, 1995 PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. HECTOR MAQUEDA @ PUTOL, and RENE SAGVAMAIJTE (at large), Accused, HECTOR MAQUEDA @ PUTOL, Accused-Appellant.

DAVIDE, JR., J.: As against a bustling city life, Britisher Horace William Barker, a consultant of the World Bank, and his Filipino wife, Teresita Mendoza, chose the peace and quiet of a country home not any near the metropolis of Manila or its environs, but in the rugged and mountainous terrain of Tuba, Benguet. Perhaps they thought they were in a veritable paradise, beyond the reach of worldly distractions and trouble when in the early morning of 27 August 91, in the, sanctity of their own home, Horace was brutally slain and Teresita badly battered with lead pipes on the occasion of a robbery. Sufficient prima facie evidence pointed to Rene Salvamante, the victimsformer houseboy, as one of the perpetrators of the That illusion was shattered ghastly crime. As to Rene's co-conspirator, the, prosecution initially included one Richard Malig y Severino in the information for robbery with homicide and serious physical injuries 1 filed on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC) of Benguet at La Trinidad, Benguet. Only Richard Malig was arrested On 22 January 1992, prior to the arraignment of Richard Malig, the prosecution filed a motion to amend the information 2 to implead as co-accused Hector Maqueda alias Putol because the evaluation Of the evidence subsequently submitted established his complicity in the crime, and at the hearing of the motion the following day, the Prosecutor further asked that accused Richard Malig be dropped from the information because further evaluation of the evidence disclosed no sufficient evidence against him. 3 The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and Maqueda were issued. Maqueda was subsequently arrested on 4 March 1992, and on 9 April 1992, he filed an application for bail. 4 He categorically stated therein that "he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case." On 22 April 1992, the prosecution filed an Amended Informations 5 with only Salvamante and Maqueda as the accused. Its accusatory portion reads as follows: That on or about the 27th Of August, 1991, at Tagadi; Upper Tadiangan Municipality of Tuba, Province Of Benguet, Philippines, and within the jurisdiction of this Honorable

Court, the, above-named accused, Conspiring, confederating and mutually aiding one another, armed with lead pipes, and with intent of gain and against the will and consent of the owners thereof, did then and there willfully, unlawfully and feloniously enter the house of Spouses TERESITA and WILLIAM HORACE BARKER and with violence against and intimidation of the persons therein ransack the place and take and carry away the following articles, to ,it: [An enumeration and description of the articles follow] all having a total value of TWO HUNDRED FOUR THOUSAND TWO HUNDRED FIFTY PESOS (P204.250.00), Philippine Currency, belonging to, the said Teresita and William Horace Barker; that on the occasion and by reason of the said robbery; both accused willfully, unlawfully and feloniously repeatedly strike Teresita Barker and William Horace Barker with lead pipes on the different Parts of their body, leading to the death of William Horace Barker and inflicting various physical injuries on the former which required medical attendance for a period of more than thirty (30) days and have likewise incapacitated her from the performance of her, customary labor for the same period of time. Contrary to Law. Since Rene Salvamante continues to elude arrest and has remained at large, trial proceeded entered a plea of not guilty on 22 April 1992. 6 In its decision 7 Promulgated on 31 August 1993, the trial Maqueda guilty beyond reasonable doubt of the crime of robbery with homicide and serious physical Injuries and sentenced him to Suffer the penalty of reclusion perpetua and to indemnify the victim, Teresita M, Barker in the amount of P50,000.00 for the death of William Horace Barker, court found accused Hector P41,681,00 representing actual expenses, P100,000.00 as moral damages and to pay the costs." The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps Norie Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco Cabotaje, prosecutor Daniel Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and Policarpio Cambod in its evidence in chief and Fredesminda Castrence and SP03 Armando Molleno on rebuttal. Accused Hector Maqueda took the witness stand and presented SPO1 Aurelio Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig as his sour-rebuttal witness. The version of the prosecution, as culled from the trial court's detailed and meticulous summary thereof, is as follows: Between 10:30 and 11:00 pm. of 26 August 1991, the spouses Horace William Barker and Teresita Mendoza Barker repaired to their bedroom after Teresita had checked, as washer wont, the main doors of their house to see if they had been locked and bolted. At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of the Barkers who shared a room with her cousin and fellow househelp, Julieta Villanueva, got up, opened the door to the garage, went to the lavatory to wash her face, and proceeded to the toilet. When she opened the door of the toilet and switched. on the light, she saw Rene Salvamante. She knew Salvamante very well because he and his sister Melanie were the former househelps of the Barkers whom she and Julieta Villanueva had replaced and because Salvamante had acquainted her on her chores.

Salvamante suddenly strangled her. While she Was fighting back, Norie happened to turn her face and she saw a fair-complexioned, tall man with a high-bridged nose at Salvamante's side, whom she identified at the trial as Maqueda. After she broke free from Salvamante, Norie fled towards the garage and shouted for help. Salvamante chased her and pulled her back inside the house. Julieta Villanueva, who was awakened by the shouts of Norie, got out of her bed and upon opening the door of her room, saw a man clad in maong jacket and short pants with 'his right hand brandishing a lead pipe standing two meters in front of her. At the trial, She pointed to, accused Maqueda as the man she saw then. (She got scared and immediately closed the door. Since the door knob turned as if someone was forcing his way into the room, she held on to it and shouted for help. The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of the room, leaving behind her husband who was still asleep; She went down the Stairs and proceeded t, the dining room. She saw Salvamante and a companion who was a complete stranger to her. Suddenly the two rushed towards her and beat her up with lead pipes. Despite her pleas to get what they want and not to hurt her, they continued to beat her up until she lost consciousness. At the trial, she pointed to accused Maqueda as Salvamante's companion. Salvamante also hit Norie with the lead pipe on her back and at theback of her right hand. She fell to the concrete floor, and after she had recovered, she ran to-the garage and hid under the car. After a few seconds, ,he went near the door of the garage and because she could not open it, she called Julieta. Julieta opened the door and they rushed to their room and closed the door. When they saw that the door knob was being turned, they braced themselves against the door to prevent anyone from entering. While locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr. Barker: "That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta heard the sound of water flowing from the toilet and the barking of dogs. At 7:00 a.m. of that same day, 27 August 1991, Mike Tabayan and Mark Pacio were resting in a waiting shed beside the Asin road at Aguyad, Tuba, Benguet, which is only a kilometer away from the house of the Barkers. They saw two men approaching them from a curve. When the two men reached the shed, he and Mark noticed that the taller of the two had an amputated left hand and a right hand with a missing thumb and index finger. This man was carrying a black bag on his right shoulder Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were following would lead to Naguilian, La Union. Mike replied that it did not. Five minutes later, a passenger jeepney bound for Baguio City and owned and driven by Ben Lusnong arrived at the waiting shed. The two men bearded it, Mike again noticed that the taller man had the defects above mentioned because the latter used his right hand with only three fingers to hold on to the bar of the jeepney as he bearded it. In the Investigation conducted by the Tuba Police, he identified through a picture the shorter man as Salvamante, and at the hearing, he pointed to Maqueda as the taller man. At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered bough courage to leave the room where they had earlier barricaded themselves and proceed to the kitchen to get the key to the gate of the garage. In the dining room, they saw the Barkers bathed in their own blood. Norie and Julieta rushed out of the house and ran to the place of Janet Albon to seek help. After requesting Janet to call the police, they returned to the Barker's house but did not enter it for fear of what they had seen earlier. They just stayed near the road. Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from the Baguio City Police Station, headed by Police Officer Policarpio Cambod, and which included Dr. Perfecto Micu of the City Health Department, also arrived. The team conducted an initial investigation only

because it found out that the scene of the crime was within the jurisdiction of the Tuba Police Station, which, however, was difficult to get in touch with at that time. Dr. Perfecto Micu found the body of Mr. Barker inside the Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its location.' They went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt (Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead pipe (Exhibit "BB") at the back of the door of the house. He then interviewed the two househelps who provided him with descriptions of the assailants. The team then left, leaving behind BCF Security Officer Glen Enriquez and a security guard. Cambod prepared a report of his initial investigation (Exhibit "KK"). Enriquez conducted his own investigation. At the master's bedroom, he saw several pieces of jewelry scattered on the floor and an empty inner cabinet. He noticed footprints at the back of the house, particularly at the riprap wall, and observed that the grass below it was parted as if someone had passed through and created a trail amidst the grass down toward the Asin road of Tuba, Benguet. Upon his request, a security guard of the BCF, Edgar Dalit, was sent to the Barker house to secure the premises. Enriquez then left after Dalit's arrival. At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at theBarker house to conduct their investigation. Enriquez, who in the meantime was called by Dalit, returned to the Barker house. The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house by the Baguio City Police were first brought to the PNP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet, and then to the court. The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian Road, Baguio City, where it was examined by Dr. Francisco P. Cabotaje, MunicipalHealth Officer of Tuba, Benguet. H, found in it twenty-seven injuries, which could have been caused by a blunt instrument, determined the cause of death as hemorrhagic shock, and then issued a death certificate (Exhibits "P," "O," and "R"). The wounded Teresita Barker was brought to the Baguio General Hospital and Medical Center where she was treated and confined for eight days. The attending physician, Dr. Francisco L. Hernandez, Jr., first saw her at around 11:00 a.m. of 27 August 1991. She was in a comatose state. Dr. Hernandez found that she sustained multiple lacerations primarily an the left side of the occipital area, bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her eyes was paralyzed. She regained consciousness only after two days. Dr. Hernandez opined that Mrs. Barker's injuries were caused by a blunt instrument, like a lead pipe, and concluded that if her injuries had been left unattended, she would have died by noontime of 27 August 1991 due to bleeding or hemorrhagic shock. On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the hospital bed of Mrs. Barker, showed her pictures of several persons, and asked her to identify the persons who had assaulted her. She pointed to a person who turned out to be Richard Malig. When informed of the investigation, Dr. Hernandez told the members of the team that it was improper for them to conduct it without first consulting him since Mrs. Barker had not yet fully recovered consciousness. Moreover, her eyesight had not yet improved, her visual acuity was impaired, and she had double vision. On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then discharged from the hospital and upon getting home, tried to determine the items lost during the robbery. She requested Glen Enriquez to get back the pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs. Barker discovered that her Canon camera, radio cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2") were missing. The

aggregate value of the missing items was P204,250.00. She then executed an affidavit on these missing items (Exhibit "X.). Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was revealed that she sustained a damaged artery on her left eye which could cause blindness. she then sought treatment at the St. Luke's Roosevelt Hospital in New York (Exhibit "L") where she underwent an unsuccessful operation. She likewise received treatment at the New York Medical Center (Exhibit "M"). On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered Glen Enriquez to go to Guinyangan, Quezon, to coordinate with the police in determining the, whereabouts of accused Rene Salvamante. In Guinyangan, Enriquez was able to obtain information from the barangay captain, Basilio Requeron, that he saw Salvamante together with a certain "Putol" in September 1991; however, they already left the place. On 21 December 1991, Enriquez, Melanie Mendoza, and three others went back to Guinyangan to find out whether Salvamante and "Putol" had returned. Upon being informed by Barangay Captain Requeron that the two had not, Enriquez requested Requeron to notify him immediately once Salvamante or "Putol" returned to Guinyangan, On 4 March 1992, Requeron's daughter called up Enriquez to inform him that Putol," who is none other than accused Hector Maqueda, had been arrested in Guinyangan. Enriquez and Maj. Rodolfo Anagaran, Chief of the Tuba Police Station, together with another policeman, Proceeded to Guinyangan. The Guinyangan Police Station turned over Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet Provincial Jail. Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the. headquarters of the 235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its commanding officer, Maj. Virgilio F. Rendon, directed SP03 Armando Molleno to get Maqueda's statement. He did so and according to him, he informed Maqueda of his rights under the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in the crime at the Barker house on 27 August 1991. On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail (Exhibit "GG-6"). He stated therein that "he is willing and volunteeringto be a State witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such statement and asked him if he was in the company of Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was the only accused on trial (Exhibit "II"). In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained permission from the latter to talk to Maqueda. Salvosa then led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante brought him to Baguio City in order to find a job as a peanut vendor; Salvamante then brought him to the Barker house and it was only when they were at the vicinity thereof that Salvamante revealed to him that his zeal purpose in going to Baguio City was to rob the Barkers; he initially objected to the plan, but later on agreed to it; when they were in the kitchen of the Barker house, one of the househelps was already there; Salvamante hit her with a lead pipe and she screamed; then Mrs. Barker came down, forcing him, Maqueda, to attack her with the lead pipe providedhim by Salvamante, After he felled Mrs. Barker, he helped Salvamante in beating up Mr. Barker who had followed his wife downstairs. the Barkers were already unconscious on the' floor, Salvamante went upstairs and a few minutes later came down bringing with him a radio cassette and some pieces of jewelry.

Maqueda further divulged to Salvosa that they then changed clothes, went out of the house, walked toward the road where they Saw two persons from whom they asked directions, and when a passenger jeepney stopped and they were informed by the two Persons that it was bound for Baguio City, he and Salvamante bearded it. They alighted somewhere along Albano Street in Baguio City and walked until they reached the Philippine Rabbit Bus station where they boarded a bus for Manila. 8 Accused Hector Maqueda put up the defense of denial and alibi. Hi, testimony is summarized by the trial court in this wise: Accused Hector Maqueda denied having anything to do with the crime. He stated that O" August 27, 1991 he was at the polvoron factory owned by Minda Castrense located at Lot 1, Block 21 Posadas Bayview Subdivision, Sukat, Muntinlupa, Metro Manila. He was employed as a caretaker Since July 5, 1991 and he worked continuously there up to August 27, 1991, It was his sister, Myrna Katindig, who found him the job as caretaker. A, caretaker, it was his duty to supervise the employees in the factory and whenever his employer was not around, he was in charge of the sales. He and his 8 co-employees all Sleep inside the factory. On August 26, 1991, he reported for work although he could not recall what he did that day. He slept inside the factory that night and on August 27, 1991, he was teaching the new employees how to make the seasoning for the polvoron. On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as it was his vacation time from his job at the polvoron factory. He was to be back at work after New Year's Day in 1992. Upon alighting from the bus at Guinyangan, Quezon, he saw accused Rene Salvamante. He knows accused Salvamante as they were childhood playmates, having gone to the same elementary school. He had no chance to talk to him that day when he saw him and so they just waved to each other. He again saw accused Salvamante after Christmas day on the road beside their (Salvamante) house. Salvamante invited him to go to Calauag, Quezon Province and roam around. He agreed to go as he also wanted to visit his brother, Jose Maqueda who resided at Sabangdos, Calauag, Quezon. When the two accused were at Calauag, Salvamante asked Maqueda to accompany him /Salvamante) in selling a cassette recorder which he said came from Baguio City. Accused Maqueda knew that Salvamante worked in Baguio as the latter's mother told him about it. They were able to sell the cassette recorder to Salvamante's aunt. They had their meal and then went to visit accused Maqueda's brother. After that occasion, he never saw accused Salvamante again. After his Christmas vacation, he went back to work a the polvoron factory until February 29, 1992. One of his co-workers Roselyn Merca, who was a townmate of his asked him to accompany her home as she was hard up in her work at the factory. Hence, he accompanied Rosely home to Guinyangan, Quezon. He was supposed to report back for work on March 2, 1992 but he was not able to as he was arrested by members of the CAGFU at the house of Roselyn Merca when he brought her home. He was then brought to the Guinyangan municipal jail, then to the Tuba Police Station, Tuba, Benguet. There he was told to cooperate with the police in arresting Salvamante so he would not stay long in the Province of Benguet. He was also told that if he would point to accused Salvamante, he would be freed and he could also become a state witness: He told them that he could attest to the fact that he accompanied accused Salvamante in selling the cassette recorder. On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad, Benguet where he has remained under detention up to the present. 9

The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda Castience and SP03 Armando Molleno. Castrence, the owner of the polvoron factory where Maqueda worked, testified that she started her business only on 30 August 1991 and thus it was impossible for her to have hired Maqueda on 5 July 1991. SP03 Molleno declared that he informed Maqueda of his constitutional rights before Maqueda was investigated and that Maqueda voluntarily and freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10 Although the trial court had doubts on the identification of Maqueda by prosecution witnesses Teresita Mendoza Barker, Norie Dacara, and Julieta Villanueva and thus disregarded their testimonies on this matter, it decreed a conviction "based on the confession and the proof of corpus delicti" as well as on circumstantial evidence. It stated thus: Since we have discarded the positive identification theory of the prosecution pinpointing accused Maqueda as the culprit, can we still secure a conviction based on the confession and the proof of corpus delicti as well as on circumstantial evidence? In order to establish the guilt of the accused through circumstantia1 evidence, the following requisites must be present: 1) there must be more than One circumstance; 2) the facts from which the inferences are derived are proved; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (People vs. Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must be an unbroken chain of circamstances which leads to one fair and reasonable conclusion pointing to the defendant to the exclusion of all Others, as the author of the crime (People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569). The circumstances shown by the prosecution which tend to show the guilt of the accused are: 1. A physical demonstration to which the accused and his counsel did not offer any objection shows that despite his being handicapped, accused Maqueda could well and easily grip a lead pipe and strike a cement post with such force that it produced a resounding vibration. It is not farfetched then to conclude that accused Maqueda could have easily beat Mr. Barker to death. 2. His presence within the vicinity of the crime scene right after the incident in the company of accused Salvamante was testified to by Mike Tabayan, the only prosecution witness who noticed the defective hands of the accused. As they had to ask for directions from the witness in the Tagalog dialect shows that they were strangers to the place 3. Accused Maqueda knows or is familiar with accused Rene Salvamante as they from the same town. By his own testimony, accused Maqueda has established that he Salvamante are close friends to the point that they went out together during the Christmas vacation in 1991 and he even accompanied Salvamante in selling the black radio cassette recorder. 4. His Motion to Grant Bail (Exhibit "HH") contains this statement that he is willing and volunteering to be State witness in the above-entitled case, it the accused in appearing that he is the least guilty along This in effect, supports his extrajudicial confession trade to the police at Although he claims that he did not his signature would lean his as he was just told that release from detention, this is a flimsy excuse which cannot Had he not understood what the motion meant, he could have easily asked his

sister and brother-in-law what it meant seeing that their signatures up already affixed on the motion. 5. This time, his admission to Prosecutor Zarate that he was at the Barker house that fateful morning and his even more damaging admission to Ray Dean Salvosa as to what he actually did can be considered as another circumstance to already bloster the increasing circumstances against the accused. 6. The accused's defense is alibi. As stated in a long Line of cases, alibi is at best a weak defense and easy of fabrication (People vs. Martinado, G.R. No. 92020, October 19, 1992, 214 SCRA 712). For alibi to be given credence, it must not only appear that the accused interposing the same was at some other place but also that it was physically impossible for him to be at the scene of the crime at the time of its commission (People vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247). This defense easily crumbles down as Tayaban placed accused Maqueda at vicinity of the crime scene. The combination of all these circumstances plus extrajudicial confession produce the needed proof beyond reasonable doubt that indeed accused Maqueda is guilty of the crime. 11 The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit: "LL") of Maqueda taken by SP02 Molleno immediately after Maqueda was arrested. Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that we acquit him because the trial court committed this lone error: . . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. 12 Only three pages of the brief, typed double space, are devoted to his arguments which are anchored on his alibi that at the time the crime Was committed he was not in Benguet but in Sukat, Muntinlupa, Metro Manila, ad the failure of the star witnesses for the Prosecution to identify him. He alleges that Mrs. Barker, when investigated at the hospital, Pointed to Richard Malig as the companion of Rene Salvamante, and that when initially investigated, the two housemaids gave a description of Salvamante's companion that fitted Richard Malig. We find no merit in this appeal. As hereinafter shown, the defense of alibi is unconvincing. The accused's arguments which stress the incredibility of the testimonies of Mrs. Barker and the househelps identifying Maqueda are misdirected and misplaced because the trial court had ruled that Mrs. Teresita Mendoza Barker and the two housemaids, Norie Dacara and Julieta Villanueva, were not able to positively identify Magueda, The trial court based his conviction on his extrajudicial confession and the proof of corpus delicti, as well as on circumstantial evidence. He should have focused his attention and arguments on these. From its ratiocinations, the trial court made a distinction between an extrajudicial confession the Sinumpaang Salaysay and an extrajudicial admission the, verbal admissions to Prosecutor Zarate and Ray Dean Salvosa. A perusal of the Sinumpaang Salaysay fails to convince us that it is an extrajudicial confession. It is only an extrajudicial admission. There is a distinction between. the former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court which read as follows:

Sec. 26. Admission of a party. The act, declaration or omission of party as to a relevant fact may be given in evidence against him. xxx xxx xxx Sec. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. In a confession, there is an acknowledgment of guilt. The term admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of his guilt or of the criminal intent to commit the offense with which he is charged. 13 Wharton distinguishes a confession from an admission as follows: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt. 14 And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless corroborated by evidence of corpus delicti. The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was taken without the assistance of counsel because it was of the opinion that since an information had already benefited in court against him and he was arrested pursuant to a warrant of arrest issued by the court, the Sinumpaang Salaysay was not, therefore, taken during custodial investigation. Hence, Section 12(1), Article III of the Constitution providing as follows: Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. is not applicable, 15 i.e., the police investigation was " no longer within the ambit of a custodial investigation." It heavily relied on People vs. Ayson 16 where this Court elucidated on the rights of a person under custodial investigation and the rights of an accused after a case is filed in court. The trial court went on to state: At the time of the confession, the accused was already facing charges in court. He no longer had the right to remain silent and to counsel but he had the right to refuse to be a witness and not to have any prejudice whatsoever result to him by such refusal. And yet, despite his knowing fully well that a case had already been filed in court, he still confessed when he did not have to do so. 17 The trial court then held that the admissibility of the Sinumpaang Salaysay should not be tested under the aforequoted Section 12(1), Article III of the Constitution, but on the voluntariness of its execution. Since voluntariness is presumed, Maqueda had the burden of proving otherwise, which he failed to do and, hence, the Sinumpaang Salaysay was admissible against him.

As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the trial court admitted their testimony thereon only to prove the tenor of their conversation but not to prove the truth of the admission because such testimony was objected to as hearsay. It said: In any case, it is settled that when testimony is presented to establish not the truth but the tenor of the statement or the fact that such statement was made, it is not hearsay (People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18 While we commend the efforts of the trial court to distinguish between the rights of a person under Section 12(1), Article III of the Constitution and his rights after a criminal complaint or information had been filed against him, we cannot agree with its sweeping view that after such filing an accused "no longer Has] the right to remain silent End to counsel but he [has] the right to refuge to be a witness and not to have any prejudice whatsoever result to him by such refusal." If this were so, then there would be a hiatus in the criminal justice process where an accused is deprived of his constitutional rights to remain silent and to counsel and to be informed of such rights. Such a view would not only give a very restrictive application to Section 12(1); it would also diminish the said accused's rights under Section 14(2) Article III of the Constitution, The exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at that stage when a person is "under investigation for the commission of an offense." The direct and primary source of this Section 12(1) is the second paragraph of Section 20, Article II of the 1973 Constitution which reads: Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right . . . The first sentence to which it immediately follows refers to the right against self-incrimination reading: No person shall be compelled to be a witness against himself. which is now Section 17, Article III of the 1987 Constitution. The incorporation of the second paragraph of Section 20 in the Bill of Rights of the 1973 constitution was an acceptance of the landmark doctrine laid down by the united States Supreme Court in Miranda vs. Arizona. 19 In that case, the Court explicitly stated that the holding therein "is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." It went on to state its ruling: Our holding will be spelled out with some specificity in the pages which follow but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before

speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some question or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to a questioned. 20 It may be pointed out though that as formulated in the second paragraph of the aforementioned Section 20, the word custudial, which was used in Miranda with reference to the investigation, was excluded. In view thereof, in Galman vs. Pamaran, 21 this Court aptly observed: The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and "investigation," as in fact the sentence opens with the phrase "any person" goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by making it applicable to the investigation for the commission of an offense of a person and in custody. 22 Accordingly, as so formulated, the second paragraph of Section 20 changed the rule adopted in People vs. Jose 23 that the rights of the accused only begin upon arraignment, Applying the second paragraph of Section 20, this Court laid down this rule in Morales vs, Enrile: 24 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Note that the first sentence requires the arresting officer to inform the person to be arrested of the reason for the arrest and show him "the warrant of arrest, if any." The underscored phrase simply means that a case had been filed against him in a court of either preliminary or original jurisdiction and that the court had issued the corresponding warrant of arrest. From the foregoing, it is clear that the right to remain silent and to counsel and to be informed thereof under the second paragraph of Section 20 are available to a person at any time before arraignment whenever he is investigated for the commission of an offense. This paragraph was incorporated into Section 12(1), Article III of the present Constitution with the following additional safeguards: (a) the counsel must be competent and independent, preferably of his own choice, (b) if the party cannot afford the services of such counsel, he must be provided with one, and (c) the rights therein cannot be waived except in writing and in the presence of counsel. Then, too, the right to be heard would be a farce if it did not include the right to counsel. 25 Thus, Section 12(2), Article III of the present Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel." In People vs. Holgado, 26 this Court emphatically declared:

One of the great principles of justice guaranteed by our Constitution is that "no person shall be-held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de officio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own. It was, therefore, wrong for the trial court to hold that Section 12(1), Article III of the Constitution is strictly limited to custodial investigation and that it does not apply to a person against whom a criminal complaint or information has already been filed because after its filing he loses his right to remain silent and to counsel. If we follow the theory of the trial court, then police authorities and other law enforcement agencies would have a heyday in extracting confessions or admissions from accused persons after they had been arrested but before they are arraigned because at such stage the accused persons are supposedly not entitled to the enjoyment of the rights to remain silent and to counsel. Once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant to the issuing judge, 27 and since the court has already acquired jurisdiction over his person, it would be improper for any public officer Or law enforcement agency to investigate him in connection with the commission of the offense for which he is charged. If, nevertheless, he is subjected to such' investigation, then Section 12(1), Article III of the Constitution and the jurisprudence thereon must be faithfully complied with. The Sinumpaang Salaysay of Maqueda taken by SP02 Molleno after the former's arrest was taken in palpable violation of his rights under Section 12(1), Article III of the Constitution. As disclosed by a reading thereof, Maqueda was not even told of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution which reads: (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa stand on a different footing. These are not governed by the exclusionary rules under the Bill of Rights.. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect; 28 or restriction on the power of government found "not in the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited. 29 They are the fundamental safeguards against aggressions of arbitrary power, 30 or state

tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. 31 Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former Under Section 26, Rule 130 of the Rules of Court. In Aballe vs; People, 32 this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admissions. To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly .stated that "he is willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a state witness, Maqueda's participation in the commission of the crime charged was established beyond moral certainty. His defense of alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstantial evidence. The following circumstances were duly proved in this case: (1) He and a companion were seen a kilometer away from the Barker house an hour after the crime in question was committed there; (2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime; (3) He and co-accused Rene Salvamante are friends; (4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September 1991; (5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and (6) He freely and voluntarily offered to be a state witness stating that "he is the least guilty." Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair

and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e. the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. 33 We do not hesitate to rule that all the requisites of Section 2, Rule 133 of the Rules of Court are present in this case. This conclusion having been reached, the defense of alibi put up by the appellant must fail. The trial court correctly rejected such defense. The rule is settled that for the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. 34 Through the unrebutted testimony of Mike Tayaban, which Maqueda does not controvert in his brief, it was positively established that Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the house of the Barkers. It was not then impossible for Maqueda and his companion to have been at the Barker house at the time the crime was committed. Moreover, Fredisminda Castrence categorically declared that Maqueda started working in her polvoron factory in Sukat only on 7 October 1991, thereby belying his, testimony that he started working on 5 July 1991 and continuously until 27 August 1991. WHEREFORE, in of the foregoing, the instant appeal is DISMISSED and the appealed decision Of Branch 10 of the Regional Trial Court Of Benguet in Criminal Case, No.91-CR-1206 is AFFIRMED in toto. Costs against accused-appellant HECTOR MAQUEDA @ PUTOL. SO ORDERED, Padilla, Davide, Jr., Bellosillo, Quiason and Kapunan, JJ., concur.

4. Republic of the Philippines SUPREME COURT Manila G.R. No. 70091 December 29, 1986 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BRIGIDO ENCIPIDO, CHARLITO MANATAD, JESUS RUBIO, RUDY LUMARDA, JOSE CABAGERAN, EDDIE DE LA PE;A, CRIS RAMIREZ, and JESUS or JOHN DOE, accused, BRIGIDO ENCIPIDO, CHARLITO MANATAD, and EDDIE DE LA PE;A accused-appellants. The Solicitor General for plaintiff-appellee. Ignacio P. Moleta for accused-appellants.

MELENCIO-HERRERA, J.: On March 30, 1982, Jose Lacumbes (hereinafter referred to as the DECEASED), a resident of Barangay Mabini in the Municipality of Tubajon, Surigao del Norte, was found killed by his wife and children near the hut in their farm in Sitio Capacohan in the same barangay. Post Mortem findings performed the following morning were: l) Incised wound of the neck. 2) Eight [8] multiple stab wounds at the back; one [1] inch in length and two and a half [2] inches in depth. 3) Removed right external ear. 4) Contusions left lumbar region. 5) Both hands tied at the back with rattan. CAUSE OF DEATH: Hemorrhage, severe, secondary to incised wounds of the neck and multiple stab wounds at the back. On February 2, 1983, in Criminal Case No. 14 of the Regional Trial Court, 10th Judicial Region, Branch 32 (the CASE BELOW), the following eight (8) persons: (1) Brigido ENCIPIDO (2) Charlito MANATAD, (3) Eddie DE LA PENA (hereinafter referred to as APPELLANTS), (4) Jesus Rubio, (5) Rudy Lumarda, (6) Jose CABAGERAN (7) Cris Ramirez, and (8) Jesus or John Doe were charged with Murder for the death of the DECEASED. Only fly APPELLANTS were tried, the other five accused having remained at large. A review of the prosecution evidence presented in the CASE BELOW can begin with the testimony of Felicisimo Alciso. This witness narrated that he went to the hut of the DECEASED in the afternoon of March 30, 1982, in order to get some chickens which the latter had promised him but that, before reaching the hut, he heard a gunshot. He stopped and saw that the DECEASED was being tied and subjected to fist blows. There were three persons who mauled the DECEASED, while others stayed at

a distance. Then, somebody struck the DECEASED with the butt of a gun causing the latter to fall to the ground. He described that the hands of the DECEASED were tied at the back, ENCIPIDO was behind the DECEASED, while MANATAD and DE LA PE;A were on the sides. 1 On orders of ENCIPIDO also known as "Commander Tanga," DE LA PE;A, also called "Agosto de la Pena struck the Deceased's neck with a bolo which almost I severed the latter's head. Frightened, witness Alciso fled from the scene. After learning from friends and neighbors that those who had killed the DECEASED were detained, Alciso went to the jail to find out for himself if they were among the group responsible for the death of the DECEASED, and because "I was afraid that I will be the next one to be killed by them." He recognized APPELLANTS as among the suspects. When he asked DE LA PENA why he was in jail, the latter answered that it was because they were the ones who had beheaded the DECEASED. Alciso was unable to talk to ENCIPIDO and MANATAD. Before Alciso there was another prosecution witness presented, Armando Bagacay whose testimony turned out to be hearsay but which nevertheless is reproduced here to complete the evidence for the prosecution. He testified that while he was massaging one of the accused, Rudy Lainarda on March 10, 1982, the latter told him that his ailment was caused by witchcraft of the victim, Jose Lacumbes, and that he would seek the aid of the rebels to cut Lacumbes' head. Four days later, Bagacay met one of those originally indicted, Jesus Rubio, who confided to him that they would cut Lacumbes' neck for making Lumarda sick and for being responsible for all i the witchcraft in the community. Subsequently, witness Bagacay heard of the death of Lacumbes at the hands of the rebels. Two other prosecution witnesses supported testimony Alciso Jorge Ortega, INP Station Commander of Loreto, Agusan del Norte, testified that when he had just arrived from Surigao City at about 2:30 o'clock P.M. of May 1, 1982, and while still at the wharf, he was met by ENCIPIDO who introduced himself as "Commander Tanga," invited him (Ortega) for a drink so he could talk to the latter personally. Having ac cepted the invitation, the two proceeded to a store where ENCIPIDOs fourteen companions were already waiting. They introduced themselves as rebels and offered to help the municipal government. In the course of the conversation, ENCIPIDO and DE LA PE;A disclosed to the Station Commander that they were the ones who had beheaded the DECEASED, killed a certain Benny and one Balaba, and who were responsible for all the killings in Dinagat Island. The other prosecution witness, Mariano Espina, the Municipal Mayor of Loreto, testified that in the evening of that same day of May 1, 1982, Station Commander Jorge Ortega informed him that Commander Tanga" and his men wanted to pay him a courtesy call. They arrived at about 8:00 in the evening at his house. They introduced themselves and placed their sidearms on a table as a sign of goodwill. At the time, there were about 2 policemen and 3 CHDF men outside the house but no arrests were made, nor were firearms confiscated, as a sign of reciprocal goodwill "Commander Tanga" then confided to the Mayor his mission to cooperate with his administration as they had heard that he was a good Mayor. He also informed the Mayor that he had been a member of the NPA since he was 13 years old; that he had already killed many people, including the DECEASED, so that the latter could no longer harm other people with his witchcraft. For his part, DE LA PE;A brought out a sharp-pointed knife and tried to test its sharpness, admitted having cut the neck of the DECEASED, and even showed the latter's ear, dried by that time. The foregoing testimonies were buttressed from a most unexpected source. DE LA PE;A, to the surprise of APPELLANT APPELLANTS' common counsel testified in open Court that, although he belonged to the group of "Commander Tanga," the latter, MANATAD and a third individual merely forced him to join, threatening to kill him if he refused; that he was with the group from March 28, 1982; that he was present on March 30, 1982 when "Commander Tanga" and MANATAD killed the

DECEASED but that he was merely standing by; that the duo were the first ones apprehended, and after them he was also arrested by the CHDF. In their defense, ENCIPIDO and MANATAD denied having I killed the victim and interposed the defense of alibi. ENCIPIDO claimed that on March 30, 1982, he was sawing lumber from morning till 3:00 P.M. at Barangay Boa for a certain Norberto Bukid. After working he rested in Bukid's house and did not leave the place. He further testified that he did not know the DECEASED nor the Station Commander, nor the Municipal Mayor except when he surrendered his .45 caliber pistol to the latter on May 2, 1982 after which he was arrested. He decided to surrender his pistol because he was afraid he might be apprehended for having an unlicensed firearm. MANATAD and DE LA PENA were also placed in jail with him. Thereafter, with seven others, he was taken to PC head- quarters at Surigao City where they were severely maltreated and he was forced to sign an affidavit admitting that he is "Commander Tanga" responsible for the killing of the DECEASED and other persons. He denied having admitted to the Station Commander and to the Municipal Mayor his Identi ty as "Commander Tanga" or that he had killed the DECEASED and other persons besides. MANATAD, for his part, also denied all imputations against him, stating that he only came to know ENCIPIDO in jail; that he did not know the DECEASED nor who killed him that during the whole day of March 30, 1982, he was plowing the field tenanted by his mother-in-law at Barangay Malinao; that he started plowing early in the morning and stopped at about 5:00 o'clock P.M. after which he stayed home. Barangay Captain Sergio Peniones partially corroborated MANATAD's testimony by stating that he saw MANATAD plowing the i field in the morning of March 30, 1982. MANATAD's wife, Bienvenida Edusma also testified that her husband stayed home after 5:00 o'clock P.M. of that day as he was tired after the day's work; that, in fact, she quarreled with her husband because he refused to accompany her in bringing their sick child to Tubajon on so that she went alone carrying the child even though she was then seven months pregnant. In a Decision promulgated by the Trial Court on December 5, 1984, APPELLANTS were found guilty of Murder and sen tenced to reclusion perpetua to pay damages to the heirs of the DECEASED in the amount of P12,000.00 and to pay 3/8 of the costs. On behalf of APPELLANTS, counsel de officio filed a Motion for Reconsideration before the Trial Court on December 26, 1984, which the latter denied for having been filed more than fifteen (5) days after the promulgation date of December 5, 1984. A Notice of Appeal filed before the then Intermediate Appellate Court was allowed as an appeal not from the judgment but from the Order denying the Motion for Reconsideration. The penalty imposed by the Trial Court being reclusion perpetual the appeal was indorsed to this instance, which we accepted in the interest of substantial justice. APPELLANTS raise the following Assignments of Error: A The lower Court erred in giving credence to the hearsay testimonies of prosecution witnesses Mariano Espina and George Ortega basing therefrom its findings of conviction; B The lower Court erred in giving credence to the incredible and hearsay testimony of Felicisimo Alciso the alleged eyewitness; C

The lower Court erred in appreciating the so-called judicial admission of accused Eddie de la Pena as against his co-accused Brigido ENCIPIDO and Charlito Manatad; D The lower Court erred in convicting appellants Brigido ENCIPIDO and Charlito Manatad; E The lower Court erred in refusing to give due course to appellants' motion for reconsideration holding that it was filed out of time when its judgment accordingly has become final; F The lower Court erred in convicting appellant Eddie de la Pe;a. The evidence against APPELLANTS, taken en conjunto" justifies the finding of guilt beyond reasonable doubt. 1. Eyewitness Felicisimo Alciso positively Identified APPELLANT as among the group who led the DECEASED out of his hut, with his hands tied behind his back, and thereafter mauled him and hacked his neck in the afternoon of March 30, 1982. The autopsy findings, particularly, the "incised wound of the neck," "contusions left lumbar region" and "both hands tied at the back with rattan" confirm his description of what he had witnessed. The defense contents, however, that said witness could not have recognized APPELLANTS. It is true that at the start of his testimony, he had stated that he did not recognize the assailants. Thus: Q. Who were the persons who mauled Jose Lacumbes during that time? A. I saw that there were three of them but I could not recognize them; and there were some other persons who were staying from a distance. 2 That testimony, however, referred to the early stage of the incident when the victim was being mauled. Subsequently, in respect of the killing itself, the witness declared: Fiscal Sandangal Could you not recognize the three persons who killed Jose Lacumbes? Witness: I could recognize the three persons who killed Jose Lacumbes. 3 Then he described specifically: Q. What else did you see, if any? A. I saw that somebody was beating Jose Lacumbes with the use of a gun, and when Jose Lacumbes fell down, Commander Tanga commanded Eddie de la Pena to cut the head of the victim but the head was not severed from the body. 4

After pointing to the APPELLANTS in the Courtroom and replying to a question by the Court, Alciso further explained: Court (addressing to the witness) When did you know the accused by their names? WITNESS: In the jail your Honor. Before I met them in the jail I already recognized their faces but I just do not know their names. Later on, I already know their names. 5 The defense further claims that Alciso could not have recognized the assailants because he was at a distance of 80 to 90 meters away from the scene of, the crime. In another instance, however, he said that the place of the killing was about "20 arms length" from the hut of the DECEASED, while he was also about the same distance from the hut at that time. The distances stated were merely his estimates and can be moderately exact or moderately inexact specially with provincial folk. The important fact is that even from where he was, he witnessed the incident and his description of it was corroborated by the admission of APPELLANTS, themselves and supported by the autopsy findings on the cadaver. As this Court ruled in People vs. Hamtig et al., 6 the credibility of the testimony of a witness is not affected by some flaws and inconsistencies in minor details, if as regards the main incident, the Identities of the malefactors, the testimonies appear to be consistent with each other." And although it was admittedly the first time that Alciso saw the malefactors, it does not necessarily follow that he could not have recognized their faces. Persons observing a startling occurrence would strive to know the ones involved specially where as in this case the DECEASED was not unknown to Alciso. Next, it is argued that Alcisos testimony that he went to i the jail to verify the Identity of the malefactors is not worthy of credence. Concededly, that actuation was unusual However, as the witness explained he did so because he feared that he may be the next one to be Killed And the fact that he asked DE LA PE;A why the latter was in jail does not necessarily lead to the conclusion, as alleged, that he had not witnessed the occurrence. A friendly question was more likely to evoke candid answer. There is nothing strange either in Alcisos not having mentioned the culprits by name in his sworn statement taken more than three months after the incident, having referred to them merely as "five persons." As is wen known "an affidavit is not prepared by the affiant himself Omissions and misunderstanding . are not infrequent, particularly under circumstances of hurry and impatience." 7 ENCIPIDO and DE LA PE;A verbally acknowledged their guilt before Station Commander Ortega and Municipal Mayor Espina when they individually boasted that they had killed the DECEASED so that the latter could no longer harm other people with his witchcraft. They admitted that they had beheaded the DECEASED. DE LA PE;A even showed the Mayor the DECEASED's dried ear which he had severed, Further, while I i in jail, DE LA PE;A also admitted to Alciso when the latter I asked him the reason for their confinement, that it was because they were the ones who had beheaded the DE CEASED. These oral confessions indicating complicity in the commission of the crime with which they are charged are admissible in evidence against the declarants ENCIPIDO and DE LA PE;A pursuant to Sections 22 8 and 29 9 of the Rules of Court. It is the fact that admissions were made by APPELLANTS and against their own interest which gives them their evidentiary value. 10 It is also to be noted that APPELLANTS' extra-judicial confessions were independently made without collusion, are Identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latter's actual participation in the commission of the crime. 11 They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the

commission of the crime charged and proved. 12 They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. And while it may be that ENCIPIDOS written statement before the PC on May 6, 1982 confessing to the killing of the DECEASED was not presented at the trial no presumption of wilful suppression of evidence may be levelled against the prosecution on account of its non-production. Apparently, for the prosecution, it was not important or necessary to bolster up its case. The argument that the testimonies of Station Commander Ortega, Mayor Espina, and Alciso as to the extrajudicial admissions made to them respectively by ENCIPIDO and/or DE LA PE;A constitute hearsay, and thus inadmissible, is not well taken. Oral confessions may be proved by any competent witness by whom they were heard, the same as any other fact: The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood an of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. (23 C.J.S. 196). Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused. (Underhill's Criminal Evidence, 4th Ed., Niblack, sec. 278, p. 551). 13 ENCIPIDOS and DE LA PE;A's extrajudicial acknowledgments of guilt to the Municipal Mayor and the INP Station Commander are not necessarily incredible for, in their minds, they were not "confessing" but bragging of their exploits" in the belief that they were saving the community from the witchcraft of the DECEASED and the evil doings of some people. There is no proof whatsoever that the extrajudicial admissions in question were coerced or concocted by those officials, who are responsible public officers and presumed to have regularly performed their functions and against whose impartiality nothing has been proven. The fact that no arrest were made by them immediately after the disclosures do not necessarily belie their testimonies since the spirit of "reciprocal goodwill" pervaded the encounters. Arrests were made, however, the day after, or on May 2, 1982. APPELLANTS had the opportunity during the trial to refute their verbal admissions as in fact, they denied having made them, but their denials do not ring with truth in the face of other inculpating evidence. 3. The additional incriminating evidence was furnished by DE LA PE;A who, in open Court, under oath, testified that he belonged to "Commander Tanga's" group, was with them since two days before the incident, and that he was with ENCIPIDO and MANATAD when they killed the DECEASED. DE LA PE;AS declaration confirms the existence of the group, their responsibility for the killing and, at the very least, his presence during the commission of the crime. True, DE LA PE;A exculpated himself by stating that he was only forced to join the group and was merely standing by when the killing occurred. A statement involving guilt does not, however, lose its character as a confession from the fact that it was accompanied by statements of an exculpatory nature, 14 it being "the natural tendency of every transgressor, with perhaps very rare exceptions, to acquit himself while he can do so from all liability that might arise from his act, or at least mitigate it in the eyes of the law and those of his fellowmen". 15 Like other evidence, it must be weighed, believed, or disbelieved in whole or in part, as reason may decide. Herein, the exculpatory statement has been proven false by Alcisos credible account that upon ENCIPIDOS orders, DE LA PE;A hacked the DECEASED's neck with a bolo which almost severed the latter's head, which testimony is confirmed by

the autopsy finding of "incised wound on the neck." It was likewise proven false by DE LA PE;As own extrajudicial admission to the Municipal Mayor that he had hacked the DECEASED's neck and severed his ear, which is buttressed by the post mortem finding of "removed right external ear." DE LA PE;AS judicial admission is admissible not only against him but against his co-accused ENCIPIDO and MANATAD as well. The general rule that the confession of an accused may be given in evidence against him but that it is not competent evidence against his co-accused, admits of exceptions. Thus, this Court has held that where several accused are tried together for the same complaint, the testimony lawfully given by one during the trial implicating the others is competent evidence against the latter. 16 "The extrajudicial admission or confession of a co-conspirator out of court is different from the testimony given by a co-accused during trial. The first is admissible against the declarant alone, but the second is perfectly admissible against his co-accused," 17 who had the right and opportunity to cross-examine the declarant. In this case, counsel de officio had such opportunity to cross-examine DE LA PE;A but did not avail of it because in his own words: Atty Moleta: I would like to inform the Honorable Court that I am in quandary It is my duty as counsel-de-oficio to be candid to this Honorable Court. The witness has not actually followed what I intimated to him to be the nature of his testimony. 18 In other words, the reason counsel refrained from cross examination was not because he was not given the opportunity to do so but because DE LA PE;A did not follow counsel's bidding as to the nature of his testimony. The coached testimony failed but the truth prevailed. Besides, defense counsel could have presented rebuttal evidence to overcome DE LA PE;A's testimony if he had chosen to do so but did not. Thus, MANATAD's direct participation in the commission of the crime with which he is charged has been established by DE LA PE;A's declaration in open Court that "Commander Tanga and Charlito Manatad killed a certain person," and the corroborative testimony of Alciso who categorically testified that MANATAD was on one side of the DECEASED, DE LA PE;A on the other and ENCIPIDO at the back when they perpetrated the offense with which they are changed. In MANATAD's respect, therefore, it is not necessary to invoke conspiracy" to support his conviction. The defense of alibi separately interposed by ENCIPIDO and MANATAD cannot prevail over their positive Identification by eyewitness Also by ENCIPIDOS verbal acknowledgments of guilt, and by DE LA PE;A's judicial and extra- i judicial admission/confession, which are interlocking and ad-missible as against themselves and as against the others whom they also implicated. Neither were ENCIPIDO and MANATAD able to prove that they were at some place for such a period of time that it was impossible for them to have been at the scene of the crime at the time of its commission. Barangay Boa where ENCIPIDO was allegedly sawing lumber was approximately 60 kilometers away, 19 and Barangay Malinao where MANATAD was supposedly plowing the field, about 12 kilometers, 20 from Barangay Mabini, Tubajon, Surigao where the incident occurred. In the last analysis, the core issue addresses itself to the credibility of witnesses, a matter that the Trial Court had unequalled competence to consider and decide since it was in a vantage position to observe the conduct and demeanor of the witnesses of both sides while testifying, an opportunity not afforded to Appellate Courts. Its findings as to credibility should not be disturbed and are entitled to great weight unless there is some fact of record that has been overlooked or the significance of which has been misconstrued, 21 which exceptions we find absent herein. The last assigned error delving on the refusal of the Trial Court to give due course to appellants' Motion for Reconsideration on the ground that the judgment had become final is no longer of any

consequence since all the grounds therefor have been elevated to and considered by this Court on appeal. In fine, the threads of evidence woven together establish APPELLANTS' guilt to a moral certainty. WHEREFORE, the judgment appealed from is hereby affirmed except as to the civil indemnity, which is hereby increased to P30,000.00 in accordance with recent jurisprudence. With proportionate costs. SO ORDERED. Feria, Fernan, Narvasa, Alampay, Gutierrez, Jr., Cruz, Paras and Feliciano, JJ., concur. Teehankee, C.J., reserves his vote.

5. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 74065 February 27, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NERIO GADDI y CATUBAY, defendant-appellant. The Solicitor General for plaintiff-appellee. Citizen Legal Assistance Office for defendant-appellant.

CORTES, J.: Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y Navarro in an information which reads as follows: xxx xxx xxx That on or about the 11th day of December, 1981, in Quezon City, Metro Manila, Philippines, the above-named accused, with intent to kill, without any justifiable cause, qualified with treachery and with evident pre-meditation (sic), did then and there, wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by then and there stabbing him several times with a knife, hitting him on the different parts of his body, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of the offended party in such amount as maybe awarded under the provision of the Civil Code. CONTRARY TO LAW. [Rollo, p. 15.] After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a verdict of guilt for the crime charged, the decretal portion of which reads: xxx xxx xxx WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond reasonable doubt of the crime of murder, as charged in the information, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of Augusta Esguerra the sum of P50,000.00 without subsidiary imprisonment in case of insolvency, with all the accessory penalties provided for by law, and to pay the costs.

SO ORDERED. [Rollo, p. 31.] On appeal to this Court, Gaddi assigns as errors of the trial court the following: I THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE. III THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PRE-MEDITATION [Rollo, p. 38.] The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto Guzman, Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the defense. The prosecution's version of the facts are as follows: xxx xxx xxx At about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome, Novaliches, Quezon City, Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the morning of the following day, December 12, 1981, appellant told Ernesto Guzman that he killed his drinking partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police. After work, Guzman went to the police and reported what appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983). At around 2:00 o'clock in the afternoon of the same day, December 12, 1981, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to where the body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and took down the confession of appellant (Exhibit F). Later, the cadaver was subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984). A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where the body of the victim was dug out. The T-shirt and shorts were Identified by Ernesto Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber

slipper, bottle of wine and glass were likewise recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for the Appellee, pp. 35; Rollo, p. 52.1 On the other hand, the defense's version of the facts are as follows: Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusta Esguerra (Bong Kuleleng) near the house of Ernesto Guzman. At about 5:00 p.m., be was requested by Ernesto Guzman to buy gin. He left Ernesto Guzman and Augusta Esguerra (who were allegedly drinking) in order to buy a bottle of gin in a nearby store, about 200 meters away. At the store, he met an acquaintance and they talked for a while before returning. Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood in the place where they had been drinking and Augusta Esguerra, alias Bong Kuleleng was not there anymore. He inquired from Ernesto Guzman the whereabouts of Augusta Esguerra and was told that the latter "went home already". He then asked Guzman about the blood and was told that it was the blood stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto Guzman informed him about the killing of Augusta Esguerra. Guzman narrated to him that Bong Kuleleng (Augusta Esguerra) held his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased by him. He did not report the killing to the authorities. Guzman likewise requested ban to admit the killing but he refused. While in the house, Guzman filed the case ahead. He was later arrested and investigated while looking for the corpse. When brought to the police station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20, 1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.] The Court finds the instant appeal unmeritorious. Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the validity of such conviction that: 1) there be more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court, People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is required is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with any other hypothesis except that of guilty [People v. Constante, G.R. No. L-14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132, September 26, 1964, 12 SCRA 9.] In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra. 1. The fact that said victim was last seen on the day he was killed in the company of the accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9,1983, p. 1.] 2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was 'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto Guzman [TSN, August 9,1983, p. 7.]

3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the Northern Police District by the barangay people who apprehended him, be admitted the truth of the charge of the barangay residents that he killed someone and that he dumped the body of the victim in a place being dug out as an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the barangay people started digging for the body of the victim, the appellant was even instructing them as to the exact location where the body was buried [TSN, August 24, 1983, p. 6.] 4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the victim was found there after the digging [TSN, January 3, 1984, p. 5.] 5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were later recovered from the place where the victim was buried [TSN, September 2, 1982, p. 3.] Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses is entitled to great weight and respect [People v. Valentino, G.R. Nos. L-49859- 60, February 20, 1986, 141 SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.] Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal bad previously declared that a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a crime can be presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those facts which he merely learned from other persons but not as to those facts which he "knows of his own knowledge: that is, which are derived from his own perception." Hence, while the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement [People v. Cusi Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement. That the testimony of Guzman on appellant's oral confession is competent evidence finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 4311 which upheld the trial court's reliance on an extrajudicial confession given, not to a police officer during custodial interrogation, but to an ordinary farmer as the basis for conviction. The Court's pronouncements in the aforesaid case find relevance in the instant case: The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him' (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae.

The Rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.) Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused [citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) [at pp. 436-437; Emphasis supplied.] The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the community as a member of a religious movement participating in such activities as "maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a "maanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all that he was actuated by improper motives in testifying against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the former to sleep in the porch of his house as the former had no immediate relatives in Quezon City [TSN, August 9, 1983, p. 14.] As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant, credence should be given to their narration of how the appellant was apprehended and how he led the police and the barangay residents to the place where he dumped the body of his victim since those police officers are presumed to have performed their duties in a regular manner in the absence of evidence to the contrary [People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30 1987, 149 SCRA 464.] Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi. It has been ruled time and again that courts look upon the evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because of its easy fabrication [People v. Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil 828 (1917).] This test requires not only proof that the accused was somewhere else other than the scene of the crime but clear and convincing proof of physical impossibility for the accused to have been at the place of the commission of the crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984. 130 SCRA 540; People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA 113.] The testimony of the accused himself believes any claim of physical impossibility for him to be at the scene of the crime since according to him, the store where he allegedly bought another bottle of gin was only 200 meters away. He was able to return to Guzman's house only after half an hour since he still had a chat with an acquaintance at the store. Even granting the truth of appellant's story that he was ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after thirty minutes, it was not impossible for him to have committed the crime since Guzman and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus, his statements on the witness stand, far from

demonstrating physical impossibility of being at the scene of the crime, cast serious doubt on the veracity of his alibi. As the culpability of the accused has been established beyond reasonable doubt by the evidence of the prosecution, there is no need to dwell on the admissibility of appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be sustained independently of said confession. However, in the absence of proof as to how the victim was killed, the aggravating circumstances of treachery and evident premeditation cannot be properly appreciated. The killing must be considered as homicide only and not murder since the circumstance qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case that As heretofore stated, not a single eyewitness to the stabbing incident had been presented by the prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by appellant in attacking the victim. It is needless to add that treachery cannot be deduced from mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is required before any conclusion may be reached respecting the attendance of alevosia [People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied. ] Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of 1. the time when the of tender determined to commit the crime; 2. an act manifestly indicating that the culprit clung to his dead termination; and 3. a sufficient laspe of time between the determination and the execution to allow him to reflect upon the consequences of his act [People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.] As the evidence on record does not disclose the existence of treachery and evident premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and not murder, Since there are neither mitigating nor aggravating circumstances, the penalty for homicide which is reclusion temporal should be imposed in its medium period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the indemnity of P 30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly. WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P 30,000.00. SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

6. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 118607 March 4, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULITO FRANCO y TIANSON, accused-appellant.

FRANCISCO, J.: Appellant JULITO FRANCO y TIANSON was charged with 1 and convicted 2 of the crime of robbery with homicide. 3 He was sentenced to reclusion perpertua and directed to indemnify Dunkin' Donut and the heirs of Aurelio Cuya, in the amounts of P12,000.00 and P30,000.00, respectively. contending "that the trial court erred in convicting . . . him . . . [based] on evidence illegally obtained," 4 appellant now interposes this appeal. For its part, the Solicitor General recommended appellant's acquittal on the ground that "his guilt was not proven beyond reasonable doubt." 5 The appeal is impressed with merit. Quoted hereunder is the narration of the factual antecedents of this case, as summarized by the Solicitor General in its Manifestation, 6 and duly supported by the evidence on record: On August 9, 1991 at around 6:45 a.m., Angelo Tongko, then an employee of Dunkin Donut located at Quintin Paredes [Street], Binondo, Manila, discovered the lifeless body of Aurelio Cuya, a security guard of the said establishment (tsn, Nov. 19, 1991, pp. 2-3). Upon discovery of the lifeless body, Tongko informed his co-workers, (ibid, p. 3) who then reported the matter to the police (ibid, p. 3). Upon investigation by the police, the branch supervisor of Dunkin Donut informed the police that the total sales of the establishment on August 8, 1991 in the amount of P10,000.00 and which was allegedly kept in the safety locker in the same place where the dead body was found, was missing (ibid, p. 7, Exh. K). The supervisor of the security agency where the victim was employed also informed the police that he suspected the appellant as the culprit (ibid, p. 15, Exh. K). Acting on this allegation by the supervisor, the police proceeded to the place of appellant and were able to interview Maribel Diong ("Diong") and Hilda Dolera ("Dolera") (ibid, p. 15; Exh. L). The police then tried to convince Diong and Dolera, who allegedly told the police that appellant allegedly confessed to them that he killed somebody in the evening of August 8, 1991 (ibid). Diong and Dolera were not presented in court to substantiate their affidavits. Based on the alleged statements of Diong and Dolera, the police formed a team to apprehend the appellant who allegedly had an agreement to meet Dolera (Exh. L). On

August 10, 1991, appellant was apprehended by the police in front of Jollibee Restaurant in Caloocan City (ibid, pp. 9, 16). Allegedly recovered from the appellant were the amount of P2,415.00 and one handgun which was in his cousin's residence (ibid, p. 16). Thereafter, appellant was brought to the police headquarters where his confession (Exh. N) was taken on August 12, 1991 allegedly on his freewill and with the assistance of a lawyer (ibid, pp. 13-14). A booking and arrest report was also prepared by Pat. Nestor Napao-it on August 12, 1991 (Exh. J). 7 The trial court convicted the appellant on the basis principally of his alleged extra-judicial confession. 8 This is evident from the assailed decision which even quoted the pertinent portions of the aforementioned extra-judicial confession. 9 But gospel truth as it may seem, we cannot stamp with approval the trial court's undue consideration and reliance on this extra-judicial confession for, as the records reveal, the same was not offered in evidence by the prosecution. 10 Neither were its contents recited by the appellant in his testimony. 11 It was a grave error for the trial court, therefore, to have considered the same, let alone be the basis of appellant's conviction. We thus reiterate the rule that the court shall consider no evidence which has not been formally offered. 12 So fundamental is this injunction that litigants alike are corollarily enjoined to formally offer any evidence which they desire the court to consider. 13 Mr. Chief Justice Moran explained the rationale behind the rule in this wise: . . . the offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. 14 It cannot be argued either that since the extra-judicial confession has been identified and marked as Exhibit "N" by the prosecution in the course of the cross-examination of the appellant, 15 then it may now be validly considered by the trial court. Indeed, there is a significant distinction between identification of documentary evidence and its formal offer. 16 The former is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the latter is done only when the party rests its case. Our settled rule incidentally is that the mere fact that a particular document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party. 17 From the records, it appears that not a single person witnessed the incident. In fact, aside from the testimony of police investigator Pat. Nestor Napao-it, none of the other three prosecution witnesses, to wit: (1) Angelo Tongko a Dunkin Donut employee who testified to have found the body of Aurelio Cuya inside the supervisor's room of the establishment in the early morning of August 9, 1991, 18 (2) Dr. Marcial Cenido the physician who autopsied the body of Aurelio Cuya, and who testified on the cause of the latter's death; 19 and (3) Teresita Cuya the wife of Aurelio Cuya who testified on the civil aspect of the case, 20 over imputed, directly or indirectly, to the appellant the commission of the crime. With respect to the testimony of Pat. Nestor Napao-it, 21 there is no dispute that his testimony on the conduct of investigation is admissible in evidence because he has personal knowledge of the same. 22 However, his testimony on appellant's alleged separate confession/admission to Hilda Dolera and Maribel Diong, which the trial court invariably considered in its decision as establishing the truth of the facts asserted therein, is hearsay. In the terse language of Woodroffes, said testimony is "the evidence not of what the witness knows himself but of what he has heard from others". 23 And whether objected to or not, as in this case, said testimony has no probative value. 24 To repeat, the failure of the defense to object to the presentation of incompetent evidence, like hearsay, does not give such evidence any probative value.

Anent the issue of admissability of Exhibits "F" 25 and "G" 26 original and additional sworn statements of Maribel Diong, and Exhibits "H" 27 and "I" 28 original and additional sworn statements of Hilda Dolera, it assumes significance to note that their admission in evidence has been seasonably objected to by the appellant on the ground that they are hearsay. 29 The trial court nonetheless admitted them "as part of the testimony of Pat. Nestor Napao-it". 30 While we agree that these exhibits are admissible in evidence, their admission should be for the purpose merely of establishing that they were in fact executed. 31 They do not establish the truth of the facts asserted therein. 32 In this case, our reading of the assailed decision, however, reveals that the foregoing exhibits were undoubtedly considered by the trial court as establishing the truth of the facts asserted therein. And herein lies another fatal error committed by the trial court because, without Maribel Diong and Hilda Dolera being called to the witness stand to affirm the contents of their sworn statements, the allegations therein are necessarily hearsay 33 and therefore inadmissible. A contrary rule would render nugatory appellant's constitutional right of confrontation which guarantees him the right to cross-examine the witnesses for the prosecution. Truly, it is our policy to accord proper deference to the factual findings of the court below especially when the issue pertains to credibility of witnesses. But no such issue is involved here. Instead, the principal issue raised herein is whether or not the evidence adduced by the prosecution are sufficient to overcome appellant's constitutional right to be presumed innocent. We believe in the negative, hence, we acquit. WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33, convicting the appellant of the crime of robbery with homicide is REVERSED. Appellant JULITO FRANCO y TIANSON is hereby ACQUITTED and his immediate release from prison is ordered unless he is being held on other legal grounds. No costs. It is SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.

7. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-45470 February 28, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO LAQUINON, alias "JOLLY", defendant-appellant.

CONCEPCION, JR., J.: Accused Gregorio Laquinon was charged with the crime of murder in the Court of First Instance of Davao del Sur for the killing of Pablo Remonde, coated as follows: That on or about November 13, 1972, in the Municipality of Hagonoy, Province of Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, with treachery and evident premeditation, armed with a gun and with intent to kill, did then and there willfully, unlawfully and feloniously shoot one Pablo Remonde with said weapon, inflicting upon the latter wounds which caused his death. After the trial, the lower court rendered a decision finding the accused guilty of the crime charged and sentenced him as follows: IN VIEW OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of the crime of murder, and imposes upon him the penalty of reclusion perpetua (Art. 248, Revised Penal Code); to indemnify the heirs of the deceased in the sum of P 12,000.00 and to pay the costs. From the foregoing judgment, accused Gregorio Laquinon interposed the present appeal. The People's version of the case is as follows: On November 13, 1972, at about 11:30 o'clock in the evening, Samama Buat, barrio captain of Clib, Hagonoy, Davao del Sur, was at his residence in barrio Clib. In a short while he heard gunshots coming from the bank of a river some three hundred meters to the south of his house (pp. 4-6, tsn, Dec. 8, 1975). Then, his brother, Leocario Buat, arrived and told him that a man was shouting for help at the bank of the river. Samama Buat told his brother to call the barrio councilman. Thereafter, he proceeded to the place where the unidentified man was. His brother, Leocario and the barrio councilman also arrived there. Samama Buat found the man lying on the sand and asked who he was. The man answered, "I am Pablo Remonde" (pp 7-10, Id.). Remonde's two hands were tied on his back. He was lying face down (p. 10, Id). Samama Buat then took the "ante mortem" statement of Pablo Remonde. He asked him who he was to which he answered that he was Pablo Remonde. Samama Buat

asked "who shot you" and Remonde said that it was Gregorio Laquinon. He asked Pablo Remonde whether from the gunshot wounds he suffered he would survive to which the victim answered "I do not know" (pp. 11, 19, 21, Id.; see also Exh. A, Folder of Exhibits). After that, barrio captain Buat went to the municipality of Hagonoy and reported to Vice Mayor Antonio Biran the shooting of Pablo Remonde. Vice Mayor Biran went to the scene of the incident and asked the victim who shot him to which the latter answered that he was shot by Gregorio Laquinon (pp. 21 A to 23, tsn, Dec. 8, 1975). Pablo Remonde was placed on a jeep of the Vice Mayor and brought to the hospital (p. 23, Id,). Pablo Remonde was admitted to the Canos Hospital in Digos, Davao del Sur where he was attended to by Dr. Alfonso Llanos. Dr. Llanos performed an operation on the victim from whose body a slug was recovered (pp. 15-16, tsn, Jan. 26, 1976; Exh. B). Pablo Remonde died in the hospital on November 16, 1972 because of bullet wounds (pp. 17-20, tsn, Jan. 26, 1976; see also clinical chart. Exh. C, Folder of Exhibits). The accused Gregorio Laquinon denied having killed the deceased. The trial court summarized his defense, as follows: In his defense, the accused declared that he was a KM member; that he was ordered by one Noli Cabardo, then their CO, to fetch Pablo Remonde; he requested one Cristino Nerosa to go with him, and matter of factly, they brought Remonde to the place where said CO Cabardo with ten companions, was waiting at the riverbank; that before reaching the place, Nerosa separated from him and he alone brought Remonde to Cabardo. There Cabardo confronted Remonde why, having been commanded to buy some provisions in Matanao, he (Remonde) never returned; to which Remonde answered that he spent the money 'in drinking and gambling; when upon Cabardo got mad and as Remonde attempted to escape, he (witness) heard a shot which must have been fired by Cabardo as he was holding a .38 Cal. revolver; that he (witness) also had that evening a Cal. 22 paltik; that after the shot he saw Remonde sprawled on the ground, and then Cabardo ordered them to go to the mountain as in fact they did; that two days later during the day, their mountain camp was raided by the PC and Cabardo and two others were killed while he (witness) was able to escape and went to Magpet, North Cotabato, and engaged in farming therein with his relatives; but believing that as a KM member he 'c mmitted something,' he surrendered to the Davao PC Barracks in May, 1975 (Exhibit '2'), where up to now he is being confined. The accused-appellant prays for the reversal of the appealed judgment on the ground that the lower court erred in finding him guilty of the crime charged on the basis of the statement attributed to the deceased Pablo Remonde which reads: Q State your name and other personal circumstances. A Pablo Remonde y Saballa, 24 years old, laborer and resident of Pob. this mun. Q Who shot you? A Mr. Laquinon, a person who ran for councilor before the ticket of Liberal last local election and son of Suelo Maravllias whose name I don't know. Q Why you were shot by said persons above?

A They are suspecting me that I'm an informer of Vice Mayor Viran regarding KM . Q Do you think you'll die with your wound? A I don't know sir. The accused-appellant argues that the foregoing statement is inadmissible in evidence as an antemortem declaration because it was not executed under a consciousness of an impending death; and that the deceased was not a competent witness. The fact that the deceased had named the son of Suelo Maravillas who turned out as Cristino Nerosa as one of those who shot him in his dying declaration does not make the deceased an incompetent witness. Nor does it render said dying declaration incredible of belief. The testimony of the accused that he and Nerosa separated and that he alone brought the deceased to Noli Cabardo is not corroborated. It may be that Nerosa was with the accused when the latter shot the deceased, as stated in the dying declaration, but that the accused testified that Nerosa was not with him when he brought the deceased to Noli Cabardo in order to free Nerosa from criminal liability. Nor does the testimony of Barrio Captain Samama Buat that the place was dark and that the victim had told him that he was shot by members of the KM make the deceased an incompetent witness. On the contrary, it strengthens the statement of the deceased since the accused is a member of the KM. But the dying declaration of the deceased Pablo Remonde is not admissible as an ante-mortem declaration since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the deceased believed himself in extremist, "at the point of death when every hope of recovery is extinct, which is the sole basis for admitting this kind of declarations as an exception to the hearsay rule." 1 It may be admitted, however, as part of the res gestae since the statement was made immediately after the incident and the deceased Pablo Remonde had no sufficient time to concoct a charge against the accused. On the whole, We are satisfied with the findings of the trial court that the accused was responsible for the killing of Pablo Remonde. We cite with approval the following observations of the trial court: Indeed, the Court cannot believe that CO Cabardo did the killing as related by the accused for the following reasons: First, when the deceased was allegedly delivered to CO Cabardo, he was already hand-tied at his back, that the place of the shooting was "covered by thick bushes and beside the river", and that CO Cabardo was with ten men excluding the accused; under these circumstances, it is hard to believe that the deceased, with all those overwhelming handicap, would attempt to flee. Second, if the deceased truly tried to flee, the logical thing he would do would be to flee away from and not towards Cabardo; in doing the former he would turn to his right or to his left or towards his back; if he fled to his left or right, or towards his back, he would be exposing one side of his body, or his back, and when fired upon in that position he would have been hit on one side of the body or at his back. The evidence as testified to by Dr. Llanos however, shows that the deceased had only one

wound a gunshot wound, in the abdomen; this shows he was fired upon frontally, the bullet going through and through the intestines and lodged, presumably in the bony portions of his back, that is why the slug (Exhibit "B") was recovered. The accused's version, therefore, that the deceased tried to flee is hard to believe for being against the physical facts. Now, if the accused is innocent, why should he relate such an incredible version? Oh what a tangled web they weave when first day practice to deceive. Sir Walter Scott With these observations, the Court cannot believe that the accused really delivered the deceased to CO Cabardo and that it was Cabardo who shot him. As testified to by him, their mountain camp was raided by the PC two days after the incident, as a result of which raid Cabardo and two of their companions were killed. The accused himself was able to escape, went to hide in a relative's farm in faraway Magpet, North Cotabato, did farming there until one day in May, 1975, repentant that, as a KM member, he had "committed something", he finally surrendered to the PC Barracks in Davao City. Cabardo, may he rest in peace, having gone to the other world, and can no longer speak in his behalf, it is not unlikely that the accused conceived of this outlandish defense by pointing to CO Cabardo, to free himself from responsibility. Most important to remember on this point is that at the time the deceased grade his "dying" statement, Cabardo was still alive; that per the accused himself, he had no previous differences with the deceased or with the barrio captain; and that from the prosecution witness Bo. Capt. Buat when he took the statement of the deceased, the deceased was feeling strong, surely, under such circumstances it is hard to believe that the deceased would name the accused with whom he had no quarrel and Nerosa as his killers if that was really not the truth. Accused is guilty beyond reasonable doubt of the crime of murder qualified by treachery. The victim was apparently shot while his two hands were tied at his back. Accused, in shooting the victim, obviously employed means or force in the execution of the offense which tended directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. WHEREFORE, with the modification that the indemnity to be paid to the heirs of the deceased is increased to P30,000.00, the judgment appealed from should be, as it is hereby, AFFIRMED. With costs against the appellant. SO ORDERED. Makasiar (Chairman), Aquino, Abad Santos, Escolin and Cuevas, JJ., concur.

8. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 115690 February 20, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REY SALISON, JR.,* TIRSO ANDIENTE, RUFINO DIGNARAN and LEONILO FEDILES, accused. REY SALISON, JR., accused-appellant. DECISION REGALADO, J.: Accused-appellant Rey Salison, Jr., alias "Loloy," appeals from a judgment in Criminal Case No. 21805-91 of the Regional Trial Court of Davao City, Branch 16, which imposed upon him the penalty of relusion perpetua for the murder of one Rolando Valmoria. The information filed against appellant and the co-accused Tirso Andiente, alias "Sano"; Rufino Dignaran, alias "Jongjong"; and Leonilo Fediles, alias "Ondoy," alleges: That on November 30, 1990 in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, confederating and mutually helping one another, with abuse of superior strength and with intent to kill, willfully, unlawfully and feloniously mauled and pummeled with hard wood one Rolando Valmoria. Serious and fatal injuries were inflicted which subsequently caused the death of Rolando Valmoria on December 4, 1990.1 Upon arraignment, appellant Rey Salison, Jr., assisted by counsel de officio, entered a plea of "not guilty."2 Trial then proceeded only against him, because his three other co-accused were and, still are, at large. On November 26, 1993, the trial court rendered a decision with the following decretal portion: WHEREFORE, finding the accused Rey Salison guilty beyond reasonable doubt of the crime of MURDER punishable under Article 248 of the Revised Penal Code, with no modifying circumstance present, the Court has no other alternative but to impose the proper penalty of "reclusion perpetua", the same being the medium period within the range of the penalty imposable and to pay the cost(s); to indemnify the offended party (in) the amount of P50,000.00 as compensatory damages and P7,270.70 as actual damages. 3 (Corrections in parentheses ours.) In the present appeal, herein appellant contends that the trial court erred (1) in finding that there was proof beyond reasonable doubt that the accused conspired with his co-accused in killing the victim, (2) in not holding that accused is only responsible for the injuries that he actually inflicted on the victim, and (3) in admitting in evidence the alleged "dying declaration" of the victim, as well as the "agreement" between the parents of the accused and the victim.4

During the trial, the prosecution presented seven witnesses, a picture of the pieces of wood5 used by the accused in killing the victim, receipts of expenses incurred in the hospital for the treatment of said victim,6 a written declaration of the victim after the incident,7 and a written agreement between the parents of appellant and the victim.8 The evidence of record reveals that at around 8:00 o'clock in the evening of November 30, 1990, witness Maria Magdalena Ayola saw appellant Salison approach the victim, Rolando Valmoria, who was then watching television in a store at Cory Village, Agdao, Davao City. Salison placed his arm around Valmoria's shoulder and brought him behind a neighbor's house where there was a mango tree. There, appellant Salison boxed Valmoria in the abdomen.9 During the fistfight between Salison and Valmoria, the three other accused Andiente, Dignaran and Fediles suddenly appeared and joined the fight and simultaneously attacked Valmoria. It was then when witness Emilia Fernandez approached them that the three co-accused disappeared, leaving Salison and Valmoria behind. Fernandez was able to separate Salison from Valmoria. However, the three co-accused returned and started to maul Valmoria again, with Salison rejoining the three in assaulting the victim. 10 When Valmoria fought back, accused Salison, Fediles and Andiente picked up pieces of wood and started to hit Valmoria at the back on his nape, and on the rear part of his head, Valmoria fell to the ground and, upon finding a chance to do so, he stood up and ran towards his house which was a few meters away. The assailants followed Valmoria but failed to further hit the victim because Valmoria was able to hide inside his house. All of the accused shouted for Valmoria to come out but the latter refused, causing his four assailants to hit the walls and windows of the Valmoria residence. During this time, the victim remained seated inside the house. Shortly thereafter, Valmoria started to complain of dizziness and pain in his head which was bleeding at that time. 11 Consequently, at the request of Valmoria, his parents accompanied him to the house of witness Patricia Alcoseba, the purok leader. The victim asked Alcoseba to write down his declaration regarding the incident explaining that if he should die and no witness would testify, his written declaration could be utilized as evidence. At the trial of the case, Alcoseba presented the written and signed declaration of Valmoria and she affirmed what was written in the declaration, testifying as follows: PROSECUTOR DAYANGHIRANG III: Q A Q A Mrs. Alcose(b)a, on November 30, 1990, where were you? I was in our house. Where? At Gory Village. xxx Q xxx xxx

After you heard that there was trouble in Cory Village, what happened next, if any?

A I noticed that the mother and father of Rolando Valmoria helped Rolando Valmoria in walking towards my house.

When they arrived (at) your house, what happened next?

A When they arrived (at) the house, the father requested that his son be allowed to sit on our chair. Q And what happened next after that?

A At that time Rolando Valmoria was sitting on the chair and he was so weak and his neck and head slumped on the chair and the Valmorias requested me that he has something to say and requested it to be written and he stuttered in talking. Q A Q What did you do after the victim requested you? I obeyed. I obeyed the request and I got a ballpen and paper. Then what happened next?

A He related to me as to who started the trouble as to who struck him first, the second and the third. Q Now Mrs. Alcose(b)a, while the victim was narrating to you, what did you observe about his condition? A I observed that he was so weak and he was in pain and I believed at that time he was dying. Q A Q A Q Did the victim utter the words to that effect that he was dying? Yes, sir. He told me by saying "I believe that I will die". What else? Because he said that he felt a terrible pain on his head. Did he tell you the reason why he requested you to make a declaration in writing?

A He told me that if anybody will testify regarding my death this declaration of mine could be utilized as evidence. xxx xxx xxx

Q Showing to you this statement, what a relation is this one (sic) to the one you said which is the statement of the victim? A Yes, this is the one. xxx xxx xxx

Q There is a printed name . . . a signature over the printed name Rolando Valmoria, "ang guibunalan/pasyente'', whose signature is this? A That is the signature of Rolando Valmoria.

COURT: Q A Q A When the victim signed that document, was he sitting? Yes, sir. After the victim signed that document what happened next? They left and they went to the detachment. xxx Q A Q A Q xxx xxx

What happened to this piece of paper after the victim signed this? I gave it to the mother. So you did not keep that piece of paper? No, sir. I gave it to them so they will be able to use it. Before they left your house you gave that piece of paper to the mother?

A At that time I did not give that declaration first to the mother because they were attending to their son. Q A When did you give that document to the mother? When Rolando Valmoria died. xxx xxx xxx

Q At the time you were taking this statement, from the victim did he tell you the persons who were responsible for his injuries? A Q Yes, sir. Who?

A Rufino Dignaran, Jr. alias Jongjong and the second is Loloy Salison and the third one is name(d) Tirso and the fourth, I cannot remember the name of the fourth person who hit the victim . . . yes, now I remember, it's Leonilo Fideles. Q A You wrote that statement (o)n a piece of paper? Yes, sir. 12 (Corrections and emphasis supplied.)

After making that declaration in the house of witness Alcoseba, Valmoria and his parents proceeded to the hospital where he was X-rayed and treated for his head injuries. Subsequently, the victim was allowed to go home. However, at 4:00 o'clock the following morning, he started to convulse and was rushed to the hospital. After three days there, Valmoria died. 13

The prosecution likewise presented Dr. Edmundo Visitacion, Jr. who had conducted the necropsy which established the cause of death of Valmoria indicated in the post mortem certificate. He explained that the head injury sustained by the victim caused by a blunt external trauma probably made by a solid object and this trauma caused the subdular hemorrhage. 14 On December 12, 1990, the parents of the victim and those of the accused Salison and Dignaran entered into a written agreement for the refund of hospital expenses of Valmoria. However, no reinbursement was actually made. On the other hand, the lone defense witness was appellant Salison himself who merely denied having killed the victim. He testified that on that day, together with his friends Andiente, Dignaran, Fideles and a certain Andy, he was visiting his girlfriend, a certain Neneng Edpalina, when he heard Valmoria and Andiente shouting at each other. He tried to pacify the two but the victim told him not to interfere because he had nothing to do with them. Then he saw Valmoria, Andiente, Dignaran, Fideles and a certain Andy engaged in a fistfight. He was trying to stop the group from fighting when witness Fernandez came and told him not to interfere. He then left and while he was on his way home, he heard somebody shout "agay," so he went back and saw Andiente holding a piece of wood while Valmoria was running towards his house. He had just grabbed the piece of wood from Andiente when two CAFGU's arrived and arrested him, Andiente, Dignaran and Fideles. All of them were subsequently released after the investigation. 15 The errors imputed to the trial court may be consolidated and narrowed down to the question of credibility of the prosecution witnesses, the existence of conspiracy in the commission of the crime, and the evidentiary weight of the dying declaration, as well as of the written agreement of the parents of the victim and the accused. In the instant case, the lower court held that: The testimony of the prosecution's witnesses were clear, strong and convincing to deserve full faith and credence. As against the pure denial of the accused of his direct participation as a conspirator, the positive, clear and straightforward declaration of the prosecution's witnesses, must prevail. No motive or reason has been shown, why they would falsely impute to the accused the commission of such a grave crime. The accused Rey Salison has no quarrel or bickering with the prosecution's witnesses. In fact, two of the prosecution's witnesses are friends of the mother of Rey Salison. These prosecution's witnesses declared that they saw (that) the accused Rey Salison together with the other accused participated in boxing and mauling Rolando Valmoria with pieces of wood. 16 We agree with the findings of the trial court giving full faith and credit to the witnesses for the People. The uncorroborated testimony of appellant can not prevail over the positive declaration of the prosecution's witnesses. In fact, there were three eyewitnesses, with no ill motives whatsoever, who testified against appellant and confirmed Salison's direct participation in the commission of the crime. The defense did not present any evidence to support the denials of appellant. The putative girlfriend of Salison, who was allegedly with him on that day, was not presented to confirm that fact and thereby prove that he did not participate in the fight between his co-accused Andiente and the victim. His testimony pinpointing Andiente as the killer was only a convenient way to avoid liability since Andiente remained at large and could not refute Salison's testimony imputing the crime to him.

Moreover, denial is a self-serving negative evidence that can not be given greater weight than the declaration of credible witnesses who testified on affirmative matters. 17 Definitely, therefore, the case of the Government has outweighed and overwhelmed the evidential ramparts of the defense. Appellant's assertion that conspiracy has not been established is belied by the eyewitness accounts submitted by the prosecution. The manner by which the killing was executed clearly indicated a confederacy of purpose and concerted action on the part of the accused. Prosecution witness Magdalena Ayola, who saw the entire incident, testified on this point, thus: Q During that time were they alone? The two of them?

COURT: A When Salison brought Valmoria under the mango tree, they were only 2 but later, alias Sano, Fideles and alias Ondoy and alias Jong-jong boxed Valmoria. xxx PROSECUTOR MANDALUPE: Q In other words aside from accused Salison alias Loloy who first boxed Rolando Valmoria, other three persons joined Salison and also boxed Rolando Valmoria? A Yes, sir. xxx COURT: Q A Q A Q A Did you see the 3 come from the bushes? Yes, sir. Where were you during the time when these three appeared from the bushes? I was nearby because we were watching them. Were you alone watching them or you had a companion? I had some neighbors with me. xxx PROSECUTOR MANDALUPE: Q After alias Sano, alias Jong-jong and alias Ondoy joined Salison in boxing Rolando Valmoria, what else did he do against the person of Rolando Valmoria? A Valmoria fought back and there was exchange of fist(icuffs) and Loloy Salison, alias Ondoy and alias Sano picked up some wooden pieces of wood (sic). xxx xxx xxx xxx xxx xxx

Q After these three persons you mentioned picked up wood, what did they do after picking up the wood? A They struck Valmoria with the piece of wood. xxx xxx xxx

Q You said that you saw these 4 persons struck Rolando Valmoria many times while still under the mango tree. Can you tell the Honorable Court what part of the body of Rolando Valmoria was hit by the striking of wood by the 4 accused, if you can recall? A He was hit at his back and at the back of his head. 18 xxx xxx xxx

From the aforesaid testimony, these simultaneous attacks on the victim proved the common intent of the accused to inflict fatal blows upon the victim. Direct proof is not essential to prove conspiracy. 19 A conspiracy may be inferred without need of showing that the parties actually came together and agreed in express terms to enter into and pursue a common design. 20 For collective responsibility among the accused to be established, it is sufficient that at the time of the aggression all of them acted in concert each doing his part to fulfill their common purpose to kill the victim. 21 Even if there is no direct evidence showing that all of the accused had a prior agreement on how to kill Valmoria, the doctrine is well settled that conspiracy need not be proved by direct evidence of prior agreement to commit the crime, Very seldom would such prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing.22 It is equally a well-accepted corollary rule that where a conspiracy has been established, evidence as to who among the accused rendered the fatal blow is not necessary. All the conspirators are liable as co-principals regardless of the intent and the character of their participation, because the act of one is the act of all. 23 What further strengthens the case of the prosecution was the declaration of Valmoria, made and signed by him right after the incident, as to who were responsible for the injuries he sustained. Appellant, however, maintains that said written statement, which was reduced into writing by witness Patricia Alcoseba and purporting to be a dying declaration, is inadmissible as evidence since it was in the Cebuano regional language and was not accompanied with a translation in English or Pilipino. However, as correctly observed by the Solicitor General: The records do not disclose that the defense offered any objection to the admission of the declaration. Thus, the defense waived whatever infirmity the document had at the time of its submission as evidence. The declaration can be translated into English or Pilipino as it is already admitted in evidence and forms part of the record. 24 Also, while such statement was given, as in the nature of things they are generally in oral form, they are not thereby rendered inadmissible as they may even be communicated by means of signs. If the declarations have thereafter been reduced to writing and signed by the declarant, the writing is generally held to be the best evidence, and it must be produced. 25

More than once, this Court has taken into consideration documents written in a Philippine dialect, unaccompanied by the required translation but which had been admitted in evidence without objection by the accused.26 In those instances, the Court merely ordered official translations to be made. It is true that Section 33, Rule 132 of the revised Rules of Court now prohibits the admission of such document in an unofficial language but we believe that in the interest of justice, such injunction should not be taken literally here, especially since no objection thereto was interposed by appellant, aside from the fact that appellant, the concerned parties and the judicial authorities or personnel concerned appeared to be familiar with or knowledgeable of Cebuano in which the document was written. There was, therefore, no prejudice caused to appellant and no reversible error was committed by that lapse of the trial court. Also, the written declaration was duly presented during the trial and the person who reduced the victim's declaration into writing was thoroughly questioned by the court and the prosecutor, and cross-examined by the defense counsel. The witness was able to explain and discuss what was written in the declaration and how she came to prepare the same. Significantly, everything written in that declaration of the victim was confirmed by the Government's eyewitnesses. Appellant's argument regarding the inadmissibility of the declaration on a mere technicality would mean the loss of a vital piece of evidence that could yield the true facts and give retributive justice in the murder of Valmoria. Appellant likewise argues that the declaration made by the victim before the purok leader can not be considered as a dying declaration because it was not made by the deceased "under the consciousness of an impending death." As earlier narrated, at the time the deceased made the declaration he was in great pain. He expressed a belief on his imminent death and the hope that his declaration could be used as evidence regarding the circumstances thereof. A person would not say so if he believes he would recover and be able to testify against his assailants. At all events, assuming that declaration is not admissible as a dying declaration, it is still admissible as part of the res gestae, 27 since it was made shortly after the startling incident and, under the circumstances, the victim had no opportunity to contrive. We are in conformity with the verdict of the lower court finding appellant guilty of murder since the killing was qualified by the circumstance of the accused having taken advantage of their superior strength. The victim was unarmed and defenseless at the time when all of the accused mercilessly bludgeoned his back and head with big pieces of wood. The number of assailants and the nature of the weapons used against the hapless victim show a notorious inequality of force between the latter and the aggressors, assuring a superiority of strength advantageous to Salison and his co-accused in the commission of the crime. The accused purposely used excessive force out of proportion to the means of defense available to the person attacked. 28 Since no aggravating or mitigating circumstance was present in the case at bar, the trial court correctly imposed the penalty of reclusion perpetua, the same being the medium period in the range of the imposable penalty. PREMISES CONSIDERED, the assailed judgment of the court a quo is hereby AFFIRMED in toto, with costs against accused-appellant Rey Salison, Jr. SO ORDERED. Romero, Puno and Mendoza, JJ., concur.

9. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 163217 April 18, 2006

CELESTINO MARTURILLAS, Petitioner vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PANGANIBAN, CJ: Well-rooted is the principle that factual findings of trial courts, especially when affirmed by the appellate court, are generally binding on the Supreme Court. In convicting the accused in the present case, the Court not merely relied on this doctrine, but also meticulously reviewed the evidence on record. It has come to the inevitable conclusion that petitioner is indeed guilty beyond reasonable doubt of the crime charged. The Case Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to set aside the November 28, 2003 Decision2 and the March 10, 2004 Resolution3 of the Court of Appeals (CA) in CAGR CR No. 25401. The CA affirmed, with modifications as to the award of damages, the Decision4 of Branch 10 of the Regional Trial Court (RTC) of Davao City. The RTC had found Celestino Marturillas guilty of homicide in Criminal Case No. 42091-98. The assailed CA Decision disposed as follows: "WHEREFORE, subject to the modification thus indicated, the judgment appealed from must be, as it hereby is, AFFIRMED. With the costs of this instance to be assessed against the accused-appellant."5 The challenged CA Resolution denied petitioners Motion for Reconsideration.6 Petitioner was charged with homicide in an Information7 dated November 5, 1998, worded as follows: "[T]hat on or about November 4 1998, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a gun, and with intent to kill, wilfully, unlawfully and feloniously shot one Artemio Pantinople, thereby inflicting fatal wound upon the latter which caused his death."8 The Facts Version of the Prosecution The Office of the Solicitor General (OSG) summarized the Peoples version of the facts: "4. The prosecution presented Lito Santos, Ernita Pantinople, PO2 Mariano Operario, Alicia Pantinople and Dr. Danilo Ledesma as its witnesses from whose testimonies, the following facts were established.

"Lito Santos, a forty-three-year old farmer and resident of Barangay Gatungan, Bunawan District, Davao City, testified that about 6:00 oclock in the afternoon of November 4, 1998, he saw his neighbor and kumpare Artemio Pantinople arrive on board a jeepney from Bunawan, Davao City. Artemio was carrying a truck battery, some corn bran and rice. They talked for a while concerning their livelihood afterwhich, Artemio proceeded to connect the battery to the fluorescent lamps in his store. Artemios store was located about five (5) meters away from Litos house. "After installing the battery to the fluorescent lamps, Artemio sat for a while on a bench located in front of his store. Then, Cecilia Santos, Litos wife, called him and Artemio for supper. Artemio obliged. Lito, opting to eat later, served Artemio and Cecilia the food. After eating, Artemio returned to the bench and sat on it again together with his tree (3) children, namely: Janice, Saysay and Pitpit. "Lito was eating supper in their kitchen when he heard a gunshot. From a distance of about ten (10) meters, he also noticed smoke and fire coming from the muzzle of a big gun. Moments later, he saw Artemio clasping his chest and staggering backwards to the direction of his (Litos) kitchen. Artemio shouted to him, Tabangi ko Pre, gipusil ko ni kapitan, meaning Help me, Pre, I was shot by the captain. However, Lito did not approach Artemio right after the shooting incident because Cecilia warned him that he might also be shot. "Lito did not see the person who shot Artemio because his attention was then focused on Artemio. "Shortly, Lito saw Ernita Pantinople, the wife of Artemio, coming from her house towards the direction where Artemio was sprawled on the ground. Ernita was hysterical, jumping and shouting, Kapitan, bakit mo binaril and aking asawa. She also repeatedly cried for help. "Lito then went out of their house and approached Artemio who was lying dead near a banana trunk more than five (5) meters from his house. Some of their neighbors, namely: Antenero, Loloy Libre and Lapis answered Ernitas call for help and approached them. "When the shooting incident happened about 7:30 in the evening of November 4, 1998, Litos house was illumined by a lamp. Their kitchen has no walls. It is an open-type kitchen giving him an unobstructed view of Artemio who was about five (5) meters away from where he was positioned at that time. Although there was a gemilina tree growing in the space in between his house and the store of Artemio, the same did not block his view of Artemio. Likewise, the coconut trees and young banana plants growing at the scene of the crime did not affect his view. "At the same instance, Ernita was also in their kitchen preparing milk for her baby. Her baby was then lying on the floor of their kitchen. When she was about to put the bottle into the babys mouth, she suddenly heard the sound of a gunburst followed by a shout, Help me Pre, I was shot by the captain. She immediately pushed open the window of their kitchen and saw appellant wearing a black jacket and camouflage pants running towards the direction of the back portion of Litos house. From there, appellant crossed the street and disappeared. "Ernita saw appellant carrying with him a long firearm which looked like an M-14 rifle. Ernita also sensed that appellant had some companions with him because she heard the crackling sound of the dried leaves around the place. Ernita had a clear view of appellant at that time because their place was well-illumined by the full moon that night and by the two (2) fluorescent lamps in their store which were switched on at the time of the incident. "Ernita immediately went out of their house and ran towards Artemio. Artemio tried to speak to her but he could not do so because his mouth was full of blood. Upon seeing the pitiful sight of her husband, Ernita shouted several times, Kapitan, ngano nimo gipatay and akong bana. She also repeatedly called her neighbors for help but only Lito Santos, Eufemio Antenero, Norman Libre and

some residents of Poblacion Gatungan responded to her calls and approached them. She noted that no member of the CFO and CAFGU came to help them. Also, no barangay tanod came to offer them to help. "While waiting for the police, Ernita did not allow Artemios body to be touched by anybody. After more than two (2) hours, the police arrived, together with a photographer by the name of Fe Mendez of Bunawan District, Davao City who took pictures of the crime scene. "PO2 Mariano Operario, Investigation Officer of the Investigation Section of the Bunawan Police Station, Philippine National Police, Davao City, testified that about 9:05 in the evening of November 4, 1998, he received a report of an alleged shooting incident at Barangay Gatungan, Bunawan District in Davao City. Together with SPO1 Rodel C. Estrellan and a member of the mobile police patrol on board their mobile car, PO2 Operario proceeded immediately to the crime scene. They reached the crime scene about 10:00 oclock in the evening of the same date. They found the lifeless body of Artemio sprawled on the ground. Ernita and Lito then approached PO2 Operario and informed him that appellant was the one responsible for the shooting. "PO2 Operario stayed at the crime scene for about one (1) hour and waited for the funeral vehicle to pick up the body of Artemio. When the funeral hearse arrived, PO2 Operario told the crew to load Artemios body into the vehicle. Thereafter, he then boarded again their mobile car together with Lito Santos. "Armed with the information that appellant was the one responsible for the shooting of Artemio, PO2 Operario proceeded to the house of appellant and informed him that he was a suspect in the killing of Artemio. He then invited appellant to go with him to the police station and also to bring along with him his M-14 rifle. Appellant did not say anything. He just got his M-14 rifle and went with the police to the police station where he was detained the whole night of November 4, 1998. Appellant did not also give any statement to anybody about the incident. The following day, appellant was transferred by the police to Tibungco Police Station where he was detained. "Alicia Pantinople, the 44-year old sister of Artemio, testified that on the night of November 4, 1998, she was at home watching television. She heard a gunshot but did not mind it because she was already used to hearing the sound of guns fired indiscriminately in their place. "After a few minutes, Junjun, a child and resident of Sitio Centro, Barangay Gatungan, Bunawan District, Davao City came knocking at their door. Junjun informed them that: Yoyo, Uncle Titing was shot, referring to Artemio. "Upon hearing the report, Alicia looked for some money thinking that it might be needed for Artemios hospitalization because she expected Artemio to be still alive. Artemios two (2) children, namely: Jonel and Genesis who were staying with her hurriedly left. She then ran to the place where her brother was shot and found Artemios dead body on the ground surrounded by his four (4) children. "At the Bunawan Police Station, Alicia was informed by the police that appellant was at Tibungco Police Station. She sent her male cousin to proceed to Tibungco Police Station to find out if appellant was indeed in the said place. However, her cousin immediately returned and informed her that appellant was not in Tibungco Police Station. She then went around the Bunawan Police Station and noticed a locked door. When she peeped through the hole of the said door, she saw appellant reclining on a bench about two and a half (2 ) meters away from the door. Appellants left leg was on top of the bench while his right leg was on the ground. Appellant was wearing a brown shirt, black jacket and a pair of camouflage pants. He was also wearing brown shoes but he had no socks on his feet.

"At the police station, Alicia confronted appellant: Nong Listing I know that you can recognize my voice. It is me. Why did you kill my brother? What has he done wrong to you? "Appellant did not answer her. Nevertheless, she was sure that appellant was awake because he was tapping the floor with his right foot. "Dr. Danilo Ledesma, a medico-legal officer of the Davao City Health Department, conducted an autopsy on Artemios cadaver about 9:30 in the morning of November 5, 1998 at the Rivera Funeral Homes located at Licanan, Lasang. His findings are summarized in his Necropsy Report No. 76: POSTMORTEM FINDINGS Pallor, marked generalized. Body in rigor mortis. Wound, gunshot, ENTRANCE, 0.9 x 0.8 cm. Ovaloid located at the anterior chestwall, rightside, 1.0 cm; from the anterior median line, at the level of the third (3rd) intercoastal space and 131.0 cms. above the right heel, directed backwards, upwards, medially crossing the midline from the right to left, involving the soft tissues, perforating the body of the sternum, into the pericardial cavity, perforating the heart into the left thoracic cavity, perforating the heart into the left thoracic cavity, perforating the upper lobe of the left lung, forming an irregular EXIT, 1.5 x 1.1 cms. at the posterior chest wall left side, 13.0 cms. from the posterior median line and 139.0 cms. above the left heel. Hemopericadium, 300 ml. Hemothorax, left, 1,000 ml. Stomach, filled with partially digested food particles. Other visceral organs, pale. CAUSE OF DEATH: Gunshot wound of the chest. Signed by: DANILO P. LEDESMA Medico-Legal Officer IV "During the trial, Dr. Ledesma explained that Artemio died of a gunshot wound, 0.9 x 0.8 centimeters in size located about one (1) inch away from the centerline of Artemios Adams apple down to his navel and about 1:00 oclock from his right nipple. "The trajectory of the bullet passing through Artemios body indicates that his assailant was in a lower position than Artemio when the gun was fired. Dr. Ledesma also found the wound of Artemio negative of powder burns indicating that the assailant was at a distance of more than twenty-four (24) inches when he fired his gun at Artemio. He did not also find any bullet slug inside the body of Artemio indicating that the bullet went through Artemios body. Artemios heart and lungs were lacerated and his stomach contained partially digested food particles indicating that he had just eaten his meal when he was shot. "In the certificate of death of Artemio, Dr. Ledesma indicated that the cause of his death was a gunshot wound on the chest.

"5. After the defense presented its evidence, the case was submitted for decision."9 Version of the Defense On the other hand, petitioner presented the following statement of facts: "9. This is a criminal case for Homicide originally lodged before the Regional Trial Court, Branch 10 of Davao City against herein Petitioner Celestino Marturillas, former Barangay Captain of Gatungan, Bunawan District[,] Davao City and docketed as Criminal Case No. 42,091-98. The criminal charge against Petitioner was the result of a shooting incident in Barangay Gatungan, Bunawan District, Davao City which resulted in the slaying of Artemio Pantinople while the latter was on his way home in the evening of November 4, 1998. "10. On that same evening at around 8:30 p.m. herein Petitioner former Barangay Captain Celestino Marturillas was roused from his sleep at his house in Barangay Gatungan, Bunawan District, Davao City by his wife since Kagawads Jimmy Balugo and Norman Libre (Barangay Kagawads of Gatungan, Bunawan District, Davao City) wanted to see him. Dazed after just having risen from bed, Petitioner was rubbing his eyes when he met the two Kagawads inside his house. He was informed that a resident of his barangay, Artemio Pantinople, had just been shot. Petitioner at once ordered his Kagawads to assemble the members of the SCAA (Special Civilian Armed [Auxiliary]) so that they could be escorted to the crime scene some 250 meters away. As soon as the SCAAs were contacted, they (Petitioner, Kagawads Libre and Balugo including Wiliam Gabas, Eddie Loyahan and Junior Marturillas - the last three being SCAA members) then proceeded to the crime scene to determine what assistance they could render. "11. While approaching the store owned by the Pantinoples and not very far from where the deceased lay sprawled, Petitioner was met by Ernita Pantinople (wife of the deceased-Artemio Pantinople) who was very mad and belligerent. She immediately accused Petitioner of having shot her husband instead of Lito Santos who was his enemy. Petitioner was taken aback by the instant accusation against him. He explained that he just came from his house where he was roused by his Kagawads from his sleep. Not being able to talk sense with Ernita Pantinople, Petitioner and his companions backed off to avoid a heated confrontation. Petitioner instead decided to go back to his house along with his companions. "12. Upon reaching his house, Petitioner instructed Kagawad Jimmy Balugo to contact the Bunawan Police Station and inform them what transpired. Not knowing the radio frequency of the local police, Kagawad Balugo instead radioed officials of nearby Barangay San Isidro requesting them to contact the Bunawan PNP for police assistance since someone was shot in their locality. "13. Moments later, PO2 Mariano Operario and another police officer arrived at the house of Petitioner and when confronted by the latter, he was informed by PO2 Operario that he was the principal suspect in the slaying of Artemio Pantinople. Upon their invitation, Petitioner immediately went with the said police officers for questioning at the Bunawan Police Station. He also took with him his government-issued M-14 Rifle and one magazine of live M-14 ammunition which Petitioner turned over for safe keeping with the Bunawan PNP. The police blotter showed that Petitioner surrendered his M-14 rifle with live ammunition to SPO1 Estrellan and PO3 Sendrijas of the Bunawan PNP at around 10:45 p.m. of November 4, 1998. "14. When the shooting incident was first recorded in the Daily Record of Events of the Bunawan PNP it was indicated therein that deceased may have been shot by unidentified armed men viz: Entry No. Date Time Incident/Events

2289 110498 2105H SHOOTING INCIDENTOne Dominador Lopez 43 years old, married, farmer and a resident of Puro[k] 5, Barangay Gatungan, Davao City appeared at this Precinct and reported that shortly before this writing, one ARTEMIO PANTINOPLE, former barangay kagawad of Barangay Gatungan was allegedly shot to death by an unidentified armed men at the aforementioned Barangay. x x x. "15. The extract from the police blotter prepared by SPO2 Dario B. Undo dated November 9, 1998 already had a little modification indicating therein that deceased was shot by an unidentified armed man and the following entry was made. 2105H: Shooting Incident: One Dominador Lopez, 43 years old, married, farmer and a resident of Purok 5, Barangay Gatungan Bunawan District, Davao City appeared at this Police Precinct and reported that prior to these writing, one Artemio Pantinople, former Barangay Kagawad of Barangay Gatungan was allegedly shot to death by unidentified armed man at the aforementioned barangay. x x x. "16. On November 5, 1998 at around 7:15 a.m. PO2 Mariano Operario indorsed with the Bunawan PNP an empty shell fired from a carbine rifle which was recovered by the said police officer from the crime scene in the night of the incident. Owing to his pre-occupation in organizing and preparing the affidavits of the Complainant and her witnesses the previous evening, he was only able to indorse the same the following morning. At the same time, P/Chief Insp. Julito M. Diray, Station Commander of the Bunawan PNP made a written request addressed to the District Commander of the PNP Crime Laboratory requesting that a paraffin test be conducted on Petitioner and that a ballistics examination be made on the M-14 rifle which he surrendered to Bunawan PNP. "17. At around 9:30 a.m. of November 5, 1998, Dr. Danilo P. Ledesma, M.D., Medico-Legal Officer for Davao City conducted an autopsy on the cadaver of deceased and made the following PostMortem Findings contained in Necropsy Report No. 76 dated November 6, 1998, viz: Pallor, marked, generalized Body in rigor mortis Wound, gunshot, ENTRANCE, 0.9-0.8 cm. ovaloid located at the anterior chest wall, right side, .0 cm. from the anterior median line, at the level of the third (3rd) intercostal space and 131.0 cms. above the right neck, directed backwards, upwards, medially, crossing the midline from the right to left, involving the soft tissues, perforating the body of the sternum into the pericardial cavity, perforating the heart into the left thoracic cavity, perforating the upper lobe of the left lung forming an irregular EXIT, 1.5x1.1 cms. at the posterior chest wall, left side, 13.0 cms. from the posterior median line and 139.0 cms. above the left neck. Hemopericadium, 300 ml. Hemothorax, left 1,000 ml. Stomach filled with partially digested food particles. Other visceral organs, pale CAUSE OF DEATH: Gunshot wound of the chest.

"18. After the fatal shooting of deceased, Celestino Marturillas was subjected to paraffin testing by the PNP Crime Laboratory in Davao City at 10:30 a.m. November 5, 1998. The next day, November 6, 1998, the PNP Crime Laboratory released Physical Sciences Report No. C-074-98 regarding the paraffin test results which found Petitioner NEGATIVE for gunpowder nitrates based on the following findings of the PNP Crime Laboratory: FINDINGS: Qualitative examination conducted on the above-mentioned specimen gave NEGATIVE result to the test for the presence of gunpowder nitrates. x x x CONCLUSION: Both hands of Celestino Marturillas do not contain gunpowder nitrates[.] "19. After preparing all the affidavits of Ernita Pantinople and her witnesses PO2 Mariano R. Operario Jr., the police officer as[s]igned to investigate the shooting of the deceased, prepared and transmitted, on November 5, 1998, a Complaint to the City Prosecution Office recommending that Petitioner be indicted for Murder, attaching therewith the Sworn Affidavits of Ernita O. Pantinople (Complainant), Lito D. Santos (witness) and the Sworn Joint Affidavit of SPO1 Rodel Estrellan and PO2 Mariano R. Operario Jr. of the PNP. "20. The following is the Affidavit-Complaint of Ernita Pantinople as well as the supporting affidavits of her witnesses all of which are quoted in full hereunder: Ernita Pantinoples Affidavit-Complaint dated November 5, 1998: That last November 4, 1998 at about 7:30 in the evening, I was attending and caring my baby boy at that time to let him sleep and that moment I heard first one gun shot burst after then somebody shouting seeking for help in Visayan words tabangi ko Pre gipusil ko ni Kapitan I estimated a distance to more or less ten (10) meters away from my house; That I immediately peep at the windows, wherein I very saw a person of Brgy. Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan District, Davao City, wearing black jacket and camouflage pants carrying his M-14 rifle running to the direction to the left side portion of the house of Lito Santos who was my neighbor respectively; That I hurriedly go down from my house and proceeded to the victims body, wherein when I came nearer I got surprised for the victim was my beloved husband; That I was always shouting in visayan words kapitan nganong imo mang gipatay and akong bana; That I let my husband body still at that placed until the police officers will arrived and investigate the incident; That I know personally Brgy. Capt. Celestino Marturillas for he is my nearby neighbor at that placed; That I am executing this affidavit to apprise the authorities concern of the truthfulness of the foregoing and my desire to file necessary charges against Celestino Marturillas. Witness-Affidavit of Lito Santos dated November 5, 1998 reads:

I, LITO D. SANTOS, 43 yrs. old, married, farmer, a resident of Purok 5, Brgy. Gatungan, Bunawan District, Davao City after having been duly sworn to in accordance with law do hereby depose and say: That last November 4, 1998 at about 7:30 in the evening I was taking my dinner at the kitchen of my house and after finished eating I stood up then got a glass of water and at that time I heard one gun shot burst estimated to more or less ten (10) meters from my possession then followed somebody shouting seeking for help in Visayan words tabangi ko pre gipusil ko ni Kapitan; That I really saw the victim moving backward to more or less five (5) meters away from where he was shot then and there the victim slumped at the grassy area; That I immediately go out from my house and proceeded to the victims body, wherein, when I came nearer I found and identified the victim one Artemio Pantinople who was my nearby neighbor sprawled on his own blood at the grassy area; That no other person named by the victim other than Brgy. Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan District, Davao City; That I am executing this affidavit to apprised the authorities concern of the true facts and circumstances that surrounds the incident. "21. Based on the Affidavits executed by Ernita Pantinople and Lito Santos, then 2nd Asst. City Prosecutor Raul B. Bendigo issued a Resolution on November 5, 1998 finding sufficient evidence to indict Appellant for the crime of Homicide and not Murder as alleged in Private Complainants Affidavit Complaint. The Information states: Above-mentioned Accused, armed with a gun, and with intent to kill, willfully, unlawfully and feloniously shot one Artemio Pantinople, thereby inflicting fatal wound upon the latter which caused his death. CONTRARY TO LAW. xxxxxxxxx "23. The theory of the Defense was anchored on the testimony of the following individuals: 23.1 Jimmy Balugo, was one of the Barangay Kagawads who went to the house of Petitioner after receiving a radio message from Brgy. Kagawad Glenda Lascua that a shooting incident took place in their barangay. He also testified that together with Kagawad Norberto Libre, he proceeded to the house of Petitioner to inform him of the shooting incident involving a certain Artemio Titing Pantinople. After informing Petitioner about what happened, the latter instructed him and Norberto Libre to gather the SCAAs and to accompany them to the crime scene. He also narrated to the court that Petitioner and their group were not able to render any assistance at the crime scene since the widow and the relatives of deceased were already belligerent. As a result of which, the group of Petitioner including himself, went back to the formers house where he asked Petitioner if it would be alright to contact the police and request for assistance. He claimed that he was able to contact the Bunawan PNP with the help of the Barangay Police of Barangay San Isidro. 23.2) Norberto Libre testified that in the evening of November 4, 1998, he heard a gunburst which resembled a firecracker and after a few minutes Barangay Kagawad Jimmy Balugo went to his house and informed him that their neighbor Titing Pantinople was shot. Kagawad Balugo requested

him to accompany the former to go to the house of then Barangay Captain Celestino Marturillas; that he and Kagawad Balugo proceeded to the house of Petitioner and shouted to awaken the latter; that Barangay Captain Marturillas went out rubbing his eyes awakened from his sleep and was informed of the killing of Artemio Pantinople; that Petitioner immediately instructed them to fetch the SCAA and thereafter their group went to the crime scene. 23.3) Ronito Bedero testified that he was in his house on the night Artemio Pantinop[l]e was shot. The material point raised by this witness in his testimony was the fact that he saw an unidentified armed man flee from the crime scene who later joined two other armed men near a nangka tree not far from where deceased was shot. All three later fled on foot towards the direction of the Purok Center in Barangay Gatungan. This witness noticed that one of the three men was armed with a rifle but could not make out their identities since the area where the three men converged was a very dark place. After the three men disappeared, he saw from the opposite direction Petitioner, Barangay Kagawad Jimmy Balugo and three (3) SCAA members going to the scene of the crime but they did not reach the crime scene. A little later, he saw the group of Petitioner return to where they came from. 23.4) Police C/Insp. Noemi Austero, Forensic Chemist of the PNP Crime Laboratory, testified that she conducted a paraffin test on both hands of Petitioner on November 5, 1999 at around 10:30 a.m. She also testified that Petitioner tested NEGATIVE for gunpowder nitrates indicating that he never fired a weapon at any time between 7:30 p.m. of November 4, 1999 until the next day, November 5, 1999. She also testified that as a matter of procedure at the PNP Crime Laboratory, they do not conduct paraffin testing on a crime suspect seventy two (72) hours after an alleged shooting incident. She also testified that based on her experience she is not aware of any chemical that could extract gunpowder nitrates from the hands of a person who had just fired his weapon. 23.5) Dominador Lapiz testified that he lived on the land of the victim, Artemio Pantinople for ten (10) years. He was one of the first persons who went to the crime scene where he personally saw the body of deceased lying at a very dark portion some distance from the victims house and that those with him at that time even had to light the place with a lamp so that they could clearly see the deceased. He also testified that there were many coconut and other trees and bananas in the crime scene. He also testified that the house of Lito Santos was only about four (4) meters from the crime scene, while the house of victim-Artemio Pantinople was about FIFTY (50) meters away. He testified that there was no lighted fluorescent at the store of deceased at the time of the shooting. He was also the one who informed Kagawad Glenda Lascuna about the shooting of Artemio Pantinople. His testimony also revealed that when the responding policemen arrived, Lito Santos immediately approached the policemen, volunteered himself as a witness and even declared that he would testify that it was Petitioner who shot Artemio Pantinople. On cross-examination, this witness declared that the crime scene was very dark and one cannot see the body of the victim without light. On cross-examination, this witness also testified that Lito Santos approached the service vehicle of the responding policemen and volunteered to be a witness that Petitioner was the assailant of the victim, Artemio Pantinople. This witness further testified that immediately after he went to the crime scene, the widow of the victim and the children were merely shouting and crying and it was only after the policemen arrived that the widow uttered in a loud voice, Kapitan nganong gipatay mo and akong bana? 23.6) Celestino Marturillas, former Barangay Captain of Barangay Gatungan, Bunawan District, Davao City testified that he learned of Pantinoples killing two hours later through information personally relayed to him by Kagawads Jimmy Balugo and Norberto Libre. He intimated to the Court that he did try to extend some assistance to the family of the deceased but was prevented from so doing since the wife of deceased herself and her relatives were already hostile with him when he was about to approach the crime scene. He also testified that he voluntarily went with the police officers

who arrested him at his residence on the same evening after the victim was shot. He also turned over to police custody the M-14 rifle issued to him and voluntarily submitted himself to paraffin testing a few hours after he was taken in for questioning by the Bunawan PNP. Petitioner, during the trial consistently maintained that he is innocent of the charge against him."10 Ruling of the Court of Appeals The CA affirmed the findings of the RTC that the guilt of petitioner had been established beyond reasonable doubt. According to the appellate court, he was positively identified as the one running away from the crime scene immediately after the gunshot. This fact, together with the declaration of the victim himself that he had been shot by the captain, clearly established the latters complicity in the crime. No ill motive could be ascribed by the CA to the prosecution witnesses. Thus, their positive, credible and unequivocal testimonies were accepted as sufficient to establish the guilt of petitioner beyond reasonable doubt. On the other hand, the CA also rejected his defenses of denial and alibi. It held that they were necessarily suspect, especially when established by friends or relatives, and should thus be subjected to the strictest scrutiny. At any rate, his alibi and denial cannot prevail over the positive testimonies of the prosecution witnesses found to be more credible. The appellate court upheld petitioners conviction, as well as the award of damages. In addition, it awarded actual damages representing unearned income. Hence, this Petition.11 The Issues In his Memorandum, petitioner submits the following issues for the Courts consideration: "I The Court of Appeals committed a reversible error when it gave credence to the claim of the solicitor general that the prosecutions witnesses positively identified petitioner as the alleged triggerman "II The Court of Appeals was in serious error when it affirmed the trial courts blunder in literally passing the blame on petitioner for the lapses in the investigation conducted by the police thereby shifting on him the burden of proving his innocence "III The Court of Appeals committed a serious and palpable error when it failed to consider that the deceased was cut off by death before he could convey a complete or sensible communication to whoever heard such declaration assuming there was any "IV

Petit[i]oners alibi assumed significance considering that evidence and testimonies of the prosecutions witnesses arrayed against petitioner failed to prove that he was responsible for the commission of the crime."12 In sum, petitioner raises two main issues: 1) whether the prosecutions evidence is credible; and 2) whether it is sufficient to convict him of homicide. Under the first main issue, he questions the positive identification made by the prosecution witnesses; the alleged inconsistencies between their Affidavits and court testimonies; and the plausibility of the allegation that the victim had uttered, "Tabangi ko pre, gipusil ko ni kapitan" ("Help me pre, I was shot by the captain"), which was considered by the two lower courts either as his dying declaration or as part of res gestae. Under the second main issue, petitioner contends that the burden of proof was erroneously shifted to him; that there should have been no finding of guilt because of the negative results of the paraffin test; and that the prosecution miserably failed to establish the type of gun used in the commission of the crime. The Courts Ruling The Petition is unmeritorious. First Main Issue: Credibility of the Prosecution Evidence According to petitioner, the charge of homicide should be dismissed, because the inherent weakness of the prosecutions case against him was revealed by the evidence presented. He submits that any doubt as to who really perpetrated the crime should be resolved in his favor. We do not agree. This Court has judiciously reviewed the findings and records of this case and finds no reversible error in the CAs ruling affirming petitioners conviction for homicide. Basic is the rule that this Court accords great weight and a high degree of respect to factual findings of the trial court, especially when affirmed by the CA, as in the present case.13 Here, the RTC was unequivocally upheld by the CA, which was clothed with the power to review whether the trial courts conclusions were in accord with the facts and the relevant laws.14 Indeed, the findings of the trial court are not to be disturbed on appeal, unless it has overlooked or misinterpreted some facts or circumstances of weight and substance.15 Although there are recognized exceptions16 to the conclusiveness of the findings of fact of the trial and the appellate courts, petitioner has not convinced this Court of the existence of any. Having laid that basic premise, the Court disposes seriatim the arguments proffered by petitioner under the first main issue. Positive Identification Petitioner contends that it was inconceivable for Prosecution Witness Ernita Pantinople -- the victims wife -- to have identified him as the assassin. According to him, her house was "a good fifty (50) meters away from the crime scene,"17 which was "enveloped in pitch darkness."18 Because of the alleged improbability, he insists that her testimony materially contradicted her Affidavit. The Affidavit supposedly proved that she had not recognized her husband from where she was standing during the shooting. If she had failed to identify the victim, petitioner asks, "how was it possible for her to conclude that it was [p]etitioner whom she claims she saw fleeing from the scene?"19

All these doubts raised by petitioner are sufficiently addressed by the clear, direct and convincing testimony of the witness. She positively identified him as the one "running away" immediately after the sound of a gunshot. Certain that she had seen him, she even described what he was wearing, the firearm he was carrying, and the direction towards which he was running. She also clarified that she had heard the statement, "Help me pre, I was shot by the captain," uttered after the shooting incident. Accepting her testimony, the CA ruled thus: "Ernitas testimony that she saw [petitioner] at the crime scene is credible because the spot where Artemio was shot was only 30 meters away from her house. Undoubtedly, Ernita is familiar with [petitioner], who is her neighbor, and a long-time barangay captain of Barangay Gatungan, Bunawan District, Davao City when the incident took place. Ernita was also able to see his face while he was running away from the crime scene. The identification of a person can be established through familiarity with ones physical features. Once a person has gained familiarity with one another, identification becomes quite an easy task even from a considerable distance. Judicial notice can also be taken of the fact that people in rural communities generally know each other both by face and name, and can be expected to know each others distinct and particular features and characteristics."20 This holding confirms the findings of fact of the RTC. Settled is the rule that on questions of the credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect.21 It was the trial court that had the opportunity to observe the manner in which the witnesses had testified; as well as their furtive glances, calmness, sighs, and scant or full realization of their oaths.22 It had the better opportunity to observe them firsthand; and to note their demeanor, conduct and attitude under grueling examination.23 Petitioner doubts whether Ernita could have accurately identified him at the scene of the crime, considering that it was dark at that time; that there were trees obstructing her view; and that her house was fifty (50) meters away from where the crime was committed. These assertions are easily belied by the findings of the courts below, as borne by the records. Ernita testified on the crime scene conditions that had enabled her to make a positive identification of petitioner. Her testimony was even corroborated by other prosecution witnesses, who bolstered the truth and veracity of those declarations. Consequently, the CA ruled as follows: "x x x Ernitas recognition of the assailant was made possible by the lighted two fluorescent lamps in their store and by the full moon. x x x. In corroboration, Lito testified that the place where the shooting occurred was bright. "The trees and plants growing in between Ernitas house and the place where Artemio was shot to death did not impede her view of the assailant. To be sure, the prosecution presented photographs of the scene of the crime and its immediate vicinities. These photographs gave a clear picture of the place where Artemio was shot. Admittedly, there are some trees and plants growing in between the place where the house of Ernita was located and the spot where Artemio was shot. Notably, however, there is only one gemilina tree, some coconut trees and young banana plants growing in the place where Artemio was shot. The trees and banana plants have slender trunks which could not have posed an obstacle to Ernitas view of the crime scene from the kitchen window of her house especially so that she was in an elevated position."24 This Court has consistently held that -- given the proper conditions -- the illumination produced by a kerosene lamp, a flashlight, a wick lamp, moonlight, or starlight is considered sufficient to allow the identification of persons.25 In this case, the full moon and the light coming from two fluorescent lamps of a nearby store were sufficient to illumine the place where petitioner was; and to enable the eyewitness to identify him as the person who was present at the crime scene. Settled is the rule that

when conditions of visibility are favorable and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted.26 But even where the circumstances were less favorable, the familiarity of Ernita with the face of petitioner considerably reduced any error in her identification of him.27 Since the circumstances in this case were reasonably sufficient for the identification of persons, this fact of her familiarity with him erases any doubt that she could have erred in identifying him. Those related to the victim of a crime have a natural tendency to remember the faces of those involved in it. These relatives, more than anybody else, would be concerned with seeking justice for the victim and bringing the malefactor before the law.28 Neither was there any indication that Ernita was impelled by ill motives in positively identifying petitioner. The CA was correct in observing that it would be "unnatural for a relative who is interested in vindicating the crime to accuse somebody else other than the real culprit. For her to do so is to let the guilty go free."29 Where there is nothing to indicate that witnesses were actuated by improper motives on the witness stand, their positive declarations made under solemn oath deserve full faith and credence.30 Inconsistency Between Affidavit and Testimony Petitioner contends that the testimony of Ernita materially contradicted her Affidavit. According to him, she said in her testimony that she had immediately recognized her husband as the victim of the shooting; but in her Affidavit she stated that it was only when she had approached the body that she came to know that he was the victim. We find no inconsistency. Although Ernita stated in her testimony that she had recognized the victim as her husband through his voice, it cannot necessarily be inferred that she did not see him. Although she recognized him as the victim, she was still hoping that it was not really he. Thus, the statement in her Affidavit that she was surprised to see that her husband was the victim of the shooting. To be sure, ex parte affidavits are usually incomplete, as these are frequently prepared by administering officers and cast in their language and understanding of what affiants have said.31 Almost always, the latter would simply sign the documents after being read to them. Basic is the rule that, taken ex parte, affidavits are considered incomplete and often inaccurate. They are products sometimes of partial suggestions and at other times of want of suggestions and inquiries, without the aid of which witnesses may be unable to recall the connected circumstances necessary for accurate recollection.32 Nevertheless, the alleged inconsistency is inconsequential to the ascertainment of the presence of petitioner at the crime scene. Ruled the CA: "x x x. They referred only to that point wherein Ernita x x x ascertained the identity of Artemio as the victim. They did not relate to Ernitas identification of [petitioner] as the person running away from the crime scene immediately after she heard a gunshot."33 Statements Uttered Contemporaneous with the Crime Ernita positively testified that immediately after the shooting, she had heard her husband say, "Help me pre, I was shot by the captain." This statement was corroborated by another witness, Lito Santos, who testified on the events immediately preceding and subsequent to the shooting.

It should be clear that Santos never testified that petitioner was the one who had actually shot the victim. Still, the testimony of this witness is valuable, because it validates the statements made by Ernita. He confirms that after hearing the gunshot, he saw the victim and heard the latter cry out those same words. Petitioner insinuates that it was incredible for Santos to have seen the victim, but not the assailant. The CA dismissed this argument thus: "x x x. The natural reaction of a person who hears a loud or startling command is to turn towards the speaker. Moreover, witnessing a crime is an unusual experience that elicits different reactions from witnesses, for which no clear-cut standard of behavior can be prescribed. Litos reaction is not unnatural. He was more concerned about Artemios condition than the need to ascertain the identity of Artemios assailant."34 It was to be expected that, after seeing the victim stagger and hearing the cry for help, Santos would shift his attention to the person who had uttered the plea quoted earlier. A shift in his focus of attention would sufficiently explain why Santos was not able to see the assailant. Petitioner then accuses this witness of harboring "a deep-seated grudge,"35 which would explain why the latter allegedly fabricated a serious accusation. This contention obviously has no basis. No serious accusation against petitioner was ever made by Santos. What the latter did was merely to recount what he heard the victim utter immediately after the shooting. Santos never pointed to petitioner as the perpetrator of the crime. The statements of the former corroborated those of Ernita and therefore simply added credence to the prosecutions version of the facts. If it were true that he had an ulterior motive, it would have been very easy for him to say that he had seen petitioner shoot the victim. The two witnesses unequivocally declared and corroborated each other on the fact that the plea, "Help me pre, I was shot by the captain," had been uttered by the victim. Nevertheless, petitioner contends that it was highly probable that the deceased died instantly and was consequently unable to shout for help. We do not discount this possibility, which petitioner himself admits to be a probability. In the face of the positive declaration of two witnesses that the words were actually uttered, we need not concern ourselves with speculations, probabilities or possibilities. Said the CA: "x x x. Thus, as between the positive and categorical declarations of the prosecution witnesses and the mere opinion of the medical doctor, the former must necessarily prevail. "Moreover, it must be stressed that the post-mortem examination of the cadaver of Artemio was conducted by Dr. Ledesma only about 9:30 in the morning of November 5, 1998 or the day following the fatal shooting of Artemio. Evidently, several hours had elapsed prior to the examination. Thus, Dr. Ledesma could not have determined Artemios physical condition a few seconds after the man was shot."36 Dying Declaration Having established that the victim indeed uttered those words, the question to be resolved is whether they can be considered as part of the dying declaration of the victim. Rule 130, Section 37 of the Rules of Court, provides:

"The declaration of a dying person, made under the consciousness of impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death." Generally, witnesses can testify only to those facts derived from their own perception. A recognized exception, though, is a report in open court of a dying persons declaration made under the consciousness of an impending death that is the subject of inquiry in the case.37 Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the highest degree of credence and respect.38 Persons aware of an impending death have been known to be genuinely truthful in their words and extremely scrupulous in their accusations.39 The dying declaration is given credence, on the premise that no one who knows of ones impending death will make a careless and false accusation.40 Hence, not infrequently, pronouncements of guilt have been allowed to rest solely on the dying declaration of the deceased victim.41 To be admissible, a dying declaration must 1) refer to the cause and circumstances surrounding the declarants death; 2) be made under the consciousness of an impending death; 3) be made freely and voluntarily without coercion or suggestions of improper influence; 4) be offered in a criminal case, in which the death of the declarant is the subject of inquiry; and 5) have been made by a declarant competent to testify as a witness, had that person been called upon to testify.42 The statement of the deceased certainly concerned the cause and circumstances surrounding his death. He pointed to the person who had shot him. As established by the prosecution, petitioner was the only person referred to as kapitan in their place.43 It was also established that the declarant, at the time he had given the dying declaration, was under a consciousness of his impending death. True, he made no express statement showing that he was conscious of his impending death. The law, however, does not require the declarant to state explicitly a perception of the inevitability of death.44 The perception may be established from surrounding circumstances, such as the nature of the declarants injury and conduct that would justify a conclusion that there was a consciousness of impending death.45 Even if the declarant did not make an explicit statement of that realization, the degree and seriousness of the words and the fact that death occurred shortly afterwards may be considered as sufficient evidence that the declaration was made by the victim with full consciousness of being in a dying condition.46 Also, the statement was made freely and voluntarily, without coercion or suggestion, and was offered as evidence in a criminal case for homicide. In this case, the declarant was the victim who, at the time he uttered the dying declaration, was competent as a witness. As found by the CA, the dying declaration of the victim was complete, as it was "a full expression of all that he intended to say as conveying his meaning. It [was] complete and [was] not merely fragmentary."47 Testified to by his wife and neighbor, his dying declaration was not only admissible in evidence as an exception to the hearsay rule, but was also a weighty and telling piece of evidence. Res Gestae The fact that the victims statement constituted a dying declaration does not preclude it from being admitted as part of the res gestae, if the elements of both are present.48 Section 42 of Rule 130 of the Rules of Court provides:

"Part of the res gestae. -- Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae." Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission.49 These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement.50 An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation.51 A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule, when the following requisites concur: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances.52 All these requisites are present in this case. The principal act, the shooting, was a startling occurrence. Immediately after, while he was still under the exciting influence of the startling occurrence, the victim made the declaration without any prior opportunity to contrive a story implicating petitioner. Also, the declaration concerned the one who shot the victim. Thus, the latters statement was correctly appreciated as part of the res gestae. Aside from the victims statement, which is part of the res gestae, that of Ernita -- "Kapitan, ngano nimo gipatay ang akong bana?" ("Captain, why did you shoot my husband?") -- may be considered to be in the same category. Her statement was about the same startling occurrence; it was uttered spontaneously, right after the shooting, while she had no opportunity to concoct a story against petitioner; and it related to the circumstances of the shooting. Second Main Issue: Sufficiency of Evidence Having established the evidence for the prosecution, we now address the argument of petitioner that the appellate court had effectively shifted the burden of proof to him. He asserts that the prosecution should never rely on the weakness of the defense, but on the strength of its evidence, implying that there was no sufficient evidence to convict him. We disagree. The totality of the evidence presented by the prosecution is sufficient to sustain the conviction of petitioner. The dying declaration made by the victim immediately prior to his death constitutes evidence of the highest order as to the cause of his death and of the identity of the assailant.53 This damning evidence, coupled with the proven facts presented by the prosecution, leads to the logical conclusion that petitioner is guilty of the crime charged. The following circumstances proven by the prosecution produce a conviction beyond reasonable doubt: First. Santos testified that he had heard a gunshot; and seen smoke coming from the muzzle of a gun, as well as the victim staggering backwards while shouting, "Help me pre, I was shot by the captain." This statement was duly established, and the testimony of Santos confirmed the events that had occurred. It should be understandable that "pre" referred to Santos, considering that he and the victim were conversing just before the shooting took place. It was

also established that the two called each other "pre," because Santos was the godfather of the victims child.54 Second. Ernita testified that she had heard a gunshot and her husbands utterance, "Help me pre, I was shot by the captain," then saw petitioner in a black jacket and camouflage pants running away from the crime scene while carrying a firearm. Third. Ernitas statement, "Captain, why did you shoot my husband?" was established as part of the res gestae. Fourth. The version of the events given by petitioner is simply implausible. As the incumbent barangay captain, it should have been his responsibility to go immediately to the crime scene and investigate the shooting. Instead, he avers that when he went to the situs of the crime, the wife of the victim was already shouting and accusing him of being the assailant, so he just left. This reaction was very unlikely of an innocent barangay captain, who would simply want to investigate a crime. Often have we ruled that the first impulse of innocent persons when accused of wrongdoing is to express their innocence at the first opportune time.55 Fifth. The prosecution was able to establish motive on the part of petitioner. The victims wife positively testified that prior to the shooting, her husband was trying to close a real estate transaction which petitioner tried to block. This showed petitioners antagonism towards the victim.56 These pieces of evidence indubitably lead to the conclusion that it was petitioner who shot and killed the victim. This Court has consistently held that, where an eyewitness saw the accused with a gun seconds after the gunshot and the victims fall, the reasonable conclusion is that the accused had killed the victim.57 Further establishing petitioners guilt was the definitive statement of the victim that he had been shot by the barangay captain. Clearly, petitioners guilt was established beyond reasonable doubt. To be sure, conviction in a criminal case does not require a degree of proof that, excluding the possibility of error, produces absolute certainty.58 Only moral certainty is required or that degree of proof that produces conviction in an unprejudiced mind.59 That some pieces of the above-mentioned evidence are circumstantial does not diminish the fact that they are of a nature that would lead the mind intuitively, or by a conscious process of reasoning, toward the conviction of petitioner.60 Circumstantial, vis--vis direct, evidence is not necessarily weaker.61 Moreover, the circumstantial evidence described above satisfies the requirements of the Rules of Court, which we quote: "SEC. 4. Circumstantial evidence, when sufficient. -- Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt."62 Paraffin Test

Petitioner takes issue with the negative results of the paraffin test done on him. While they were negative, that fact alone did not ipso facto prove that he was innocent. Time and time again, this Court has held that a negative paraffin test result is not a conclusive proof that a person has not fired a gun.63 In other words, it is possible to fire a gun and yet be negative for nitrates, as when culprits wear gloves, wash their hands afterwards, or are bathed in perspiration.64 Besides, the prosecution was able to establish the events during the shooting, including the presence of petitioner at the scene of the crime. Hence, all other matters, such as the negative paraffin test result, are of lesser probative value. Corpus Delicti Petitioner then argues that the prosecution miserably failed to establish the type of gun used in the shooting. Suffice it to say that this contention hardly dents the latters case. As correctly found by the appellate court, the prosecution was able to give sufficient proof of the corpus delicti -- the fact that a crime had actually been committed. Ruled this Court in another case: "[Corpus delicti] is the fact of the commission of the crime that may be proved by the testimony of eyewitnesses. In its legal sense, corpus delicti does not necessarily refer to the body of the person murdered, to the firearms in the crime of homicide with the use of unlicensed firearms, to the ransom money in the crime of kidnapping for ransom, or x x x to the seized contraband cigarettes."65 To undermine the case of the prosecution against him, petitioner depends heavily on its failure to present the gun used in the shooting and on the negative paraffin test result. These pieces of evidence alone, according to him, should exculpate him from the crime. His reliance on them is definitely misplaced, however. In a similar case, this Court has ruled as follows: "Petitioner likewise harps on the prosecutions failure to present the records from the Firearms and Explosives Department of the Philippine National Police at Camp Crame of the .45 caliber Remington pistol owned by petitioner for comparison with the specimen found at the crime scene with the hope that it would exculpate him from the trouble he is in. Unfortunately for petitioner, we have previously held that the choice of what evidence to present, or who should testify as a witness is within the discretionary power of the prosecutor and definitely not of the courts to dictate. "Anent the failure of the investigators to conduct a paraffin test on petitioner, this Court has time and again held that such failure is not fatal to the case of the prosecution as scientific experts agree that the paraffin test is extremely unreliable and it is not conclusive as to an accuseds complicity in the crime committed."66 Finally, as regards petitioners alibi, we need not belabor the point. It was easily, and correctly, dismissed by the CA thus: "[Petitioners] alibi is utterly untenable. For alibi to prosper, it must be shown that it was physically impossible for the accused to have been at the scene of the crime at the time of its commission. Here, the locus criminis was only several meters away from [petitioners] home. In any event, this defense cannot be given credence in the face of the credible and positive identification made by Ernita."67 Third Issue: Damages

An appeal in a criminal proceeding throws the whole case open for review.1avvphil.net It then becomes the duty of this Court to correct any error in the appealed judgment, whether or not included in the assignment of error.68 The CA upheld the RTC in the latters award of damages, with the modification that unearned income be added. We uphold the award of P50,000 indemnity ex delicto69 to the heirs of the victim. When death occurs as a result of a crime, the heirs of the deceased are entitled to this amount as indemnity for the death, without need of any evidence or proof of damages.70 As to actual damages, we note that the prosecution was able to establish sufficiently only P22,200 for funeral and burial costs. The rest of the expenses, although presented, were not duly receipted. We cannot simply accept them as credible evidence. This Court has already ruled, though, that when actual damages proven by receipts during the trial amount to less than P25,000, the award of P25,000 for temperate damages is justified, in lieu of the actual damages of a lesser amount.71 In effect, the award granted by the lower court is upheld. As to the award of moral damages, the P500,000 given by the RTC and upheld by the CA should be reduced to P50,000, consistent with prevailing jurisprudence.72 We also affirm the award of loss of earning capacity73 in the amount of P312,000; attorneys fees of P20,000; and payment of the costs. WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution are AFFIRMED, subject to the modification in the award of damages set forth here. Costs against petitioner. SO ORDERED.

10. Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION G.R. No. 152364 April 15, 2010

ALEJANDRA S. LAZARO, assisted by her husband, ISAURO M. LAZARO; LEONCIO D. SANTOS; ADOLFO SANTOS; NENITA S. LACAR; ANGELINA S. SAGLES, assisted by her husband, ALBERTO SANTOS, JR.; REGINA SANTOS and FABIAN SANTOS, Petitioners, vs. MODESTA AGUSTIN, FILEMON AGUSTIN, VENANCIA AGUSTIN, MARCELINA AGUSTIN, PAUL A. DALALO, NOEL A. DALALO, GREGORIO AGUSTIN and BIENVENIDO AGUSTIN, Respondents. DECISION PERALTA, J.: Assailed in the present petition for review on certiorari is the Decision1 dated February 21, 2002 of the Court of Appeals (CA) in CA-G.R. SP No. 63321. The CA had affirmed, with modification, the Decision2 dated February 6, 2001 of the Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case No. 11951-13, which also affirmed, with modification, the Decision3 dated January 6, 2000 of the Municipal Trial Court in Cities (MTCC) of Laoag City, Branch 1, in Civil Case No. 2834. The factual and procedural antecedents of the case are as follows: On November 4, 1998, herein petitioners filed against herein respondents a Complaint4 for partition with the MTCC of Laoag City, alleging as follows: xxxx II That the plaintiffs and the defendants are the descendants of the late Simeon C. Santos, married to Trinidad Duldulao, who died intestate leaving a parcel of land situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag, designated as Lot No. 10675 of the Cadastral Survey of Laoag; III That Simeon C. Santos during his lifetime, married to Trinidad Duldulao, begot four (4) legitimate children, namely: Basilisa D. Santos, Alberto D. Santos, Leoncio D. Santos and Alejandra D. Santos. Basilisa D. Santos, [who] was married to Petronilo Agustin, is now deceased; Alberto Santos, married to Rizalina Guerrero, is now deceased, while Leoncio D. Santos, married to Dictinia Tabeta, and Alejandra D. Santos married to Isauro M. Lazaro, are still living; IV

That in the desire of the children of Simeon C. Santos from whom the parcel of land originated as owner, his children, namely[:] Alberto, Leoncio and Alejandra, all surnamed Santos, consented that the parcel of land mentioned in paragraph II of this complaint be titled in the name of Basilisa, the latter being the eldest and so Original Certificate of Title No. 20742 in the name of Basilisa Santos was obtained although it was agreed among them that it did not and does not necessarily mean that Basilisa Santos is the sole and exclusive owner of this parcel of land, and as embodied in the Title obtained in the name of Basilisa Santos, the parcel of land is particularly described as follows: A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag), with the improvements thereon, situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag. Bounded on the NE. by Lot No. 10677; on the SE. by Panganiban Street; on the SW. by Lot No. 10672; and on NW. by Lot No. 1065, containing an area of three hundred and one (301) square meters, more or less, covered by Tax Declaration No. 010-00224 for the year 1994 in the names of Modesta Agustin, et al. with a market value of P96,320.00 and an assessed value of P14,450.00. V That there is a residential house constructed on the lot described in paragraph IV of this complaint and in the construction of which plaintiff Alejandra Santos, then still single, spent the amount of P68,308.60, while Basilisa Santos and her children spent the amount of P3,495.00. Afterwards, Alejandra Santos got married to Isauro M. Lazaro who was employed in a private company and when he retired from the service, some additional constructions were made on the residential house and lot such as a bedroom, azotea, two (2) toilets, two (2) kitchens, a car garage, the money spent for these additional constructions came from the earnings of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro. The said residential house is now covered by Tax Declaration No. 010-00225 in the names of Basilio Agustin (should be Basilisa Agustin) and Alejandra Santos for the year 1994 with a market value of P93,920.00 and an assessed value of zero; VI That without the knowledge and consent of the plaintiffs, the title of the lot described in paragraph IV of the complaint was transferred into another title which is now Transfer Certificate of Title No. T-20695 in the names of Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Monica Agustin, Gregorio Agustin and Bienvenido Agustin who are the children of the late Basilisa Santos-Agustin who are herein named as defendants with Monica Agustin now deceased represented by her children Paul A. Dalalo and Noel A. Dalalo as defendants; VII That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra Santos-Lazaro informed the former, who are sisters, that the transfer of the title covering the lot described in paragraph IV of this complaint in the name of Basilisa Santos into the names of her children would erroneously imply that the lot is solely and exclusively owned by Basilisa Santos-Agustin's children, but Basilisa Santos-Agustin replied [to] plaintiff Alejandra Santos-Lazaro not to worry because an affidavit was already executed by her recognizing and specifying that her brothers Alberto Santos and Leoncio Santos, and her sister Alejandra Santos-Lazaro would each get one fourth () share of the lot; VIII

That in a move to determine if the children and the heirs of Basilisa Santos-Agustin, namely: Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Paul Dalalo and Noel Dalalo who are the successors of their mother the late Monica Agustin, Gregorio Agustin and Bienvenido Agustin would follow the line of thinking of their mother and grandmother of Paul A. Dalalo and Noel A. Dalalo on the shares of the lot and residential house erected on it, the plaintiffs initiated a partition in the barangay court where the lot is situated described in paragraph IV of this complaint, but that the children of Basilisa Santos-Agustin and her grandchildren Paul A. Dalalo and Noel A. Dalalo refused and opposed the partition claiming that they are the sole and exclusive owners of the lot being that the lot is now titled in their names, and hence there was no settlement as shown by the certification of the barangay court hereto attached as annex "A"; IX That plaintiffs now invoke the intervention of the court to partition the lot in accordance with the law on intestate succession and to partition the residential house as specified below. x x x x x x x5 Petitioners also prayed for the grant of attorney's fees, moral and exemplary damages, and costs of suit. Herein respondents filed their Answer with Counterclaim,6 raising the following as their Special/Affirmative Defenses: 1. The subject parcel of land is owned exclusively by the defendants as heirs of the late Basilisa Santos, wife of Petronilo Agustin, who was the original registered owner of the property evidenced by OCT No. 20742; the plaintiffs never became owners of said land. There was never any agreement between the ascendants of the plaintiffs and defendants, neither is there any agreement between the plaintiffs and defendants themselves that in the ownership, the plaintiffs have a share over the lot; 2. The defendants are the ones paying for the real estate taxes of said land; 3. Some of the plaintiffs were able to stay on the subject house because defendants' mother Basilisa Santos was the eldest sibling and she had to take care of her brother Leoncio and sister Alejandra when these siblings were not yet employed and Basilisa allowed them to reside in the house constructed within the lot; Alejandra Santos stayed in the house up to the present with the agreement that she will spend for the renovation of the house in lieu of monthly rentals that she has to pay when she already became financially able; 4. Prior to 1962, subject property was mortgaged by Basilisa Santos Agustin to the Philippine National Bank and the property was foreclosed by PNB when the loan was not paid, hence, TCT No. (T-9522)-4495, under the name of the Philippine National Bank was issued (Annex "A"). Thereafter, Basilisa Santos-Agustin, purchased it from the PNB and TCT No. T-5662 was issued under her name (Annex "B"); the property was later on transferred to her direct descendants, the defendants herein as evidenced by TCT No. T-20695 (Annex "C"); x x x x7

Respondents then prayed that petitioners' complaint be dismissed. In their Counterclaim, respondents asked the court to direct petitioners to pay reasonable compensation for the latter's use of the disputed property, exemplary and moral damages, attorney's fees, and costs of suit. After the issues were joined and the pre-trial was terminated, trial on the merits ensued. On January 6, 2000, the MTCC rendered its Decision8 dismissing the complaint and denying petitioners' prayer for partition. The MTCC ruled, among others, that no evidentiary value could be given to the affidavit allegedly executed by Basilisa, wherein she purportedly acknowledged her co-ownership of the subject property with her siblings Alberto, Leoncio and Alejandra, because the affiant was not presented on the witness stand, such that all the statements made in her affidavit were hearsay. Moreover, the MTCC held that two credible witnesses testified in plain, simple and straightforward manner that at the time the affidavit was supposed to have been signed and sworn to before the notary public, Basilisa was already bedridden and an invalid who could not even raise her hand to feed herself. In addition, the MTCC also gave credence to the testimony of the notary public, before whom the document was supposedly signed and sworn to, that the said affidavit was already complete and thumbmarked when the same was presented to him by a person who claimed to be Basilisa. Petitioners filed an appeal with the RTC of Laoag City. On February 6, 2001 the RTC issued a Decision9 affirming, with modification, the judgment of the MTCC. The RTC found that the house erected on the disputed lot was built and renovated by petitioners in good faith. As a consequence, the RTC held that petitioners were entitled to indemnity representing the costs of the construction and renovation of the said house. The dispositive portion of the RTC Decision, thus, reads: WHEREFORE, the decision of the lower court is hereby affirmed with the modification directing the appellees [herein respondents] to indemnify the appellants [herein petitioners] in the amount of P68,308.60 as proved by them. Considering the apparent error of the lower court in quoting the questioned lot as Lot No. 10675, the same is hereby corrected so as to reflect the correct lot number as Lot No. 10676 to conform to the evidence presented. SO ORDERED.10 Aggrieved by the RTC Decision, petitioners filed a petition for review with the CA. On February 21, 2002, the CA issued its presently assailed Decision disposing as follows: WHEREFORE, the decision dated February 6, 2001 rendered in Civil Case No. 11951-13 is hereby AFFIRMED subject to the MODIFICATION that appellees [herein respondents] pay the amount of P68,308.60 in indemnity solely to appellant Alejandra Santos-Lazaro. SO ORDERED.11 Hence, the instant petition based on the following grounds:

I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A DECLARATION AGAINST INTEREST WHICH ESTABLISHES THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE PETITIONERS AND RESPONDENTS AS HEIRS OF THE LATE SIMEON C. SANTOS.12 II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S. AGUSTIN, ALBERTO D. SANTOS, ALEJANDRA S. LAZARO AND LEONCIO D. SANTOS DID NOT TERMINATE AS A RESULT OF THE TRANSFER OF THE LOT'S OWNERSHIP PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN WITH RESPECT TO THE SUBJECT PROPERTY.13 III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE RESIDENTIAL HOUSE ON LOT NO. 10676 NOT MERELY A BUILDER IN GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED TO A PARTITION OF THE SUBJECT HOUSE.14 In their first assigned error, petitioners contend that Basilisa's sworn statement which recognizes her siblings' share in the disputed property is a declaration against interest which is one of the recognized exceptions to the hearsay rule. Petitioners argue that since the sworn statement was duly notarized, it should be admitted in court without further proof of its due execution and authenticity; that the testimonies of Basilisa's nurse and physician cannot qualify as clear and convincing evidence which could overthrow such notarized document; that the notary public cannot impugn the same document which he notarized for to do so would render notarized documents worthless and unreliable resulting in prejudice to the public. As to the second assigned error, petitioners aver that their co-ownership of the questioned property with Basilisa did not cease to exist when the Philippine National Bank (PNB) consolidated its ownership over the said parcel of land. Petitioners assert that they did not lose their share in the property coowned when their share was mortgaged by Basilisa without their knowledge and consent; that the mortgage was limited only to the portion that may be allotted to Basilisa upon termination of their coownership; that PNB acquired ownership only of the share pertaining to Basilisa; that when Basilisa bought back the property from PNB, she simply re-acquired the portion pertaining to her and simply resumed co-ownership of the property with her siblings. Petitioners also contend that Basilisa's children did not acquire ownership of the subject lot by prescription, and that neither Basilisa nor respondents repudiated their co-ownership. Anent the third assignment of error, petitioners argue that Alejandra Lazaro, being a co-owner of the disputed parcel of land and not simply a builder in good faith, is entitled to a partition of the subject residential house. At the outset, it bears to point out that it is wrong for petitioners to argue that Basilisa's alleged sworn statement is a declaration against interest. It is not a declaration against interest. Instead, it is an admission against interest.1avvphi1 Indeed, there is a vital distinction between admissions against interest and declarations against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness.15 Declarations against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence, and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness.16 In the present case, since Basilisa is respondents' predecessor-in-interest and is, thus, in privity with the latter's legal interest, the former's sworn statement, if proven genuine and duly executed, should be considered as an admission against interest. A cursory reading of the subject sworn statement also reveals that it refers to a parcel of land denominated as Lot No. 10678 while the property being disputed is Lot No. 10676.17 On this basis, it

cannot be concluded with certainty that the property being referred to in the sworn statement is the same property claimed by petitioners. Having made the foregoing observations and discussions, the question that arises is whether the subject sworn statement, granting that it refers to the property being disputed in the present case, can be given full faith and credence in view of the issues raised regarding its genuineness and due execution. The Court rules in the negative. Settled is the rule that generally, a notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity.18 However, this presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.19 Moreover, not all notarized documents are exempted from the rule on authentication.20 Thus, an affidavit does not automatically become a public document just because it contains a notarial jurat.21 The presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular.22 However, a question involving the regularity of notarization as well as the due execution of the subject sworn statement of Basilisa would require an inquiry into the appreciation of evidence by the trial court. It is not the function of this Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in such event. Settled is the rule that questions of fact cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its consideration.23 The rationale behind this doctrine is that a review of the findings of fact of the trial courts and the appellate tribunal is not a function this Court normally undertakes.24 The Court will not weigh the evidence all over again unless there is a showing that the findings of the lower courts are totally devoid of support or are clearly erroneous so as to constitute serious abuse of discretion.25 Although there are recognized exceptions26 to this rule, none exists in the present case to justify a departure therefrom. Petitioners rely heavily on the presumption of regularity accorded by law to notarized documents. While indeed, a notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity of its contents.27 As earlier discussed, the presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.28 The presumption cannot be made to apply to the present case because the regularity in the execution of the sworn statement was challenged in the proceedings below where its prima facie validity was overthrown by the highly questionable circumstances under which it was supposedly executed, as well as the testimonies of witnesses who testified on the improbability of execution of the sworn statement, as well as on the physical condition of the signatory, at the time the questioned document was supposedly executed. The trial and appellate courts were unanimous in giving credence to the testimonies of these witnesses. The Court has repeatedly held that it will not interfere with the trial court's determination of the credibility of witnesses, unless there appears on record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.29 The reason for this is that the trial court was in a better position to do so, because it heard the witnesses testify before it and had every opportunity to observe their demeanor and deportment on the witness stand.30 Considering the foregoing, the Court finds no reason to reverse the rulings of the MTCC, the RTC and the CA. Although the questioned sworn statement is a public document having in its favor the presumption of regularity, such presumption was adequately refuted by competent witnesses.

The Court further agrees with the ruling of the RTC that: The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut the evidence of the appellees considering his admission that the affidavit was already thumbmarked when presented to him by one who claimed to be Basilisa Santos and whom, the witness said he did not know personally. Further, what makes the documents suspect is the fact that it was subscribed on the same date as the financial statement of Alejandra Santos. It may not be amiss to point out, at this juncture, that the principal function of a notary public is to authenticate documents.31 When a notary public certifies to the due execution and delivery of a document under his hand and seal, he gives the document the force of evidence.32 Indeed, one of the purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given without further proof of their execution and delivery.33 A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed before a notary public and appended to a private instrument.34 Hence, a notary public must discharge his powers and duties, which are impressed with public interest, with accuracy and fidelity.35 A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein.36 In the instant case, the notary public should have exercised utmost diligence in ascertaining the true identity of the person executing the said sworn statement. However, the notary public did not comply with this requirement. He simply relied on the affirmative answers of the person appearing before him attesting that she was Basilisa Santos; that the contents of the sworn statement are true; and that the thumbmark appearing on the said document was hers. However, this would not suffice. He could have further asked the person who appeared before him to produce any identification to prove that she was indeed Basilisa Santos, considering that the said person was not personally known to him, and that the thumbmark appearing on the document sought to be notarized was not affixed in his presence. But he did not. Thus, the lower courts did not commit any error in not giving evidentiary weight to the subject sworn statement. The second and third assigned errors proceed on the presumption that petitioners are co-owners of the disputed property. Since the Court has already ruled that the lower courts did not err in finding that petitioners failed to prove their claim that they were co-owners of the said property, there is no longer any need to discuss the other assigned errors. WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the Court of Appeals in CA-G.R. SP No. 63321 is AFFIRMED. SO ORDERED.

11. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-38833 March 12, 1980 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. AIROL ALING Y MAJURI, accused whose death sentence is under review. Mamintal Tamano for the accused. Office of the Solicitor General for appellee.

AQUINO, J.: This is a parricide case. Norija T. Mohamad, 30, was stabbed in the chest and diaphragm on January 28, 1972 at Calarian, Zamboanga City. She died at the Brent Hospital two days later. Girlie Aling a relative of Airol Aling stated in her affidavit of February 21, 1972 that she and Darla Aling (Norija's daughter) brought the victim to the hospital. They learned from the police that Norija was stabbed by her husband (p. 4, Record). On March 24, 1972 Airol Aling 35, was investigated by the police. He declared in the Chavacano dialect (his declaration was translated into English) that he killed his wife (whom he married according to Muslim rites because e he was informed in prison by his relatives that his wife was living with another man and fooling around with other men. He recounted the killing in this manner: At or about one o'clock in the afternoon of January 28, 1972, I was at the seashore of Calarian relaxing since I have just arrived from Jolo, Sulu that particular day. At that time, I was already running away from the authorities because I am an escapee from San Ramon Prison and Penal Farm. Later on, I proceeded to my father's house which is just near the seashore, Upon reaching the house, I saw Nori Mohamad but I had no time to talk to her because immediately after seeing me, Nori ran away, going to the direction of the street. Armed with the bolo which I had been carrying with me, I chased after Nori and I catch up with her at the street where I started stabbing her with the bolo, hitting her on the different parts of the body. When I saw Nori fell down on the street badly wounded, I hurriedly left the place and ran towards the far end of Calarian. (Exh. 2).

Two policemen in their affidavit of March 24, 1972, affirmed that Airol admitted to Sergeant Antonio Macrohon in their presence that he stabbed his wife because she had been going with many men (Exh. 1). On April 19, 1972, Airol Aling was charged with parricide in the Court of First Instance of Zamboanga City. It was alleged in the information that Airol was a convict serving sentence at the penal colony for robbery with frustrated homicide. The case was first called for arraignment on March 15, 1974. The accused signified his willingness to plead guilty although he had no lawyer. A counsel de oficio was appointed for him. The trial court granted counsel's motion to transfer the arraignment to March 18. On that date, by agreement of the parties, the arraignment was transferred to March 29, then to April 5, and later to April 30, 1974. On that last date, the information was translated into the Tausug dialect which is spoken by the accused. With the assistance of his counsel, he pleaded guilty. Then, the accused was placed on the witness stand and examined by his counsel. He admitted that he killed his wife. He declared that after he was informed by his counsel that the penalty for parricide is death or life imprisonment, he, nevertheless, admitted the killing of his wife because that was the truth. In answer to the question of the fiscal, the accused said that he understood that by pleading guilty he could be sentenced to death or reclusion perpetua because he was an escaped convict. He described the confrontation with his wife. When he arrived at his home, his wife ran and he pursued her. He overtook her, stabbed her but she was able to parry the blow, and when -she fell on the ground, he repeatedly stabbed her in the abdomen. He said that he was not coerced nor cajoled into entering a plea of guilty. He admitted that he was a prisoner in the penal colony. He was a Muslim belonging to the Samal tribe of Siasi Sulu. He killed his wife because while he was in prison, she did not visit him and she neglected their four children. He agreed that his father-in-law could have the custody of his children. He was able to leave the penal colony because he was a "living-out-prisoner". When he went to his house on January 28, 1972, his purpose was to be reconciled with his wife but when she saw him, instead of waiting for him, she ran away. He had information that his wife was guilty of infidelity or had a "kabit". That was a grievous offense under Muslim customs. He Identified his signature in his confession which was sworn to before the clerk of court (Exh. B or 2). The trial court sentenced Airol Aling to death and to pay an indemnity of twelve thousand pesos to the heirs of Norija Mohamad. It noted that he pleaded guilty with full knowledge of the meaning and consequences of his plea. The case was elevated to this Court for automatic review of the death penalty. Counsel de oficio assigned to present the side of the accused in this review, contends that the marriage of Airol to Norija was not indubitably proven. That contention cannot be sustained. The testimony of the accused that he was married to the deceased was an admission against his penal interest. It was a confirmation of the maxim semper praesumitur matrimonio and the presumption "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage" (Sec. 5[bbl, Rule 131, Rules of Court).

He and the deceased had five children. He alluded in his testimony to his father-in-law. That implies that the deceased was his lawful wife. The fact that he bitterly resented her infidelity. Her failure to visit him n prison and her neglect of their children are other circumstances confirmatory of their marital status. The contention that the accused did not understand fully he nature and effect of Ms plea of guilty is belied by the record. The trial judge, a Muslim, took pans to follow the rule that in case a plea of guilty is entered in a capital case, evidence should be received in order to leave no room for reasonable doubt that the accused is guilty of the offense charged and that he had full knowledge of the meaning and consequences of his plea of guilty (People vs. Duaban, L-31912, August 24, 1979). In this case, the arraignment was postponed three times in order to enable his counsel to confer with him and explain to him the consequences of his plea of guilty. The accused testified. His confession and the affidavit of the policemen who investigated him were presented in evidence. The contention that the crime was mitigated by the plea of guilty lack of intention to commit so grave a wrong and the circumstance that the accused is a non-Christian is not well taken because he is a quasi-recidivist. The special aggravating circumstance of quasi-recidivism cannot be offset by generic investigating circumstances. The fact that he escaped from confinement in order to kill his wife shows a high degree of perversity and incorrigibility His being a non-Christian cannot serve to extenuate the heinousness of his offense. He understood the gravity of his crime because he had attained some education. He reached first year high school and he used to be a checker in a stevedoring firm. However, only since Justices (Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Guerrero, Abad Santos, De Castro and Melencio-Herrera) voted for the imposition of the death penalty. WHEREFORE, the trial court's judgment is affirmed with the modification that, for lack of one vote, the accused is sentenced to reclusion perpetua Costs de oficio. SO ORDERED.

12. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 111692 February 9, 1996

ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION BELLOSILLO, J.: 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 1-1/2 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 prison 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. 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 prison 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.

13. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 179540 March 13, 2009

PERFECTA CAVILE, JOSE DE LA CRUZ and RURAL BANK OF BAYAWAN, INC., Petitioners, vs. JUSTINA LITANIA-HONG, accompanied and joined by her husband, LEOPOLDO HONG and GENOVEVA LITANIA, Respondents. DECISION CHICO-NAZARIO, J.: Before us is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, which seeks to reverse and set aside the Decision2 dated 8 March 2007 and the Resolution3 dated 3 September 2007 of the Court of Appeals in CA-G.R. CV No. 66873. The assailed Decision of the appellate court reversed and set aside the Decision4 dated 29 February 2000 of the Regional Trial Court (RTC) of Negros Oriental, Branch 35, in Civil Case No. 6111, dismissing the complaint of respondents Justina Litania-Hong, her husband Leopoldo Hong, and her sister Genoveva Litania; and declaring petitioner spouses Perfecta Cavile and Jose de la Cruz to be the absolute owners of the parcels of land subjects of this case. The assailed Resolution of the appellate court denied petitioner spouses Motion for Reconsideration of its decision. The factual and procedural antecedents of the case proceed as follows: On 5 April 1937, a Deed of Partition5 was entered into by the heirs of the spouses Bernardo Cavile and Tranquilina Galon. Said heirs included the legitimate children of Bernardo and Tranquilina, namely, (1) Susana Cavile, (2) Castor Cavile, and (3) Benedicta Cavile; as well as the children of Bernardo by his previous marriages, specifically: (4) Simplicia Cavile, (5) Fortunato Cavile, and (6) Vevencia Cavile.6 Subject of the Deed of Partition were several parcels of land situated in the Municipality of Tolong, Negros Oriental, which were then covered by Tax Declarations No. 5615, No. 5729, No. 7143, No. 7421 and No. 7956, all under the name of Bernardo. Of particular interest in this case are the lots covered by Tax Declarations No. 7421 and No. 7956. The lot covered by Tax Declaration No. 7421 was described in the Deed of Partition as "bounded on the North by Simplicio Cavile antes Roman Echaves, on the East by Rio Bayawan, on the South by Riachuelo Napasu-an, and on the West by Riachuelo Napasu-an y Julian Calibug antes Francisco Tacang." The lot covered by Tax Declaration No. 7956 was identified to be the one "bounded on the North by Hilario Navaro, on the East by Silverio Yunting, on the South by Fortunato Cavile, and on the West by Maximiano Balasabas." In accordance with the Deed of Partition, the conjugal properties of Bernardo and Tranquilina were divided into two parts. The first part, corresponding to Bernardos share, was further divided into six equal shares and distributed among his six heirs. The second part, corresponding to Tranquilinas share, was subdivided only into three shares and distributed among her children with Bernardo, i.e., Susana, Castor, and Benedicta.

Also stated in the Deed of Partition was the sale by the other aforementioned legal heirs to their coheir Castor of their aliquot shares in the lots covered by Tax Declarations No. 7143, No. 7421, and No. 7956; thus, making Castor the sole owner of the said properties. Similarly, the Deed of Partition acknowledged the sale by all the legal heirs to Ulpiano Cavile of their respective shares in the lot covered by Tax Declaration No. 5729, thus, transferring to the latter absolute ownership of said parcel of land. Thereafter, on 5 August 1960, Castor and Susana executed a Confirmation of Extrajudicial Partition,7 whereby Castor recognized and confirmed that the lots covered by Tax Declarations No. 2039 and No. 2040 were the just and lawful shares of Susana in the properties left by their deceased parents Bernardo and Tranquilina, and that Susana was in actual possession of the said properties. According to the Confirmation of Extrajudicial Partition, the lot covered by Tax Declaration No. 2039 was "bounded on the North by Simplicio Cavile, on the East by Rio Bayawan, on the South by Napasu-an, and on the West by Napasu-an Creek and Julian Calibog;" while the one covered by Tax Declaration No. 2040 was "bounded on the North by Hilario Navvaro (sic), on the South by Fortunato Cavile, on the East by Silverio Yunting, and on the West by Maximino (sic) Balasabas." The descriptions of the lots covered by Tax Declarations No. 2039 and No. 2040 in the Confirmation of Extrajudicial Partition were strikingly close to those of the lots covered by Tax Declarations No. 7421 and No. 7956, respectively, in the Deed of Partition. Fourteen years after the execution of the Confirmation of Extrajudicial Partition in 1960, respondents filed on 23 December 1974 a Complaint for Reconveyance and Recovery of Property with Damages before the RTC against Perfecta Cavile, the daughter of Castor, Jose de la Cruz, the husband of Perfecta (hereinafter petitioner spouses), and the Rural Bank of Bayawan, Inc. The Complaint was docketed as Civil Case No. 6111.8 Respondents averred in the Complaint that respondents Justina and Genoveva inherited two parcels of land, covered by Tax Declarations No. 07408 and No. 07409 (subject lots),9 from their mother Susana, who, in turn, inherited the same from her parents Bernardo and Tranquilina. Respondents invoked the Confirmation of Extrajudicial Partition dated 5 August 1960 wherein Castor purportedly recognized Susanas ownership of the subject lots. Susana had enjoyed undisputed ownership and possession of the subject lots, paying the realty taxes due and introducing improvements thereon. Susana was even able to obtain a loan from the Rural Bank of Dumaguete City sometime in 1960, mortgaging the subject lots as security for the same. After Susanas death in 1965, the subject lots were inherited by her daughters, respondents Justina and Genoveva, who then assumed the mortgage thereon. However, respondents alleged that Castor and petitioner spouses eventually intruded upon and excluded respondents from the subject lots. When Castor died in 1968, petitioner spouses continued their unlawful occupancy of the subject lots, planting on the same and harvesting the products. Respondents claimed that they exerted efforts to settle the matter, but petitioner spouses stubbornly refused to accede. In 1974, prior to the filing of the Complaint, respondents again sought an audience with petitioner spouses, yet the latter only presented to them the Original Certificates of Title (OCTs) No. FV-4976,10 No. FV-4977,11 and No. FV-497812 covering the subject lots, issued by the Registry of Deeds for the Province of Negros Oriental, on 9 October 1962, in the name of petitioner Perfecta. Respondents were, thus, constrained to institute Civil Case No. 6111 against petitioner spouses and the Rural Bank of Bayawan, Inc., seeking the cancellation of the OCTs in the name of petitioner Perfecta or, alternatively, the reconveyance by petitioner spouses of the subject lots to respondents, plus award for damages. The Rural Bank of Bayawan, Inc. was impleaded as a defendant in the Complaint since petitioner spouses mortgaged the subject lots in its favor as security for a loan in the amount of P42,227.50. However, the bank was later dropped as a party after the aforesaid loan was settled.

Petitioner spouses countered in their Answer to the Complaint that, by virtue of the Deed of Partition dated 5 April 1937, the heirs of both Bernardo and Tranquilina took exclusive possession of their respective shares in the inheritance. Castor fully possessed the lots covered by Tax Declarations No. 7143, No. 7421 and No. 7956, after his co-heirs sold to him their shares therein. In 1962, Castor sold to petitioner Perfecta the lots covered by Tax Declarations No. 7421 and No. 7956, which corresponded to the subject lots in the Complaint. Following the sale, petitioner Perfecta took possession of the subject lots and filed with the Bureau of Lands an application for the issuance of title over the same. The Bureau issued free patent titles over the subject lots in favor of petitioner Perfecta and, by virtue thereof, she was able to secure on 9 October 1962, OCTs No. FV-4976, No. FV-4977, and No. FV-4978 in her name. Petitioner spouses asserted that the Confirmation of Extrajudicial Partition dated 5 August 1960 involving the subject lots was a nullity since said properties were never owned nor adjudicated in favor of Susana, respondents predecessor-in-interest. Castor and Susana executed the Confirmation of Extrajudicial Partition merely to accommodate the latter who then needed security for the loan she was trying to obtain from the Rural Bank of Dumaguete City. Respondents would not be able to deny the said accommodation arrangement, given that neither Susana nor respondents actually possessed the subject lots or applied for titles thereto. Respondents did not even know that the subject lots were divided into three lots after a Government survey. If Susana and respondents paid realty taxes for the subject lots, it was only to convince the Rural Bank of Dumaguete to renew their loan from year to year, secured as it was by the mortgage on the subject lots. Thus, petitioner spouses posited that no ownership could then be transferred to respondents after Susanas death. Trial in Civil Case No. 6111 thereafter ensued before the RTC.13 On 29 February 2000, the RTC promulgated its Decision, with the following dispositive portion: WHEREFORE, premises considered, judgment is hereby rendered declaring [herein petitioner spouses] as the absolute owners over the parcels of land in litigation. Consequently, [herein respondents] complaint is ordered dismissed. [Respondents] counterclaim is likewise entered dismissed for lack of merit.14 The RTC ruled that the petitioner spouses evidence was more worthy of credence in establishing their ownership of the subject lots. As petitioner Perfecta testified before the RTC, Castor immediately took possession of the subject lots after the Deed of Partition was executed in 1937. This fact was supported by the unrebutted testimony of Luciana Navarra, petitioner Perfectas cousin, who declared that her husband was petitioner Perfectas tenant on the subject lots since 1947 and that respondents never actually occupied the said properties. The RTC observed that it was highly questionable and contrary to human experience that respondents waited nine long years after their ejection from the subject lots in 1965 before taking any legal step to assert their rights over the same. The RTC further subscribed to the testimony of Perfecta that the Confirmation of Extrajudicial Partition was executed by Castor solely to accommodate Susana, enabling her to obtain a bank loan using the subject lots as collateral. It noted that Susana did not bother to apply for the issuance of title to the subject lots in her name. Contrarily, it was Perfecta who applied for and obtained title to the subject lots, which, surprisingly, respondents were not even aware of. The RTC found that the contemporaneous and subsequent acts of the parties after the execution of the Confirmation of Extrajudicial Partition evidently demonstrated their intention to merely accommodate Susana in her loan application. Hence, the RTC concluded that the Confirmation of Extrajudicial Partition was a simulated contract which was void and without any legal effect. Without seeking a reconsideration of the above RTC Decision, respondents challenged the same by way of appeal before the Court of Appeals, docketed as CA-G.R. CV No. 66873.

On 8 March 2007, the Court of Appeals rendered the assailed Decision in favor of respondents, the decretal portion of which provides: WHEREFORE, the assailed decision is REVERSED AND SET ASIDE and a new one entered ORDERING [herein petitioner spouses] and/or their heirs, assigns and representatives as follows: 1. To reconvey to [herein respondents] the possession and title to the litigated parcels of land. 2. Upon reconveyance of the litigated properties, the Register of Deeds of Dumaguete City is ordered to cancel Certificate of Title No. 4877 (sic), 4976 and 4978 and to issue a new certificate to [respondents] or their successors in interest. 3. With costs against [petitioner spouses].15 The Court of Appeals agreed in the respondents contention that the Confirmation of Extrajudicial Partition was not a simulated document. The said document should be entitled to utmost respect, credence, and weight as it was executed by and between parties who had firsthand knowledge of the Deed of Partition of 1937. Moreover, the Confirmation of Extrajudicial Partition constituted evidence that was of the highest probative value against the declarant, Castor, because it was a declaration against his proprietary interest. Other than petitioner Perfectas testimony, the appellate court found no other proof extant in the records to establish that the Confirmation of Extrajudicial Partition was a simulated document or that it did not express the true intent of the parties. The Court of Appeals likewise highlighted the fact that Castor did not attempt to have the subject lots declared in his name during his lifetime and that petitioner Perfecta herself admitted that she only started paying real estate taxes for the subject lots in 1993. It was Susana and, later, her children, respondents Justina and Genoveva, who had been paying for the realty taxes on the subject lots since 1937. Petitioner spouses filed a Motion for Reconsideration16 of the foregoing Decision, but it was denied by the Court of Appeals in a Resolution17 dated 3 September 2007. Petitioner spouses filed the instant Petition, raising the following issues for the Courts consideration: I. WHETHER [OR NOT] THE HONORABLE COURT OF APPEALS ACTED IN ACCORDANCE WITH LAW IN RULING THAT EXTRANEOUS EVIDENCE IN THE FORM OF AN AFFIDAVIT, THE "CONFIRMATION OF EXTRAJUDICIAL PARTITION," MAY BE ADMITTED IN EVIDENCE TO VARY THE TERMS OF A JUDICIALLY DECLARED VALID AGREEMENT ENTITLED "DEED OF PARTITION"? II. WHETHER [OR NOT] THE HONORABLE COURT OF APPEALS COMMITTED A LEGAL ERROR IN NOT DISMISSING THE COMPLAINT ON THE GROUND OF RES JUDICATA? III. WHETHER [OR NOT] THE COMPLAINT FILED BY THE RESPONDENTS SHOULD BE DISMISSED ON THE GROUND OF FORUM-SHOPPING? IV.

WHETHER [OR NOT] THE FREE PATENT TITLES ISSUED TO THE PETITIONERS MAY BE RECONVEYED TO THE RESPONDENTS?18 Essentially, the Court finds that the fundamental issue that must be settled in this case is who, among the parties herein, have the better right to the subject lots. The Court notes prefatorily that in resolving the present case, an examination of the respective evidence of the parties must necessarily be undertaken. Although the jurisdiction of the Court in a petition for review on certiorari under Rule 45 of the Rules of Court is limited to reviewing only errors of law, we find that an exception19 to this rule is present in the instant case in that the Court of Appeals made findings of fact which were contrary to those of the RTC. Before proceeding, the Court further establishes as a foregone fact, there being no issue raised on the matter, that the subject lots covered by Tax Declarations No. 07408 and No. 07409 described in the Complaint in Civil Case No. 6111 are the very same lots covered by Tax Declarations No. 7956 and No. 7421 included in the Deed of Partition, and by Tax Declarations No. 2040 and No. 2039 subject of the Confirmation of Extrajudicial Partition. Respondents, as plaintiffs before the RTC in Civil Case No. 6111, sought the reconveyance and recovery of the subject lots purportedly illegally usurped by petitioner spouses who succeeded in having the same titled in the name of petitioner Perfecta. Respondent Justina testified in open court that the subject lots were inherited by her and co-respondent Genovevas mother, Susana, from their grandparents, Bernardo and Tranquilina.20 As proof of Susanas ownership of the subject lots, respondents presented the Confirmation of Extrajudicial Partition executed on 5 August 1960 by Castor and Susana. In said document, Castor ostensibly recognized and confirmed Susanas ownership and possession of the subject lots.21 Tax declarations22 covering the subject lots in the names of Susana and respondents were also offered to the court a quo to lend support to respondents claims of ownership. On the other hand, to prove their entitlement to the subject lots, petitioner spouses presented before the RTC the Deed of Partition23 entered into by the heirs of spouses Bernardo and Tranquilina on 5 April 1937. By virtue thereof, Castor acquired through sale the shares of his co-heirs in the subject lots. Petitioner Perfecta testified before the trial court that right after the execution of said Deed, she and her father, Castor, assumed possession of the subject lots, planting coconuts, rice, and corn thereon.24 She additionally testified that realty taxes on the subject lots had since been paid by Castor and, subsequently, by her.25 Possession of the subject lots by Castor and petitioner spouses was corroborated by the testimony of Luciana Navarra, who insisted that respondents never occupied the said lots.26 Finally, petitioner spouses presented OCTs No. FV-4976, No. FV-4977, and No. FV-4978, covering the subject lots, issued by the Registry of Deeds for the Province of Negros Oriental on 9 October 1962 in the name of petitioner Perfecta. After a careful evaluation of the evidence adduced by the parties in the instant case, the Court rules in favor of petitioner spouses. At this point, let it be stated that the validity and due execution of the Deed of Partition executed in 1937 is not directly assailed in this case, thus, the Court need not pass upon the same. Under the said Deed of Partition, the other heirs of Bernardo and Tranquilina clearly and unequivocally sold their shares in the subject lots to Castor, petitioner Perfectas father. What appeared to be the clear right of ownership of Castor over the subject lots was put in doubt by the execution of the Confirmation of Extrajudicial Partition by Castor and his sister Susana in 1960. Respondents, children and heirs of Susana, base their claim of ownership of the subject lots on the said document, while petitioner spouses denounce the same to be simulated, executed for purposes other than to transfer ownership

of the subject lots, and cannot legally alter the terms of the previously duly executed Deed of Partition. As held by the Court of Appeals, the Confirmation of Extrajudicial Partition partakes of the nature of an admission against a persons proprietary interest.27 As such, the same may be admitted as evidence against Castor and petitioner spouses, his successors-in-interest. The theory under which declarations against interest are received in evidence, notwithstanding that they are hearsay, is that the necessity of the occasion renders the reception of such evidence advisable and, further, that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest.28 Nevertheless, the Confirmation of Extrajudicial Partition is just one piece of evidence against petitioner spouses. It must still be considered and weighed together with respondents other evidence vis--vis petitioner spouses evidence. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. "Preponderance of evidence" is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." "Preponderance of evidence" is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.29 Rule 133, Section 1 of the Rules of Court provides the guidelines in determining preponderance of evidence, thus: In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Herein, despite the admission made by Castor in the Confirmation of Extrajudicial Partition against his own interest, the Court is still convinced that the evidence adduced by the petitioner spouses preponderated over that of the respondents. In analyzing the two vital documents in this case, the Court discerns that while the Deed of Partition clearly explained how Castor came to fully own the subject lots, the Confirmation of Extrajudicial Partition, even though confirming Susanas ownership of the subject lots, failed to shed light on why or how the said properties wholly pertained to her when her parents Bernardo and Tranquilina clearly had other heirs who also had shares in the inheritance. Other than the Confirmation of Extrajudicial Partition, respondents were only able to present as evidence of their title to the subject lots tax declarations covering the same, previously, in the name of Susana and, subsequently, in their own names. We find such tax declarations insufficient to establish respondents ownership of the subject lots. That the disputed property has been declared for taxation purposes in the name of any party does not necessarily prove ownership. Jurisprudence is consistent that tax declarations are not conclusive evidence of ownership of the properties stated therein. A disclaimer is even printed on the face of such tax declarations that they are "issued only in connection with real property taxation [and] should not be considered as title to the property." At best, tax declarations are indicia of possession in the concept of an owner.30 Conversely, nondeclaration of a property for tax purposes does not necessarily negate ownership.31

On the other hand, the Court is at a loss as to how the Court of Appeals failed to give due consideration to the Torrens titles issued in the name of petitioner Perfecta when it rendered its assailed Decision. Sometime in 1962, petitioner Perfecta applied for and was granted by the Bureau of Lands free patents over the subject lots. Pursuant thereto, Original Certificates of Title No. FV-4976, No. FV-4977, and No. FV-4978, covering the subject lots, were issued by the Registry of Deeds for the Province of Negros Oriental, on 9 October 1962, in the name of petitioner Perfecta. Given this crucial fact, the Court pronounces that respondents Complaint for reconveyance of the subject lots and damages filed only on 23 December 1974 is already barred. A Torrens title issued on the basis of the free patents become as indefeasible as one which was judicially secured upon the expiration of one year from date of issuance of the patent.32 However, this indefeasibility cannot be a bar to an investigation by the State as to how such title has been acquired, if the purpose of the investigation is to determine whether or not fraud has been committed in securing the title. Indeed, one who succeeds in fraudulently acquiring title to public land should not be allowed to benefit from it.33 On this matter, Section 101 of Commonwealth Act No. 14134 provides that all actions for the reversion to the government of lands of the public domain or improvements thereon shall be instituted by the Solicitor General or the officer acting in his stead, in the proper courts, in the name of the Commonwealth [now Republic] of the Philippines. Such is the rule because whether the grant of a free patent is in conformity with the law or not is a question which the government may raise, but until it is so raised by the government and set aside, another claiming party may not question it. The legality of the grant is a question between the grantee and the government.35 Thus, private parties, like respondents in the instant case, cannot challenge the validity of the patent and the corresponding title, as they had no personality to file the suit. Although jurisprudence recognizes an exception to this case, the respondents may not avail themselves of the same. Verily, an aggrieved party may still file an action for reconveyance based on implied or constructive trust, which prescribes in 10 years from the date of the issuance of the Certificate of Title over the property, provided that the property has not been acquired by an innocent purchaser for value. An action for reconveyance is one that seeks to transfer property, wrongfully or fraudulently registered by another, to its rightful and legal owner.36 If the registered owner, be he the patentee or his successor-in-interest to whom the free patent was transferred, knew that the parcel of land described in the patent and in the Torrens title belonged to another, who together with his predecessors-in-interest had been in possession thereof, and if the patentee and his successor-ininterest were never in possession thereof, the true owner may bring an action to have the ownership of or title to the land judicially settled. The court in the exercise of its equity jurisdiction, without ordering the cancellation of the Torrens titled issued upon the patent, may direct the defendant, the registered owner, to reconvey the parcel of land to the plaintiff who has been found to be the true owner thereof.37 In the instant case, respondents brought the action for reconveyance of the subject lots before the RTC only on 23 December 2004, or more than 12 years after the Torrens titles were issued in favor of petitioner Perfecta on 9 October 1962. The remedy is, therefore, already time-barred. And even if respondents Complaint was filed on time, the Court would still rule that respondents failed to satisfactorily prove that they were in possession of the subject lots prior to the grant of free patents and issuance of Torrens titles over the same in favor petitioner Perfecta. The bare testimony of respondent Justina that Susana had been in the peaceful and undisturbed possession of the

subject lots since 1937 up to the time of her death in 1965 was entirely bereft of substantiation and details. No information was provided as to how said possession of the subject lots was actually exercised or demonstrated by Susana. In contrast, the possession of the subject lots by Castor, and later on by petitioner spouses, was established not just by the testimony of petitioner Perfecta, but was corroborated by the testimony of Luciana Navarra, whose husband was a tenant working on the subject lots. Petitioner spouses possessed the subject lots by planting thereon coconuts, rice, and corn - a claim which respondents were unable to refute. Furthermore, respondents allegation that petitioner Perfecta committed fraud and breach of trust in her free patent application is specious. The fact that the document evidencing the sale of the subject lots by Castor to petitioner Perfecta was not presented does not automatically mean that said contract was never in existence. Also undeserving of much consideration without sufficient proof is respondents averment that the subject lots were private lands which could no longer be granted to any person via free patent. Respondents ought to remember that mere allegation of fraud is not enough. Specific, intentional acts to deceive and deprive another party of his right, or in some manner injure him, must be alleged and proved.38 Also, the issuance by Bureau of Lands of free patents over the subject property to petitioner Perfecta enjoys the presumption of regularity. WHEREFORE, premises considered, the Petition for Review under Rule 45 of the Rules of Court is hereby GRANTED. The assailed Decision dated 8 March 2007 and Resolution dated 3 September 2007 of the Court of Appeals in CA-G.R. CV No. 66873 are hereby REVERSED AND SET ASIDE. The Decision dated 29 February 2000 of the RTC of Negros Oriental, Branch 35, in Civil Case No. 6111 is hereby REINSTATED. No costs. SO ORDERED.

14. Republic of the Philippines SUPREME COURT Manila 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.

REGALADO, J.: 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 petitioner's 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. 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 heir 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. 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 corroborated 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 jurisdiction 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 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 note 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 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. 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 absurb 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 if 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 crossexamined 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 theirs 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. All told, on the basis of the foregoing considerations, the demurrer to plaintiff's 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-fourths (3/4) share therein, respectively. SO ORDERED. Romero, Puno and Mendoza, JJ., concur. Torres, Jr., J., is on leave.

15. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 93030-31 August 21, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO ALEGADO Y DELIMA, accused-appellant.

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) 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 FAILURE TO PROVE WITH CERTAINTY THE ACTUAL AGE OF THE OFFENDED PARTY. II THE TRIAL COURT ERRED IN NOT ACQUIRING 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 abovenamed accused, did, then and there wilfully, 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 abovenamed accused, did, then and there wilfully, 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 170pound, 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 (tan, 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 P 2.00 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 P 2.00 and left (ibid, p. 18). 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. 2021). 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 Alverez. 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 Alverez 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 establisher 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 regading 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. 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 1. 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 [1951] 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. 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 came. (People v. Jun Aquino [John Aquino], G.R. No. 83214, May 28, 1991 citing People v. Cruz, 180 SCRA 765 [1989]; People v. Patonog 155 SCRA 675 [1987]; People v. Alverez, 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 conviction 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 meat 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]). 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 accusedappellant, 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.

16. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12993 October 28, 1918

RAFAEL J. FERRER, ET AL., plaintiff-appellants, vs. JOAQUIN J. DE INCHAUSTI, ET AL., defendants-appellees. Vicente Sotto for appellants. Araneta & Zaragoza and Cohn & Fisher

TORRES, J.: This appeal was taken through bill of exceptions by counsel for the plaintiffs from the judgment of February 12, 1917, whereby the judge of the Court of First Instance held that Rosa Viademonte, mother of the plaintiffs, could not have been legitimate daughter of the deceased Isabel Gonzalez, who, on her death, left some legitimate children. The court did not deem it necessary to discuss whether the said Rosa Viademonte could be a daughter of the said Isabel Gonzalez for reason, given in his decision, and held that the plaintiffs should not be entitled to what they have demanded, and that they should pay the costs. Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte and Maria Angelina Ferrer y Viademonte with her husband Ricardo Hernandez y Aracil filed a complaint in the Court of First Instance of the city of Manila, praying for the rendition of a final judgment declaring that Rosa Matilde Viademonte y Gonzalez had the right to succeed to the inheritance left by Isabel Gonzalez in the same proportion and capacity as the other four children of the latter, namely, Ramon Viademonte, Rafael C. de Inchausti, Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that the plaintiffs Rafael and Maria Angelina Ferrer are the only and legitimate heirs of the deceased Rosa Viademonte and the only ones entitled to receive her share of the inheritance left by Isabel Gonzalez, that is, the on-fifth part of the latter's estate; that the defendants render to the plaintiffs an account of the fruits and administration of all the property from the moment the said community of property from the moment the said community of property was constituted among them, and to deliver to the plaintiffs that part which corresponds to them in their capacity as sole heirs of Rosa Viademonte y Gonzalez, that is, the one-fifth part of the inheritance with all its accession, fruits, and interests; and , finally, that the defendants pay the costs. In fact, it is alleged that the plaintiffs are the legitimate children of Rosa Matilde Viademonte , who in turn died on November 20, 1898, leaving the two plaintiffs as surviving legitimate children that the said Isabel Gonzalez was married, first to Ramon Martinez Viademonte, and from his marriage two children, named Roman and Rosa Matilde, and surnamed Viademonte y Gonzalez survived; that after the death of her husband Ramon Martinez Viademonte, Sr., the widow, Isabel Gonzalez, contracted a second marriage with Don Jose Joaquin de Inchausti with whom she had three children named Clotilde, Rafael and Joaquin, all surnamed Inchausti y Gonzalez, that Ramon Viademonte y Gonzalez Jr., died on January 1, 1905, without leaving any forced heir, and by a will dated May 216, 1900, he left his property to the son or sons which Rafael C. de Inchausti might have, and in default or such child or children, to the same Rafael C. de Inchausti, by a will, left as his heirs and successors in interest his legitimate son Jose R. de

Inchausti, his recognized natural daughter Maria Consolacion de Inchausti de Ortigas, and his widow Maria Consolacion Rico y Medina; that on her death, Isabel Gonzalez left a certain property in her marriage with Jose de Joaquin de Inchausti, which would amount approximately to P1,000,000 with its accessions, according to present valuation, as shown by the inventory of said property which makes up Exhibit A, that on January 14, 188, Jose Joaquin Inchausti y Gonzalez and Clotilde de Inchausti y Gonzalez de Vidal, each of whom received on-fourth of the estate left by the deceased Isabel Gonzalez, excluding therefrom Rosa Viademonte, the mother of the plaintiffs., notwithstanding the fact that she had an equal rights to inherit from Isabel Gonzalez; that since January 188 till his death, Ramon Viademonte, Jr. had been the possessor and administrator of the fourth part of the inheritance which he received from his deceased mother Isabel Gonzalez which portion of the property later came to the possession and control of Rafael C. de Inchausti, and on the death of the latter, this fourth part of the inheritance came to the possession of Maria Consolacion Rico de Inchausti, widow of said Rafael C. de Inchausti, in her capacity as guardian of her son Jose Rafael de Inchausti, and part of it, to the possession of Maric Consolacion de Inchausti de Ortigas; and that a great part of the property which the defendants actual possess, came from the young children, who received from Isabel Gonzalez with the earnings and accessions thereof; these children have been possessing it pro indiviso or in coownership, in their lifetime, with Rosa Viademonte while living, and upon the death of the latter, with her heirs, but that, in spite of the demands made by the plaintiffs for the delivery to them by the defendants of their corresponding share in the inheritance the latter have always refused to do so. In his answers, for Clotilde Inchausti de Vial admitted that the plaintiffs are the children of Rosa viademonte and Benigno Ferrer; that Isabel Gonzalez was married first o Ramon Martinez de Viademonte, and afterwards to Jose Joaquin de Inchausti; that on the death of her mother Isabel Gonzalez, on December 13, 1886, her share in the conjugal partnership amounted to P191, 248.81, and on January 14, 1888, Jose Joaquin de Inchausti, as executor of his wife, after paying the legacies mentioned in the testament, paid to this defendant in cash the sum of P46,295.70 as her hereditary portion in the liquidated property of her mother, and likewise delivered to the other three sons of said Isabel Gonzalez similar amounts; that, after receiving her share of the inheritance from her mother, she spent it all, and she no longer has any part of it, nor has she left any portion of it during the last thirty years, and that neither the plaintiffs nor their deceased mother had ever possessed or enjoyed the said sum; and denies generally all the allegations of the complaint which are not admitted, and denies specially the allegation that the mother of the plaintiffs had ever married with their father Benigno Ferre, that they and their mother ever had the surname of Viademonte or Viademonte y Gonzalez and that the mother of the plaintiffs was a daughter of Isabel Gonzalez. As a special defense, she alleged that her possession of the money derived from the inheritance of her mother had been public, adverse, pacific, continuous and under a claim of ownership, in good faith and with just title, since January 14, 1888; that never during the lifetime of the plaintiff's mother did she make any claim or assert any right in the amount received by this defendant form the inheritance of her deceased mother; that more than thirty years had elapsed since she received by this defendant inheritance of her deceased mother; and that the action for the plaintiffs has already prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of Civil Procedure they (the plaintiffs) and their mother ever had the surname of "Viademonte" or Viademonte y Gonzalez," and that the mother of the plaintiffs was a daughter of Isabel Gonzalez. As a special defense, she alleged that her possession of the money derived from the inheritance of her mother had been public, adverse, pacific, continuous, and under a claim of ownership, in good faith and with just title, since January 14, 1888; that never during the lifetime of the plaintiffs' mother did she (plaintiff's mother) make any claim or assert any right in the amount received by this defendant from the inheritance of her deceased mother; that more than thirty years had elapsed since she received said amount to the date of the presentation of the complaint; and

that the action of the plaintiff has already prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of Civil procedure. Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special defense similar to that of Clotilde, and alleged that Ramon Martinez Viademonte, son of Isabel Gonzalez, died in the city of Manila on January 1, 1905, without leaving any heirs, and bequeathed by will to his brother Rafael C. de Inchausti, father of this defendant, all of his property, with the exception of some property of little importance which he had bequeathed to others; but denied that any part of his (Ramon Maritnez Viademonte's) property thas ever been bequeathed to the children of said Rafael C. de Inchausti; that, on the death of said Ramon Martinez de Viademonte, his will was allowed to probate in the Court of First Instance of Manila, and all his remaining property delivered to Rafael C. de Inchausti with Martinez Viademonte's property received by her father Rafael C. de Inchausti was a small piece of land situated in Santa Ana and known by the name of Hacienda de Lamayan; that the title of Rafael C. De Inchausti to said land was registered by virtue of a decree of the Court of Land Registration, in accordance with the provisions of the Land Registration Ac; that said land was in turn inherited by this defendant from her father upon the death of the latter, and that she appears in the registry of property as owner of the same; that, upon the allowance of said will in the Court of First Instance of this city, the plaintiffs did not present any claim to the commissioners appointed to appraise the property, and that the period allowed for the presentation of such claims expired on October 20, 1914, and that, therefor, the action now filed by the plaintiffs has prescribed, in accordance with the provisions of section 695 of the Code of Civil Procedure. In similar terms, counsel for Joaquin C. de Inchausti worded his defense in a written answer as amended under date of September 19, 1916.1awph!l.net Counsel for Maria de la Consolacion Rico y Medina in her personal capacity an das a widow of Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferrer, both now deceased, were in their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y Gonzalez, but denied that the said Rosa Matilde was a daughter of that marriage or of any of the said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1, 1905, without leaving any forced heir, and by a will dated May 16, 1900, he left to his maternal brother Rafael C. de Inchausti husband of this defendant, all his property with the exception of some small legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr., had been left to the children of the defendant's husband; that Isabel Gonzalez Ferrer, the mother of her husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she declared that she had a son with her first husband Ramon Martinez Viademonte, and the name of said on son was also Ramon, and that with her second husband Jose Joaquin de Inchausti. She Counsel for Maria de la Consolacion Rico y Medina in her personal capacity and a widow of Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferre, both now deceased were in their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y Gonzalez but denied that the said Rosa Matilde was a daughter of that marriage or of any of the said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1905, without leaving any forced heir, and by a will dated May 165, 1900, he left to his maternal brother Rafael C. de Inchausti, husband of this defendant, all his property with the exception of some small legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr., had been left to the children of the defendant's husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she declared that she had some with her first husband Ramon Martinez Viademonte and the name of said son was also Ramon, and that with her second husband Jose Joaquin de Inchausti, she had three children, and he instituted the said four children as the sole and universal heirs to the remainder of her property in equal parts, her property being the one half of the conjugal property had during her marriage with her second husband Inchausti who had survived her; that no portion of

the inheritance from the deceased Isabel Gonzalez y Ferrer was adjudicated to the mother of the plaintiffs; that the deceased Rafael C. de Inchausti inherited from the said Ramon Martinez Viademonte, Jr., a parcel of land known by the name of Hacienda de Lamayan, registered in the name of the deceased Rafael de Inchausti, which property was, in turn, inherited by the defendant Maria Consolacion de Inchausti de Ortigas. As a special defense, she alleged that in the said will wherein the testatrix Isabel Gonzalez name d her sole and universal heirs, Rosa Matilde, the mother of the plaintiffs, was not designated a heiress or legatee, but on the contrary, was omitted therefrom, that from the death of the testratrix of this compliant neither Rosa Matilde nor the plaintiffs presented any claim whatsoever against the omission of Rosa Matilde from the will of said Isabel Gonzalez for the plaintiffs could have availed themselves of any right which Rosa Matilde could have had in the property inherited by the defendant and her son Jose Rafael de Inchausti, derived by law for contesting the will of Isabel Gonzalez on the ground of prejudicial omission therefrom of Rosa Matilde expired long before the date on which this compliant was filed; and consequently, said action has prescribed; that, after the death of Ramon Viademonte, Jr., in February 1905, probate proceedings were had in the Court of First Instance of Manila, an administrator of the decedent's estate was appointed, on July 21 of said year the commissioners to appraise the estate of the deceased were appointed, and after the lapse of the period fixed for allowing claims against the state, the property of the deceased was adjudicated to his heir Rafael C. de Inchausti and to the legatees, the plaintiffs not having presented to the commissioners, any claim against the estate of said deceased has thus prescribed by the lapse of the period for its presentation, that after the death of Rafael C. de Inchausti, on October 5, 1913, probate proceedings were had regarding his will in the Court of First Instance of the city, an executor was appointed, as well as the commissioners to appraise the estate, and the period within which claims against he estate might be received has expired, and the plaitniffs have not presented any claim whatsoever against he estate of said Rafael C. de Inchausti, and finally, she alleged that he period fixed by law for presenting claims against he estate of said Rafael C. de Inchausti expired long before the date of the filing of this complaint, and consequently, the action to assert the claim has already prescribed, and that therefore the defendant should be absolved from the complaint with the costs against the plaintiffs. Counsel for the plaintiffs, in his written reply amending his replies of September 20 and 21, 1916, denied generally and specifically each and all of the new facts alleged in the answers of the defendants, and added that the will of Isabel Gonzalez, dated October 12, 1886, is null and void, inasmuch as Rosa Viademonte Gonzalez and having equal rights as her other children; that he defendants are estopped form denying that the surname of Rosa Matilde was a daughter of Isabel Gonzalez with Ramon Martinez Viademonte; that the plaintiffs are legitimate children of said Rosa Matilde with Benigno Ferre inasmuch as both their predecessors in interest as well as the present defendants have previously made declarations and formal affirmations, written and oral, recognizing that the surname of Rosa Matilde was Viademonte y Gonzalez, that the same was legitimate daughter of Isabel Gonzalez and Ramon Martinez Viademonte and that the plaintiffs are legitimate children of Rosa Viademonte y Gonzalez with Benigno Ferrer. The trial having been held and the evidence of both parties adduced, the trial judge, on February 12, 1917, rendered a judgment declaring that the plaintiffs receive nothing in this action and pay the costs. To this decision the plaintiffs excepted and moved for a new trial, which motion was denied by order of the court on the 27th day of the same month and year. An exception was taken to the order denying the motion for a new trial, and the corresponding bill of exception was presented, approved, certified, and forwarded to the office of the clerk of this court. The parties are agreed as regard the allegations that the plaintiffs Rafael J. Ferrer and Maria Angelina Ferrer are children of the deceased Rosa Matilde Viademonte, although the defendants deny that they (plaintiffs) were legitimate children of their mother contrary to the affirmation of the plaintiffs to this effect. The evidence of record concerning this point is of such a character that it is difficult to deduce therefrom a certain and definite conclusion, because, while it appears that Rosa

Matilde Viademonte has, on various occasions, stated that she was unmarried and never contracted a marriage, she has made entirely different statements on other occassions. In the proceedings (Exhibit 8) instituted by the said Rosa Matilde against Rafael C. de Inchausti, it was disclosed that she had never been married and that if her children with Benigno Ferrer were baptized as legitimate children, it was so done in order to conceal her dishonor, such statement being found in a document drawn in 1892 and signed by her (Exhibit 8, pp. 3-4). On page 159 of the records of the said proceedings (Exhibit 8) it appears that said Rosa Matilde stated under oath before a judge, on January 21. 1893, that she had never married, and the same declaration was made by her on April 15th of the same year in another case. (Exhibit 7, pp. 17-26.) In a document found on page 166 of said Exhibit 8, executed in 1890, Rosa Matilde stated that she was a widow; but, in a document executed in 1893, found on page 257 of Exhibit 8, and in a document (Exhibit 1, page 136 of the first document executed in 1894) she made the statement that she was unmarried. Rosa Matilde might have made these contradictions due perhaps to her extreme poverty, which had prompted her to tell a lie before the courts of justice, with the sole purpose of recovering the amount claimed by her as her legacy, while, on the hand, it is undeniable that she could not duly justify the marriage contracted by her with Benigno Ferrer. Even if the plaintiffs be considered as legitimate children of Rosa Matilde, Viademonte in her marriage with Benigno Ferrer, still this action filed by them will not prosper, inasmuch as the evidence adduced at the trial to prove the origin of the cause of action referred to shows, in a manner which leaves no room for doubt that Rosa Matilde was not a legitimate daughter of Isabel Gonzalez, and it follows that her children as well as her privies have no right to a part of the hereditary property of said Isabel Gonzalez. Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had been treated and considered as a daughter by Isabel Gonzalez, and as a sister the children of the latter; that, on one occasion, said Gonzalez remarked that the father of Rosa Matilde was Ramon Martinez de Viademonte; that Joaquin Matilde in the following manner: "To my dear and unforgettable sister Rosa." that when Rosa Matilde entered the College de la Compania de Jesus, her name as recorded in the registry of that college was Rosa Matilde Viademonte, and her expenses were defrayed by Rafael de Inchausti and in the same registry said Rafael de Inchausti appears as brother of Rosa; that when Rosa entered the Colegio de Santa Isabel, she used the same name and surname; that Ramon Martinez de Viademonte, Jr., presented Rosa Matilde also sister, saying that the father of the same was also his father named Ramon Martinez de Viademonte, while Rosa Matilde has always been known by the same name and surname during the time she was studying in the Colegio de Luisa Oda de Birgi; that Clotilde de Inchausti called Rosa Matilde her sister in her letters to Rafael Ripol, and that Joaquin de Inchausti himself in the codicil of his testament designates Rosa Matilde with the surname of Viademonte. From all the evidence adduced, the slightest indication cannot be inferred that Rosa Matilde was born during the marriage of Ramon Martinez de Viademonte, Sr., with Isabel Gonzalez or within the 300 days after the dissolution of their marriage by the death of the husband, nor has the said Ramon Martinez de Viademonte, Sr., in his lifetime recognized said Rosa Matilde as his daughter. If Rosa Matilde is a legitimate daughter of Isabel Gonzalez, it follows that she was also a daughter of Isabel's husband, Ramon Martinez de Viademonte, under the assumption that she was born in the marriage of both or at a time prior or subsequent to that of the celebration of the marriage, as fixed by law. (Arts. 119, 120, 121, and 122 of the Civil Code.) Legitimate filiation presupposes the existence of marriage contracted by the presumed parents in accordance with law, and therefore a person can not be declared to be a legitimate daughter of her mother, without presuming at the same time that she was born in the marriage of this mother with the presumed father, who, in his lifetime, and without his consent, could not have been considered

as father of a child that was not conceived by his own wife, because the mere fact of having used his surname after his death, without his assent or consent, does not constitute a proof of filiation of parternity. In this decision it is to be determined whether Rosa Matilde was born in the lifetime of Ramon Martinez de viademonte to decide on the truth of the assertion made by the plaintiffs that their predecessor in interest was a legitimate daughter of the said spouses Viademonte and Gonzalez. At the trial, the death certificate of Ramon Martinez de Viademonte, first husband of Isabel Gonzalez, was not presented in evidence; but it is uncontroverted that he died on September 30, 1836; as corroborated by the accountant of the naval division of Puerto Galkera in charge of the Leiutenant of the Spanish Navy, Jose Atienza, saying that the Lieutenant, who had the rank of captain in the navy, Ramon Viademonte, died on September 30, 1836, as appears in the list of officers found in the payroll under his custody, having paid till the date of the death of said Viademonte all his salaries corresponding to him as such officer, and further saying that, by request of the widow of the deceased, he issued the proper certificate on December 31, 1836. So certain is the death of said Ramon Martinez de Viademonte that his widow Isabel Gonzalez on January 31, 1837, applied to the Government for a pension sufficient to cover her widowhood expenses, alleging that she was a widow with children of the deceased. The application was made in a paper stamped as of the years 1836 and 1837, a fact which proves the authenticity of the document written in a stamped paper, and the presentation of said application by the widow demonstrates the fact that her husband really died, wherefore she asked for a pension, because she would have been held responsible if, in truth and in fact, her husband had been living and not dead as she claimed. The said documents, as constituting a supplementary proof of the death of the deceased Ramon Martinez, de Viademonte, appear to be corroborated by an entry in a notebook belonging to Ramon Viademonte, Jr. wherein it is stated that his mother was married in 1833 to Ramon Martinez de Viademonte who died on September 30, 1836, at the age of 33 years, being then a major in the naval division assigned at Puerto Galera, Mindoro. Notwithstanding the fact that the death certificate of said Ramon Martinez de Viademonte, first husband of Isabel Gonzalez was not presented in evidence, still the documentary and circumstantial evidence of record, especially the fact of the marriage of his widow Isabel Gonzalez with Jose Joaquin de Inchausti, some years after the death of Viademonte died before that marriage or on September 30. 1836. If this be true, let us see on what day Rosa Matilde was born,, and in this way it will be shown that she did not have the status of a legitimate child of those spouses, even after the dissolution of their marriage by the death of the husband. It appears in the certificate that on September 1, 1852, a child three days old, born of unknown parents, was baptized in the Cathedral Church of this city, and given the name of Rosa Matilde Robles. In view of the fact that the plaintiffs have not shown that such baptismal certificate was not that of their mother Rosa Matilde, it remains proven therefore that said certificate was presented as exhibit by Rafael C. de Inchausti in a case concerning the delivery of a legacy instituted against Rosa Matilde, who, instead of denying that such a baptismal certificate referred to her, admitted that such certificate might have been hers. On Page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime, appears a memorandum which says: On September 1, 1862, seven o'clock in the evening a children three days old named Rosa Matilde Robles, according to the baptismal certificate issued by the acting rector Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother; this child was baptized by the priest Don Remegio Rodriguez with the authority of said rector,

and according to the baptismal certificate, it was a child of unknown parents." This memorandum agrees with the above-mentioned baptismal certificate of Rosa Matilde Robles. Notwithstanding the argument of counsel for the appellants Joaquin de Inchausti stated that one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles, and that on that occasion the said brother showed him the certificate of birth of which Exhibit 6 is a copy, which he took from the parochial church. In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de Inchausti referring to the said deceased is admissible, for they are members of the same family, in accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is that Rosa Matilde is the same Rosa Matilde Robels which is mentioned in Exhibit 6 and because she was born in 1852, in no manner could her be legitimate daughter of Ramon Viademonte and Isabel Gonzalez whose marriage was dissolved in 18365 by the death of the husband. Moreover, the witness Pilar Abarca presented by the plaintiffs testified that she had known Rosa Matilde in the Colegio de Santa Isabel in 1863, she being then 20 years old and Rosa, 9 years. If the witness Abarca was 73 years old on the date of giving this testimony in 1916, it follows that Rosa Matilde was born in 1854, and that therefore she could not be a daughter of Ramon Martinez de Viademonte who died in 1836. Notwithstanding the attempt of the plaintiffs to impugn the testimony of said witness, said testimony is admissible according to section 263 of the Code of civil Procedure which provides the when part of an act, declaration conservation, or writing is given in evidence by one party, the whole of the same subject may be inquired into by the other. It is true that the said witness was not presented to prove that the date of Rosa Matildes birth but the fact is that the age of the child is 9 years old as well as that of a youth 19 or 22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa Matilde, as mistake has been made, said mistake could not be such as to reduce her true age by 10 years; but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that she must have been born in 1843, and so she could not have been a daughter of Ramon Martinez de Viademonte, Sr. that the age of a child 9 years old as well as that of a youth 19 or 22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa Matilde, a mistake has been made, said mistake could not be such as to reduce her true age by 10 years; but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that she must have been born in 1843, and so could not have been a daugther of Ramon Martinez de Viademonte, Sr. Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer and Rosa Matilde married in 1872, that Rosa Matilde must have been then between 22 and 30 years of age. It is inferred from this testimony that, if Rosa Matilde could no be over 30 years old in 1872, she could not have been born before 1842, and much less in 1836 or 1837. The document No. 663, page 257 of Exhibit 8, appears to have been executed by Rosa Matilde in 1893, wherein she declared to the notary public before whom the document was executed that she was then 39 years of age. If she was 39 years old in 1893, she could not have been born in 1854 and much less in 1836 and 1837. In Exhibit 1, page 135, which is a certified copy of a discharge in full executed by Rosa Matilde in 1894 in favor of Joaquin Jose de Inchausti, it is said that the maker of the deed was 40 years old, thus corroborating ina convincing manner what has been stated regarding this point in the preceding document.

In view of the objection and arguments made by counsel for the plaintiffs against the admission of the aforementioned documents, it becomes necessary to say in this connection that it is undeniable that Rosa Matilde, in executing said two documents, gave as her age those appearing therein, and that there was no reason for the belief that she told a lie and tried to conceal her true age; but, even admitting that we had made a mistake by telling that she was older or younger than she really was, such a mistake could not have given a difference of 10 years from her true age, inasmuch as she was an educated person, and it is not possible to believe that, through ignorance, she gave an age difference from her true anger; and, even if 10 years be added to the age given by Rosa Matilde in the documents referred to, still the fact remains that in 1894 she must have been only 50 years old and that she must have been born in 1844. It is undisputed that Roa Matilde was born 16 years after the death of Ramon Viademonte, and therefor could not be a daughter of the latter. Counsel for plaintiffs objected to the admission in evidence of the day-book kept by Ramon Martinez Viademonte, Jr., during his lifetime, alleging that it has not been proven that the entries in said book were made at the same time that those events occurred; that the witness who identified it did not see Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and that, even if it were so, still the writing contained in the book, being a mere memorandum of an interested party, can not be admitted at the trial. The above objection can be met and disposed of by the provisions of section 298, No. 13 of the Code of Civil Procedure, which provides that evidence may be given upon trial of monuments and inscriptions in public places as evidence of common reputation; and entries in family Bibles or other family books or charts; engravings on rings, family portraits and the like, as evidence of pedigree. The law does not require that the entries in the said booklet be made at the same time as the occurrence of those events; hence, the written memorandum in the same is not subject to the defect attributed to it, The witness Joaquin Jose de Inchausti declared affirmatively that the memorandum under consideration has been written in the handwriting of his brother Ramon Martinez de Viademonte, whose handwriting he was familiar with, and the testimony of this witness contains some reference to a member of the family, now dead, and concerning the family genealogy of the same. It remains now to be decided whether Rosa Matilde Viademonte was a natural daughter of the deceased Isabel Gonzalez or was a mere protegee cared for and maintained in the house of said Isabel Gonzalez, and, if in the first case, the plaintiffs have the right to succeed ab intestato to a part of the inheritance of Isabel Gonzalez in representation of their mother Rosa Matilde Viaddemante or Robles. The record does not furnish satisfactory proof that Rosa Matilde was a daugther or at least a natural daughter of Isabel Gonzalez; on the other hand, it is shown in the records of the case that she was a protegee in the house of said Isabel, for, in a conciliation proceeding had on April 15, 1893, between Rosa Matilde and Joaquin F. de Inchausti, it appears in the record thereof that, although in some of the documents presented to justify the accounts, Rosa Matilde called Rafael de Inchausti her brother, this manner of calling him was due to the intimacy in which both have been brought up from childhood in the same house, she being a mere protegee of the latter's parents, and of because they were really brother and sister. This statement made by Inchausti in the presence of Rosa Matilde Viademonte did not bring about a protest or objection on the part of Rosa Matilde herself or her attorney. In addition to this fact, Rafael C. De Inchausti stated under oath that it is not true that Rosa MatildeViademonte was his maternal sister.

Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page 135), made the statement that Jose Joaquin de Inchausti, who, together with his wife, cared for her since her early childhood, bequeathed to her, by virtue of a codicil executed before a notary public on January 12, 1889, a legacy amounting to P4,000. The contents of this document constitute a most convincing proof that Rosa Matilde was not a daughter of Isabel Gonzalez, but only a protegee of hers and of her husband Jose Joaquin de Inchausti. Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de Inchausti (record, p. 85), that Rosa Matilde was not their sister but only a protegee of their parents, whose name was Rosa Matilde Robles. It is thus fully proven in the records of the case that Rosa Matilde, the mother of the plaintiffs, was not a daughter of Isabel Gonzalez. Even supposing that Rosa Matilde was in fact a natural child of the deceased Isabel Gonzalez, because the records show that it was impossible that he was a legitimate daughter of the latter, still it cannot be disputed that the said Rosa Matilde could not inherit from her supposed natural mother, Isabel Gonzalez. It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in 1886(record, p. 325) or some years before the Civil Code became operative in these Islands, and therefore, the hereditary rights of the successors of the said deceased should be determined in accordance with the prior laws or the Law of Toro, which provides, among other things, that natural children have no right to succeed to their natural mother when, on her death, the latter leaves legitimate children, as in the present case, and for this reason it is useless to inquire as to whether Rosa Viademonte or Robles was a natural or even an acknowledged natural child of Isabel Gonzalez. Rule 1 of the transitory provisions of the Civil Code invoked by the appellants provides as follows; "Rights arising under the legislation prior to this code, out of matters carried out under its rules, shall be governed by said prior legislation, even if the code should regulate them in another manner, or does not recognize the same. But if said right is declared for the first time in this code, it shall be effective at once, even when the act which gave rise thereto may have taken place under the prior legislation, provided it does not prejudice other acquired rights having the same origin." When Isabel Gonzalez died on December 12, 1886, or some time before the Civil Code became effective in these Islands, she was survived by four children, the eldest being Ramon Viademonte had with her first husband, and the other three, had with her second husband Jose Joaquin de Inchausti, are Clotilde, Rafael, and Joaquin. On her death, the right to succeed her was transmitted by operation of law to her legitimate and legitimated children, and for this reason, even supposing that Rosa Matilde was a natural child of Isabel Gonzalez, she could not claim any right to the inheritance of her supposed natural mother, inasmuch as against her right there exist the rights acquired by the four legitimate and legitimated children of said Isabel Gonzalez, which rights can not be injured or prejudiced in accordance with the conclusive provision of the aforementioned Rule 1 of the transitory provision of the Civil Code. Besides, the records show that the action brought by the plaintiffs has already prescribed, because section 38 of the Code of Civil Procedure provides that the rights of action which have already accrued, with the exception of the two cases mentioned in the same section, among which the present case is not included, must be vindicated by the commencement of an action or proceeding to enforce the same within ten years after Act No. 190 came into effect, and, as this Act became operative in 1901, it is evident that the action instituted against the estate of Isabel Gonzalez has already prescribed. The plaintiffs, by their complaint, do not only seek the partition of the estate of the deceased Isabel Gonzalez, but also and principally to recover the part of the inheritance corresponding to their

mother Rosa Matilde in her succession to the said deceased, so that the discussion during the proceedings referred mainly to the question as to whether the plaintiffs were descendants of an heiress to the said deceased, and if so, whether they had a right derived from their mother to a part of the estate of Isabel Gonzalez. This action must be brought within ten years. He who brings an action for the partition or division of hereditary estates or property in common is supposed to by a coheir and to have an undisputed right to the property claimed or to be coowner of the same property possessed in common. He who claims a right to a part of an inheritance of a deceased person, and who alleges that he is a relative of the latter and has a right of testate or intestate succession thereto, has for his principal object the recognition of his right to the inheritance claimed by him and the delivery to him of his share as fixed by law. Before concluding this decision, it must be stated that, on page 21 of the brief signed by Vicente Sotto as the plaintiffs attorney, and after the first five lines thereof, the following statement appears: "It is also established that Rosa Viademonte was born of Isabel Gonzalez in the year 1852, that is, during the widowhood of the latter." Counsel for the defendants with reason, qualify as false, this affirmation made by the counsel for the plaintiffs to the effect that the judge has established the fact that Rosa Viademonte was born of Isabel Gonzalez, when such affirmation does not appear in any part of the decision rendered by the said judge. This court can not look with indifference on any attempt to alter or falsify, for certain purposes, the facts or their important details in the extracts or references that have to be made in proceedings or records brought before it. All the records in a proceeding should contain and reflect the truth in such a way that all who intervene in it may have absolute confidence that the course and procedure of a trial are under the vigilance and inspection of the court. It is unprofessional and worthy of the highest form of rebuke for a lawyer to attribute to a judge a statement which he had not made in his decision, and in view of the fact that Vicente Sotto has already been disbarred from the exercise of his profession by resolution of this court, it is deemed unnecessary to determine what punishment shall be adopted for said act, which in his case, should be imposed upon him as a lawyer For the foregoing reasons, whereby the errors assigned to the judgment appealed from are deemed to have been refuted, the said judgment should be, as it hereby is, affirmed and the defendants absolved from the complaint, with the costs against the appellants. So ordered. Arellano, C.J., Johnson, Street, Malcolm and Avancea, JJ., concur.

17. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 174480 vs. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, Present: CARPIO,* J., Chairperson, LEONARDO-DE CASTRO,** BRION, DEL CASTILLO, and ABAD, JJ. Promulgated: December 18, 2009

- versus -

REYNALDO ALBALATE, JR., Accused-Appellant.

x-------------------------------------------------------------------x DECISION DEL CASTILLO, J.: Factual Antecedents Appellant Reynaldo Albalate, Jr. was charged with two counts of rape committed against his niece "Maria".1 The accusatory portions of the two Informations read as follows: Crim. Case No. 3169-C: That on or about the evening of the 21st day of November 1998, at Barangay _____________, Municipality of Lopez, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, an uncle and a relative by consanguinity within the third civil degree of one "Maria", with lewd design, by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of said "Maria" , a minor, 12 years of age against her will. Contrary to law.2 Crim. Case No. 3170-C:

That on or about the 21st day of November, 1998 at around 8:00 oclock in the morning, at Barangay ___________, Municipality of Lopez, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, an uncle and a relative by consanguinity within the third civil degree of one "Maria", armed with an ice-pick, with lewd design, by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of one "Maria", a minor, 12 years of age against her will. Contrary to law.3 Appellant pleaded "not guilty" when arraigned. Trial on the merits thereafter ensued. Ruling of the Regional Trial Court On July 24, 2002, the Regional Trial Court of Calauag, Quezon, Branch 63, rendered its Decision4 finding the appellant guilty. The trial court based its judgment of conviction on the following factual findings: This Court painstakingly scrutinized with great caution the testimony of private complainant x x x and found the same to be clear, straightforward, credible and convincing. At the time when the rape incidents happened [on] November 21, 1998, the victim x x x was, as alleged by the prosecution, just a twelve (12) years old barrio lass living in the house of her paternal grandparents in Barangay x x x, Quezon. It was in the said house where she was forcibly deflowered by her uncle Reynaldo Albalate, Jr. on two separate incidents that transpired on that fateful day of November 21, 1998. "Maria" candidly testified that in the morning of the said day while she was alone in the house of her grandparents, the accused Reynaldo Albalate, Jr. armed with an ice pick forcibly removed her dress and placed himself on top of her. Afterwards, Reynaldo Albalate, Jr. inserted his penis in her private part and at the same time kissed and warned her that if she will tell x x x anybody what he had done to her, he will kill her x x x. She added that on the evening of the same day (November 21, 1998) the accused Reynaldo Albalate, Jr. first boxed her, then undressed her and once again put himself on top of her and proceeded to rape her. "Maria" reported the rape incidents to her grandmother x x x who is also the mother of the accused x x x but her grandmother told her that she x x x was lying x x x. When asked by the Court x x x whether she offered resistance when she was raped by the accused x x x, the victim x x x averred that "nagpapalag po ako" x x x. In the course of the crossexamination conducted by the defense counsel, the victim x x x even disclosed that when she was raped by the accused x x x in the morning of November 21, 1998, she was alone in her grandmothers house because she told her cousin Ruel x x x to tend [to] the carabao. She added that when her cousin Ruel came back, the latter saw that she was being raped by the accused x x x. She also categorically testified that when the accused proceeded to rape her, there was bleeding in her vagina and she was hurt. When she urinated, it was very painful. She pointed out that the subject rape incident was her first sexual experience x x x. On the other hand, the accused in order to exculpate himself from the crime charged in the two Informations interposed the defense of denial and alibi. Accused x x x denied that he twice raped the victim x x x at about 8:00 oclock in the morning and about 9:00 oclock in the evening of November 21, 1998 x x x. He also claimed that the parents of the victim x x x were mad at him that is why they filed the instant cases against him. Reynaldo explained that when they were young, the victims father was angry with him because of the sharing of copras in their farm. One day, they had a fight and "Marias" father chased and boxed him so he boxed the former. [The other defense witness, Florentina Escleto, tried to bolster the alleged innocence of the accused of the crimes.] The said witness tried to establish the defense of alibi in favor of the accused x x x. She testified that when the subject incidents of rape happened on November 21, 1998 at Barangay x x x, Quezon, the accused x x x was with her and her son making copra at Barangay Ilayang Ilog-B, Lopez, Quezon. She added that accused x x x arrived at Brgy. Ilayang Ilog-B on November 18, 1998 and only left said

Barangay at the end of the month of November 1998 x x x. This Court carefully scrutinized and weighed the defense of denial and alibi proffered by the accused and was not persuaded by the same. The denial and alibi of the accused deserve scant consideration. x x x In the case at bar, accused x x x was positively identified in a straightforward and categorical manner by the victim x x x as the defiler of her womanhood on two occasions on x x x November 21, 1998. Thus, the denial and alibi interposed by the accused wilted and crumbled in the face of such positive identification. It is also quite interesting x x x that when the accused x x x testified in open court x x x, he only advanced the defense of flat denial. He never mentioned x x x that when the alleged rape incidents happened on November 21, 1998 x x x he was at Brgy. Ilayang Ilog-B, Lopez, Quezon helping Florentina Escleto and her son in making copra. It was only when Florentina Escleto testified x x x that the evidence of alibi cropped up. No other witnesses were presented by the defense to bolster the alibi. Even the son of Florentina Escleto who she claimed was with her and accused x x x in making copra at Brgy. Ilayang Ilog-B, Lopez, Quezon on November 21, 1998 was not presented to shore up the defense of alibi. Thus, it is not hard for this Court to discern that the accuseds defenses of denial and alibi were mere concoction, undeserving of any evidentiary weight and value. It is also [worth noting] that the accused x x x tried to impute ill-motive on the part of the victim x x x and her parents for filing the instant cases against him. He claimed that the parents of the victim particularly the victims father was mad at him because when they were still young, they had a fight wherein he hacked the former. However, the said allegation of the accused was not fully substantiated by any other evidence that would clearly show the alleged ill-motive on the part of the complainant and her parents. Further, to the mind of this Court, it is inconceivable that the victim x x x and her parents would concoct a story of rape over such alleged quarrel between the victims father and the accused and thus subject "Maria" to public humiliation and shame. x x x.5 xxxx Again, it is worth repeating that this Court found the testimony of private complainant x x x to be clear, straightforward and convincing thus, worthy of credence. She categorically testified that accused x x x through force and intimidation ha[d] carnal knowledge of her against her will on two separate occasions that occurred in the morning and in the evening of November 21, 1998 x x x. 6 The trial court noted that although the prosecution satisfactorily established that appellant was a relative of the victim by consanguinity within the 3rd civil degree, it however failed to prove the victims minority. It held that while the victim testified that she was only 12 years old when the rape incidents transpired, the same could not be deemed conclusive and binding upon the court because no other evidence such as a birth certificate was presented to corroborate or substantiate the victims minority.7 The dispositive portion of the Decision of the trial court reads: WHEREFORE, in view of all the foregoing considerations, this Court hereby finds accused Reynaldo Albalate, Jr. GUILTY beyond reasonable doubt of the crime of RAPE both in Criminal Case No. 3169-C and Criminal Case No. 3170-C and hereby sentences said accused to suffer the penalty of RECLUSION PERPETUA in both cases and to pay the private offended party "Maria" the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity plus the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages in each case. The accused is to be credited [for] his preventive imprisonment if proper and any pursuant to the provision of Article 29 of the Revised Penal Code as amended by R.A. 6127 and E.O. 214.

SO ORDERED.8 Ruling of the Court of Appeals On appeal, appellant mainly argued that the prosecution failed to prove his guilt beyond reasonable doubt and thus the trial court erred in finding him guilty of two counts of rape. Appellant claimed that he could not have raped the victim because the examining physician testified that "Maria" did not suffer any hymenal lacerations. Appellant also alleged that the trial court failed to consider the fact that the victim had ill-motives to testify against him considering that the victims father had a previous quarrel with the appellant. The defense also argued that the veracity of the victims testimony was weakened by the prosecutions failure to present the testimony of Ruel, the victims cousin, to corroborate the testimony of the victim. The Court of Appeals, however, did not find merit in appellants contentions. Thus, in its Decision9 dated May 3, 2006, the Court of Appeals affirmed in toto10 the Decision of the trial court. The appellate court did not dignify appellants defenses of denial and alibi in view of the fact that he was positively identified by the victim as the perpetrator of the crime. Appellants imputation of illmotives was also disregarded. The Court of Appeals opined that "no member of the victims family would subject the victim to the stigma and embarrassment concomitant with a rape trial, if he or she is not motivated by an honest desire to have the malefactor punished". Anent the findings of the examining physician that the victim suffered no hymenal lacerations, the Court of Appeals opined that the same did not mean that the victim was not raped. It held that a medical examination is not indispensable in rape cases. The perpetrator of the crime may be found guilty based solely on the testimony of the victim if the same is found to be credible. Finally, the Court of Appeals held that the veracity of the prosecutions evidence was not diminished by its failure to present the testimony of Ruel which would only be corroborative. As regards the penalties imposed by the trial court, the Court of Appeals held that: With respect to the propriety of the penalty imposed, the Court agrees with the finding of the RTC that there is no concurrence of the aggravating circumstances of the victims minority and her relationship to the accused-appellant which would warrant the imposition of the death penalty. Hence, accused-appellant was properly meted the penalty of reclusion perpetua in Criminal Case No. 3169-C. On the other hand, the Court noted that the rape under Criminal Case No. 3170-C was committed with the use of an ice pick, which is a deadly weapon. Article 335 of the Revised Penal Code provides that "whenever the rape is committed with the use of a deadly weapon x x x, the penalty shall be reclusion perpetua to death". In relation thereto, Article 63 of the same Code prescribes that when a penalty is composed of two (2) indivisible penalties, and there are neither mitigating nor aggravating circumstances in the commission of the deed, as in this case, the lesser penalty shall be applied. Accordingly, no reversible error was likewise committed by the RTC in imposing the penalty of reclusion perpetua against accused-appellant in the latter case.11 On November 20, 2006, we required the parties to submit their respective supplemental briefs 12 but both manifested that they are adopting the allegations and arguments in their respective appellants/appellees briefs and would thus no longer submit their supplemental briefs.13 Our Ruling We AFFIRM with MODIFICATION the Decision of the Court of Appeals. Guided by the principles that: "a) an accusation for rape is easy to make, difficult to prove and even more difficult to disprove; b) in view of the intrinsic nature of the crime, the testimony of the

complainant must be scrutinized with utmost caution and c) the evidence of the prosecution must stand on its own merits and cannot draw strength from the weakness of the evidence for the defense",14 we hold that both the trial court and the Court of Appeals correctly found appellant guilty of two counts of rape committed on November 21, 1998. Findings of the trial court on the credibility of witnesses and their testimonies are accorded great weight and respect. The trial court found the testimony of "Maria" to be clear, straightforward and credible. Thus: This Court painstakingly scrutinized with great caution the testimony of private complainant "Maria" in the cases at bar and found the same to be clear, straightforward, credible and convincing. 15 x x x. xxxx Again, it is worth repeating that this Court found the testimony of private complainant "Maria" to be clear, straightforward and convincing thus, worthy of credence. She categorically testified that accused Reynaldo Albalate, Jr. through force and intimidation ha[d] carnal knowledge of her against her will on two separate incidents that occurred in the morning and in the evening of November 21, 1998 x x x.16 On appeal, said finding was affirmed by the Court of Appeals. We find no reason to deviate from the said findings. "In rape cases, the evaluation of the credibility of witnesses is addressed to the sound discretion of the trial judge whose conclusion thereon deserves much weight and respect, because the judge has the direct opportunity to observe them on the stand and ascertain whether they are telling the truth or not."17 We have "long adhered to the rule that findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect unless it overlooked substantial facts and circumstances, which if considered, would materially affect the result of the case".18 Jurisprudence is replete with rulings that an appellant could justifiably be convicted based solely on the credible testimony of the victim. Besides, there is nothing in the records which would indicate that the trial court and the Court of Appeals overlooked or failed to appreciate some facts which if considered would change the outcome of the case. The prosecution failed to satisfactorily establish the minority of the victim. The Informations alleged that "Maria" was a 12-year old minor when she was ravished by her uncle, a relative by consanguinity within the 3rd civil degree. The prosecutions evidence as to the age of the victim constituted merely of the victims testimony. We find this bare testimony insufficient proof of her age. As we held in People v. Manalili,19 "the minority of the victim and her relationship to the offender must be alleged in the criminal complaint or information and proved conclusively and indubitably as the crime itself". We also ruled in People v. Tabanggay20 that x x x there must be independent evidence proving the age of the victim, other than the testimonies of prosecution witnesses and the absence of denial by the accused. x x x As such, both the trial court and the Court of Appeals correctly held that the minority of the victim was not satisfactorily established. Corollarily, we held in People v. Lopit21 that:

In the prosecution of criminal cases, especially those involving the extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established. Qualifying circumstances or special qualifying circumstances must be proved with equal certainty and clearness as the crime itself; otherwise, there can be no conviction of the crime in its qualified form. As a qualifying circumstance of the crime of rape, the concurrence of the victims minority and her relationship to the accused-appellant must be both alleged and proven beyond reasonable doubt.22 We also reiterate the guidelines set forth in People v. Pruna23 in appreciating the age, either as an element of the crime or as a qualifying circumstance, viz: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim. Appellants denial and alibi deserve no consideration at all. When appellant took the witness stand, he denied that he raped the victim. However, other than his self-serving testimony, he offered no evidence to support his denial. We have held that, "denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence, which deserves no weight in law and cannot be given greater evidentiary value over the testimonies of credible witnesses who testify on affirmative matters".24 In this case, appellants denial crumbles under the weight of "Marias" positive identification of appellant as her lecherous attacker. Likewise, we afford no evidentiary value to appellants claim that the filing of the rape charges was orchestrated by the victims parents, particularly her father who allegedly harbored ill-feelings

towards appellant. Other than the fact that this claim was unsubstantiated, we find appellants claim too general to be believed. He merely claimed that he fought with the victims father when they were both still young. But he failed to provide any detail as to when this alleged incident happened. The alibi proffered by the appellant must be rejected. Both the trial court and the Court of Appeals correctly noted that appellant failed to make any mention about this alleged alibi when he was placed on the witness stand. It was only when defense witness Florentina Escleto (Escleto) testified that this alibi cropped up. At any rate, the same deserves no consideration at all. Escleto claimed to be a friend of the appellant. It is settled jurisprudence that an alibi "becomes less plausible when it is corroborated by relatives and friends who may not be impartial witnesses".25 Much less in the instant case considering that appellant himself did not proffer any alibi; it was only Escleto who thought of offering this defense of alibi. Besides, the defense failed to establish that it was physically impossible for the appellant to be at the crime scene at the time the rape incidents were committed. Propriety of the penalties imposed. The rape incidents were committed on November 21, 1998 and thus are governed by Articles 266-A and 266-B of the Revised Penal Code, as amended by Republic Act No. 8353 which took effect on October 22, 1997. Articles 266-A and 266-B of the Revised Penal Code read thus: ART. 266-A. Rape, When and How Committed. Rape is committed 1. By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat or intimidation; b) When the offended party is deprived of reason or is otherwise unconscious; c) By means of fraudulent machinations or grave abuse of authority; d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned should be present; xxxx ART. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. x x x x.

Due to the failure of the prosecution to prove the qualifying circumstance of minority, appellant could only be held liable for simple rape on two counts. Thus, the trial court and the Court of Appeals correctly sentenced appellant to reclusion perpetua and to pay the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages for each count of rape.26 In addition, the award of exemplary damages in the amount of P30,000.0027 is proper considering the presence of the aggravating circumstance of relationship.28 WHEREFORE, the Decision of the Court of Appeals dated May 3, 2006 in CA-G.R. CR No. 00213 finding appellant Reynaldo Albalate, Jr. guilty beyond reasonable doubt of two counts of rape and sentencing him to suffer the penalty of reclusion perpetua and to pay "Maria" the amounts P50,000.00 as civil indemnity and P50,000.00 as moral damages, for each count, is AFFIRMED with the MODIFICATION that appellant is further ordered to pay the amount of P30,000.00 as exemplary damages, for each count of rape. SO ORDERED.

18. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 124853 February 24, 1998 FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and MONINA JISON, respondents.

DAVIDE, JR., J.: This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995 decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860 1 which reversed the decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No. 16373. 2 The latter dismissed the complaint of private respondent Monina Jison (hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco Jison (hereafter FRANCISCO). In issue is whether or not public respondent Court of Appeals committed reversible error, which, in this instance, necessitates an inquiry into the facts. While as a general rule, factual issues are not within the province of this Court, nevertheless, in light of the conflicting findings of facts of the trial court and the Court of Appeals, this case falls under an exception to this rule? 3 In her complaint 4 filed with the RTC on 13 March 1985, MONINA alleged that FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F. Amolar (who was then employed as the nanny of FRANCISCO's daughter, Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and since childhood, had enjoyed the continuous, implied recognition as an illegitimate child of FRANCISCO by his acts and that of his family. MONINA further alleged that FRANCISCO gave her support and spent for her education, such that she obtained a Master's degree, became a certified public accountant (CPA) and eventually, a Central Bank examiner. In view of FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial declaration of her illegitimate status and that FRANCISCO support and treat her as such. In his answer, 5 FRANCISCO alleged that he could not have had sexual relations with Esperanza Amolar during the period specified in the complaint as she had ceased to be in his employ as early as 1944, and did not know of her whereabouts since then; further, he never recognized MONINA, expressly or impliedly, as his illegitimate child. As affirmative and special defenses, FRANCISCO contended that MONINA had no right or cause of action against him and that her action was barred by estoppel, laches and/or prescription. He thus prayed for dismissal of the complaint and an award of damages due to the malicious filing of the complaint. After MONINA filed her reply, 6 pre-trial was conducted where the parties stipulated on the following issues:

1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar about the end of 1945 or the start of 1946? 2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by the latter's own acts and those of his family? 3. Is Monina Jison barred from instituting or prosecuting the present action by estoppel, laches and/or prescription? 4. Damages. 7 At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tiangson, Alfredo Baylosis, Dominador Zavariz and Lope Amolar. Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had worked for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's Iloilo residence. Towards the end of the Japanese occupation, FRANCISCO's wife suffered a miscarriage or abortion, thereby depriving FRANCISCO of consortium; thereafter, FRANCISCO's wife managed a nightclub on the ground floor of Nelly Garden which operated daily from 6:00 p.m. till 3:00 a.m. of the following day, thereby allowing FRANCISCO free access to MONINA's mother, Esperanza Amolar, who was nicknamed Pansay. Adela Casabuena, a 61-year old farmer, testified that she served as the yaya ("nanny") of Lourdes from July 1946 up to February 1947. Although Pansay had left Nelly Garden two (2) weeks before Adela started working for the Jisons, Pansay returned sometime in September 1946, or about one month after she gave birth to MONINA, to ask FRANCISCO for support. As a result, Pansay and Lilia Jison, FRANCISCO's wife, quarreled in the living room, and in the course thereof, Pansay claimed that FRANCISCO was the father of her baby. To which, Lilia replied: "I did not tell you to make that baby so it is your fault." During the quarrel which lasted from 10:30 till 11:00 a.m., FRANCISCO was supposedly inside the house listening. Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he worked as FRANCISCO's houseboy at the latter's house on 12th Street, Capitol Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCO's daughter, would arrive at Bacolod City with a letter of introduction from Lagarto. Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-11) of MONINA, 8 and as he paid for the telephone bills, he likewise identified six (6) telephone cards (Exhs. G to L). Arsenio then declared that when MONINA arrived in Bacolod City, she introduced herself to him as FRANCISCO's daughter. She stayed at FRANCISCO's house, but when the latter and his wife would come over, Arsenio would "conceal the presence of MONINA because Mrs. Jison did not like to see her face." Once, Arsenio hid MONINA in the house of FRANCISCO's sister, Mrs. Luisa Jison Alano, in Silay City; another time, at the residence of FRANCISCO's cousin, Mrs. Concha Lopez Cuaycong. Finally, Arsenio declared that the last time he saw MONINA was when she left for Manila, after having finished her schooling at La Salle College in Bacolod City. On re-direct and upon questions by the court, Arsenio disclosed that it was FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and his wife were around; that although FRANCISCO and MONINA saw each other at the Bacolod house only once, they called each other "through long distance;" and that MONINA addressed FRANCISCO as "Daddy" during their lone meeting at the Bacolod house and were "affectionate" to each other. Arsenio likewise declared that

MONINA stayed at FRANCISCO's Bacolod house twice: first for a month, then for about a week the second time. On both occasions, however, FRANCISCO and his wife were abroad. Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat MONINA like his (FRANCISCO's) other daughters. The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo City, initially touched on how he and his wife were related to FRANCISCO, FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of the family trees of the Jison and Lopez families, which showed that former Vice-President Fernando Lopez was the first cousin of FRANCISCO's wife, then told the court that the family of Vice-President Lopez treated MONINA "very well because she is considered a relative . . . by reputation, by actual perception." Zafiro likewise identified Exhibits X-13 to X-18, photographs taken at the 14 April 1985 birthday celebration of Mrs. Fernando Lopez, which showed MONINA with the former Vice-President and other members of the Lopez family. Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid for some of MONINA's school needs and even asked MONINA to work in a hospital owned by Mrs. Cuaycong; and that another first cousin of FRANCISCO's wife, a certain Remedios Lopez Franco, likewise helped MONINA with her studies and problems, and even attended MONINA's graduation in 1978 when she obtained a masteral degree in Business Administration, as evidenced by another photograph (Exh. X12). Moreover, upon Remedios' recommendation, MONINA was employed as a secretary at Merchant Financing Company, which was managed by a certain Danthea Lopez, the wife of another first cousin of FRANCISCO's wife, and among whose directors were Zafiro himself, his wife and Danthea's husband. In closing, Zafiro identified MONINA's Social Security Record (Exh. W), which was signed by Danthea as employer and where MONINA designated Remedios as the beneficiary. Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the first cousin of her husband, Eusebio D. Lopez; and that she came to know MONINA in the latter part of 1965 when Remedios Franco recommended MONINA for employment at Merchant Financing Co., which Danthea managed at that time. Remedios introduced MONINA to Danthea "as being reputedly the daughter of Mr. Frank Jison;" and on several occasions thereafter, Remedios made Danthea and the latter's husband understand that MONINA was "reputedly the daughter of [FRANCISCO]" While MONINA worked at Merchant Financing, Danthea knew that MONINA lived with Remedios; however, in the latter part of 1966, as Remedios left for Manila and MONINA was still studying at San Agustin University, Danthea and her husband invited MONINA to live with them. During MONINA's 6-month stay with them, she was not charged for board and lodging and was treated as a relative, not a mere employee, all owing to what Remedios had said regarding MONINA's filiation. As Danthea understood, MONINA resigned from Merchant Financing as she was called by Mrs. Cuaycong, a first cousin of Danthea's husband who lived in Bacolod City. Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a procurement officer, hacienda overseer and, later, as hacienda administrator. Sometime in May, 1971, Romeo saw and heard MONINA ask "her Daddy" (meaning FRANCISCO) for the money he promised to give her, but FRANCISCO answered that he did not have the money to give, then told MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and bring him to the office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside. When they came out, Atty. Tirol had papers for MONINA to sign, but she refused. Atty. Tirol said that a check would be released to MONINA if she signed the papers, so MONINA acceded, although Atty. Tirol intended not to give MONINA a copy of the document she signed. Thereafter, Mr. Cruz gave MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his motive for testifying, Romeo stated that he wanted to help MONINA be recognized as FRANCISCO'S daughter.

Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was employed by FRANCISCO's wife at the Baguio Military Institute in Baguio City; then in 1965, Rudy worked at FRANCISCO's office at Nelly Garden recording hacienda expenses, typing vouchers and office papers, and, at times, acting as paymaster for the haciendas. From the nature of his work, Rudy knew the persons receiving money from FRANCISCO's office, and clearly remembered that in 1965, as part of his job, Rudy gave MONINA her allowance from FRANCISCO four (4) times, upon instructions of a certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise recalled that he first met MONINA in 1965, and that she would go to Nelly Garden whenever FRANCISCO's wife was not around. On some of these occasions, MONINA would speak with and address FRANCISCO as "Daddy," without objection from FRANCISCO. In fact, in 1965, Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that in April 1965, FRANCISCO's office paid P250.00 to Funeraria Bernal for the funeral expenses of MONINA's mother. Finally, as to Rudy's motives for testifying, he told the court that he simply wanted to held bring out the truth "and nothing but the truth," and that MONINA's filiation was common knowledge among the people in the office at Nelly Garden. On re-direct, Rudy declared that the moneys given by FRANCISCO's office to MONINA were not reflected in the books of the office, but were kept in a separate book, as Mr. Lagarto explained that FRANCISCO's wife and children "should not know [of] this." Rudy further revealed that as to the garden "meetings" between FRANCISCO and MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek both upon arriving and before leaving, and FRANCISCO's reaction upon seeing her was to smile and say in the Visayan dialect: "Kamusta ka iha?" ("How are you, daughter?"); and that MONINA was free to go inside the house as the household staff knew of her filiation, and that, sometimes, MONINA would join them for lunch. Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper, then when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office manager. Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her P15.00 monthly allowance given upon FRANCISCO's standing order. Alfredo further declared that MONINA's filiation was pretty well-known in the office, that he had seen MONINA and FRANCISCO go from the main building to the office, with FRANCISCO's arm on MONINA's shoulder; and that the office paid for the burial expenses of Pansay, but this was not recorded in the books in order to hide it from FRANCISCO's wife. Alfredo also disclosed that the disbursements for MONINA's allowance started in 1961 and were recorded in a separate cash book. In 1967, the allowances ceased when MONINA stopped schooling and was employed in Bacolod City with Miller, Cruz & Co., which served as FRANCISCO's accountant-auditor. Once, when Alfredo went to the offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and arrange for the preparation of FRANCISCO's income tax return, Alfredo chanced upon MONINA. When Alfredo asked her how she came to work there, she answered that "her Daddy," FRANCISCO, recommended her, a fact confirmed by Mr. Atienza Alfredo then claimed that Mr. Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of FRANCISCO. Dominador Savariz, a 55-year old caretaker, testified that he worked as FRANCISCO's houseboy at Nelly Garden from November 1953 up to 1965. One morning in April 1954, MONINA and her mother Pansay went to Nelly Garden and spoke with FRANCISCO for about an hour, during which time, Dominador was vacuuming the carpet about six (6) to seven (7) meters away. Due to the noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices, thus Dominador overheard their conversation. As FRANCISCO asked Pansay why they came, Pansay answered that they came to ask for the "sustenance" of his child MONINA. FRANCISCO then touched MONINA's head and asked: "How are you Hija?," to which MONINA answered: "Good morning, Daddy." After FRANCISCO told

Pansay and MONINA to wait, he pulled something from his wallet and said to Pansay. "I am giving this for a child." In May 1954, Dominador saw MONINA at Mr. Lagarto's office where Dominador was to get "the day's expenses," while MONINA was claiming her allowance from Mr. Diasnes. The next month, Dominador saw MONINA at Nelly Garden and heard in the office that MONINA was there to get her allowance "from her Daddy." In December 1960, Dominador saw MONINA at Nelly Garden, in the room of Don Vicente (father of FRANCISCO's wife), where she asked for a Christmas gift "and she was calling Don Vicente, Lolo (grandfather)." At that time, FRANCISCO and his wife were not around. Then sometime in 1961, when Dominador went to Mr. Legarto's office to get the marketing expenses, Dominador saw MONINA once more claiming her allowance. Dominador further testified that in February 1966, after he had stopped working for FRANCISCO, Dominador was at Mrs. Franco's residence as she recommended him for employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who was then about 15 years old, together with Mrs. Franco's daughter and son. Mrs. Franco pointed at MONINA and asked Dominador if he knew who MONINA was. Dominador answered that MONINA was FRANCISCO's daughter with Pansay, and then Mrs. Franco remarked that MONINA was staying with her (Mrs. Franco) and that she was sending MONINA to school at the University of San Agustin. Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope to work at Elena Apartments in Manila. By November 1945, Pansay was also working at Elena Apartments, where she revealed to Lope that FRANCISCO impregnated her. Lope then confronted FRANCISCO, who told Lope "don't get hurt and don't cause any trouble, because I am willing to support your Inday Pansay and my child." Three (3) days after this confrontation, Lope asked for and received permission from FRANCISCO to resign because he (Lope) was hurt. On 21 October 1986, MONINA herself took the witness stand. At that time, she was 40 years old and a Central Bank Examiner. She affirmed that as evidenced by certifications from the Office of the Local Civil Registrar (Exhs. E and F) and baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20 April 1965) and FRANCISCO. 9 MONINA first studied at Sagrado where she stayed as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her father, FRANCISCO, paid for her tuition fees and other school expenses. She either received the money from FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give money to her mother, or Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different schools, 10 but FRANCISCO continuously answered for her schooling. For her college education, MONINA enrolled at the University of Iloilo, but she later dropped due to an accident which required a week's hospitalization. Although FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most of them. In 1963, she enrolled at the University of San Agustin, where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each semester, MONINA would show FRANCISCO that she was enrolled, then he would ask her to canvass prices, then give her the money she needed. After finishing two (2) semesters at University of San Agustin, as evidenced by her transcript of records (Exh. Z showing the FRANCISCO was listed as Parent/Guardian [Exh. Z-1], she transferred to "De Paul College," just in front of Mrs. Franco's house, and studied there for a year. Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where she obtained a bachelor's degree in Commerce in April 1967. During her senior year, she stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle University as evidenced

by her transcript (Exh. AA), wherein FRANCISCO was likewise listed as "Guardian" (Exhs. AA-1 and AA2). MONINA enumerated the different members of the household staff at Nelly Garden, to wit: Luz, the household cook; the houseboys Silvestre and Doming; the housemaid Natang; the yaya of the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina; and others. MONINA likewise enumerated the members of the office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and other), and identified them from a photograph marked as Exhibit X-2. She then corroborated the prior testimony regarding her employment at Merchant Financing Co., and her having lived at Hotel Kahirup and at Mrs. Cuaycong's residence in Bacolod City, while working at the hospital owned by Mrs. Cuaycong. MONINA further testified that in March 1968, she went to Manila and met FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets, Ermita. She told FRANCISCO that she was going for a vacation in Baguio City with Mrs. Franco's mother, with whom she stayed up to June 1968. Upon her return from Baguio City, MONINA told FRANCISCO that she wanted to work, so the latter arranged for her employment at Miller & Cruz in Bacolod City. MONINA went to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told her she would start working first week of September, sans examination. She resigned from Miller & Cruz in 1971 and lived with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA went to see FRANCISCO, told him that she resigned and asked him for money to go to Spain, but FRANCISCO refused as she could not speak Spanish and would not be able find a job. The two quarreled and FRANCISCO ordered a helper to send MONINA out of the house. In the process, MONINA broke many glasses at the pantry and cut her hand, after which, FRANCISCO hugged her, gave her medicine, calmed her down, asked her to return to Bacolod City and promised that he would giver her the money. MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as instructed by Mr. Cruz. These calls were evidenced by PLDT long distance toll card (Exhs. G to L), with annotations at the back reading; "charged and paid under the name of Frank L. Jison" and were signed by Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a certification as to the veracity of the contents of the toll cards (Exh. BB). Likewise introduced in evidence was a letter of introduction prepared by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf (Exh. N). MONINA also declared that Atty. Tirol then told her that she would have to go to Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money promised by FRANCISCO. She went to Atty. Tirol's office in Iloilo, but after going over the draft of the affidavit, refused to sign it as it stated that she was not FRANCISCO's daughter. She explained that all she had agreed with FRANCISCO was that he would pay for her fare to go abroad, and that since she was a little girl, she knew about her illegitimacy. She started crying, begged Atty. Tirol to change the affidavit, to which Atty. Tirol responded that he was also a father and did not want this to happen to his children as they could not be blamed for being brought into the world. She then wrote a letter (Exh. O) to FRANCISCO and sent it to the latter's Forbes Park residence (Bauhinia Place) by JRS courier service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod City where they discussed the affidavit which she refused to sign. FRANCISCO told her that the affidavit was for his wife, that in case she heard about MONINA going abroad, the affidavit would "keep her peace." MONINA then narrated that the first time she went to Atty. Tirol's office, she was accompanied by one Atty. Fernando Divinagracia, who advised her that the affidavit (Exh. P) 11 would "boomerang" against FRANCISCO "as it is contrary to law." MONINA returned to Bacolod City, then met with Atty. Tirol once more to reiterate her plea, but Atty. Tirol did not relent. Thus, on the morning of 20 or 21 September 1971, she signed the affidavit as she was jobless and needed the money to support herself and finish her studies. In exchange for signing the document, MONINA received a Bank of Asia

check for P15,000.00 (Exh. Q), which was less than the P25,000.00 which FRANCISCO allegedly promised to give. As Atty. Tirol seemed hesitant to give her a copy of the affidavit after notarizing it, MONINA merely grabbed a copy and immediately left. MONINA then prepared to travel abroad, for which purpose, she procured letters of introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCO's elder sister Luisa); and an uncle, Emilio Jison (FRANCISCO's elder brother), addressed to another cousin, Beth Jison (Emilio's daughter), for Beth to assist MONINA. Exhibit S contained a statement (Exh. S-1) expressly recognizing that MONINA was FRANCISCO's daughter. Ultimately though, MONINA decided not to go abroad, opting instead to spend the proceeds of the P15,000.00 check for her CPA review, board exam and graduate studies. After finishing her graduate studies, she again planned to travel abroad, for which reason, she obtained a letter of introduction from former Vice President Fernando Lopez addressed to then United States Consul Vernon McAnnich (Exh. V). As to other acts tending to show her filiation, MONINA related that on one occasion, as FRANCISCO's wife was going to arrive at the latter's Bacolod City residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of the stay of FRANCISCO's wife. MONINA also claimed that she knew Vice President Fernando Lopez and his wife, Mariquit, even before starting to go to school. Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit Lopez for possible employment with Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO. In Exhibit U, Mrs. Lopez expressly recognized MONINA as FRANCISCO's daughter. As additional proof of her close relationship with the family of Vice President Lopez, MONINA identified photographs taken at a birthday celebration on 14 April 1985. MONINA finally claimed that she knew the three (3) children of FRANCISCO by wife, namely, Lourdes, Francisco, Jr., (Junior) and Elena, but MONINA had met only Lourdes and Junior. MONINA's testimony dealt lengthily on her dealings with Junior and the two (2) occasions when she met with Lourdes. The last time MONINA saw FRANCISCO was in March 1979, when she sought his blessings to get married. In his defense, FRANCISCO offered his deposition taken before then Judge Romeo Callejo of the Regional Trial Court of Manila, Branch 48. As additional witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal. FRANCISCO declared that Pansay's employment ceased as of October, 1 1944, and that while employed by him, Pansay would sleep with the other female helpers on the first floor of his residence, while he, his wife and daughter slept in a room on the second floor. At that time, his household staff was composed of three (3) female workers and two (2) male workers. After Pansay left in October 1944, she never communicated with him again, neither did he know of her whereabouts. FRANCISCO staunchly denied having had sexual relations with Pansay and disavowed any knowledge about MONINA's birth. In the same vein, he denied having paid for MONINA's tuition fees, in person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees despite absence of instructions or approval from FRANCISCO. He likewise categorically denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that MONINA was his daughter. FRANCISCO also disclosed that upon his return from the United States in 1971, he fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of his position during the former's absence. FRANCISCO likewise fired Rudy Tingson and Romeo Bilbao, but did not give the reasons therefor. Finally, FRANCISCO denied knowledge of MONINA's long distance calls from his Bacolod residence; nevertheless, when he subsequently discovered this, he fired certain people in his office for their failure to report this anomaly. As regards the caretaker of his Bacolod residence, FRANCISCO explained that since MONINA lived at Mrs. Cuaycong's residence, the caretaker thought that he

could allow people who lived at the Cuaycong residence to use the facilities at his (FRANCISCO's) house. Nonito Jalandoni, bookkeeper and paymaster at Nelly's Garden from 1963 up to 1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified that he did not know MONINA; that he learned of her only in June 1988, when he was informed by FRANCISCO that MONINA had sued him; and that he never saw MONINA at Nelly's Garden, neither did he know of any instructions for anyone at Nelly's Garden to give money to MONINA. Teodoro Zulla, FRANCISCO's bookkeeper and paymaster from 1951 up to 1986, testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified discrepancies; and that he never saw MONINA receive funds from either Mr. Lagarto or Mr. Baylosis. Upon questions from the trial court, however, Teodoro admitted that he prepared vouchers for only one of FRANCISCO's haciendas, and not vouchers pertaining to the latter's personal expenses. Iigo Supertisioso testified that he worked for FRANCISCO at Nelly's Garden from 1964 up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-in-charge (OIC). He confirmed Alfredo Baylosis' dismissal due to these unspecified irregularities, then denied that FRANCISCO ever ordered that MONINA be given her allowance. Likewise, Iigo never heard FRANCISCO mention that MONINA was his (FRANCISCO's) daughter. Lourdes Ledesma, FRANCISCO's daughter, testified that she saw (but did not know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of Lourdes' first son, Mark. Over lunch one day, Lourdes' aunt casually introduced Lourdes and MONINA to each other, but they were referred to only by their first names. Then sometime in 1983 or 1984, MONINA allegedly went to Lourdes' house in Sta. Clara Subdivision requesting for a letter of introduction or referral as MONINA was then jobhunting. However, Lourdes did not comply with the request. Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller & Cruz from 1968 up to 1971, however, he did not personally interview her before she was accepted for employment. Moreover, MONINA underwent the usual screening procedure before being hired. Jose recalled that one of the accountants, a certain Mr. Atienza, reported that MONINA claimed to be FRANCISCO's daughter. Jose then told Mr. Atienza to speak with MONINA and see if he (Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza reported that he spoke with MONINA, who told him that she planned to leave for the United States and needed P20,000.00 for that purpose, and in exchange, she would sign a document disclaiming filiation with FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with Jose, and at that meeting, MONINA confirmed Mr. Atienza's report. Jose then informed Atty. Tirol, FRANCISCO's personal lawyer, about the matter. Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirol's) office in Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to Atty. Tirol Jose relayed Atty. Tirol's message to MONINA through Mr. Atienza, then later, Atty. Tirol told Jose to go to Iloilo with a clerk for P15,000.00 Jose complied, and at Atty. Tirol's office, Jose saw MONINA, Atty. Tirol and his secretary reading some documents. MONINA then expressed her willingness to sign the document, sans revisions. Jose alleged that he drew the P15,000.00 from his personal funds, subject to reimbursement from and due to an understanding with FRANCISCO. Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946, testified that she knew that Pansay was Lourdes' nanny; that Lourdes slept in her parents' room; that she had not seen FRANCISCO give special treatment to Pansay; that there was no "unusual relationship" between FRANCISCO and Pansay, and if there was any, Dolores would have easily detected it since she slept in the same room as Pansay. Dolores further declared that whenever FRANCISCO's wife was out of town, Pansay would bring Lourdes downstairs at nighttime, and that Pansay would not sleep in the

room where FRANCISCO slept. Finally, Dolores declared that Pansay stopped working for FRANCISCO and his wife in October, 1944. The reception of evidence having been concluded, the parties filed their respective memoranda. It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21 October 1986, thereby hearing only the testimonies of MONINA's witnesses and about half of MONINA's testimony on direct examination. Judge Norberto E. Devera, Jr. heard the rest of MONINA's testimony and those of FRANCISCO's witnesses. In its decision of 12 November 1990 12 the trial court, through Judge Devera, dismissed the complaint with costs against MONINA. In the opening paragraph thereof, it observed: This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina Jison against defendant Francisco Jison. This complaint was filed on March 13, 1985 at the time when plaintiff, reckoned from her death of birth, was already thirty-nine years old. Noteworthy also is the fact that it was instituted twenty years after the death of plaintiff's mother, Esperanza Amolar. For the years between plaintiff's birth and Esperanza's death, no action of any kind was instituted against defendant either by plaintiff, her mother Esperanza or the latter's parents. Neither had plaintiff brought such an action against defendant immediately upon her mother's death on April 20, 1965, considering that she was then already nineteen years old or, within a reasonable time thereafter. Twenty years more had to supervene before this complaint was eventually instituted. The trial court then proceeded to discuss the four issues stipulated at pre-trial, without, however, summarizing the testimonies of the witnesses nor referring to the testimonies of the witnesses other than those mentioned in the discussion of the issues. The trial court resolved the first issue in the negative, holding that it was improbable for witness Lope Amolar to have noticed that Pansay was pregnant upon seeing her at the Elena Apartments in November 1945, since Pansay was then only in her first month of pregnancy; that there was no positive assertion that "copulation did indeed take place between Francisco and Esperanza;" and that MONINA's attempt to show opportunity on the part of FRANCISCO failed to consider "that there was also the opportunity for copulation between Esperanza and one of the several domestic helpers admittedly also residing at Nelly's Garden at that time." The RTC also ruled that the probative value of the birth and baptismal certificates of MONINA paled in light of jurisprudence, especially when the misspellings therein were considered. The trial court likewise resolved the second issue in the negative, finding that MONINA's evidence thereon "may either be one of three categories, namely: hearsay evidence, incredulous evidence, or self-serving evidence." To the first category belonged the testimonies of Adela Casabuena and Alfredo Baylosis, whose knowledge of MONINA's filiation was based, as to the former, on "utterances of defendant's wife Lilia and Esperanza allegedly during the heat of their quarrel," while as to the latter, Alfredo's conclusion was based "from the rumors going [around] that plaintiff is defendant's daughter, front his personal observation of plaintiff's facial appearance which he compared with that of defendant's and from the way the two (plaintiff and defendant) acted and treated each other on one occasion that he had then opportunity to closely observe them together." To the second category belonged that of Dominador Savariz, as: At each precise time that Esperanza allegedly visited Nelly's Garden and allegedly on those occasions when defendant's wife, Lilia was in Manila, this witness was there and allegedly heard pieces of conversation between defendant and Esperanza related to the paternity of the latter's child. . .

The RTC then placed MONINA's testimony regarding the acts of recognition accorded her by FRANCISCO's relatives under the third category, since the latter were never presented as witnesses, for which reason the trial court excluded the letters from FRANCISCO's relatives (Exhs. S to V). As to the third issue, the trial court held that MONINA was not barred by prescription for it was of "the perception . . . that the benefits of Article 268 accorded to legitimate children may be availed of or extended to illegitimate children in the same manner as the Family Code has so provided;" or by laches, "which is [a] creation of equity applied only to bring equitable results, and . . . addressed to the sound discretion of the court [and] the circumstances [here] would show that whether plaintiff filed this case immediately upon the death of her mother Esperanza in 1965 or twenty years thereafter in 1985, . . . there seems to be no inequitable result to defendant as related to the situation of plaintiff." The RTC ruled, however, that MONINA was barred by estoppel by deed because of the affidavit (Exh. P/Exh. 2) which she signed "when she was already twenty-five years, a professional and . . . under the able guidance of counsel." Finally, the RTC denied FRANCISCO's claim for damages, finding that MONINA did not file the complaint with malice, she having been "propelled by an honest belief, founded on probable cause." MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860) and sought reversal of the trial court's decision on the grounds that: I THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE THIS CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT APPELLANT'S DELAY IN FILING HER COMPLAINT WAS FATAL TO HER CASE. II THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF APPELLANT'S WITNESSES AS TAILOR-MADE, INADEQUATE AND INCREDIBLE. III THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF THE CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY APPELLANT AS PART OF HER EVIDENCE. IV THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO THE ACTUAL ACT O COPULATION BETWEEN THE APPELLEE AND APPELLANT'S MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID EFFECT. V THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE APPELLEE AS HEARSAY. VI

THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT'S AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR RECOGNITION INSTEAD OF REINFORCING SAID CLAIM. 13 Expectedly, FRANCISCO refuted these alleged errors in his Appellee's Brief. 14 In its decision of 27 April 1995, 15 the Court of Appeals initially declared that as no vested or acquired rights were affected, the instant case was governed by Article 175, in relation to Articles 172 and 173, of the Family Code. 16 While the Court of Appeals rejected the certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E and F) as FRANCISCO did not sign them, said court focused its discussion on the other means by which illegitimate filiation could be proved, i.e., the open and continuous possession of the status of an illegitimate child or, by any other means allowed by the Rules of Court and special laws, such as "the baptismal certificate of the child, a judicial admission, a family bible wherein the name of the child is entered, common reputation respecting pedigree, admission by silence, testimonies of witnesses . . ." 17 To the Court of Appeals, the "bottom line issue" was whether or not MONINA established her filiation as FRANCISCO's illegitimate daughter by preponderance of evidence, as to which issue said court found: [N]ot just preponderant but overwhelming evidence on record to prove that [MONINA] is the illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed such status by direct acts of [FRANCISCO] and/or his relatives. In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz were already sufficient to establish MONINA's filiation: As adverted to earlier, the trial court discredited Lope Amolar's testimony by saying that Lope could not have detected Esperanza's pregnant state in November, 1945 since at that point in time [sic] she was still in the initial stage of pregnancy. Apparently, the trial court paid more emphasis on the date mentioned by Lope Amolar than on the tenor and import his testimony. As . . . Lope . . . was asked about an incident that transpired more than 41 years back, [u]nder the circumstances, it is unreasonable to expect that Lope could still be dead right on the specific month in 1945 that [he] met and confronted his sister. At any rate, what is important is not the month that they met but the essence of his testimony that his sister pointed to their employer [FRANCISCO] as the one responsible for her pregnancy, and that upon being confronted, [FRANCISCO] assured him of support for Esperanza and their child. It would appear then that in an attempt to find fault with Lope's testimony, the trial court has fallen oblivious to the fact that even [FRANCISCO], in his deposition, did not deny that he was confronted by Lope about what he had done to Esperanza during which he unequivocally acknowledged paternity by assuring Lope of support for both Esperanza and their child. The Court of Appeals further noted that Casabuena and Savariz "testified on something that they personally observed or witnessed," which matters FRANCISCO "did not deny or refute." Finally, said court aptly held: Taking into account all the foregoing uncontroverted testimonies . . . let alone such circumstantial evidence as [MONINA's] Birth Certificates . . . and Baptismal Certificates which invariably bear the name of [FRANCISCO] as her father, We cannot go along with the trial court's theory that [MONINA's] illegitimate filiation has not been satisfactorily established. xxx xxx xxx Significantly, [MONINA's] testimony finds ample corroboration from [FRANCISCO's] former employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. . . .

xxx xxx xxx Carefully evaluating appellant's evidence on her enjoyment of the status of an illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCO's] controversion thereof, We find more weight in the former. The positive testimonies of [MONINA] and [her] witnesses . . . all bearing on [FRANCISCO's] acts and/or conduct indubitably showing that he had continuously acknowledged [MONINA] as his illegitimate daughter have not been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his deposition, only casually dismissed [MONINA's] exhaustive and detailed testimony as untrue, and with respect to those given by [MONINA's] witnesses, he merely explained that he had fired [them] from their employment. Needless to state, [FRANCISCO's] vague denial is grossly inadequate to overcome the probative weight of [MONINA's] testimonial evidence. Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court . . . does not hold sway in the face of [MONINA's] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse . . . Further, the testimony of Jose Cruz concerning the events that led to the execution of the affidavit . . . could not have been true, for as pointed out by [MONINA] she signed the affidavit . . . almost five months after she had resigned from the Miller, Cruz & Co. . . . At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINA's] sworn statement . . . On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000. [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA] . . . In fine, We hold that [MONINA's] filiation as [FRANCISCO's] illegitimate daughter has been conclusively, established by the uncontroverted testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz to the effect that appellee himself had admitted his paternity of the appellee, and also by the testimonies of appellant; Arsenio Duatin, Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly demonstrating that by his own conduct or overt acts like sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado Corazon de Jesus, defraying appellant's hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellant's mother, acknowledging appellant's paternal greetings and calling appellant his "Hija" or child, instructing his office personnel to give appellant's monthly allowance, recommending appellant for employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic and other records (Exhs. Z, AA, AA-1, to AA-5, W & W-5), appellee had continuously recognized appellant as his illegitimate daughter. Added to these are the acts of [FRANCISCO's] relatives acknowledging or treating [MONINA] as [FRANCISCO's] daughter (Exh. U) or as their relative (Exhs. T & V). On this point, witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse belongs to the Lopez clan just like [FRANCISCO], testified that [MONINA) has been considered by the Lopezes as a relative. He identified pictures of the appellee in the company of the Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband Eusebio Lopez is appellee's first cousin, testified that appellant was introduced to her by appellee's cousin, Remedios Lopez Franco, as the daughter of appellee Francisco Jison, for which reason, she took her in as [a] secretary in the Merchant's Financing Corporation of which she was the manager, and further allowed her to stay with her family free of board and lodging. Still on this aspect, Dominador

Savariz declared that sometime in February, 1966 appellee's relative, Ms. Remedios Lopez Franco pointed to appellant as the daughter of appellee Francisco Jison. Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well as [MONINA's] Baptismal Certificates (Exhs C & D) which the trial court admitted in evidence as part of [MONINA's] testimony, may serve as circumstantial evidence to further reinforce [MONINA's] claim that she is [FRANCISCO's] illegitimate daughter by Esperanza Amolar. True it is that a trial judge's assessment of the credibility of witnesses is accorded great respect on appeal. But the rule admits of certain exceptions. One such exception is where the judge who rendered the judgment was not the one who heard the witnesses testify. [citations omitted] The other is where the trial court had overlooked, misunderstood or misappreciated some facts or circumstances of weight and substance which, if properly considered, might affect the result of the case. [citations omitted] In the present case, both exceptions obtain. All of [MONINA's] witnesses . . . whose testimonies were not given credence did not testify before the judge who rendered the disputed judgment . . . The Court of Appeals then decreed: WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE and another one is hereby entered for appellant Monina Jison, declaring her as the illegitimate daughter of appellee Francisco Jison, and entitled to all rights and privileges granted by law. Costs against appellee. SO ORDERED. His motion for reconsideration having been denied by the Court of Appeals in its resolution of 29 March 1996, 18 FRANCISCO filed the instant petition. He urges us to reverse the judgment of the Court of Appeals, alleging that said court committed errors of law: I. . . . IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER, CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN THE PETITIONER AND THE PRIVATE RESPONDENTS MOTHER AT THE TIME CONCEPTION WAS SUPPOSED TO HAVE OCCURRED. II. . . . IN REVERSING THE TRIAL COURT'S FINDING CONSIDERING THAT PRIVATE RESPONDENTS TESTIMONIAL EVIDENCE OF PATERNITY AND FILIATION IS NOT CLEAR AND CONVINCING. III. . . . IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT THE SAME ARE HEARSAY, SELFSERVING AND CANNOT BIND THE PETITIONER UNDER THE BASIC RULES OF EVIDENCE. IV.

. . . IN INTERPRETING THE PRIVATE RESPONDENTS SWORN STATEMENT (EXH. "P" /EXH. "2") IN A MANNER NOT IN CONSONANCE WITH THE RULINGS OF THE HONORABLE SUPREME COURT. V. . . . IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES. As regards the first error, FRANCISCO insists that taking into account the second paragraph of MONINA's complaint wherein she claimed that he and Pansay had sexual relations "by about the end of 1945 or the start of 1946," it was physically impossable for him and Pansay to have had sexual contact which resulted in MONINA's birth, considering that: The normal period of human pregnancy is nine (9) months. If as claimed by private respondent in her complaint that her mother was impregnated by FRANCISCO "at the end of 1945 or the start of 1946", she would have been born sometime in late September or early October and not August 6, 1946 . . . The instant case finds factual and legal parallels in Constantino vs. Mendez, 19 thus: . . . FRANCISCO further claims that his testimony that Pansay was no longer employed by him at the time in question was unrebutted, moreover, other men had access to Pansay during the time of or even after her employment by him. As to the second error, FRANCISCO submits that MONINA's testimonial evidence is "shaky, contradictory and unreliable," and proceeds to attack the credibility of her witnesses by claiming, in the main, that: (a) Lope Amolar could not have detected Pansay pregnancy in November 1945 when they met since she would have been only one (1) month pregnant then; (b) Dominador Savariz did not in fact witness the meeting between FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an ulterior motive in testifying for MONINA as he owned a bank in Iloilo which was then under Central Bank supervision and MONINA was the Bank Examiner assigned to Iloilo; and (d) Danthea Lopez was not related to him by blood and whatever favorable treatment MONINA received from Danthea was due to the former's employment at Merchants' Financing Company and additional services rendered at Kahirup Hotel; besides Danthea admitted that she had no personal knowledge as to the issue of paternity and filiation of the contending parties, hence Sections 39 and 40 20 of Rule 130 of the Rules of Court did not come into play. FRANCISCO likewise re-echoes the view of the trial court as regards the testimonies of Adela Casabuena and Alfredo Baylosis. FRANCISCO further asserts that MONINA's testimony that he answered for her schooling was selfserving and uncorroborated by any receipt or other documentary evidence; and assuming he did, such should be interpreted as a manifestation of kindness shown towards the family of a former household helper. Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO points to the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA resided with the families of Eusebio Lopez and Concha Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio Lopez and Mrs. Cuaycong; and MONINA's employment at the accounting firm of Miller, Cruz & Co. was attributable to her educational attainment, there being absolutely no evidence to prove that FRANCISCO ever facilitated her employment thereat. Hence, in light of Baluyot v. Baluyot, 21 the quantum of evidence to prove paternity by clear and convincing evidence, not merely a preponderance thereof, was not met.

With respect to the third assigned error, FRANCISCO argues that the Court of Appeals' reliance on the certifications of the Local Civil Registrar (Exhs. E and F) and Baptismal Certificates (Exhs. C and D) as circumstantial evidence is misplaced. First, their genuineness could not be ascertained as the persons who issued them did not testify. Second, in light of Reyes v. Court of Appeals, 22 the contents of the baptismal certificates were hearsay, as the data was based only on what was told to the priest who solemnized the baptism, who likewise was not presented as a witness. Additionally, the name of the father appearing therein was "Franque Jison," which was not FRANCISCO's name. Third, in both Exhibits E and F, the names of the child's parents were listed as "Frank Heson" and "Esperanza Amador" (not Amolar). FRANCISCO further points out that in Exhibit F, the status of the child is listen as "legitimate," while the father's occupation as "laborer." Most importantly, there was no showing that FRANCISCO signed Exhibits E and F or that he was the one who reported the child's birth to the Office of the Local Civil Registrar. As to MONINA's educational records, FRANCISCO invokes Baas v. Baas 23 which recognized that school records are prepared by school authorities, not by putative parents, thus incompetent to prove paternity. And, as to the photographs presented by MONINA, FRANCISCO cites Colorado v. Court of Appeals, 24 and further asserts that MONINA did not present any of the persons with whom she is seen in the pictures to testify thereon; besides these persons were, at best, mere second cousins of FRANCISCO. He likewise assails the various notes and letters written by his relatives (Exhs. S to V) as they were not identified by the authors. Finally, he stresses that MONINA did not testify as to the telephone cards (Exhs. G to L) nor did these reveal the circumstances surrounding the calls she made from his residence. Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals' interpretation of MONINA's affidavit of 21 September 1971 ran counter to Dequito v. Llamas, 25 and overlooked that at the time of execution, MONINA was more than 25 years old and assisted by counsel. As to the last assigned error, FRANCISCO bewails the Court of Appeals' failure to consider the long and unexplained delay in the filing of the case. In her comment, MONINA forcefully refuted FRANCISCO's arguments, leading FRANCISCO to file his reply thereto. On 20 November 1996, we gave due course to this petition and required the parties to submit their respective memoranda, which they subsequently did. A painstaking review of the evidence and arguments fails to support petitioner. Before addressing the merits of the controversy, we first dispose of preliminary matters relating to the applicable law and the guiding principles in paternity suits. As to the former, plainly, the Family Code of the Philippines (Executive Order No. 209) governs the present controversy. As correctly cited by the Court of Appeals, Uyguangco 26 served as a judicial confirmation of Article 256 of the Family Code 27 regarding its retroactive effect unless there be impairment of vested rights, which does not hold true here, it appearing that neither the putative parent nor the child has passed away and the former having actually resisted the latter's claim below. Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may be established in the same way and on the same evidence as that of legitimate children. Article 172 thereof provides the various forms of evidence by which legitimate filiation is established, thus: Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil Code. For the success of an action to establish illegitimate filiation under the second paragraph. which MONINA relies upon given that she has none of the evidence mentioned in the first paragraph, a "high standard of proof" 28 is required. Specifically, to prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity. Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously. 29 By "continuous" is meant uninterrupted and consistent, but does not require any particular length of time. 30 The foregoing standard of proof required to establish one's filiation is founded on the principle that an order for recognition and support may create an unwholesome atmosphere or may be an irritant in the family or lives of the parties, so that it must be issued only if paternity or filiation is established by clear and convincing evidence. 31 The foregoing discussion, however, must be situated within the general rules on evidence, in light of the burden of proof in civil cases, i.e., preponderance of evidence, and the shifting of the burden of evidence in such cases. Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendant's. The concept of "preponderance of evidence" refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth. 32 With these in mind, we now proceed to resolve the merits of the instant controversy. FRANCISCO's arguments in support of his first assigned error deserve scant consideration. While it has been observed that unlawful intercourse will not be presumed merely from proof of an opportunity for such indulgence, 33 this does not favor FRANCISCO. Akin to the crime of rape where, in most instances, the only witnesses to the felony are the participants in the sexual act themselves, in deciding paternity suits, the issue of whether sexual intercourse actually occurred inevitably redounds to the victim's or mother's word, as against the accused's or putative father's protestations. In the instant case, MONINA's mother could no longer testify as to the fact of intercourse, as she had, unfortunately, passed away long before the institution of the complaint for recognition. But this did not mean that MONINA could no longer prove her filiation. The fact of her birth and her parentage

may be established by evidence other than the testimony of her mother. The paramount question then is whether MONINA's evidence is coherent, logical and natural. 34 The complaint stated that FRANCISCO had carnal knowledge of Pansay "by about the end of 1945." We agree with MONINA that this was broad enough to cover the fourth quarter of said year, hence her birth on 6 August 1946 could still be attributed to sexual relations between FRANCISCO and MONINA's mother. In any event, since it was established that her mother was still in the employ of FRANCISCO at the time MONINA was conceived as determined by the date of her birth, sexual contact between FRANCISCO and MONINA's mother was not at all impossible, especially in light of the overwhelming evidence, as hereafter shown, that FRANCISCO fathered MONINA, has recognized her as his daughter and that MONINA has been enjoying the open and continuous possession of the status as FRANCISCO's illegitimate daughter. We readily conclude that the testimonial evidence offered by MONINA, woven by her narration of circumstances and events that occurred through the years, concerning her relationship with FRANCISCO, coupled with the testimonies of her witnesses, overwhelmingly established the following facts: 1) FRANCISCO is MONINA's father and she was conceived at the time when her mother was in the employ of the former; 2) FRANCISCO recognized MONINA as his child through his overt acts and conduct which the Court of Appeals took pains to enumerate, thus: [L]ike sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado de Jesus, defraying appellant's hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellant's mother, acknowledging appellant's paternal greetings and calling appellant his "Hija" or child, instructing his office personnel to give appellant's monthly allowance, recommending appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5) . . . 3) Such recognition has been consistently shown and manifested throughout the years publicly, 35 spontaneously, continuously and in an uninterrupted manner. 36 Accordingly, in light of the totality of the evidence on record, the second assigned error must fail. There is some merit, however, in the third assigned error against the probative value of some of MONINA's documentary evidence. MONINA's reliance on the certification issued by the Local Civil Registrar concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth purportedly identifying the putative father is not competent evidence as to the issue of paternity, when there is no showing that the putative father had a hand in the preparation of said certificates, and the Local Civil Registrar is devoid of authority to record the paternity of an illegitimate child upon the information of a third person. 37 Simply put, if the alleged father did not intervene in the birth certificate, e.g., supplying the information himself, the inscription of his name by the mother or doctor or registrar is null and void; the mere certificate by the registrar without the signature of the father is not proof of voluntary acknowledgment on the latter's part. 38 In like manner, FRANCISCO's lack of participation in the

preparation of the baptismal certificates (Exhs. C and D) and school records (Exhs. Z and AA) renders these documents incompetent to prove paternity, the former being competent merely to prove the administration of the sacrament of baptism on the date so specified. 39 However, despite the inadmissibility of the school records per se to prove the paternity, they may be admitted as part of MONINA's testimony to corroborate her claim that FRANCISCO spent for her education. We likewise disagree with the ruling of the Court of Appeals that the certificates issued by the Local Civil Registrar and the baptismal certificates may be taken as circumstantial evidence to prove MONINA's filiation. Since they are per se inadmissible in evidence as proof of such filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same. As to Exhibits "S," "T," "U" and "V," the various notes and letters written by FRANCISCO's relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez, respectively, allegedly attesting to MONINA's filiation, while their due execution and authenticity are not in issue, 40 as MONINA witnessed the authors signing the documents, nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no showing that the declarants-authors were dead or unable to testify, neither was the relationship between the declarants and MONINA shown by evidence other than the documents in question. 41 As to the admissibility of these documents under Rule 130, Section 40, however, this requires further elaboration. Rule 130, Section 40, provides: 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 one 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. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like may be received as evidence of pedigree. (emphasis supplied) It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. What must then be ascertained is whether Exhibits S to V, as private documents, fall within the scope of the clause "and the like" as qualified by the preceding phrase "[e]ntries in family bibles or other family books or charts, engravings on rights [and] family portraits," We hold that the scope of the enumeration contained in the second portion of this provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. 42 These have been described as objects "openly exhibited and well known to the family," 43 or those "which, if preserved in a family, may be regarded as giving a family tradition." 44 Other examples of these objects which are regarded as reflective of a family's reputation or tradition regarding pedigree are inscriptions on tombstones, 45 monuments or coffin plates. 46 Plainly then, Exhibits S to V, as private documents not constituting "family possessions" as discussed above, may not be admitted on the basis of Rule 130, Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section 41 regarding common reputation, 47 it having been observed that: [T]he weight of authority appears to be in favor of the theory that it is the general repute, the common reputation in the family, and not the common reputation in community, that is a material element of evidence going to establish pedigree. . . . [Thus] matters of pedigree may

be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community. 48 Their inadmissibility notwithstanding, Exhibits "S" to "V," inclusive, may, in like manner as MONINA's school records, properly be admitted as part of her testimony to strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his daughter. We now direct our attention to MONINA's 21 September 1971 affidavit (Exh. P/Exh. 2), subject of the fourth assigned error, where she attests that FRANCISCO is not her father. MONINA contends that she signed it under duress, i.e., she was jobless, had no savings and needed the money to support herself and finish her studies. Moreover, she signed Exhibit P upon the advice of Atty. Divinagracia that filiation could not be waived and that FRANCISCO's ploy would "boomerang" upon him. On the other hand, FRANCISCO asserts that full credence should be afforded Exhibit P as MONINA was already 25 years old at the time of its execution and was advised by counsel; further, being a notarized document, its genuineness and due execution could not be questioned. He relies on the testimony of Jose Cruz, a partner at the accounting firm of Miller & Cruz, who declared that he intervened in the matter as MONINA was spreading rumors about her filiation within the firm, which might have had deleterious effects upon the relationship between the firm and FRANCISCO. On this issue, we find for MONINA and agree with the following observations of the Court of Appeals: Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court . . . does not hold sway in the face of [MONINA's] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse . . . At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] of his lawyer to have secured [MONINA's] sworn statement . . . On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000. [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA] . . . Indeed, if MONINA were truly not FRANCISCO's illegitimate daughter, it would have been unnecessary for him to have gone to such great lengths in order that MONINA denounce her filiation. For as clearly established before the trial court and properly appreciated by the Court of Appeals, MONINA had resigned from Miller & Cruz five (5) months prior to the execution of the sworn statement in question, hence negating FRANCISCO's theory of the need to quash rumors circulating within Miller & Cruz regarding the identity of MONINA's father. Hence, coupled with the assessment of the credibility of the testimonial evidence of the parties discussed above, it is evident that the standard to contradict a notarial document, i.e. clear and convincing evidence and more than merely preponderant, 49 has been met by MONINA Plainly then, the burden of evidence fully shifted to FRANCISCO. Two (2) glaring points in FRANCISCO's defense beg to be addressed: First, that his testimony was comprised of mere denials, rife with bare, unsubstantiated responses such as "That is not true," "I do not believe that," or "None that I know." In declining then to lend credence to FRANCISCO's testimony, we resort to a guiding principle in adjudging the credibility of a witness and the truthfulness of his statements, laid down as early as 1921: The experience of courts and the general observation of humanity teach us that the natural limitations of our inventive faculties are such that if a witness undertakes to fabricate and

deliver in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message. For this reason it will be found that perjurers usually confine themselves to the incidents immediately related to the principal fact about which they testify, and when asked about collateral facts by which their truthfulness could be tested, their answers not infrequently take the stereotyped form of such expressions as "I don't know" or "I don't remember." . . . 50 Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were unspecified or likewise unsubstantiated, hence FRANCISCO's attempt to prove ill-motive on their part to falsely testify in MONINA's favor may not succeed. As may be gleaned, the only detail which FRANCISCO could furnish as to the circumstances surrounding the dismissals of his former employees was that Baylosis allegedly "took advantage of his position" while FRANCISCO was in the United States. But aside from this bare claim, FRANCISCO's account is barren, hence unable to provide the basis for a finding of bias against FRANCISCO on the part of his former employees. As to FRANCISCO's other witnesses, nothing substantial could be obtained either. Nonito Jalandoni avowed that he only came to know of MONINA in June 1988; 51 that during his employment at Nelly Garden from 1963 up to 1974, he did not recall ever having seen MONINA there, neither did he know of any instructions from FRANCISCO nor Mr. Lagarto (FRANCISCO's office manager before passing away) regarding the disbursement of MONINA's allowance. 52 Teodoro Zulla corroborated Jalandoni's testimony regarding not having seen MONINA at Nelly Garden and MONINA's allowance; declared that Alfredo Baylosis was dismissed due to discrepancies discovered after an audit, without any further elaboration, however; but admitted that he never prepared the vouchers pertaining to FRANCISCO's personal expenses, merely those intended for one of FRANCISCO's haciendas. 53 Then, Iigo Superticioso confirmed that according to the report of a certain Mr. Atienza, Baylosis "was dismissed by Mr. Jison for irregularities," while Superticioso was informed by FRANCISCO that Tingson was dismissed for loss of confidence. Superticioso likewise denied that MONINA received money from FRANCISCO's office, neither was there a standing order from FRANCISCO to release funds to her. 54 It is at once obvious that the testimonies of these witnesses for FRANCISCO are likewise insufficient to overcome MONINA's evidence. The former merely consist of denials as regards the latter's having gone to Nelly Garden or having received her allowance from FRANCISCO's office, which, being in the form of negative testimony, necessarily stand infirm as against positive testimony; 55 bare assertions as regards the dismissal of Baylosis; ignorance of FRANCISCO's personal expenses incapable of evincing that FRANCISCO did not provide MONINA with an allowance; or hearsay evidence as regards the cause for the dismissals of Baylosis and Tingson. But what then serves as the coup de grace is that despite Superticioso's claim that he did not know MONINA, 56 when confronted with Exhibit H, a telephone toll ticket indicating that on 18 May 1971, MONINA called a certain "Eing" at FRANCISCO's office, Superticioso admitted that his nickname was "Iing" and that there was no other person named "Iing" in FRANCISCO's office. 57 All told, MONINA's evidence hurdled "the high standard of proof" required for the success of an action to establish one's illegitimate filiation when relying upon the provisions regarding "open and continuous possession'' or "any other means allowed by the Rules of Court and special laws;" moreover, MONINA proved her filiation by more than mere preponderance of evidence. The last assigned error concerning laches likewise fails to convince. The essential elements of laches are: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which the complaint seeks a remedy; (2) delay in asserting the complainant's rights, the complainant having had knowledge or notice of the defendant's conduct as having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that

the complaint would assert the right in which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complaint, or the suit is not held barred. 58 The last element is the origin of the doctrine that sale demands apply only where by reason of the lapse of time it would be inequitable to allow a party to enforce his legal rights. 59 As FRANCISCO set up, laches as an affirmative defense, it was incumbent upon him to prove the existence of its elements. However, he only succeeded in showing MONINA's delay in asserting her claim, but miserably failed to prove the last element. In any event, it must be stressed that laches is based upon grounds of public policy which requires, for the peace of society, the discouragement of state claims, and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted. There is no absolute rule as to what constitutes laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court, and since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetuate fraud and injustice. 60 Since the instant case involves paternity and filiation, even if illegitimate, MONINA filed her action well within the period granted her by a positive provision of law. A denial then of her action on ground of laches would clearly be inequitable and unjust. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and the challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No. 32860 is AFFIRMED. Costs against petitioner. SO ORDERED.

19. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-64556 June 10, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. CEFERINO LUNGAYAN, accused.

GANCAYCO, J.: Rape is a serious offense against chastity. Its essential element is involuntariness. More often than not, the credibility of the offended party is vital. Failing in this, the prosecution cannot make out a case. This is demonstrated in a review of the conviction of the accused Ceferino Lungayan by the Regional Trial Court (RTC) of Echague, Isabela for the crime of rape, who was thereby imposed the penalty of reclusion perpetua with all the accessory penalties provided for by law, and ordered to indemnify the victim Agripina Juan Vda. de Garzota in the amount of P12,000.00 for moral damages without subsidiary imprisonment in case of insolvency, and to pay the costs, in a decision dated April 8, 1982. The evidence for the prosecution show that the complainant Agripina Juan Vda. de Garzota, then 52 years old and a widow, was asleep inside the room at their market stall located in the public market of barangay Oscariz, municipality of Ramon, Isabela, on the evening of January 20, 1980. With her were her two married daughters Silveria and Leticia, the latter's husband Berting Garcia and the children of said daughters. At about 10:00 o'clock of that evening, Silveria heard someone knock at their door and when she opened it she saw the accused who was then the barangay captain of Barangay Oscariz. He asked Silveria if her mother was in. She answered in the affirmative and added that her mother was asleep. Nevertheless, the accused entered the room where complainant was sleeping and woke up the complainant. He invited her to join him to observe the persons drinking wine in the market stall identified as Linda's canteen in violation of the barangay ordinance prohibiting the same after 10:00 o'clock in the evening. Complainant went with the accused to the said canteen which was only one market stall away. They stood about two meters away from the open door of the canteen, the electric lights of which were open inside. They stayed at the place for ten minutes standing side by side without talking to each other. They were observing the people drinking in the canteen. Suddenly the accused grabbed both hands of complainant so complainant reacted by shouting very loud only once. Her cries could not be heard by the people drinking inside the canteen because of the loud stereo player. The accused slapped her and brought out his gun which he pointed at her breast threatening to kill her if she creates any noise. The accused then pulled her and she fell on the ground hitting her head on the pavement so she lost consciousness, sustaining injuries on the palms of her hands. When she regained consciousness after a short while, she was dragged by the accused towards the banana grove near the market. She managed to stand and walk while being dragged. The accused then carried her body across the canal and dropped her on the ground causing her to fall flat on her

belly and her fingers were again injured by the broken glasses on the ground. She could not free herself nor shout for help because of the threat to her life. After she fell flat on the ground, the accused held her and pressed her down and he proceeded to remove her skirt and shorts and thereafter her blouse leaving her exposed naked with her back to the ground. She was not wearing any panty or brassiere then. Besides pressing her down the accused stepped on her thigh with his left foot as he went on top of her naked body. Then he stood up warning her not to make any noise and he removed his pants and tee-shirt after which he again went on top of her naked body holding her hands. Pointing the gun at her breast anew, the accused repeated his threat to kill her if she resisted. Then the accused started mashing her breast and succeeded in having sexual congress with the complainant. She felt his penis penetrating her vagina followed by a push and pull movement for less than an hour, until she felt semen emitting from his penis and entering her body. After a while, he stood up, put on his pants and warned her not to tell her children about what he had just done to her or ask for help for he will kill her. He left her in tears. After the accused had gone, complainant put on her shorts and shirt which were muddy as it previously rained that day and went home still crying. When she reached home about 12:00 midnight, Silveria asked her what happened and she revealed that the accused abused her. When Silveria pressed for details, the complainant replied that she will tell her the following morning. As she promised, the next morning complainant told Silveria everything that happened to her and thereafter she proceeded to Santiago town and reported the incident to Mr. Segundo Maylem, post commander and Executive Vice Chapter Commander, VFP Southern Isabela, from whom she sought assistance. She was advised to submit herself to an investigation and medical examination, On the same day, the complainant was examined by Dr. Normita Villarico, chief of the Cagayan Valley Sanitarium Hospital. After due investigation by the PC, a complaint for rape was filed signed and sworn to by complainant in the Municipal Circuit Court of Ramon, Isabela against the accused. In appealing his conviction, the accused, through counsel assailed the credibility of complainant and interposed the defense of denial and alibi. However, by way of rebuttal of the People's brief filed by another collaborating counsel for appellant, the failure of the prosecution to establish involuntariness on the part of the victim was emphasized. The appeal is impressed with merit. There is no question that there was sexual congress between the complainant and the appellant on that fateful evening. The medical findings and the analysis of the court a quo to this effect is wellfounded. However, the environmental circumstances of the case militates against the claim of the complainant that the appellant employed force or intimidation in the perpetration of the said sexual act. Complainant was a widow, 52 years of age. She had been married three times. She was not that innocent about the world. When appellant invited her at 10:00 P.M. to step out of her house, she should have declined. Going out alone with a man late in the evening is not in good taste nor safe even if the one who invited her was the barrio captain. Instead, she should have suggested that the appellant invite some other person for the purpose. But obviously, the appellant was quite intimate with the complainant. When he knocked at her door and was allowed entry, he proceeded into the bedroom of complainant and woke her up himself.

Complainant went with the appellant in her shorts. She took no precaution as any discreet woman would do by at least putting on her panty and a brassiere instead of stepping out with the appellant in her shorts. For about ten minutes, they were together side by side watching from a distance the people who were drinking at Linda's canteen. Then suddenly, the appellant allegedly held her two hands. She allegedly shouted for help but only once. If she could not be heard as her voice was drowned by the blaring stereo player, she should have shouted louder again and again. Better still, she should have ran towards the canteen which was just two meters away or to her residence which was one market stall away. After allegedly shouting once, she kept her peace. She was allegedly dragged although she admits she willingly walked along. She was allegedly carried across the canal by the appellant although she was taller and definitely bigger than appellant. When she fell on the ground, the appellant removed her shorts and skirt without difficulty. She offered no resistance. Even as he stood up to remove his pants she did not attempt to stand up to escape nor to shout for help. There was no sign of struggle or resistance. Then the appellant put his penis into her vagina penetrating her. They had sexual intercourse for almost one hour. She even felt the semen of appellant as it entered her body. Not a whimper, not a sound from the complainant was heard. She claims she was afraid due to the gun of appellant and his threats. She did not even describe the type of gun the appellant threatened her with several times. Nor had the prosecution shown appellant ever had a gun. All indications show that she submitted to his advances. The incident happened at about 10:00 o'clock in the evening. She went home only at about 12:00 o'clock that evening. Apparently, she still moved around or spent sometime alone for about one hour. She must have contemplated what to do with her clothes all muddy. When she reached home she was confronted by her daughter as to what happened. She had no choice but to tell her that she was abused by appellant but she was not prepared to reveal everything. She promised to tell all the details to her daughter the following day. She thought about her predicament the whole night. She had no choice. She must have to tell everything the following day. As the Court sees it, what actually happened in this case, is that when the complainant went out with the appellant that evening, she was aware of the risk of going out alone with a man for a reason that is far from unavoidable. They were close and side by side for sometime, allegedly watching the drinking session at Linda's canteen. They must have succumbed to the temptation of the flesh. One thing led to the other until they had sexual intercourse. Perhaps the complainant did not initiate or motivate the sexual interlude. In the least, she must have abetted it if not willingly submitted to the advances of the appellant. Indeed, they were in ecstasy for almost one hour. Such mutual and passionate lovemaking can certainly not be characterized as involuntary. It was free and without any compulsion. The appellant was 48 years old when the incident happened. To think that a younger man would rape an elderly woman of 52 years, widow, three times married, would be quite unusual. It is more probable that it was consensual. The trial court considered the revelation of the complainant to her daughter Silveria of what happened to her when she returned home as part of the res gestae. It is important to stress that her statement must not only be spontaneous. It must also be made at a time when there was no opportunity for her to concoct or develop her own story. 1 As the Court observed, the complainant did not immediately go home after the sexual encounter. She took a walk. She spent sometime thinking of what to do. Her clothes were muddy. She had some bruises on her body and back because she was lying down on the ground during the sexual intercourse and their passionate

interlude. She had enough time to make a decision on what will be the nature of her story. Her revelation cannot thus be categorized as part of the res gestae. Considering all the facts and circumstances of the case, the Court finds that if there was any sexual congress between appellant and complainant, it was upon their mutual consent. There was no compulsion or force. The version of the complainant is far from credible. A verdict of acquittal is in order. WHEREFORE, the judgment appealed from is REVERSED AND SET ASIDE and another judgment is hereby rendered ACQUITTING the appellant of the offense charged, with costs de oficio. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

20. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-33049 November 29, 1976 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GUILLERMO PUTIAN, alias GUIRMO accused-appellant. Alaric P. Acosta for appellant. Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista, and Solicitor Leonardo I. Cruz for appellee.

AQUINO, J: Guillermo Putian appealed from the decision of the Court of First Instance of Misamis Occidental, finding him guilty of murder, sentencing him to reclusion perpetua and ordering him to indemnify the heirs of Teodulo Panimdim in the sum of twelve thousand pesos (Criminal Case No. 6762). The peculiarity of this case is that no eyewitness was presented to testify on the assault which resulted in the victim's death (See People vs. Dahino, 88 Phil. 789 as to murder proven by circumstantial evidence). The prosecution presented only two witnesses: (1) The doctor who treated the victim at the hospital and who testified on the nature of his wound and the cause of his death (Exh. A) and (2) the policeman who arrested the accused and seized from him the dagger allegedly used in the stabbing (Exh. B) and who took down the victim's ante-mortem statement Identifying "Guirmo" Putian as his assailant (Exh. C). On the other hand, the accused did not testify in his own behalf. The defense presented only one witness. He testified that appellant Putian was in the dance hall when the victim was stabbed outside that hall. Hence, in this appeal our task is to determine whether the prosecution's evidence establishes appellant's guilt beyond reasonable doubt and, if so, whether the offense is murder or homicide. Those are the two issues raised by the appellant in his eight-page brief. Appellant Putian admits that on November 22, 1969 while Teodulo Panimdim was attending a dance at Barrio Tabo-o, Jimenez, Misamis Occidental, he (Panimdim) was stabbed in the left groin. As a result of that assault, Panimdim died five days later at the provincial hospital (p. 3, brief). The question is: Did Putian stab Panimdim? According to the prosecution, in the evening of that day, November 22, while Patrolman Arturo Yap was passing Barrio Tabo-o, he noticed a commotion at the back of the dance hall in that barrio. He

was informed that someone had been stabbed. He looked for the culprit. He found Guillermo Putian behind the municipal building with a dagger and scabbard in his possession (Exh. B and B-1). Yap investigated Putian. The latter denied that he stabbed Panimdim. Yap arrested Putian and surrendered him to Jesus Gomonit, the guard at the municipal hall. Patrolman Yap then repaired to the clinic of Doctor Saceda where the victim, Teodulo Panimdim, alias Doling, was brought for treatment. At the clinic, Yap wrote on a piece of paper the victim's declaration which is reproduced below (Exh. C): ANTI-MORTEM Nov. 22,1969 Name of Victim Teodolo Padimdim (should be Panimdim) Age 21 single Place Palilan, Jimenez Who stabbed you? Guirmo Putian Where? Outside the dancing hall of Tabo-o Why? None What time? 11:30 P.M. Do you think you can suffer your wound? Yes Who is your companion? Miguel Quilo, Victorino Padimdim Who is the companion of Guirmo? I don't know their names because they are plenty Can you sign your name in this anti-mortem? Yes Statement taken by Pat. Yap. Sgd. Teodulo Panimdim TEODULO PANIMDIM Sign in the presence of 1. Victorino Panimdim 2. Ben Ybalane

3. Miguel Quilo Witnesses When that statement was taken, Panimdim was in a sitting position. Patrolman Yap advised him to go to a hospital for treatment. Panimdim stood up, flexed his muscles and said that there was nothing to worry about because the wound was small. Without anybody's help, he put on his undershirt, pants and shirt. He went to his house without anyone's assistance. Yap explained that Panimdim mentioned only a person named Guirmo and that he, Yap, was the one who added the surname Putian in the statement Exhibit C. He clarified that he wrote that surname because he knew of no other person called Guirmo in that locality except Guirmo Putian, an alleged gambler (22 tsn). On November 23, one day after the stabbing, the victim was brought to the hospital. An operation was performed on him. He died in the hospital on November 27, or five days after he was assaulted (Exh. D). The attending physician certified that the victim had a stab wound in the left groin which penetrated the abdomen and punctured the large intestine. Death was due to "toxemia secondary to general peritonitis" (Exh. A). The doctor testified that the stab wound could have been caused by the two-bladed dagger (punyal), Exhibit B. The slender evidence for the defense consists merely of the meager testimony of Anacleto Taporco, 54, the assistant provincial board secretary and former candidate for mayor, who claimed to be a friend of Panimdim and a close friend of Putian. Taporco declared that in the evening of November 22, 1969 he was in the barrio dance hall together with appellant Putian, Olimpio Sitoy and Ramon Gimeno. Panimdim was also there. Taporco said that Panimdim, 21, asked his permission to box Rogelio Opos. Taporco allegedly advised Panimdim not to do so because boxing Opos would cause trouble in the dance hall. Panimdim obeyed him but sometime later Panimdim again asked Taporco that he be allowed to box Opos. Taporco dissuaded Panimdim and took him outside the dance hall. Afterwards, Taporco was allegedly informed that there was trouble. When he tried to find out what the trouble was, he was informed that it was already patched up. During that interval, Putian never left the dance hall. The trial court, in convicting Putian, regarded Panimdim's ante-mortem statement as part of the res gestae. Obviously, it did not give to that statement the probative value of a dying declaration because the declarant at the time he made the statement was not under a consciousness of an impending death (See see. 31, Rule 130, Rules of Court; People vs. Saliling, L-27974, February 27, 1976, 69 SCRA 427). The trial court did not give any credence to Putian's alibi. It noted that he did not take the witness stand to refute Panimdim's declaration naming Putian as his assailant. The trial court surmised that through Putian's machinations some witnesses listed in the information did not testify for the prosecution. Appellant Putian challenges the trial court's ruling that Panimdim's ante-mortem statement was part of the res gestae as envisaged in Rule 130 of the Rules of Court which provides: SEC. 36. Part of the res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to

the circumstances thereof, may be given in evidence as a part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as a part of the res gestae. The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts (5 Moran's Comments on the Rules of Court, 1970 Ed., p. 362). The trial court admitted Panimdim's statement as a spontaneous statement made after the commission of a felony (People vs. Talledo and Timbreza, 85 Phil. 533). Appellant Putian contends that Panimdim's statement was not spontaneous because it was "made several hours after the incident". He claims that the requisite that the declarant gave the statement before he had time to devise or contrive was not present in this case. Appellant further contends that because the statement is in narrative form, it is not the statement contemplated in the rule. On the other hand, the Solicitor General points out that the statement was in question-and-answer form and that Panimdim's answers were spontaneous, candid, straightforward, direct, brief, concise, natural and devoid of any design or deliberation. He argues that the fact that Patrolman Yap added the surname Putian to the name "Guirmo", which was mentioned by the victim, did not destroy the probative value of the statement because the appellant could have shown that there were other persons in the locality named Guirmo but he failed to do so. The Solicitor General cites the ruling that a declaration made by a person immediately after being wounded, pointing out or naming his assailant, may be considered as part of the res gestae and is admissible in evidence (People vs. Alfaro, 83 Phil. 85; People vs. Ananias, 96 Phil. 979). We hold that the trial court did not err in characterizing Panimdim's statement as a part of the res gestae and as proving beyond reasonable doubt that Putian inflicted upon him the stab wound that caused his death five days later in the hospital. The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts (5 Moran's Comments on the Rules of Court, 1970 Ed., p. 362). The trial court admitted Panimdim's statement as a spontaneous statement made after the commission of a felony (People vs. Talledo and Timbreza, 85 Phil. 533). Appellant Putian contends that Panimdim's statement was not spontaneous because it was "made several hours after the incident". He claims that the requisite that the declarant gave the statement before he had time to devise or contrive was not present in this case. Appellant further contends that because the statement is in narrative form, it is not the statement contemplated in the rule. On the other hand, the Solicitor General points out that the statement was in question-and-answer form and that Panimdim's answers were spontaneous, candid, straightforward, direct, brief, concise, natural and devoid of any design or deliberation. He argues that the fact that Patrolman Yap added the surname Putian to the name "Guirmo", which was mentioned by the victim, did not destroy the probative value of the statement because the appellant could have shown that there were other persons in the locality named Guirmo but he failed to do so. The Solicitor General cites the ruling that a declaration made by a person immediately after being wounded, pointing out or naming his assailant, may be considered as part of the res gestae and is admissible in evidence (People vs. Alfaro, 83 Phil. 85; People vs. Ananias, 96 Phil. 979). We hold that the trial court did not err in characterizing Panimdim's statement as a part of the res gestae and as proving beyond reasonable doubt that Putian inflicted upon him the stab wound that caused his death five days later in the hospital.

"Although a declaration does not appear to have been made by the declarant under the expectation of a sure and impending death, and, for the reason, is not admissible as a dying declaration, yet if such declaration was made at the time of, or immediately after, the commission of the crime, or at a time when the exciting influence of the startling occurrence still continued in the declarant's mind, it is admissible as a part of the res gestae" (5 Moran's Comments on the Rules of Court, 1970 Ed. pp, 373-4, citing People vs. Palamos, 49 Phil. 601; People vs. Portento, 48 Phil. 971; People vs. Reyes, 52 Phil. 538). Panimdim's statement was given sometime after the stabbing while he was undergoing treatment at a medical clinic. He had no time to concoct a falsehood or to fabricate a malicious charge against Putian (See People vs. Ner. L-25504, July 31, 1969, 28 SCRA 1151, 1161-2). No motive has been shown as to why he would frame up Putian. Appellant's alternative contention that treachery was not proven and, therefore, he can be convicted only of homicide is meritorious. The evidence for the prosecution does not show the manner in which the wound was inflicted. Hence, the crime imputable to appellant Putian is homicide (People vs. Ramolete, L-28108, March 27, 1974, 56 SCRA 66, 80). As correctly observed by the Solicitor General, the trial court erred in appreciating the aggravating circumstance of nighttime. Nocturnity is not aggravating in this case because it was not purposely sought by the offender to facilitate the commission of the crime. The trial court's decision is modified. Appellant Putian is convicted of homicide. As the commission of the crime was not attended by any modifying circumstances, he is sentenced to an indeterminate penalty of ten (10) years of prision mayor as minimum to fifteen (15) years of reclusion temporal medium as maximum. The indemnity of P12,000 fixed by the trial court is affirmed. Costs against the appellant. SO ORDERED. Fernando (Chairman), Barredo, Concepcion, Jr. and Martin, JJ., concur. Antonio, J., took no part.

21. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 169606 November 27, 2009

BERNARDO B. JOSE, JR., Petitioner, vs. MICHAELMAR PHILS., INC. and MICHAELMAR SHIPPING SERVICES, INC., Respondents. DECISION CARPIO, J.: The Case This is a petition1 for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 11 May 2005 Decision2 and 5 August 2005 Resolution3 of the Court of Appeals in CA-G.R. SP No. 83272. The Court of Appeals set aside the 19 January4 and 22 March5 2004 Resolutions of the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 036666-03 and reinstated the 18 June 2003 Decision6 of the Labor Arbiter in NLRC NCR OFW Case No. (M)02-12-3137-00. The Facts Michaelmar Philippines, Inc. (MPI) is the Philippine agent of Michaelmar Shipping Services, Inc. (MSSI). In an undertaking7 dated 2 July 2002 and an employment contract8 dated 4 July 2002, MSSI through MPI engaged the services of Bernardo B. Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment contract stated: That the employee shall be employed on board under the following terms and conditions: 1.1 Duration of Contract Position Basic Monthly Salary Hours of Work Overtime OILER US$ 450.00 & US$ 39.00 TANKER ALLOWANCE 48 HOURS/WEEK US$ 386.00 FIXED OT. 105 HRS/ MOS. EIGHT (8) MONTHS

Vacation Leave with Pay US$ 190.00 & US$ 150 OWNERS BONUS Point of Hire MANILA, PHILIPPINES9

In connection with the employment contract, Jose, Jr. signed a declaration10 dated 10 June 2002 stating that: In order to implement the Drug and Alcohol Policy on board the managed vessels the following with [sic] apply:

All alcoholic beverages, banned substances and unprescribed drugs including but not limited to the following: Marijuana Cocaine Phencyclidine Amphetamines Heroin Opiates are banned from Stelmar Tankers (Management) Ltd. managed vessels. Disciplinary action up to and including dismissal will be taken against any employee found to be in possession of or impaired by the use of any of the above mentioned substances. A system of random testing for any of the above banned substances will be used to enforce this policy. Any refusal to submit to such tests shall be deemed as a serious breach of the employment contract and shall result to the seamans dismissal due to his own offense. Therefore any seaman will be instantly dismissed if: xxx They are found to have positive trace of alcohol or any of the banned substances in any random testing sample. Jose, Jr. began performing his duties on board the M/T Limar on 21 August 2002. On 8 October 2002, a random drug test was conducted on all officers and crew members of M/T Limar at the port of Curacao. Jose, Jr. was found positive for marijuana. Jose, Jr. was informed about the result of his drug test and was asked if he was taking any medication. Jose, Jr. said that he was taking Centrum vitamins. Jose, Jr. was allowed to continue performing his duties on board the M/T Limar from 8 October to 29 November 2002. In the Sea Going Staff Appraisal Report11 on Jose Jr.s work performance for the period of 1 August to 28 November 2002, Jose, Jr. received a 96% total rating and was described as very hardworking, trustworthy, and reliable. On 29 December 2002, M/T Limar reached the next port after the random drug test and Jose, Jr. was repatriated to the Philippines. When Jose, Jr. arrived in the Philippines, he asked MPI that a drug test be conducted on him. MPI ignored his request. On his own, Jose, Jr. procured drug tests from Manila Doctors Hospital,12 S.M. Lazo Medical Clinic, Inc.,13 and Maritime Clinic for International Services, Inc.14 He was found negative for marijuana. Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal dismissal with claim for his salaries for the unexpired portion of the employment contract. The Labor Arbiters Ruling In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint for lack of merit. The Labor Arbiter held that: Based from the facts and evidence, this office inclined [sic] to rule in favor of the respondents: we find that complainants termination from employment was valid and lawful. It is established that complainant, after an unannounced drug test conducted by the respondent principal on the officers and crew on board the vessel, was found positive of marijuana, a prohibited drug. It is a universally known fact the menace that drugs bring on the user as well as to others who may have got on his way. It is noted too that complainant worked on board a tanker vessel which carries toxic materials such as fuels, gasoline and other combustible materials which require delicate and careful handling and being an oiler, complainant is expected to be in a proper disposition. Thus, we agree with respondents that immediate repatriation of complainant is warranted for the safety of the vessel as

well as to complainants co-workers on board. It is therefore a risk that should be avoided at all cost. Moreover, under the POEA Standard Employment Contract as cited by the respondents (supra), violation of the drug and alcohol policy of the company carries with it the penalty of dismissal to be effected by the master of the vessel. It is also noted that complainant was made aware of the results of the drug test as per Drug Test Certificate dated October 29, 2002. He was not dismissed right there and then but it was only on December 29, 2002 that he was repatriated for cause. As to the complainants contention that the ship doctors report can not be relied upon in the absence of other evidence supporting the doctors findings for the simple reason that the ship doctor is under the control of the principal employer, the same is untenable. On the contrary, the findings of the doctor on board should be given credence as he would not make a false clarification. Dr. A.R.A Heath could not be said to have outrageously contrived the results of the complainants drug test. We are therefore more inclined to believe the original results of the unannounced drug test as it was officially conducted on board the vessel rather than the subsequent testing procured by complainant on his own initiative. The result of the original drug test is evidence in itself and does not require additional supporting evidence except if it was shown that the drug test was conducted not in accordance with the drug testing procedure which is not obtaining in this particular case. [H]ence, the first test prevails. We can not also say that respondents were motivated by ill will against the complainant considering that he was appraised to be a good worker. For this reason that respondents would not terminate [sic] the services of complainant were it not for the fact that he violated the drug and alcohol policy of the company. [T]hus, we find that just cause exist [sic] to justify the termination of complainant.15 Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision to the NLRC. Jose, Jr. claimed that the Labor Arbiter committed grave abuse of discretion in ruling that he was dismissed for just cause. The NLRCs Ruling In its 19 January 2004 Resolution, the NLRC set aside the Labor Arbiters 18 June 2003 Decision. The NLRC held that Jose, Jr.s dismissal was illegal and ordered MPI and MSSI to pay Jose, Jr. his salaries for the unexpired portion of the employment contract. The NLRC held that: Here, a copy of the purported drug test result for Complainant indicates, among others, the following typewritten words "Hoofd: Drs. R.R.L. Petronia Apotheker" and "THC-COOH POS."; the handwritten word "Marihuana"; and the stamped words "Dr. A.R.A. Heath, MD", "SHIPS DOCTOR" and "29 OKT. 2002." However, said test result does not contain any signature, much less the signature of any of the doctors whose names were printed therein (Page 45, Records). Verily, the veracity of this purported drug test result is questionable, hence, it cannot be deemed as substantial proof that Complainant violated his employers "no alcohol, no drug" policy. In fact, in his November 14, 2002 message to Stelmar Tanker Group, the Master of the vessel where Complainant worked, suggested that another drug test for complainant should be taken when the vessel arrived [sic] in Curacao next call for final findings (Page 33, Records), which is an indication that the Master, himself, was in doubt with the purported drug test result. Indeed there is reason for the Master of the vessel to doubt that Complainant was taking in the prohibited drug "marihuana." The Sea Going Staff Appraisal Report signed by Appraiser David A. Amaro, Jr. and reviewed by the Master of the vessel himself on complainants work performance as Wiper from August 1, 2002 to November 28, 2002 which included a two-month period after the purported drug test, indicates that out of a total score of 100% on Safety Consciousness (30%), Ability (30%), Reliability (20%) and Behavior & Attitude (20%), Complainant was assessed a score of 96% (Pages 30-31, Records). Truly, a worker who had been taking in prohibited drug could not have given such an excellent job performance. Significantly, under the category "Behavior & Attitude (20%)," referring to his personal relationship and his interactions with the rest of the ships staff and his attitude towards his job and how the rest of the crew regard him, Complainant

was assessed the full score of 20% (Page 31, Records), which belies Respondents insinuation that his alleged offense directly affected the safety of the vessel, its officers and crew members. Indeed, if Complainant had been a threat to the safety of the vessel, officers and crew members, he would not be been [sic] allowed to continue working almost three (3) months after his alleged offense until his repatriation on December 29, 2002. Clearly, Respondents failed to present substantial proof that Complainants dismissal was with just or authorized cause. Moreover, Respondents failed to accord Complainant due process prior to his dismissal. There is no showing that Complainants employer furnished him with a written notice apprising him of the particular act or omission for which his dismissal was sought and a subsequent written notice informing him of the decision to dismiss him, much less any proof that Complainant was given an opportunity to answer and rebut the charges against him prior to his dismissal. Worse, Respondents invoke the provision in the employment contract which allows summary dismissal for cases provided therein. Consequently, Respondents argue that there was no need for him to be notified of his dismissal. Such blatant violation of basic labor law principles cannot be permitted by this Office. Although a contract is law between the parties, the provisions of positive law which regulate such contracts are deemed included and shall limit and govern the relations between the parties (Asia World Recruitment, Inc. vs. NLRC, G.R. No. 113363, August 24, 1999). Relative thereto, it is worth noting Section 10 of Republic Act No. 8042, which provides that "In cases of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less."16 MPI and MSSI filed a motion for reconsideration. In its 22 March 2004 Resolution, the NLRC denied the motion for lack of merit. MPI and MSSI filed with the Court of Appeals a petition17 for certiorari under Rule 65 of the Rules of Court. MPI and MSSI claimed that the NLRC gravely abused its discretion when it (1) reversed the Labor Arbiters factual finding that Jose, Jr. was legally dismissed; (2) awarded Jose, Jr. his salaries for the unexpired portion of the employment contract; (3) awarded Jose, Jr. $386 overtime pay; and (4) ruled that Jose, Jr. perfected his appeal within the reglementary period. The Court of Appeals Ruling In its 11 May 2005 Decision, the Court of Appeals set aside the 19 January and 22 March 2004 Resolutions of the NLRC and reinstated the 18 June 2003 Decision of the Labor Arbiter. The Court of Appeals held that: The POEA standard employment contract adverted to in the labor arbiters decision to which all seamens contracts must adhere explicitly provides that the failure of a seaman to obey the policy warrants a penalty of dismissal which may be carried out by the master even without a notice of dismissal if there is a clear and existing danger to the safety of the vessel or the crew. That the petitioners were implementing a no-alcohol, no drug policy that was communicated to the respondent when he embarked is not in question. He had signed a document entitled Drug and Alcohol Declaration in which he acknowledged that alcohol beverages and unprescribed drugs such as marijuana were banned on the vessel and that any employee found possessing or using these substances would be subject to instant dismissal. He undertook to comply with the policy and abide by all the relevant rules and guidelines, including the system of random testing that would be employed to enforce it. We can hardly belabor the reasons and justification for this policy. The safety of the vessel on the high seas is a matter of supreme and unavoidable concern to all the owners, the crew and the riding public. In the ultimate analysis, a vessel is only as seaworthy as the men who sail it, so that it is

necessary to maintain at every moment the efficiency and competence of the crew. Without an effective no alcohol, no drug policy on board the ship, the vessels safety will be seriously compromised. The policy is, therefore, a reasonable and lawful order or regulation that, once made known to the employee, must be observed by him, and the failure or refusal of a seaman to comply with it should constitute serious misconduct or willful disobedience that is a just cause for the termination of employment under the Labor Code (Aparente vs. National Labor Relations Commission, 331 SCRA 82). As the labor arbiter has discerned, the seriousness and earnestness in the enforcement of the ban is highlighted by the provision of the POEA Standard Employment Contract allowing the ship master to forego the notice of dismissal requirement in effecting the repatriation of the seaman violating it. xxxx Under legal rules of evidence, not all unsigned documents or papers fail the test of admissibility. There are kinds of evidence known as exceptions to the hearsay rule which need not be invariably signed by the author if it is clear that it issues from him because of necessity and under circumstances that safeguard the trustworthiness of the paper. A number of evidence of this sort are called entries in the course of business, which are transactions made by persons in the regular course of their duty or business. We agree with the labor arbiter that the drug test result constitutes entries made in the ordinary or regular course of duty of a responsible officer of the vessel. The tests administered to the crew were routine measures of the vessel conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and released by the medical officer. The ships physician at Curacao under whom the tests were conducted was admittedly Dr. Heath. It was under his name and with his handwritten comments that the report on the respondent came out, and there is no basis to suspect that these results were issued other than in the ordinary course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does not require additional supporting evidence except if it appears that the drug test was conducted not in accordance with drug testing procedures. Nothing of the sort, he says, has even been suggested in this particular case. The regularity of the procedure observed in the administration and reporting of the tests is the very assurance of the reports admissibility and credibility under the laws of the evidence. We see no reason why it cannot be considered substantial evidence, which, parenthetically, is the lowest rung in the ladder of evidence. It is from the fact that a report or entry is a part of the regular routine work of a business or profession that it derives its value as legal evidence. Then the respondent was notified of the results and allowed to explain himself. He could not show any history of medication that could account for the traces of drugs in his system. Despite his lack of plausible excuses, the ship captain came out in support of him and asked his superiors to give him another chance. These developments prove that the respondent was afforded due process consistent with the exigencies of his service at sea. For the NLRC to annul the process because he was somehow not furnished with written notice is already being pedantic. What is the importance to the respondent of the difference between a written and verbal notice when he was actually given the opportunity to be heard? x x x The working environment in a seagoing vessel is sui generis which amply justifies the difference in treatment of seamen found guilty of serious infractions at sea. The POEA Standard Employment Contract allows the ship master to implement a repatriation for just cause without a notice of dismissal if this is necessary to avoid a clear and existing danger to the vessel. The petitioners have explained that that [sic] it is usually at the next port of call where the offending crewman is made to disembark. In this case, a month had passed by after the date of the medical report before they reached the next port. We may not second-guess the judgment of the master in allowing him to remain at his post in the meantime. It is still reasonable to believe that the proper safeguards were taken and proper limitations observed during the period when the respondent remained on board.

Finally, the fact that the respondent obtained negative results in subsequent drug tests in the Philippines does not negate the findings made of his condition on board the vessel. A drug test can be negative if the user undergoes a sufficient period of abstinence before taking the test. Unlike the tests made at his instance, the drug test on the vessel was unannounced. The credibility of the first test is, therefore, greater than the subsequent ones.18 Jose, Jr. filed a motion19 for reconsideration. In its 5 August 2005 Resolution, the Court of Appeals denied the motion for lack of merit. Hence, the present petition. In a motion20 dated 1 August 2007, MPI and MSSI prayed that they be substituted by OSG Ship Management Manila, Inc. as respondent in the present case. In a Resolution21 dated 14 November 2007, the Court noted the motion. The Issues In his petition dated 13 September 2005, Jose, Jr. claims that he was illegally dismissed from employment for two reasons: (1) there is no just cause for his dismissal because the drug test result is unsigned by the doctor, and (2) he was not afforded due process. He stated that: 2. The purported drug test result conducted to petitioner indicates, among others, the following: [sic] typwritten words Hool: Drs. R.R.L.. [sic] Petronia Apotheker" [sic] and :THC-COOH POS." [sic]; the handwritten word "Marihuana"; and the stamped words "Dr. A.R.A Heath, MD", "SHIPS DOCTOR" and "29 OKT. 2002." However, said test result does not contain any signature, much less the signature of any of the doctors whose name [sic] were printed therein. This omission is fatal as it goes to the veracity of the said purported drug test result. Consequently, the purported drug test result cannot be deemed as substantial proof that petitioner violated his employers "no alcohol, no drug policy [sic]. xxxx Even assuming arguendo that there was just cause, respondents miserably failed to show that the presence of the petitioner in the vessel constitutes a clear and existing danger to the safety of the crew or the vessel. x x x xxxx It is a basic principle in Labor Law that in termination disputes, the burden is on the employer to show that the dismissal was for a just and valid cause. x x x xxxx x x x [T]he Honorable Labor Arbiter as well as the Honorable Court of Appeals clearly erred in ruling that there was just cause for the termination of petitioners employment. Petitioners employment was terminated on the basis only of a mere allegation that is unsubstantiated, unfounded and on the basis of the drug test report that was not even signed by the doctor who purportedly conducted such test. 5. Moreover, respondents failed to observe due process in terminating petitioners employment. There is no evidence on record that petitioner was furnished by his employer with a written notice apprising him of the particular act or omission which is the basis for his dismissal. Furthermore, there is also no evidence on record that the second notice, informing petitioner of the decision to dismiss,

was served to the petitioner. There is also no proof on record that petitioner was given an opportunity to answer and rebut the charges against him prior to the dismissal.22 The Courts Ruling In its 11 May 2005 Decision, the Court of Appeals held that there was just cause for Jose, Jr.s dismissal. The Court of Appeals gave credence to the drug test result showing that Jose, Jr. was positive for marijuana. The Court of Appeals considered the drug test result as part of entries in the course of business. The Court of Appeals held that: Under legal rules of evidence, not all unsigned documents or papers fail the test of admissibility. There are kinds of evidence known as exceptions to the hearsay rule which need not be invariably signed by the author if it is clear that it issues from him because of necessity and under circumstances that safeguard the trustworthiness of the paper. A number of evidence of this sort are called entries in the course of business, which are transactions made by persons in the regular course of their duty or business. We agree with the labor arbiter that the drug test result constitutes entries made in the ordinary or regular course of duty of a responsible officer of the vessel. The tests administered to the crew were routine measures of the vessel conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and released by the medical officer. The ships physician at Curacao under whom the tests were conducted was admittedly Dr. Heath. It was under his name and with his handwritten comments that the report on the respondent came out, and there is no basis to suspect that these results were issued other than in the ordinary course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does not require additional supporting evidence except if it appears that the drug test was conducted not in accordance with drug testing procedures. Nothing of the sort, he says, has even been suggested in this particular case.23 (Emphasis supplied) Jose, Jr. claims that the Court of Appeals erred when it ruled that there was just cause for his dismissal. The Court is not impressed. In a petition for review on certiorari under Rule 45 of the Rules of Court, a mere statement that the Court of Appeals erred is insufficient. The petition must state the law or jurisprudence and the particular ruling of the appellate court violative of such law or jurisprudence. In Encarnacion v. Court of Appeals,24 the Court held that: Petitioner asserts that there is a question of law involved in this appeal. We do not think so. The appeal involves an appreciation of facts, i.e., whether the questioned decision is supported by the evidence and the records of the case. In other words, did the Court of Appeals commit a reversible error in considering the trouble record of the subject telephone? Or is this within the province of the appellate court to consider? Absent grave abuse of discretion, this Court will not reverse the appellate courts findings of fact. In a petition for review under Rule 45, Rules of Court, invoking the usual reason, i.e., that the Court of Appeals has decided a question of substance not in accord with law or with applicable decisions of the Supreme Court, a mere statement of the ceremonial phrase is not sufficient to confer merit on the petition. The petition must specify the law or prevailing jurisprudence on the matter and the particular ruling of the appellate court violative of such law or previous doctrine laid down by the Supreme Court. (Emphasis supplied) In the present case, Jose, Jr. did not show that the Court of Appeals ruling is violative of any law or jurisprudence. Section 43, Rule 130, of the Rules of Court states: SEC. 43. Entries in the course of business. Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his

professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.1avvphi1 In Canque v. Court of Appeals,25 the Court laid down the requisites for admission in evidence of entries in the course of business: (1) the person who made the entry is dead, outside the country, or unable to testify; (2) the entries were made at or near the time of the transactions to which they refer; (3) the person who made the entry was in a position to know the facts stated in the entries; (4) the entries were made in a professional capacity or in the performance of a duty; and (5) the entries were made in the ordinary or regular course of business or duty. Here, all the requisites are present: (1) Dr. Heath is outside the country; (2) the entries were made near the time the random drug test was conducted; (3) Dr. Heath was in a position to know the facts made in the entries; (4) Dr. Heath made the entries in his professional capacity and in the performance of his duty; and (5) the entries were made in the ordinary or regular course of business or duty. The fact that the drug test result is unsigned does not necessarily lead to the conclusion that Jose, Jr. was not found positive for marijuana. In KAR ASIA, Inc. v. Corona,26 the Court admitted in evidence unsigned payrolls. In that case, the Court held that: Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity under Rule 130, Section 43 of the Rules of Court. It is therefore incumbent upon the respondents to adduce clear and convincing evidence in support of their claim. Unfortunately, respondents naked assertions without proof in corroboration will not suffice to overcome the disputable presumption. In disputing the probative value of the payrolls for December 1994, the appellate court observed that the same contain only the signatures of Ermina Daray and Celestino Barreto, the paymaster and the president, respectively. It further opined that the payrolls presented were only copies of the approved payment, and not copies disclosing actual payment. The December 1994 payrolls contain a computation of the amounts payable to the employees for the given period, including a breakdown of the allowances and deductions on the amount due, but the signatures of the respondents are conspicuously missing. Ideally, the signatures of the respondents should appear in the payroll as evidence of actual payment. However, the absence of such signatures does not necessarily lead to the conclusion that the December 1994 COLA was not received. (Emphasis supplied) In the present case, the following facts are established (1) random drug tests are regularly conducted on all officers and crew members of M/T Limar; (2) a random drug test was conducted at the port of Curacao on 8 October 2002; (3) Dr. Heath was the authorized physician of M/T Limar; (4) the drug test result of Jose, Jr. showed that he was positive for marijuana; (5) the drug test result was issued under Dr. Heaths name and contained his handwritten comments. The Court of Appeals found that: The tests administered to the crew were routine measures of the vessel conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and released by the medical officer. The ships physician at Curacao under whom the tests were conducted was admittedly Dr. Heath. It was under his name and with his handwritten comments that the report on the respondent came out, and there is no basis to suspect that these results were issued other than in the ordinary course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does not require additional supporting evidence except if it appears that the drug test was conducted not in accordance with drug testing procedures. Nothing of the sort, he says, has even been suggested in this particular case.27

Factual findings of the Court of Appeals are binding on the Court. Absent grave abuse of discretion, the Court will not disturb the Court of Appeals factual findings.28 In Encarnacion,29 the Court held that, "unless there is a clearly grave or whimsical abuse on its part, findings of fact of the appellate court will not be disturbed. The Supreme Court will only exercise its power of review in known exceptions such as gross misappreciation of evidence or a total void of evidence." Jose, Jr. failed to show that the Court of Appeals gravely abused its discretion. Article 282(a) of the Labor Code states that the employer may terminate an employment for serious misconduct. Drug use in the premises of the employer constitutes serious misconduct. In Bughaw, Jr. v. Treasure Island Industrial Corporation,30 the Court held that: The charge of drug use inside the companys premises and during working hours against petitioner constitutes serious misconduct, which is one of the just causes for termination. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not merely an error in judgment. The misconduct to be serious within the meaning of the Act must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless, in connection with the work of the employee, constitute just cause for his separation. This Court took judicial notice of scientific findings that drug abuse can damage the mental faculties of the user. It is beyond question therefore that any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his coworkers and even his employer. (Emphasis supplied) Jose, Jr. claims that he was not afforded due process. The Court agrees. There are two requisites for a valid dismissal: (1) there must be just cause, and (2) the employee must be afforded due process.31 To meet the requirements of due process, the employer must furnish the employee with two written notices a notice apprising the employee of the particular act or omission for which the dismissal is sought and another notice informing the employee of the employers decision to dismiss. In Talidano v. Falcon Maritime & Allied Services, Inc.,32 the Court held that: [R]espondent failed to comply with the procedural due process required for terminating the employment of the employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern since it constitutes a safeguard of the highest order in response to mans innate sense of justice. The Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be dismissed. This is especially true in the case of a vessel on the ocean or in a foreign port. The minimum requirement of due process termination proceedings, which must be complied with even with respect to seamen on board a vessel, consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to present their own side of the alleged offense or misconduct, which led to the managements decision to terminate. To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the employers decision to dismiss him. (Emphasis supplied) In the present case, Jose, Jr. was not given any written notice about his dismissal. However, the propriety of Jose, Jr.s dismissal is not affected by the lack of written notices. When the dismissal is for just cause, the lack of due process does not render the dismissal ineffectual but merely gives rise to the payment of P30,000 in nominal damages.33 WHEREFORE, the petition is DENIED. The 11 May 2005 Decision and 5 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 83272 are AFFIRMED with the MODIFICATION that OSG Ship Management Manila, Inc. is ordered to pay Bernardo B. Jose, Jr. P30,000 in nominal damages.

SO ORDERED.

22. Republic of the Philippines SUPREME COURT Baguio City SECOND DIVISION G.R. No. 184971 April 19, 2010

LAND BANK OF THE PHILIPPINES, Petitioner, vs. MONET'S EXPORT AND MANUFACTURING CORP., VICENTE V. TAGLE, SR. and MA. CONSUELO G. TAGLE, Respondents. DECISION ABAD, J.: This case is about the evidence required to prove how much a borrower still owes the bank when he has multiple loan accounts with it that had all fallen due. The Facts and the Case On June 25, 1981 petitioner Land Bank of the Philippines (Land Bank) and respondent Monets Export and Manufacturing Corporation (Monet) executed an Export Packing Credit Line Agreement (Agreement) under which the bank gave Monet a credit line of P250,000.00, secured by the proceeds of its export letters of credit, promissory notes, a continuing guaranty executed by respondent spouses Vicente V. Tagle, Sr. and Ma. Consuelo G. Tagle (the Tagles), and a third-party mortgage executed by one Pepita C. Mendigoria. Land Bank renewed and amended this credit line agreement several times until it reached a ceiling of P5 million. Land Bank claims that by August 31, 1992 Monets obligation under the Agreement had swelled to P11,464,246.19. Since Monet failed to pay despite demands, the bank filed a collection suit against Monet and the Tagles before the Regional Trial Court (RTC) of Manila.1 In their answer, Monet and the Tagles claimed that Land Bank had refused to collect the US$33,434.00 receivables on Monets export letter of credit against Wishbone Trading Company of Hong Kong while making an unauthorized payment of US$38,768.40 on its import letter of credit to Beautilike (H.K.) Ltd. This damaged Monets business interests since it ran short of funds to carry on with its usual business. In other words, Land Bank mismanaged its clients affairs under the Agreement. After trial or on July 15, 1997 the RTC rendered a decision2 that, among other things, recognized Monet and the Tagles obligations to Land Bank in the amount reflected in Exhibit 39, the banks Schedule of Amortization from its Loans and Discount Department, but sans any penalty. The RTC ordered petitioners to pay Land Bank the same. On appeal to the Court of Appeals (CA),3 the latter rendered judgment on October 9, 2003, affirming the RTC decision.4 Land Bank filed a petition for review with this Court5 and on March 10, 2005 the Court rendered a Decision6 that, among other things, remanded the case to the RTC for the reception of additional evidence. The pertinent portion reads:

Insofar as the amount of indebtedness of the respondents [Monet and the Tagles] to the petitioner [Land Bank] is concerned, the October 9, 2003 decision and the January 20, 2004 resolution of the Court of Appeals in CA-G.R. CV No. 57436, are SET ASIDE. The case is hereby remanded to its court of origin, the Regional Trial Court of Manila, Branch 49, for the reception of additional evidence as may be needed to determine the actual amount of indebtedness of the respondents to the petitioner. x x x In remanding the case, the Court noted that Exhibit 39, the Summary of Availment and Schedule of Amortization, on which both the RTC and the CA relied, covered only Monets debt of P2.5 million under Promissory Note P-981, a small amount compared to the P11,464,246.19 that Land Bank sought to collect from it. The records showed, however, that Monet executed not only one but several promissory notes in varying amounts in favor of the bank. Indeed, the bank submitted a Consolidated Statement of Account dated August 31, 1992 in support of its claim of P11,464,246.19 but both the RTC and the CA merely glossed over it. Land Bank also submitted a Summary of Availments and Payments from 1981 to 1989 that detailed the series of availments and payments Monet made. The Court explained its reason for remanding the case for reception of additional evidence, thus: Unfortunately, despite the pieces of evidence submitted by the parties, our review of the same is inconclusive in determining the total amount due to the petitioner. The petitioner had failed to establish the effect of Monets Exhibit "39" to its own Consolidated Statement of Account as of August 31, 1992, nor did the respondents categorically refute the said statement of account vis--vis its Exhibit "39". The interest of justice will best be served if this case be remanded to the court of origin for the purpose of determining the amount due to petitioner. The dearth in the records of sufficient evidence with which we can utilize in making a categorical ruling on the amount of indebtedness due to the petitioner constrains us to remand this case to the trial court with instructions to receive additional evidence as needed in order to fully thresh out the issue and establish the rights and obligations of the parties. From the amount ultimately determined by the trial court as the outstanding obligation of the respondents to the petitioner, will be deducted the award of opportunity losses granted to the respondents in the amount of US$15,000.00 payable in Philippine pesos at the official exchange rate when payment is to be made.7 On remand, the RTC held one hearing on October 30, 2006, at which the lawyer of Land Bank told the court that, apart from what the bank already adduced in evidence, it had no additional documents to present. Based on this, the RTC issued an order on the same day,8 affirming its original decision of July 15, 1997. The pertinent portion of the order reads: At todays hearing of this case, the lawyer for Land Bank stated on record that he has no more documents to present. Therefore, the obligation of the defendants would be those stated in the schedule of amortization from the Loans & Discount Department of the Land Bank (Exhibit "39") as well as the interest mentioned therein, as provided in the Decision of this Court. From the said obligation shall be deducted in favor of the defendants the REDUCED amount of US$15,000.00 representing the award of opportunity losses, as determined by the Supreme Court, payable in Philippine Pesos at the official exchange rate when payment is to be made.9 In effect, the RTC stood by Exhibit 39 as the basis of its finding that Monet and the Tagles owed Land Bank only P2.5 million as opposed to the latters claim of P11,464,246.19. Effectively, the RTC reinstated the portion of its July 15, 1997 decision that the Court struck down with finality in G.R. 161865 as baseless for determining the amount due the bank.1avvphi1 Land Bank filed a motion for reconsideration, actually a motion to reopen the hearing, to enable it to adduce in evidence a Consolidated Billing Statement as of October 31, 2006 to show how much Monet and the Tagles still owed the bank. But the trial court denied the motion. Land Bank appealed the order to the CA10 but the latter rendered a decision on May 30, 2008,11 affirming the RTC orders.12

Land Bank moved for reconsideration, but the CA denied it in its October 10, 2008 resolution,13 hence, the present petition by Land Bank. Issue Presented The sole issue presented in this case is whether or not the RTC and the CA acted correctly in denying petitioner Land Banks motion to reopen the hearing to allow it to present the banks updated Consolidated Billing Statement as of October 31, 2006 that reflects respondents Monet and the Tagles remaining indebtedness to it. The Courts Ruling The CA conceded that the RTC needed to receive evidence that would enable it to establish Monets actual indebtedness to Land Bank in compliance with the Courts decision in G.R. 161865. But since Land Bank, which had the burden of proving the amount of that indebtedness, told the RTC, when it set the matter for hearing, that it had no further documentary evidence to present, it was but right for that court to issue its assailed order of October 30, 2006, which reiterated its original decision of July 15, 1997. The CA also held that the RTC did right in denying Land Banks motion to reopen the hearing to allow it to present its Consolidated Billing Statement as of October 31, 2006 involving Monets loans. Such billing statement, said the CA, did not constitute sufficient evidence to prove Monets total indebtedness for the simple reason that this Court in G.R. 161865 regarded a prior Consolidated Statement of Account for 1992 insufficient for that purpose. But what the RTC and the CA did not realize is that the original RTC decision of July 15, 1997 was an incomplete decision since it failed to resolve the main issue that the collection suit presented: how much Monet and the Tagles exactly owed Land Bank. As the Court noted in its decision in G.R. 161865, the evidence then on record showed that the credit line Land Bank extended to Monet began at P250,000.00 but, after several amendments, eventually rose up to P5 million. Monet availed itself of these credit lines by taking out various loans evidenced by individual promissory notes that had diverse terms of payment. As it happened, however, in its original decision, the RTC held that Monet still owed Land Bank only P2.5 million as reported in the banks Schedule of Amortization (Exhibit 39). But that schedule covered only one promissory note, Promissory Note P-981. Noting this, the Court rejected Exhibit 39 as basis for determining Monets total obligation, given that it undeniably took out more loans as evidenced by the other promissory notes it executed in favor of Land Bank. And, although the bank presented at the trial its Consolidated Statement of Account for 1992 covering Monets loans, the Court needed to know how the balance of P2.5 million in Exhibit 39, dated April 29, 1991, which the RTC regarded as true and correct, impacted on that consolidated statement that the bank prepared a year later. The Court thus remanded the case so the RTC can receive evidence that would show, after reconciliation of all of Monets loan accounts, exactly how much more it owed Land Bank. The CA of course places no value on the Consolidated Billing Statement that Land Bank would have adduced in evidence had the RTC granted its motion for reconsideration and reopened the hearing. Apparently, both courts believe that Land Bank needed to present in evidence all original documents evidencing every transaction between Land Bank and Monet to prove the current status of the latters loan accounts. But a bank statement, properly authenticated by a competent bank officer, can serve as evidence of the status of those accounts and what Monet and the Tagles still owe the bank. Under Section 43, Rule 13014 of the Rules of Court, entries prepared in the regular

course of business are prima facie evidence of the truth of what they state. The billing statement reconciles the transaction entries entered in the bank records in the regular course of business and shows the net result of such transactions. Entries in the course of business are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision. If the entries are financial, the records are routinely balanced and audited. In actual experience, the whole of the business world function in reliance of such kind of records.15 Parenthetically, consider a borrower who takes out a loan of P10,000.00 from a bank and executes a promissory note providing for interests, charges, and penalties and an undertaking to pay the loan in 10 monthly installments of P1,000.00. If he pays the first five months installments but defaults in the rest, how will the bank prove in court that the debtor still owes it P5,000.00 plus interest? The bank will of course present the promissory note to establish the scope of the debtors primary obligations and a computation of interests, charges, and penalties based on its terms. It must then show by the entries in its record how much it had actually been paid. This will in turn establish how much the borrower still owes it. The bank does not have to present all the receipts of payment it issued to all its clients during the entire year, thousands of them, merely to establish the fact that only five of them, rather than ten, pertains to the borrower. The original documents need not be presented in evidence when it is numerous, cannot be examined in court without great loss of time, and the fact sought to be established from them is only the general result.16 Monet and the Tagles can of course dispute the banks billing statements by proof that the bank had exaggerated what was owed it and that Monet had made more payments than were reflected in those statements. They can do this by presenting evidence of those greater payments. Notably, Monet and the Tagles have consistently avoided stating in their letters to the bank how much they still owed it. But, ultimately, it is as much their obligation to prove this disputed point if they deny the banks statements of their loan accounts. In reverting back to Exhibit 39, which covers just one of many promissory notes that Monet and the Tagles executed in favor of Land Bank, the RTC and the CA have shown an unjustified obstinacy and a lack of understanding of what the Court wanted done to clear up the issue of how much Monet and the Tagles still owed the bank. The bank lawyer who claimed that Land Bank had no further evidence to present during the hearing was of course in error and it probably warranted a dismissal of the banks claim for failure to prosecute. But the banks motion for reconsideration, asking for an opportunity to present evidence of the status of the loans, opened up a chance for the RTC to abide by what the Court required of it. It committed error, together with the CA, in ruling that a reopening of the hearing would serve no useful purpose. WHEREFORE, the Court GRANTS the petition, SETS ASIDE the Court of Appeals decision in CA-G.R. CV 88782 dated May 30, 2008 and resolution dated October 10, 2008 and the Regional Trial Court order in Civil Case 93-64350 dated October 30, 2006, REMANDS the case to the same Regional Trial Court of Manila for the reception of such evidence as may be needed to determine the actual amount of indebtedness of respondents Monets Export and Manufacturing Corp. and the spouses Vicente V. Tagle, Sr. and Ma. Consuelo G. Tagle and adjudicate petitioner Land Bank of the Philippines claims as such evidence may warrant. SO ORDERED.

23. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG, petitioners-appellants, vs. CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees. Ross, Selph, Carrascoso and Janda for the respondents. Bernabe Africa, etc. for the petitioners. MAKALINTAL., J.: This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents. The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several neighboring houses, including the personal properties and effects inside them. Their owners, among them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the fire. The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had exercised due care in the premises and with respect to the supervision of their employees. The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of the first two reports are as follows: 1. Police Department report: Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the burning match stick near the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline hose connecting the truck with the underground tank prevented a terrific explosion. However, the flames scattered due to the hose from which the gasoline was spouting. It burned the truck and the following accessorias and residences.

2. The Fire Department report: In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and cigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and which is submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a rack which according to information gathered in the neighborhood contained cigarettes and matches, installed between the gasoline pumps and the underground tanks. The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the gasoline station and what the chief of the fire department had told him on the same subject. The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court without objection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness but respondents waived their right to cross-examine him although they had the opportunity to do so; and thirdly, that in any event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule 130. The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were objected to by counsel for each of respondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of the others, including the disputed ones, carried no such explanation. On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he was one of those who investigated "the location of the fire and, if possible, gather witnesses as to the occurrence, and that he brought the report with him. There was nothing, therefore, on which he need be cross-examined; and the contents of the report, as to which he did not testify, did not thereby become competent evidence. And even if he had testified, his testimony would still have been objectionable as far as information gathered by him from third persons was concerned. Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated." There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398). Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who conducted the investigation. Was knowledge of such facts, however,

acquired by them through official information? As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record.1 The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired by the reporting officers through official information, not having been given by the informants pursuant to any duty to do so. The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in the Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use for such doctrine." The question deserves more than such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court. The facts of that case are stated in the decision as follows: In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without any wind blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by the wire and was knocked unconscious to the ground. The electric charge coursed through his body and caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts and causing intense pain and wounds that were not completely healed when the case was tried on June 18, 1947, over one year after the mishap. The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said: The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense. While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the defendant, it is also a recognized principal that "where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if he having such control use proper care, it affords reasonable evidence, in the absence of the explanation, that the injury arose from defendant's want of care." And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is unquestioned that the plaintiff had every right to be

on the highway, and the electric wire was under the sole control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair weather and injure people, unless they are subjected to unusual strain and stress or there are defects in their installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule). Consequently, in the absence of contributory negligence (which is admittedly not present), the fact that the wire snapped suffices to raise a reasonable presumption of negligence in its installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if there are any facts inconsistent with negligence, it is for the defendant to prove." It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of which extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act of man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447: Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease, while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire started with resulting damages to the building owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the recovery of that amount. The judge of the district court, after hearing the testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the testimony failed to show with reasonable certainty any negligence on the part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ of Review which was granted, and the case is now before us for decision.1wph1.t In resolving the issue of negligence, the Supreme Court of Louisiana held: Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the fire and the other relating to the spreading of the gasoline about the filling station. Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed on the stand by the defendant. Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record that the filling station and the tank truck were under the control of the defendant and operated by its agents or employees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank attached to the filling station while it was being filled from the tank truck and while both the tank and the truck were in charge of and being operated by the agents or employees of the defendant, extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff. Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193). This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599. The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known how the fire started were appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care. In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the following appears: Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a very busy business district near the Obrero Market, a railroad crossing and very thickly populated neighborhood where a great number of people mill around t until gasoline tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration. Furthermore, aside from precautions already taken by its operator the concrete walls south and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping over it in case of fire. Records show that there have been two cases of fire which caused not only material damages but desperation and also panic in the neighborhood. Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the possible outbreak of fire at this already small but crowded gasoline station. The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be considered as an exception to the hearsay rule. These facts, descriptive of the location and objective circumstances surrounding the operation of the gasoline station in question, strengthen the presumption of

negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than those which would satisfy the standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this than the statement of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without assistance, was transferring the contents thereof into the underground storage when the fire broke out. He said: "Before loading the underground tank there were no people, but while the loading was going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the underground tank." He added that when the tank was almost filled he went to the tank truck to close the valve, and while he had his back turned to the "manhole" he, heard someone shout "fire." Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses. There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the fire was caused through the acts of a stranger who, without authority, or permission of answering defendant, passed through the gasoline station and negligently threw a lighted match in the premises." No evidence on this point was adduced, but assuming the allegation to be true certainly any unfavorable inference from the admission may be taken against Boquiren it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts analogous to those of the present case, states the rule which we find acceptable here. "It is the rule that those who distribute a dangerous article or agent, owe a degree of protection to the public proportionate to and commensurate with a danger involved ... we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.) The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of Caltex. This question, in the light of the facts not controverted, is one of law and hence may be passed upon by this Court. These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren in the management of the state; (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it; and (5) the license to store gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa). In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren later on amended his answer, and that among the changes was one to the effect that he was not acting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended complaint the ground alleged was that it

stated no cause of action since under the allegations thereof he was merely acting as agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this ground is deemed to be an admission of the facts alleged in the complaint. Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present any contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must have been one in existence at that time. Instead, what was presented was a license agreement manifestly tailored for purposes of this case, since it was entered into shortly before the expiration of the one-year period it was intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite significant, and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person or property while in the property herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)." But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as licensee without the consent of Caltex. The license agreement was supposed to be from January 1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence, in the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but not to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren. The control was such that the latter was virtually an employee of the former. Taking into consideration the fact that the operator owed his position to the company and the latter could remove him or terminate his services at will; that the service station belonged to the company and bore its tradename and the operator sold only the products of the company; that the equipment used by the operator belonged to the company and were just loaned to the operator and the company took charge of their repair and maintenance; that an employee of the company supervised the operator and conducted periodic inspection of the company's gasoline and service station; that the price of the products sold by the operator was fixed by the company and not by the operator; and that the receipts signed by the operator indicated that he was a mere agent, the finding of the Court of Appeals that the operator was an agent of the company and not an independent contractor should not be disturbed. To determine the nature of a contract courts do not have or are not bound to rely upon the name or title given it by the contracting parties, should thereby a controversy as to what they really had intended to enter into, but the way the contracting parties do or perform their respective obligations stipulated or agreed upon may be shown and inquired into, and should such performance conflict with the name or title given the contract by the parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757). The written contract was apparently drawn for the purpose of creating the apparent relationship of employer and independent contractor, and of avoiding liability for the negligence of the employees about the station; but the company was not satisfied to allow

such relationship to exist. The evidence shows that it immediately assumed control, and proceeded to direct the method by which the work contracted for should be performed. By reserving the right to terminate the contract at will, it retained the means of compelling submission to its orders. Having elected to assume control and to direct the means and methods by which the work has to be performed, it must be held liable for the negligence of those performing service under its direction. We think the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183). Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to prove the same. As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground that Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the insured, was not yet in effect when the loss took place. However, regardless of the silence of the law on this point at that time, the amount that should be recovered be measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court erred, since it is of common knowledge that the assessment for taxation purposes is not an accurate gauge of fair market value, and in this case should not prevail over positive evidence of such value. The heirs of Ong are therefore entitled to P10,000.00. Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest from the filing of the complaint, and costs. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. Dizon, J., took no part.

24. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-48727 September 30, 1982 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSEPH LEONES y DUCUSIN alias JESSIE, defendant-appellant.

GUERRERO, J.: This is an appeal from the decision of the Court of First Instance of La Union, Branch I, convicting the accused-appellant, Joseph Leones y Ducusin, of the crime of rape charged in the following information, to wit: The undersigned offended party after having been duly sworn to an oath in accordance with law hereby accuses JOSEPH LEONES y DUCUSIN alias Jessie of the crime of RAPE, committed as follows: That on or about the 22nd day of April, 1973, in the Municipality of San Fernando, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, said accused Joseph Leones y Ducusin alias Jessie, by means of violence and use of force compelled the offended party to swallow tablets and consequently thereafter while she fell into semi-consciousness the said accused wilfully, unlawfully and feloniously have carnal knowledge of the complainant Irene Dulay against her will in the house of the accused. CONTRARY TO LAW, with the aggravating circumstance of abuse of confidence. San Fernando, La Union, May 8,1973. (SGD.) IRENE DULAY Offended Party WITH MY CONFORMITY: (SGD.) GAUDENCIO DULAY (Father of the Offended Party) and sentencing him to suffer the penalty of reclusion perpetua and to pay the cost. The facts are narrated in the People's brief as follows: Complainant Irene Dulay was a salesgirl employed in the store of Mr. & Mrs. Pepito Leones at San Fernando, La Union where she resided.

On April 22, 1973, the complainant who had headache stayed in her room. Earlier that day, the members of the Leones family, including the accused-appellant Joseph Leones and his sister Elizabeth, had gone to nearby beach resort for a picnic. At about past noon the appellant and Elizabeth returned to their house. While there, the appellant and Elizabeth entered the room where complainant was lying down and forced her to take three tablets dissolved in a spoon which according to them were aspirin. The complainant refused to take the tablets but was forced to do so when the appellant held her mouth while his sister pushed the medicine. Then the appellant and Elizabeth left the room and after a while the complainant felt dizzy. Later, the appellant returned to the complainant's room and took of her panty. Then the appellant went on top of her. The complainant tried to push him but as she was weak and dizzy, the appellant succeeded in abusing her (pp. 2-8,15-16, tsn, June 27, 1975). At about 4:30 P.M. of the same date, Natividad Leones, the stepmother of the appellant, found the complainant unconscious near her room without any panty on. She was then taken to the La Union Provincial Hospital by the driver of the Leones family (pp. 3-5, tsn, June 10, 1976). When admitted to the hospital at about 6:00 P.M. of the same date (April 22, 1973), the complainant was semiconscious, incoherent and hysterical. She refused to talk and to be examined by the doctors. She was irritated when approached by a male figure (Exhibit "B", Records, pp. 280-281). The complainant was first attended to by Dr. Antonino Estioco who found out that she had vaginal bleeding (Exhibit "2", Records, p. 786). The complainant was then referred to Dr. Fe Cayao who was informed by Dr. Estioco that she might have been a victim of rape (p. 28, tsn, May 15, 1974). In the presence of the complainant's father, Dr. Cayao examined her on April 26, 1973 after which she issued a medical certificate with the following findings: 1. Presence of erythema of the vestibular portion of external genitalia; 2. Healing lacerations of the hymen at 2 o'clock and 10 o'clock; 3. Easily admit one finger with pain; 4. Unclotted blood at the vaginal cavity; 5. Smear exam for sperm cell-negative; 6. D'plococci-negative 7. Florence test-reagent not available. (Exhibit "A", Records, p. 3). Because of the lack of facilities in the hospital, Dr. Cayao was not able to make any examination to determine whether drug was given to the complainant. (pp. 23- 24, tsn, May 15, 1974. 1 The accused-appellant denied the charge imputed to him, claiming that at the time of the alleged rape between 2:00 o'clock and 3:00 o'clock p.m. on April 22, 1973, he was at the beach resort with

the other members of the family, namely his sister Elizabeth, his stepmother Natividad Leones, his younger brothers and sisters named Marivic, Theresa, Carol, Pinky and Bongbong together with other companions, for a picnic and had lunch thereat, swimming and picture-taking. As indicated earlier, the trial court, holding that "viewed from all legal aspects of this case, in the light of the recorded evidence, ... is fully convinced that the crime of rape charged in the criminal complaint was committed by the accused. The evidence presented by the prosecution is not only clear and convincing but has established the guilt of the accused beyond reasonable doubt." From this sentence, the accused appeals to Us, strongly submitting that the trial court erred in finding him guilty of the crime charged since the evidence presented against him did not prove his guilt beyond reasonable doubt. At the outset, We note a number of significant facts from the recorded evidence of the prosecution which materially and substantially debunks and derails the theory of the Government and correspondingly impresses considerable merit to the defense. 1. The clinical case record of Irene Dulay's admission and confinement at the Provincial Hospital of La Union, marked Exhibit "2", contain entries which totally and completely belle the claim of the complainant that she was raped by the accused in the afternoon of April 22, 1973. The same is reproduced hereunder: LA UNION PROVINCIAL HOSPITAL San Fernando, La Union CLINICAL CASE RECORD Fiscal Yr.: 1973 Adm. No.: 275 File No. or Rec. No. Physician: Physician:

Admitted by: Approved by:

Dr. Estioco

Ped.: Surg.: Dept. Obs.: Classif. Med.:

City Free: Transient free: Govt. free; Prvt. free:

EENT: C.U.

Hosp. pay: Off. Hosp. pay: Off. Prvt. pay:

Dental:

Name of Patient: Irene Dulay Maiden name: ____________________ Residence: San Fernando, La Union In case of accident or death notify Natividad Leones, (employer) Charge Hosp. Acct. to: _______________________________________ Age: 16 yrs. Single: Married; Widowed: Nationality Fil. Admitted: 6:00 P.M. 4-22-1973 Assgd PR: I Bed by Dr. Estioco Transf: P.M.____19____ to Dept: PR Ward #: ______ Bed # ______ Complaints: Vaginal bleeding Diagnosis in full: Healing lacerated wide at 2 o'clock and 10 o'clock hymen. Res ults: Rec.: Imprv: Unimp rov: Dispositi on:, Disch : Disd: Abc ond: 3 : 4 5 P . M . 5 1 2 7

Died:

Trans f Hosp.

3 Operation: _____________________________________ Anesthesia: _____________________________________ History written by: APPROVED: (SGD.) ESTIOCO (unintelligible) (Resident Physician) Dept. Head The entry written in the above clinical record when Irene Dulay was admitted under the item "Complaints" reads: Vaginal Bleeding, and below this entry appears the Diagnosis-Healing lacerated wide at 2 o'clock and 10 o'clock hymen. Assuming that the victim was raped between 2 and 3 o'clock p.m., April 22, 1973 (the same day she was admitted in the hospital), then the lacerations of the hymen at 2 o'clock and 10 o'clock would not have been described and indicated to be Healing in the clinical case record. It would be described as "laceration fresh" or by similar words like "bloody or new lacerations." There is no instant formula, technique or process known to medical science or by human experience to hasten the healing of a lacerated hymen within three (3) hours or so after defloration. Citing from the book, Legal Medicine by Pedro P. Solis, M.D., Ll B Medico Legal Officer, National Bureau of Investigation, Department (now Ministry) of Justice, We have the following comment on: Healing time of laceration of the hymen: Superficial laceration of the hymen may heal in two or three days. More extensive tear may require longer time, usually seven to ten days. Complicated types and those with intervening infection may cause delay in the healing depending upon the extent of the involvement of the surrounding tissue and the degree of infection. Complicated laceration may even require surgical intervention." (p. 302, Emphasis supplied.) Since there was found laceration, wide, at 2 o'clock and 10 o'clock of the hymen which was then already healing on April 22, 1973, it follows reasonably that the defloration occurred several days before, which may have happened when Irene Dulay took a week-long vacation to her hometown in Pugo, La Union (tsn, p. 10, June 27, 1975) and there is evidence that she had a suitor named Ferdinand Sarmiento who is from nearby Agoo, La Union. And when she returned to the house of her employer in San Fernando, La Union, she had already chest and stomach pains and a headache. The written entries in the clinical case record, Exh. "2", showing the date of her admission in the hospital on April 22, 1973, her complaint of vaginal bleeding and the diagnosis of "Healing lacerated wide at 2 o'clock and 10 o'clock hymen" are prima facie evidence of the facts therein stated, the said entries having been made in official records by a public officer of the Philippines in the performance of his duty especially enjoined by law, which is that of a physician in a government hospital. (Rule 130, See. 38, Rules of Court). In the case at bar, Dr. Antonino Estioco was the admitting physician but unfortunately, he was not presented as a witness for the government.

In connection with Exhibit "2", there is one piece of damaging evidence which not only derogates the theory of the prosecution but also cannot be explained by the government, and that is the frank testimony of Dr. Fe Cayao herself, thus: Q The question is: did you not discover through reading the clinical history of the patient that the woman was not complaining of alleged rape? A It was not indicated here that she was complaining of an alleged rape. Q There was not a single word in the clinical record of the victim that she was the victim of an alleged rape, is that correct? A Yes. (tsn, pp. 27-28, May 15,1974) 2. From the same clinical case record, Exhibit "2", it appears clearly that the alleged victim, Irene Dulay, was having her menstrual period when she was supposedly raped for the Complaint indicated that she had vaginal bleeding. She herself admitted in her testimony that on April 22, 1973, she was having her menstruation. (tsn, p. 9, June 27, 1975). It is quite abnormal and unnatural, almost unheard of in human experience and behavior that a man would have sexual intercourse with a woman then having her menstrual period, as was the admitted condition of the complainant when she was allegedly abused by the accused. And because of this universal abhorrence, taboo and distaste to have sexual contact with a menstruating female and this is so however passionate and lustful the man way be unless he is depraved or demented. We cannot believe that the accused-appellant, a young fourth year college student of civil engineering studying in Baguio City, would break or violate such a taboo by drugging the complainant girl with the help of her sister and afterwards have sex relations with her in her menstrual condition. 3. When the complainant was investigated by the police, she declared in her affidavit, Exhibit "5", the following answers to these questions: 5. Q Why are you in this office? A I came here with the purpose of giving my voluntary statement in connection with the incident that happened to me in the house of my employer and I want to file a formal complaint against the persons who offended me, sir. 6. Q Who are those persons who offended you, if you know? A They are Joseph alias Jessie and Elizabeth both surnamed Leones, the son and daughter of Mr. Pepito Leones, my employer. 7. Q When did that incident happened? A At about between the hours of 2:00 & 3:00 in the afternoon of April 22, 1973, sir. 8. Q What did these Joseph and Elizabeth do against you?

A Because I was suffering headache at that time because it was the first day of my menstrual period, they were inviting me to go with them to Wallace and I told them that I have a headache then later they forced me to take in aspirin tablets, three (3) tablets then after a few seconds, I begun to feel dizzy and halfconscious. 9. Q Do you know if what you have forcely taken and given by the two, Joseph and Elizabeth were really aspirin tablets? A I do not know, but they were white in color similar to aspirin tablets but after I have taken them I felt dizzy then unconscious. 10. Q In what manner did Joseph Leones and Elizabeth Leones force you to take in the tablets? A At about that time and date I mentioned above, I was then lying on my bed in my room at their residence, then Jessie and Elizabeth came in. Joseph alias Jessie took hold of my throat with one hand and pressed it hard that I was almost choked up, his other hand held my both cheeks his thumb and forefinger pressed hard to forcely. open my mouth while Elizabeth held a spoon containing the three (3) tablets then I was told by them to swallow the pills. I could not resist so I swallowed the pills then later I felt dizzy as if the world was turning around. Thus, it would appear from the above recorded evidence that the accused Joseph Leones and his sister Elizabeth, helped and conspired with each other in the commission of the crime of rape against the offended party, an assumption that is hardly believable for it would lead to the absurb conclusions that Elizabeth was a principal by cooperation and that both Joseph and Elizabeth had planned the rape for they conveniently provided themselves beforehand with the necessary drug. It further appears in the record that the Philippine Constabulary in La Union did not believe the existence of rape when Felicidad Boado reported the incident (tsn, p. 25, June 18, 1974), which disbelief may reasonably be attributed to the unnatural and unusual version of the complainant that another of her own sex had conspired and confabulated in the commission of the alleged defilement. 4. The complainant, Irene Dulay, had declared in her affidavit, Exhibit " 5 ", in answer to question No. 9 that after she had taken the tablets that were white in color similar to aspirin tablets, she felt dizzy, then unconscious. In her testimony at the trial, however, she testified that after she had taken the tablets, she felt dizzy and felt the removal of her panty and that when he went on top of her, he inserted his private parts into her private parts (tsn, pp. 6-7, June 27, 1975), but on cross-exmination, she said that she became unconscious when Joseph Leones was already on top of her (tsn, p. 22, June 27, 1975). If she became unconscious when Leones was on top of her and yet she felt pain when he placed his private parts into hers, then this is incredible for how could she have known what was done to her and how she felt when she was already unconscious as admitted by her. 5. The record is replete with testimonies of the very witnesses of the prosecution itself revealing the irrational, if not immoral behavior and conduct of the complainant which cuts deep into the morality, character and credibility of the complaining witness. To cite a few of her immoral acts, when the police came to visit her, Irene Dulay took hold of the penis, of the policeman (Testimony of Felicidad Boado, tsn, p. 20, June 18, 1974). Whenever she sees a man, she goes after him and takes hold of his hand and places it in her private part (Testimony of Leonida Dulay, p. 5, tsn, Sept. 20, 1974). Sometimes she is seated, sometimes she is standing and there are moments that she goes around

and whenever she sees a man, she calls for him and says "darling Jessie" (Cross-examination of Leonida Dulay, tsn, p. 14, Sept. 20, 1974). She even said "have sexual intercourse with me," making particular mention of the person who wanted to do that to her as Joseph Leones (Cross-examination of Leonida Dulay, tsn, pp. 27-28, Sept. 20, 1974). There are times when she gets a pillow and imitates the sexual act (tsn, p. 29, Sept. 20, 1974). There are moments when she takes hold of a pillow, embraces it, and makes movements imitating the sexual act (tsn, Testimony of Leonida Dulay, p. 5, Sept. 20, 1974). 6. The circumstances of persons, time and place attendant in the commission of the crime do not build up the case for the People. On the contrary, We find facts and circumstances which contradict and contravene the theory of the prosecution, rendering it highly improbable and questionable. Thus, the room of the complainant where the alleged rape was committed was at the ground floor of the house where her employer lives with his family and maintains a canteen at the premises, the room being very near the washing place and had a door with only wooden jalousies. There were several persons present in the house at the time of the alleged rape and they were Evelyn Estigoy, the secretary of Natividad Leones, the cook Inocencia Gangad and her daughter, Mantes. With the presence of these persons at the premises and the complainant's room was not secluded nor completely closed, the opportunity to commit the rape is hardly present. More than that the alleged time being between 2:00 o'clock and 3:00 o'clock in the afternoon and with the supposed attendance of the perpetrator's elder sister, Elizabeth the element of secrecy had been totally ignored or disregarded which is quite unbelievable and incredible in such a crime as rape. Indeed, rape is a most detestable crime. It should be severely and impartially punished. But a rape charge is easy to make, hard to prove and harder to defend by the party accused, though innocent. Experience has shown that unfounded charges of rape have frequently been preferred by women actuated of rape have frequently been preferred by women actuated by some sinister, ulterior or undisclosed motive. Convictions for such crime should not be sustained without clear and convincing proof of guilt. On more than one occasion, it has been pointed out that in crimes against chastity, the testimony of the injured woman should not be received with precipitate credulity. When the conviction depends on any vital point upon her uncorroborated testimony, it should not be accepted unless her sincerity and candor are free from suspicion. A little insight into human nature is of utmost value in judging matters of this kind. (Cornelio Flores, 26 Phil. 262, 268; Ignacio Landicho, 8 ACR 580; Rafael Lacson, CA 53 O.G. 1823; Francisco Salvador, CA 52 O.G. 7290; Lago, CA 45 O.G. 1356; Barbo, 56 SCRA 459; Bay, 27 Phil. 495; Pantaleon Ramos, 35 Phil. 671; Brocal, CA 36 O.G. 857; Topacio, CA 36 O.G. 1358; Fernando Fausto, 51 Phil. 852; cited in Aquino, The Revised Penal Code, 1977 Ed., Vol. III, pp. 1679-1680). After carefully analyzing and weighing the evidence presented by the prosecution in the light of the legal principles above outlined and now well-established in Our jurisprudence and guided by a little insight into human nature, We are persuaded and convinced that the guilt of the accused has not been proven beyond reasonable doubt. That moral certainty or degree of proof which produces conviction in an unprejudiced mind (Rule 133, Section 2, Rules of Court) has not been established by the prosecution. The constitutional mandate that the accused is presumed innocent must prevail and, therefore, the accused-appellant, Joseph Leones, is entitled to an acquittal. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction is hereby REVERSED and the accused Joseph Leones y Ducusin is ACQUITTED of the crime charged. Costs de oficio. SO ORDERED.

25. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 107518 October 8, 1998 PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner, vs. HONORABLE COURT OF APPEALS and MARIA EFIGENIA FISHING CORPORATION, respondents.

ROMERO, J.: A party is entitled to adequate compensation only for such pecuniary loss actually suffered and duly proved. 1 Indeed, basic is the rule that to recover actual damages, the amount of loss must not only be capable of proof but must actually be proven with a reasonable degree of certainty, premised upon competent proof or best evidence obtainable of the actual amount thereof. 2 The claimant is duty-bound to point out specific facts that afford a basis for measuring whatever compensatory damages are borne. 3 A court cannot merely rely on speculations, conjectures, or guesswork as to the fact and amount of damages 4 as well as hearsay 5 or uncorroborated testimony whose truth is suspect. 6 Such are the jurisprudential precepts that the Court now applies in resolving the instant petition. The records disclose that in the early morning of September 21, 1977, the M/V Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing Corporation, was navigating the waters near Fortune Island in Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided with the vessel Petroparcel which at the time was owned by the Luzon Stevedoring Corporation (LSC). After investigation was conducted by the Board of Marine Inquiry, Philippine Coast Guard Commandant Simeon N. Alejandro rendered a decision finding the Petroparcel at fault. Based on this finding by the Board and after unsuccessful demands on petitioner, 7 private respondent sued the LSC and the Petroparcel captain, Edgardo Doruelo, before the then Court of First Instance of Caloocan City, paying thereto the docket fee of one thousand two hundred fifty-two pesos (P1,252.00) and the legal research fee of two pesos (P2.00). 8 In particular, private respondent prayed for an award of P692,680.00, allegedly representing the value of the fishing nets, boat equipment and cargoes of M/V Maria Efigenia XV, with interest at the legal rate plus 25% thereof as attorney's fees. Meanwhile, during the pendency of the case, petitioner PNOC Shipping and Transport Corporation sought to be substituted in place of LSC as it had already acquired ownership of the Petroparcel. 9 For its part, private respondent later sought the amendment of its complaint on the ground that the original complaint failed to plead for the recovery of the lost value of the hull of M/V Maria Efigenia XV. 10 Accordingly, in the amended complaint, private respondent averred that M/V Maria Efigenia XV had an actual value of P800,000.00 and that, after deducting the insurance payment of P200,000.00, the amount of P600,000.00 should likewise be claimed. The amended complaint also alleged that inflation resulting from the devaluation of the Philippine peso had affected the

replacement value of the hull of the vessel, its equipment and its lost cargoes, such that there should be a reasonable determination thereof. Furthermore, on account of the sinking of the vessel, private respondent supposedly incurred unrealized profits and lost business opportunities that would thereafter be proven. 11 Subsequently, the complaint was further amended to include petitioner as a defendant 12 which the lower court granted in its order of September 16, 1985. 13 After petitioner had filed its answer to the second amended complaint, on February 5, 1987, the lower court issued a pre-trial order 14 containing, among other things, a stipulations of facts, to wit: 1. On 21 September 1977, while the fishing boat "M/V MARIA EFIGENIA" owned by plaintiff was navigating in the vicinity of Fortune Island in Nasugbu, Batangas, on its way to Navotas, Metro Manila, said fishing boat was hit by the LSCO tanker "Petroparcel" causing the former to sink. 2. The Board of Marine Inquiry conducted an investigation of this marine accident and on 21 November 1978, the Commandant of the Philippine Coast Guard, the Honorable Simeon N. Alejandro, rendered a decision finding the cause of the accident to be the reckless and imprudent manner in which Edgardo Doruelo navigated the LSCO "Petroparcel" and declared the latter vessel at fault. 3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO), executed in favor of PNOC Shipping and Transport Corporation a Deed of Transfer involving several tankers, tugboats, barges and pumping stations, among which was the LSCO Petroparcel. 4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered into an Agreement of Transfer with co-defendant Lusteveco whereby all the business properties and other assets appertaining to the tanker and bulk oil departments including the motor tanker LSCO Petroparcel of defendant Lusteveco were sold to PNOC STC. 5. The aforesaid agreement stipulates, among others, that PNOC-STC assumes, without qualifications, all obligations arising from and by virtue of all rights it obtained over the LSCO "Petroparcel". 6. On 6 July 1979, another agreement between defendant LUSTEVECO and PNOC-STC was executed wherein Board of Marine Inquiry Case No. 332 (involving the sea accident of 21 September 1977) was specifically identified and assumed by the latter. 7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by the Ministry of National Defense, in its decision dismissing the appeal of Capt. Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO "Petroparcel". 8. LSCO "Petroparcel" is presently owned and operated by PNOC-STC and likewise Capt. Edgardo Doruelo is still in their employ. 9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and imprudent manner in which LSCO Petroparcel was navigated by defendant Doruelo, plaintiff suffered actual damages by the loss of its fishing nets, boat equipments (sic) and cargoes, which went down with the ship when it sank the replacement value of which should be left to the sound discretion of this Honorable Court.

After trial, the lower court 15 rendered on November 18, 1989 its decision disposing of Civil Case No. C-9457 as follows: WHEREFORE, and in view of the foregoing, judgment is hereby rendered in favor of the plaintiff and against the defendant PNOC Shipping & Transport Corporation, to pay the plaintiff: a. The sum of P6,438,048.00 representing the value of the fishing boat with interest from the date of the filing of the complaint at the rate of 6% per annum; b. The sum of P50,000.00 as and for attorney's fees; and c. The costs of suit. The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case against defendant Edgardo Doruelo is hereby DISMISSED, for lack of jurisdiction. SO ORDERED. In arriving at the above disposition, the lower court cited the evidence presented by private respondent consisting of the testimony of its general manager and sole witness, Edilberto del Rosario. Private respondent's witness testified that M/V Maria Efigenia XV was owned by private respondent per Exhibit A, a certificate of ownership issued by the Philippine Coast Guard showing that M/V Maria Efigenia XV was a wooden motor boat constructed in 1965 with 128.23 gross tonnage. According to him, at the time the vessel sank, it was then carrying 1,060 tubs (baeras) of assorted fish the value of which was never recovered. Also lost with the vessel were two cummins engines (250 horsepower), radar, pathometer and compass. He further added that with the loss of his flagship vessel in his fishing fleet of fourteen (14) vessels, he was constrained to hire the services of counsel whom he paid P10,000 to handle the case at the Board of Marine Inquiry and P50,000.00 for commencing suit for damages in the lower court. As to the award of P6,438,048.00 in actual damages, the lower court took into account the following pieces of documentary evidence that private respondent proffered during trial: (a) Exhibit A certified xerox copy of the certificate of ownership of M/V Maria Efigenia XV; (b) Exhibit B a document titled "Marine Protest" executed by Delfin Villarosa, Jr. on September 22, 1977 stating that as a result of the collision, the M/V Maria Efigenia XV sustained a hole at its left side that caused it to sink with its cargo of 1,050 baeras valued at P170,000.00; (c) Exhibit C a quotation for the construction of a 95-footer trawler issued by Isidoro A. Magalong of I. A. Magalong Engineering and Construction on January 26, 1987 to Del Rosario showing that construction of such trawler would cost P2,250,000.00; (d) Exhibit D pro forma invoice No. PSPI-05/87-NAV issued by E.D. Daclan of Power Systems, Incorporated on January 20, 1987 to Del Rosario showing that two (2) units of CUMMINS Marine Engine model N855-M, 195 bhp. at 1800 rpm. would cost P1,160,000.00;

(e) Exhibit E quotation of prices issued by Scan Marine Inc. on January 20, 1987 to Del Rosario showing that a unit of Furuno Compact Daylight Radar, Model FR-604D, would cost P100,000.00 while a unit of Furuno Color Video Sounder, Model FCV-501 would cost P45,000.00 so that the two units would cost P145,000.00; (f) Exhibit F quotation of prices issued by Seafgear Sales, Inc. on January 21, 1987 to Del Rosario showing that two (2) rolls of nylon rope (5" cir. X 300fl.) would cost P140,000.00; two (2) rolls of nylon rope (3" cir. X 240fl.), P42,750.00; one (1) binocular (7 x 50), P1,400.00, one (1) compass (6"), P4,000.00 and 50 pcs. of floats, P9,000.00 or a total of P197,150.00; (g) Exhibit G retainer agreement between Del Rosario and F. Sumulong Associates Law Offices stipulating an acceptance fee of P5,000.00, per appearance fee of P400.00, monthly retainer of P500.00, contingent fee of 20% of the total amount recovered and that attorney's fee to be awarded by the court should be given to Del Rosario; and (h) Exhibit H price quotation issued by Seafgear Sales, Inc. dated April 10, 1987 to Del Rosario showing the cost of poly nettings as: 50 rolls of 400/18 3kts. 100md x 100mtrs., P70,000.00; 50 rolls of 400/18 5kts. 100md x 100mtrs., P81,500.00; 50 rolls of 400/18 8kts. 100md x 100mtrs., P116,000.00, and 50 rolls of 400/18 10kts. 100md x 100mtrs., P146,500 and baera (tub) at P65.00 per piece or a total of P414,065.00. The lower court held that the prevailing replacement value of P6,438,048.00 of the fishing boat and all its equipment would regularly increase at 30% every year from the date the quotations were given. On the other hand, the lower court noted that petitioner only presented Lorenzo Lazaro, senior estimator at PNOC Dockyard & Engineering Corporation, as sole witness and it did not bother at all to offer any documentary evidence to support its position. Lazaro testified that the price quotations submitted by private respondent were "excessive" and that as an expert witness, he used the quotations of his suppliers in making his estimates. However, he failed to present such quotations of prices from his suppliers, saying that he could not produce a breakdown of the costs of his estimates as it was "a sort of secret scheme." For this reason, the lower court concluded: Evidently, the quotation of prices submitted by the plaintiff relative to the replacement value of the fishing boat and its equipments in the tune of P6,438,048.00 which were lost due to the recklessness and imprudence of the herein defendants were not rebutted by the latter with sufficient evidence. The defendants through their sole witness Lorenzo Lazaro relied heavily on said witness' bare claim that the amount afore-said is excessive or bloated, but they did not bother at all to present any documentary evidence to substantiate such claim. Evidence to be believed must not only proceed from the mouth of the credible witness, but it must be credible in itself. (Vda. de Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970). Aggrieved, petitioner filed a motion for the reconsideration of the lower court's decision contending that: (1) the lower court erred in holding it liable for damages; that the lower court did not acquire jurisdiction over the case by paying only P1,252.00 as docket fee; (2) assuming that plaintiff was entitled to damages, the lower court erred in awarding an amount greater than that prayed for in the second amended complaint; and (3) the lower court erred when it failed to resolve the issues it had raised in its memorandum. 16 Petitioner likewise filed a supplemental motion for reconsideration

expounding on whether the lower court acquired jurisdiction over the subject matter of the case despite therein plaintiff's failure to pay the prescribed docket fee. 17 On January 25, 1990, the lower court declined reconsideration for lack of merit. 18 Apparently not having received the order denying its motion for reconsideration, petitioner still filed a motion for leave to file a reply to private respondent's opposition to said motion. 19 Hence, on February 12, 1990, the lower court denied said motion for leave to file a reply on the ground that by the issuance of the order of January 25, 1990, said motion had become moot and academic. 20 Unsatisfied with the lower court's decision, petitioner elevated the matter to the Court of Appeals which, however, affirmed the same in toto on October 14, 1992. 21 On petitioner's assertion that the award of P6,438,048.00 was not convincingly proved by competent and admissible evidence, the Court of Appeals ruled that it was not necessary to qualify Del Rosario as an expert witness because as the owner of the lost vessel, "it was well within his knowledge and competency to identify and determine the equipment installed and the cargoes loaded" on the vessel. Considering the documentary evidence presented as in the nature of market reports or quotations, trade journals, trade circulars and price lists, the Court of Appeals held, thus: Consequently, until such time as the Supreme Court categorically rules on the admissibility or inadmissibility of this class of evidence, the reception of these documentary exhibits (price quotations) as evidence rests on the sound discretion of the trial court. In fact, where the lower court is confronted with evidence which appears to be of doubtful admissibility, the judge should declare in favor of admissibility rather than of non-admissibility (The Collector of Palakadhari, 124 [1899], p. 13, cited in Francisco, Revised Rules of Court, Evidence, Volume VII, Part I, 1990 Edition, p. 18). Trial courts are enjoined to observe the strict enforcement of the rules of evidence which crystallized through constant use and practice and are very useful and effective aids in the search for truth and for the effective administration of justice. But in connection with evidence which may appear to be of doubtful relevancy or incompetency or admissibility, it is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court. If they are thereafter found relevant or competent, can easily be remedied by completely discarding or ignoring them. (Banaria vs. Banaria, et al., C.A. No. 4142, May 31, 1950; cited in Francisco, Supra). [Emphasis supplied]. Stressing that the alleged inadmissible documentary exhibits were never satisfactorily rebutted by appellant's own sole witness in the person of Lorenzo Lazaro, the appellate court found that petitioner ironically situated itself in an "inconsistent posture by the fact that its own witness, admittedly an expert one, heavily relies on the very same pieces of evidence (price quotations) appellant has so vigorously objected to as inadmissible evidence." Hence, it concluded: . . . The amount of P6,438,048.00 was duly established at the trial on the basis of appellee's documentary exhibits (price quotations) which stood uncontroverted, and which already included the amount by way of adjustment as prayed for in the amended complaint. There was therefore no need for appellee to amend the second amended complaint in so far as to the claim for damages is concerned to conform with the evidence presented at the trial. The amount of P6,438,048.00 awarded is clearly within the relief prayed for in appellee's second amended complaint. On the issue of lack of jurisdiction, the respondent court held that following the ruling in Sun Insurance Ltd. v. Asuncion, 22 the additional docket fee that may later on be declared as still owing the court may be enforced as a lien on the judgment.

Hence, the instant recourse. In assailing the Court of Appeals' decision, petitioner posits the view that the award of P6,438,048 as actual damages should have been in light of these considerations, namely: (1) the trial court did not base such award on the actual value of the vessel and its equipment at the time of loss in 1977; (2) there was no evidence on extraordinary inflation that would warrant an adjustment of the replacement cost of the lost vessel, equipment and cargo; (3) the value of the lost cargo and the prices quoted in respondent's documentary evidence only amount to P4,336,215.00; (4) private respondent's failure to adduce evidence to support its claim for unrealized profit and business opportunities; and (5) private respondent's failure to prove the extent and actual value of damages sustained as a result of the 1977 collision of the vessels. 23 Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in satisfaction of, or in recompense for, loss or injury sustained. They proceed from a sense of natural justice and are designed to repair the wrong that has been done, to compensate for the injury inflicted and not to impose a penalty. 24 In actions based on torts or quasi-delicts, actual damages include all the natural and probable consequences of the act or omission complained of. 25 There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses (dao emergente), and the other is the failure to receive as a benefit that which would have pertained to him (lucro cesante). 26 Thus: Where goods are destroyed by the wrongful act of the defendant the plaintiff is entitled to their value at the time of destruction, that is, normally, the sum of money which he would have to pay in the market for identical or essentially similar goods, plus in a proper case damages for the loss of use during the period before replacement. In other words, in the case of profit-earning chattels, what has to be assessed is the value of the chattel to its owner as a going concern at the time and place of the loss, and this means, at least in the case of ships, that regard must be had to existing and pending engagements, . . . . . . . If the market value of the ship reflects the fact that it is in any case virtually certain of profitable employment, then nothing can be added to that value in respect of charters actually lost, for to do so would be pro tanto to compensate the plaintiff twice over. On the other hand, if the ship is valued without reference to its actual future engagements and only in the light of its profit-earning potentiality, then it may be necessary to add to the value thus assessed the anticipated profit on a charter or other engagement which it was unable to fulfill. What the court has to ascertain in each case is the "capitalised value of the vessel as a profit-earning machine not in the abstract but in view of the actual circumstances," without, of course, taking into account considerations which were too remote at the time of the loss. 27 [Emphasis supplied]. As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available. 28 The burden of proof is on the party who would be defeated if no evidence would be presented on either side. He must establish his case by a preponderance of evidence which means that the evidence, as a whole, adduced by one side is superior to that of the other. 29 In other words, damages cannot be presumed and courts, in making an award must point out specific facts that could afford a basis for measuring whatever compensatory or actual damages are borne. 30 In this case, actual damages were proven through the sole testimony of private respondent's general manager and certain pieces of documentary evidence. Except for Exhibit B where the value of the 1,050 baeras of fish were pegged at their September 1977 value when the collision happened, the

pieces of documentary evidence proffered by private respondent with respect to items and equipment lost show similar items and equipment with corresponding prices in early 1987 or approximately ten (10) years after the collision. Noticeably, petitioner did not object to the exhibits in terms of the time index for valuation of the lost goods and equipment. In objecting to the same pieces of evidence, petitioner commented that these were not duly authenticated and that the witness (Del Rosario) did not have personal knowledge on the contents of the writings and neither was he an expert on the subjects thereof. 31 Clearly ignoring petitioner's objections to the exhibits, the lower court admitted these pieces of evidence and gave them due weight to arrive at the award of P6,438,048.00 as actual damages. The exhibits were presented ostensibly in the course of Del Rosario's testimony. Private respondent did not present any other witnesses especially those whose signatures appear in the price quotations that became the bases of the award. We hold, however, that the price quotations are ordinary private writings which under the Revised Rules of Court should have been proffered along with the testimony of the authors thereof. Del Rosario could not have testified on the veracity of the contents of the writings even though he was the seasoned owner of a fishing fleet because he was not the one who issued the price quotations. Section 36, Rule 130 of the Revised Rules of Court provides that a witness can testify only to those facts that he knows of his personal knowledge. For this reason, Del Rosario's claim that private respondent incurred losses in the total amount of P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare assertion, it should be supported by independent evidence. Moreover, because he was the owner of private respondent corporation 32 whatever testimony he would give with regard to the value of the lost vessel, its equipment and cargoes should be viewed in the light of his self-interest therein. We agree with the Court of Appeals that his testimony as to the equipment installed and the cargoes loaded on the vessel should be given credence 33 considering his familiarity thereto. However, we do not subscribe to the conclusion that his valuation of such equipment, cargo and the vessel itself should be accepted as gospel truth. 34 We must, therefore, examine the documentary evidence presented to support Del Rosario's claim as regards the amount of losses. The price quotations presented as exhibits partake of the nature of hearsay evidence considering that the persons who issued them were not presented as witnesses. 35 Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of another person who is not on the witness stand. Hearsay evidence, whether objected to or not, has no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay evidence rule. 36 On this point, we believe that the exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of Rule 130. 37 It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and the like" under Section 45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court of Appeals considered private respondent's exhibits as "commercial lists." It added, however, that these exhibits should be admitted in evidence "until such time as the Supreme Court categorically rules on the admissibility or inadmissibility of this class of evidence" because "the reception of these documentary exhibits (price quotations) as evidence rests on the sound discretion of the trial court." 38 Reference to Section 45, Rule 130, however, would show that the conclusion of the Court of Appeals on the matter was arbitrarily arrived at. This rule states: Commercial lists and the like. Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them there.

Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a statement of matters of interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or other published compilation; (3) said compilation is published for the use of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the same occupation. Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and H 39 are not "commercial lists" for these do not belong to the category of "other published compilations" under Section 45 aforequoted. Under the principle of ejusdem generis, "(w)here general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned." 40 The exhibits mentioned are mere price quotations issued personally to Del Rosario who requested for them from dealers of equipment similar to the ones lost at the collision of the two vessels. These are not published in any list, register, periodical or other compilation on the relevant subject matter. Neither are these "market reports or quotations" within the purview of "commercial lists" as these are not "standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work of the occupation." 41 These are simply letters responding to the queries of Del Rosario. Thus, take for example Exhibit D which reads: January 20, 1987 PROFORMA INVOICE NO. PSPI-05/87-NAV MARIA EFIGINIA FISHING CORPORATION Navotas, Metro Manila Attention: MR. EDDIE DEL ROSARIO Gentlemen: In accordance to your request, we are pleated to quote our Cummins Marine Engine, to wit. Two (2) units CUMMINS Marine Engine model N855-M, 195 bhp. at 1800 rpm., 6-cylinder in-line, 4-stroke cycle, natural aspirated, 5 1/2 in. x 6 in. bore and stroke, 855 cu. In. displacement, keel-cooled, electric starting coupled with Twin-Disc Marine gearbox model MG-509, 4.5:1 reduction ratio, includes oil cooler, companion flange, manual and standard accessories as per attached sheet. Price FOB Manila P580,000.00/unit Total FOB Manila P1,160,000.00 TERMS : CASH DELIVERY : 60-90 days from date of order. VALIDITY : Subject to our final confirmation.

WARRANTY : One (1) full year against factory defect. Very truly yours, POWER SYSTEMS, INC. (Sgd.) E. D. Daclan To be sure, letters and telegrams are admissible in evidence but these are, however, subject to the general principles of evidence and to various rules relating to documentary evidence. 42 Hence, in one case, it was held that a letter from an automobile dealer offering an allowance for an automobile upon purchase of a new automobile after repairs had been completed, was not a "price current" or "commercial list" within the statute which made such items presumptive evidence of the value of the article specified therein. The letter was not admissible in evidence as a "commercial list" even though the clerk of the dealer testified that he had written the letter in due course of business upon instructions of the dealer. 43 But even on the theory that the Court of Appeals correctly ruled on the admissibility of those letters or communications when it held that unless "plainly irrelevant, immaterial or incompetent," evidence should better be admitted rather than rejected on "doubtful or technical grounds," 44 the same pieces of evidence, however, should not have been given probative weight. This is a distinction we wish to point out. Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to considered at all. 45 On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue. 46 Thus, a letter may be offered in evidence and admitted as such but its evidentiary weight depends upon the observance of the rules on evidence. Accordingly, the author of the letter should be presented as witness to provide the other party to the litigation the opportunity to question him on the contents of the letter. Being mere hearsay evidence, failure to present the author of the letter renders its contents suspect. As earlier stated, hearsay evidence, whether objected to or not, has no probative value. Thus: The courts differ as to the weight to be given to hearsay evidence admitted without objection. Some hold that when hearsay has been admitted without objection, the same may be considered as any other properly admitted testimony. Others maintain that it is entitled to no more consideration than if it had been excluded. The rule prevailing in this jurisdiction is the latter one. Our Supreme Court held that although the question of admissibility of evidence can not be raised for the first time on appeal, yet if the evidence is hearsay it has no probative value and should be disregarded whether objected to or not. "If no objection is made" quoting Jones on Evidence "it (hearsay) becomes evidence by reason of the want of such objection even though its admission does not confer upon it any new attribute in point of weight. Its nature and quality remain the same, so far as its intrinsic weakness and incompetency to satisfy the mind are concerned, and as opposed to direct primary evidence, the latter always prevails. The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rules of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence

any probative value. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value. 47 Accordingly, as stated at the outset, damages may not be awarded on the basis of hearsay evidence. 48 Nonetheless, the non-admissibility of said exhibits does not mean that it totally deprives private respondent of any redress for the loss of its vessel. This is because in Lufthansa German Airlines v. Court of Appeals, 49 the Court said: In the absence of competent proof on the actual damage suffered, private respondent is "entitled to nominal damages which, as the law says, is adjudicated in order that a right of the plaintiff, which has been violated or invaded by defendant, may be vindicated and recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered." [Emphasis supplied]. Nominal damages are awarded in every obligation arising from law, contracts, quasi-contracts, acts or omissions punished by law, and quasi-delicts, or in every case where property right has been invaded. 50 Under Article 2223 of the Civil Code, "(t)he adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns." Actually, nominal damages are damages in name only and not in fact. Where these are allowed, they are not treated as an equivalent of a wrong inflicted but simply in recognition of the existence of a technical injury. 51 However, the amount to be awarded as nominal damages shall be equal or at least commensurate to the injury sustained by private respondent considering the concept and purpose of such damages. 52 The amount of nominal damages to be awarded may also depend on certain special reasons extant in the case. 53 Applying now such principles to the instant case, we have on record the fact that petitioner's vessel Petroparcel was at fault as well as private respondent's complaint claiming the amount of P692,680.00 representing the fishing nets, boat equipment and cargoes that sunk with the M/V Maria Efigenia XV. In its amended complaint, private respondent alleged that the vessel had an actual value of P800,000.00 but it had been paid insurance in the amount of P200,000.00 and, therefore, it claimed only the amount of P600,000.00. Ordinarily, the receipt of insurance payments should diminish the total value of the vessel quoted by private respondent in his complaint considering that such payment is causally related to the loss for which it claimed compensation. This Court believes that such allegations in the original and amended complaints can be the basis for determination of a fair amount of nominal damages inasmuch as a complaint alleges the ultimate facts constituting the plaintiffs cause of action. 54 Private respondent should be bound by its allegations on the amount of its claims. With respect to petitioner's contention that the lower court did not acquire jurisdiction over the amended complaint increasing the amount of damages claimed to P600,000.00, we agree with the Court of Appeals that the lower court acquired jurisdiction over the case when private respondent paid the docket fee corresponding to its claim in its original complaint. Its failure to pay the docket fee corresponding to its increased claim for damages under the amended complaint should not be considered as having curtailed the lower court's jurisdiction. Pursuant to the ruling in Sun Insurance Office, Ltd. (SIOL) v. Asuncion, 55 the unpaid docket fee should be considered as a lien on the judgment even though private respondent specified the amount of P600,000.00 as its claim for damages in its amended complaint.

Moreover, we note that petitioner did not question at all the jurisdiction of the lower court on the ground of insufficient docket fees in its answers to both the amended complaint and the second amended complaint. It did so only in its motion for reconsideration of the decision of the lower court after it had received an adverse decision. As this Court held in Pantranco North Express, Inc. v. Court of Appeals, 56 participation in all stages of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the court's jurisdiction. Notably, from the time it filed its answer to the second amended complaint on April 16, 1985, 57 petitioner did not question the lower court's jurisdiction. It was only on December 29, 1989 58 when it filed its motion for reconsideration of the lower court's decision that petitioner raised the question of the lower court's lack of jurisdiction. Petitioner thus foreclosed its right to raise the issue of jurisdiction by its own inaction. WHEREFORE, the challenged decision of the Court of Appeals dated October 14, 1992 in CA-G.R. CV No. 26680 affirming that of the Regional Trial Court of Caloocan City, Branch 121, is hereby MODIFIED insofar as it awarded actual damages to private respondent Maria Efigenia Fishing Corporation in the amount of P6,438,048.00 for lack of evidentiary bases therefor. Considering the fact, however, that: (1) technically petitioner sustained injury but which, unfortunately, was not adequately and properly proved, and (2) this case has dragged on for almost two decades, we believe that an award of Two Million (P2,000,000.00) 59 in favor of private respondent as and for nominal damages is in order. No pronouncement as to costs. SO ORDERED.

26. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 150157 January 25, 2007

MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES, INC., Petitioners, vs. MODESTO CALAUNAN, Respondent. DECISION CHICO-NAZARIO, J.: Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CV No. 55909 which affirmed in toto the decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in Civil Case No. D10086, finding petitioners Mauricio Manliclic and Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay damages and attorneys fees to respondent Modesto Calaunan. The factual antecedents are as follows: The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate number CVD-478, owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic; and (2) owner-type jeep with plate number PER-290, owned by respondent Modesto Calaunan and driven by Marcelo Mendoza. At around 6:00 to 7:00 oclock in the morning of 12 July 1988, respondent Calaunan, together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his owner-type jeep. The Philippine Rabbit Bus was likewise bound for Manila from Concepcion, Tarlac. At approximately Kilometer 40 of the North Luzon Expressway in Barangay Lalangan, Plaridel, Bulacan, the two vehicles collided. The front right side of the Philippine Rabbit Bus hit the rear left side of the jeep causing the latter to move to the shoulder on the right and then fall on a ditch with water resulting to further extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of collision. Respondent suffered minor injuries while his driver was unhurt. He was first brought for treatment to the Manila Central University Hospital in Kalookan City by Oscar Buan, the conductor of the Philippine Rabbit Bus, and was later transferred to the Veterans Memorial Medical Center. By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan, charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries, docketed as Crim. Case No. 684-M-89. Subsequently on 2 December 1991, respondent filed a complaint for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan City, docketed as Civil Case No. D-10086. The criminal case was tried ahead of the civil case. Among those who testified in the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos. In the civil case (now before this Court), the parties admitted the following:

1. The parties agreed on the capacity of the parties to sue and be sued as well as the venue and the identities of the vehicles involved; 2. The identity of the drivers and the fact that they are duly licensed; 3. The date and place of the vehicular collision; 4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the existence of the medical certificate; 5. That both vehicles were going towards the south; the private jeep being ahead of the bus; 6. That the weather was fair and the road was well paved and straight, although there was a ditch on the right side where the jeep fell into.3 When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic notes (TSNs)4 of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil case in as much as these witnesses are not available to testify in the civil case. Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad sometime in November, 1989 and has not returned since then. Rogelio Ramos took the stand and said that his brother, Fernando Ramos, left for Amman, Jordan, to work. Rosalia Mendoza testified that her husband, Marcelo Mendoza, left their residence to look for a job. She narrated that she thought her husband went to his hometown in Panique, Tarlac, when he did not return after one month. She went to her husbands hometown to look for him but she was informed that he did not go there.1awphil.net The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the court where Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies of respondent Calaunan,5 Marcelo Mendoza6 and Fernando Ramos7 in said case, together with other documentary evidence marked therein. Instead of the Branch Clerk of Court, it was Enrique Santos Guevara, Court Interpreter, who appeared before the court and identified the TSNs of the three afore-named witnesses and other pertinent documents he had brought.8 Counsel for respondent wanted to mark other TSNs and documents from the said criminal case to be adopted in the instant case, but since the same were not brought to the trial court, counsel for petitioners compromised that said TSNs and documents could be offered by counsel for respondent as rebuttal evidence. For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The TSN9 of the testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case No. 684-M-89 was marked and allowed to be adopted in the civil case on the ground that he was already dead. Respondent further marked, among other documents, as rebuttal evidence, the TSNs10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in Criminal Case No. 684-M-89. The disagreement arises from the question: Who is to be held liable for the collision? Respondent insists it was petitioner Manliclic who should be liable while the latter is resolute in saying it was the former who caused the smash up. The versions of the parties are summarized by the trial court as follows:

The parties differed only on the manner the collision between the two (2) vehicles took place. According to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers per hour on the slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep and in the process of overtaking the jeep, the Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time the Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In other words, the Philippine Rabbit Bus was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated the testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep following the Philippine Rabbit Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the plaintiff overtook them and the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which was running very fast. The bus also overtook the jeep in which he was riding. After that, he heard a loud sound. He saw the jeep of the plaintiff swerved to the right on a grassy portion of the road. The Philippine Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not moved (sic), meaning they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff swerved to the right because it was bumped by the Philippine Rabbit bus from behind. Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus bumped the jeep in question. However, they explained that when the Philippine Rabbit bus was about to go to the left lane to overtake the jeep, the latter jeep swerved to the left because it was to overtake another jeep in front of it. Such was their testimony before the RTC in Malolos in the criminal case and before this Court in the instant case. [Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicles.]11 Petitioner PRBLI maintained that it observed and exercised the diligence of a good father of a family in the selection and supervision of its employee, specifically petitioner Manliclic. On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and against petitioners Manliclic and PRBLI. The dispositive portion of its decision reads: WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants ordering the said defendants to pay plaintiff jointly and solidarily the amount of P40,838.00 as actual damages for the towing as well as the repair and the materials used for the repair of the jeep in question; P100,000.00 as moral damages and another P100,000.00 as exemplary damages and P15,000.00 as attorneys fees, including appearance fees of the lawyer. In addition, the defendants are also to pay costs.12 Petitioners appealed the decision via Notice of Appeal to the Court of Appeals.13 In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error in the decision of the trial court, affirmed it in all respects.14 Petitioners are now before us by way of petition for review assailing the decision of the Court of Appeals. They assign as errors the following: I THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSNs AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE. II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS RELIANCE ON THE VERSION OF THE RESPONDENT ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED. III THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS UNFAIR DISREGARD OF HEREIN PETITIONER PRBLs DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES. IV THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS QUESTIONABLE AWARD OF DAMAGES AND ATTORNEYS FEE. With the passing away of respondent Calaunan during the pendency of this appeal with this Court, we granted the Motion for the Substitution of Respondent filed by his wife, Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko Calaunan and Liwayway Calaunan.15 In their Reply to respondents Comment, petitioners informed this Court of a Decision16 of the Court of Appeals acquitting petitioner Manliclic of the charge17 of Reckless Imprudence Resulting in Damage to Property with Physical Injuries attaching thereto a photocopy thereof. On the first assigned error, petitioners argue that the TSNs containing the testimonies of respondent Calaunan,18 Marcelo Mendoza19 and Fernando Ramos20 should not be admitted in evidence for failure of respondent to comply with the requisites of Section 47, Rule 130 of the Rules of Court. For Section 47, Rule 13021 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) the adverse party had an opportunity to cross-examine the witness in the former case.22 Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a testimony given in a former case or proceeding to be admissible as an exception to the hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No. 684-M-89, had no opportunity to crossexamine the three witnesses in said case. The criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLIs employee. The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees.23 Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their admissibility. 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 waive. Thus, a failure to except to the evidence because it does not conform to the statute is a waiver of the provisions of the law. Even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of failure to object thereto, the same may be admitted and considered as sufficient to prove the facts therein

asserted.24 Hearsay evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves.25 In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted by both petitioners.26 Moreover, petitioner PRBLI even offered in evidence the TSN containing the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSNs of the testimonies of plaintiffs witnesses in the criminal case should not be admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It appears that petitioner PRBLI wants to have its cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be unfair. We do not subscribe to petitioner PRBLIs argument that it will be denied due process when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case are to be admitted in the civil case. It is too late for petitioner PRBLI to raise denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSNs. For failure to object at the proper time, it waived its right to object that the TSNs did not comply with Section 47. In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S. Puno,28 admitted in evidence a TSN of the testimony of a witness in another case despite therein petitioners assertion that he would be denied due process. In admitting the TSN, the Court ruled that the raising of denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSN was belatedly done. In so doing, therein petitioner waived his right to object based on said ground. Petitioners contend that the documents in the criminal case should not have been admitted in the instant civil case because Section 47 of Rule 130 refers only to "testimony or deposition." We find such contention to be untenable. Though said section speaks only of testimony and deposition, it does not mean that documents from a former case or proceeding cannot be admitted. Said documents can be admitted they being part of the testimonies of witnesses that have been admitted. Accordingly, they shall be given the same weight as that to which the testimony may be entitled.29 On the second assigned error, petitioners contend that the version of petitioner Manliclic as to how the accident occurred is more credible than respondents version. They anchor their contention on the fact that petitioner Manliclic was acquitted by the Court of Appeals of the charge of Reckless Imprudence Resulting in Damage to Property with Physical Injuries. To be resolved by the Court is the effect of petitioner Manliclics acquittal in the civil case. From the complaint, it can be gathered that the civil case for damages was one arising from, or based on, quasi-delict.30 Petitioner Manliclic was sued for his negligence or reckless imprudence in causing the collision, while petitioner PRBLI was sued for its failure to exercise the diligence of a good father in the selection and supervision of its employees, particularly petitioner Manliclic. The allegations read:

"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board the abovedescribed motor vehicle travelling at a moderate speed along the North Luzon Expressway heading South towards Manila together with MARCELO MENDOZA, who was then driving the same; "5. That approximately at kilometer 40 of the North Luzon Express Way, the above-described motor vehicle was suddenly bumped from behind by a Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478 then being driven by one Mauricio Manliclic of San Jose, Concepcion, Tarlac, who was then travelling recklessly at a very fast speed and had apparently lost control of his vehicle; "6. That as a result of the impact of the collision the above-described motor vehicle was forced off the North Luzon Express Way towards the rightside where it fell on its drivers side on a ditch, and that as a consequence, the above-described motor vehicle which maybe valued at EIGHTY THOUSAND PESOS (P80,000) was rendered a total wreck as shown by pictures to be presented during the pre-trial and trial of this case; "7. That also as a result of said incident, plaintiff sustained bodily injuries which compounded plaintiffs frail physical condition and required his hospitalization from July 12, 1988 up to and until July 22, 1988, copy of the medical certificate is hereto attached as Annex "A" and made an integral part hereof; "8. That the vehicular collision resulting in the total wreckage of the above-described motor vehicle as well as bodily (sic) sustained by plaintiff, was solely due to the reckless imprudence of the defendant driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a fast speed without due regard or observance of existing traffic rules and regulations; "9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the diligence of a good father of (sic) family in the selection and supervision of its drivers; x x x"31 Can Manliclic still be held liable for the collision and be found negligent notwithstanding the declaration of the Court of Appeals that there was an absence of negligence on his part? In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said: To the following findings of the court a quo, to wit: that accused-appellant was negligent "when the bus he was driving bumped the jeep from behind"; that "the proximate cause of the accident was his having driven the bus at a great speed while closely following the jeep"; x x x We do not agree. The swerving of Calaunans jeep when it tried to overtake the vehicle in front of it was beyond the control of accused-appellant. xxxx Absent evidence of negligence, therefore, accused-appellant cannot be held liable for Reckless Imprudence Resulting in Damage to Property with Physical Injuries as defined in Article 365 of the Revised Penal Code.32 From the foregoing declaration of the Court of Appeals, it appears that petitioner Manliclic was acquitted not on reasonable doubt, but on the ground that he is not the author of the act

complained of which is based on Section 2(b) of Rule 111 of the Rules of Criminal Procedure which reads: (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The afore-quoted section applies only to a civil action arising from crime or ex delicto and not to a civil action arising from quasi-delict or culpa aquiliana. The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111 [now Section 2 (b) of Rule 111], refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused.33 A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime a distinction exists between the civil liability arising from a crime and the responsibility for quasidelicts or culpa extra-contractual. The same negligence causing damages may produce civil liability arising from a crime under the Penal Code, or create an action for quasi-delicts or culpa extracontractual under the Civil Code.34 It is now settled that acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi delict.35 In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising from the crime may be proved by preponderance of evidence only. However, if an accused is acquitted on the basis that he was not the author of the act or omission complained of (or that there is declaration in a final judgment that the fact from which the civil might arise did not exist), said acquittal closes the door to civil liability based on the crime or ex delicto. In this second instance, there being no crime or delict to speak of, civil liability based thereon or ex delicto is not possible. In this case, a civil action, if any, may be instituted on grounds other than the delict complained of. As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be extinguished by an acquittal, whether it be on ground of reasonable doubt or that accused was not the author of the act or omission complained of (or that there is declaration in a final judgment that the fact from which the civil liability might arise did not exist). The responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code.36 An acquittal or conviction in the criminal case is entirely irrelevant in the civil case37 based on quasi-delict or culpa aquiliana. Petitioners ask us to give credence to their version of how the collision occurred and to disregard that of respondents. Petitioners insist that while the PRBLI bus was in the process of overtaking respondents jeep, the latter, without warning, suddenly swerved to the left (fast) lane in order to overtake another jeep ahead of it, thus causing the collision. As a general rule, questions of fact may not be raised in a petition for review. The factual findings of the trial court, especially when affirmed by the appellate court, are binding and conclusive on the Supreme Court.38 Not being a trier of facts, this Court will not allow a review thereof unless: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant

and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of fact are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.39 After going over the evidence on record, we do not find any of the exceptions that would warrant our departure from the general rule. We fully agree in the finding of the trial court, as affirmed by the Court of Appeals, that it was petitioner Manliclic who was negligent in driving the PRBLI bus which was the cause of the collision. In giving credence to the version of the respondent, the trial court has this say: x x x Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicle. In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15) given to the Philippine Rabbit Investigator CV Cabading no mention was made by him about the fact that the driver of the jeep was overtaking another jeep when the collision took place. The allegation that another jeep was being overtaken by the jeep of Calaunan was testified to by him only in Crim. Case No. 684-M-89 before the Regional Trial Court in Malolos, Bulacan and before this Court. Evidently, it was a product of an afterthought on the part of Mauricio Manliclic so that he could explain why he should not be held responsible for the incident. His attempt to veer away from the truth was also apparent when it would be considered that in his statement given to the Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine Rabbit Bus was behind the said jeep. In his testimony before the Regional Trial Court in Malolos, Bulacan as well as in this Court, he alleged that the Philippine Rabbit Bus was already on the left side of the jeep when the collision took place. For this inconsistency between his statement and testimony, his explanation regarding the manner of how the collision between the jeep and the bus took place should be taken with caution. It might be true that in the statement of Oscar Buan given to the Philippine Rabbit Investigator CV Cabading, it was mentioned by the former that the jeep of plaintiff was in the act of overtaking another jeep when the collision between the latter jeep and the Philippine Rabbit Bus took place. But the fact, however, that his statement was given on July 15, 1988, one day after Mauricio Manliclic gave his statement should not escape attention. The one-day difference between the giving of the two statements would be significant enough to entertain the possibility of Oscar Buan having received legal advise before giving his statement. Apart from that, as between his statement and the statement of Manliclic himself, the statement of the latter should prevail. Besides, in his Affidavit of March 10, 1989, (Exh. 14), the unreliability of the statement of Oscar Buan (Exh. 13) given to CV Cabading rear its "ugly head" when he did not mention in said affidavit that the jeep of Calaunan was trying to overtake another jeep when the collision between the jeep in question and the Philippine Rabbit bus took place. xxxx If one would believe the testimony of the defendant, Mauricio Manliclic, and his conductor, Oscar Buan, that the Philippine Rabbit Bus was already somewhat parallel to the jeep when the collision took place, the point of collision on the jeep should have been somewhat on the left side thereof rather than on its rear. Furthermore, the jeep should have fallen on the road itself rather than having been forced off the road. Useless, likewise to emphasize that the Philippine Rabbit was running very fast as testified to by Ramos which was not controverted by the defendants.40 Having ruled that it was petitioner Manliclics negligence that caused the smash up, there arises the juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of

the diligence of a good father of a family.41 Under Article 218042 of the New Civil Code, when an injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection or both. The liability of the employer under Article 2180 is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of such employee. Therefore, it is incumbent upon the private respondents to prove that they exercised the diligence of a good father of a family in the selection and supervision of their employee.43 In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the required diligence in the selection and supervision of its employees, particularly petitioner Manliclic. In the matter of selection, it showed the screening process that petitioner Manliclic underwent before he became a regular driver. As to the exercise of due diligence in the supervision of its employees, it argues that presence of ready investigators (Ganiban and Cabading) is sufficient proof that it exercised the required due diligence in the supervision of its employees. In the selection of prospective employees, employers are required to examine them as to their qualifications, experience and service records. In the supervision of employees, the employer must formulate standard operating procedures, monitor their implementation and impose disciplinary measures for the breach thereof. To fend off vicarious liability, employers must submit concrete proof, including documentary evidence, that they complied with everything that was incumbent on them.44 In Metro Manila Transit Corporation v. Court of Appeals,45 it was explained that: Due diligence in the supervision of employees on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions. In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies, without anything more, is decidedly not sufficient to overcome such presumption. We emphatically reiterate our holding, as a warning to all employers, that "the formulation of various company policies on safety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures and company policies on efficiency and safety were followed." x x x. The trial court found that petitioner PRBLI exercised the diligence of a good father of a family in the selection but not in the supervision of its employees. It expounded as follows: From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has a very good procedure of recruiting its driver as well as in the maintenance of its vehicles. There is no evidence

though that it is as good in the supervision of its personnel. There has been no iota of evidence introduced by it that there are rules promulgated by the bus company regarding the safe operation of its vehicle and in the way its driver should manage and operate the vehicles assigned to them. There is no showing that somebody in the bus company has been employed to oversee how its driver should behave while operating their vehicles without courting incidents similar to the herein case. In regard to supervision, it is not difficult to observe that the Philippine Rabbit Bus Lines, Inc. has been negligent as an employer and it should be made responsible for the acts of its employees, particularly the driver involved in this case. We agree. The presence of ready investigators after the occurrence of the accident is not enough to exempt petitioner PRBLI from liability arising from the negligence of petitioner Manliclic. Same does not comply with the guidelines set forth in the cases above-mentioned. The presence of the investigators after the accident is not enough supervision. Regular supervision of employees, that is, prior to any accident, should have been shown and established. This, petitioner failed to do. The lack of supervision can further be seen by the fact that there is only one set of manual containing the rules and regulations for all the drivers of PRBLI. 46 How then can all the drivers of petitioner PRBLI know and be continually informed of the rules and regulations when only one manual is being lent to all the drivers? For failure to adduce proof that it exercised the diligence of a good father of a family in the selection and supervision of its employees, petitioner PRBLI is held solidarily responsible for the damages caused by petitioner Manliclics negligence. We now go to the award of damages. The trial court correctly awarded the amount of P40,838.00 as actual damages representing the amount paid by respondent for the towing and repair of his jeep.47 As regards the awards for moral and exemplary damages, same, under the circumstances, must be modified. The P100,000.00 awarded by the trial court as moral damages must be reduced to P50,000.00.48 Exemplary damages are imposed by way of example or correction for the public good.49 The amount awarded by the trial court must, likewise, be lowered to P50,000.00.50 The award of P15,000.00 for attorneys fees and expenses of litigation is in order and authorized by law.51 WHEREFORE, premises considered, the instant petition for review is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the MODIFICATION that (1) the award of moral damages shall be reduced to P50,000.00; and (2) the award of exemplary damages shall be lowered to P50,000.00. Costs against petitioners. SO ORDERED.

27. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 116196 June 23, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ADOVISO, defendant-appellant.

KAPUNAN, J.: Pablo Adoviso appeals from the Joint Judgment 1 of the Regional Trial Court of Camarines Sur 2 declaring him guilty beyond reasonable doubt for two counts of Murder. Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit (CAFGU), was originally charged with four unidentified persons who have, however, remained at large. The information 3 charging appellant with the Murder of Rufino Agunos under Criminal Case No. P-2079 alleges: That on or about the 18th day of February 1990 at about 8:00 o'clock [sic] in the evening at Sitio Tan-agan, Barangay Casugad, Municipality of Bula, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, while armed with assorted long firearms, conspiring, confederating and mutually helping one another, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shoot one Rufino Agunos several times with said firearms hitting the latter on the different parts of his body which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said Rufino Agunos. That the crime complained of against the accused is not service connected. ACTS CONTRARY TO LAW. Except for the name of the victim, the information in Criminal Case No. P-2080 with respect to the killing of Emeterio Vasquez, contains the same allegations. 4 Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case Nos. P-2079 and P2080, the prosecution presented their version of the events that transpired on the evening of February 18, 1990, as follows: The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the houses was actually a camalig where they stored harvested rice. The spouses preferred to live there because it was cooler. The living area of the

camalig had walls of bamboo called salsag. This area was elevated from the ground. Three steps led down to an awning (suyab) walled with bamboo slats. These slats were placed horizontally approximately four to six inches apart. A portion of the awning was used as a kitchen but another portion had a papag where the Vasquez' grandson, Rufino Agunos, son of their daughter Virginia, would sleep whenever he tended the irrigation pump. The spouses son Bonifacio occupied the other house eight (8) meters from the camalig with his own son Elmer. At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was preparing coffee as his wife was about to retire for the night. Their grandson Rufino had already gone to sleep in the papag. Anastacia had just finished spreading the sleeping mat when she heard three or four gunshots. Emeterio then uttered that he had been shot. Seeing Emeterio, Anastacia exclaimed, "Why should you not be hit when infact there are guns in front of you." Anastacia saw the "protruding edge of the gun" on the wall near the stairs where Emeterio went down. A lamp near the stairs where Emeterio drank coffee illuminated the camalig but Anastacia failed to recognize the persons who fired their guns at her husband. The Vasquez' son Bonifacio was in the bigger house when he heard the gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding the engine of the irrigation pump. Bonifacio was still talking when he noticed that Rufino had fallen asleep, the latter's back against the bamboo wall. Bonifacio left Rufino snoring in the papag and went to the other house. Only a minute had passed after he had gone up when Bonifacio heard the gunshots. He and his 16-year-old son Elmer immediately went down the front yard to investigate. Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From a distance of eight (8) meters, Bonifacio saw Rufino, who was inside the camalig, being shot by several persons from the outside. Looking through the bamboo slats of the camalig wall. Bonifacio recognized one of the assailants, with a large built and long hair, as appellant Pablo Adoviso because of the gas lamp that was lighted inside the camalig. Of Rufino's assailants, only appellant was not wearing a mask. Appellant was holding a long firearm wrapped inside a sack with its muzzle protruding and directed where Rufino was sleeping. Appellant then fired hitting Rufino. At that moment, Bonifacio heard his father Emeterio shout "Pino," (referring to his grandson Rufino) and saw his father go down the stairs carrying a gas lamp. Appellant fired again, hitting Emeterio at the stomach. For his part, Elmer, who rushed towards the camalig with his father Bonifacio, saw five (5) persons aiming their firearms at the camalig. Except for appellant, each of these persons had a cover over their faces. Three (3) of them were positioned in a ditch near the camalig while two (2) others were near its door. Elmer saw these five (5) persons shoot his cousin Rufino who was lying down on the papag. Although his back was hit, Rufino was able to crawl under the papag. Elmer's grandfather was also hit on the stomach but he managed to up the camalig. When appellant and his companion by the camalig door saw Elmer, they fired at him then, with the three others at the ditch, escaped to the banana plantation Elmer, on the other hand, fled towards the coconut plantation. Upon returning to the camalig, Elmer saw his father carrying his grandfather Emeterio. He also found Rufino at the foot of a coconut tree near the river, lying on his side with his body curled. Rufino told Elmer that he had been hit and, when Elmer failed to locate his wound, Rufino took Elmer's hand and put it on his back. Elmer then moved Rufino "sidewise." Upon returning to the camalig, Elmer carried his grandfather and bandaged his stomach with diapers. In the meantime, Bonifacio went to the municipal building of Bula to fetch the police. Inspector Antonio Lopez and Senior Police Officer 1 Claro Ballevar returned to the scene of the crime with him. The police brought Emeterio and Rufino to the municipal hall of Bula and then to the Bicol Regional Hospital. Both Emeterio and Rufino died early the next morning.

The certification 5 dated March 7, 1990 and signed by Dr. Janice Nanette Estrada, resident physician of the Bicol Regional Hospital in Naga City, states that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at the inguinal area, the sacral area, the thigh and the abdomen. The wounds at the inguinal area and the thigh bore contusion collars. The same physician certified that Emeterio Vasquez, 88 years of age, sustained seven (7) gunshot wounds at the paraumbilical area, lumbar area, hypogastrium, anterior aspect of the right forearm, anteromedial aspect of the right forearm, anteromedial aspect left arm and anterolateral aspect of the left arm. Four (4) of these gunshot wounds had contusion collars at the paraumbilical area, the hypogastrium, the right forearm and the left arm. 6 Appellant Adoviso interposed alibi and denial as his defense. Appellant claimed that he was a member of the CAFGU whose headquarters was located in Barangay Palsong, Bula, Camarines Sur. At around 7:00 in the evening of February 18, 1990, he was in Sitio Durabod, Palsong, about a kilometer away from the CAFGU headquarters. He, together with Francisco Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had some drinks in the store of Honoria Tragante until around 11:00 p.m. Honoria Tragante and Francisco Bislombre corroborated appellant's alibi. Antero Esteron likewise testified that from 7:00 until past 11:00 that night of February 18, 1990, he and appellant had a drinking spree at the Tragante store. He distinctly remembered that date because it was the fiesta of Balatan. To support his denial appellant presented Lt. Antonio Lopez, the deputy chief of police and SPO2 Claro Ballebar of the PNP Bula Police Station. Lopez identified a police certification 7 prepared by Pfc. Ramon N. Canabe to the effect that the shooting incident was perpetrated "by unidentified armed men." Lopez said that he (Lopez) was one of those who brought the victims to the hospital who were then still conscious. The victims told him that they did not know who shot them or why they were shot. SPO2 Claro Ballebar, however testified that in the follow-up investigation he conducted several days after the incident, Bonifacio Vasquez revealed to him that he (Bonifacio) "vividly saw the incident and recognized" appellant as one of the perpetrators of the crime and that the killings had some something to do with land dispute between Bonifacio's parents and the Galicia family. The defense also offered in evidence the testimony of Ernesto A. Lucena, Polygraph Examiner II of the National Bureau of Investigation (NBI) in Manila, who conducted a polygraph test on appellant. In Polygraph Report No. 900175, 8 Lucena opined that appellants ''polygrams revealed that there were no specific reactions indicative of deception to pertinent questions relevant" to the investigation of the crimes. In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the police, he did not identify appellant as one of the culprits because he was afraid of appellant who was a member of the CAFGU. Nevertheless, Bonifacio did mention to the police that he recognized appellant as one of the perpetrators of the crime although he told them that he did not recognize appellant's four (4) companions. He did not mention to Lopez and Canabe appellant's identity because he was "confused" about what had happened in their house. On March 25, 1994, the trial court rendered a Joint Judgment finding appellant guilty beyond reasonable doubt for two (2) counts of murder and disposing of Criminal Case Nos. P-2079 and P2080 as follows: WHEREFORE, in view of all the foregoing, joint judgment is hereby rendered:

In Criminal Case No. P-2079, finding the accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him the penalty of RECLUSION PERPETUA and to pay the legal heirs of Rufino Agunos, consisting of the widow, Evelyn T. Agunos and their four (4) children the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency; In Criminal Case No. P-2080, likewise finding said accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him another penalty of RECLUSION PERPETUA and to pay the legal heirs of the late EMETERIO VASQUEZ, consisting of Anastacia Vasquez and Bonifacio Vasquez, another sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency with all the accessory penalties provided therefore in both cases and to pay the costs in both instances. SO ORDERED. 9 Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an "incredible" story because it is "highly improbable" that they could have "distinctly and positively recognized accused-appellant as one of the perpetrators of the crimes." 10 According to appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside the camalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant because of the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the gas lamp carried by Elmer's grandfather was "a small can about two (2) inches tall and the wick is smaller than a cigarette" and the lamp inside the camalig "was placed inside a bigger can so that the direction of the light emanating therefrom was upwards and not sidewise." 11 Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. 12 Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons. 13 Wicklamps, flashlights, even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. 14 In this case, not one (1) but two (2) gas lamps illuminated the place the one placed inside the camalig and that held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellant's contention therefore that one particular gas lamp could not have lighted the place because it was placed inside a can is puerile. Besides, Elmer was not describing either of the gas lamps during the incident. The defense counsel at the trial and appellant's counsel misunderstood the testimonies of Elmer and his grandmother on that matter. Thus, Elmer testified: ATTY. CORTES: Q Is it not that the lamp you said placed along the door, which is already marked as lamp, is that not this lamp was placed inside a kerosene can as testified to by your grandmother so that the cat could not cause it to fall? A It was placed just on the floor not inside the can. 15 (Emphasis supplied.) For her part, Anastacia testified as follows.

ATTY. CORTES: xxx xxx xxx Q Because you were already about to retire, the doors and windows were already closed, is that correct? A Yes, sir. Q That you also shut down or closed the light, is that correct? A No, sir, we even placed the kerosene lamp inside a can. Q You said, you placed the lamp inside a can so that the light is going up, is that correct? A Yes, sir. Q So, the light was not illuminating sidewise because it was inside a can? A When we left, I got the kerosene lamp and brought it with me. ATTY. CORTES: I think, the witness did not get the question right, Your Honor. COURT: Repeat the question. ATTY. CORTES: Q My question Madam Witness is, when you were about to retire? A The lamp was placed on the floor where my husband was drinking coffee. COURT : Q Who are the persons you are referring to as having left when you placed the light inside the can? A My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio and Rufino to the hospital. 16 (emphasis supplied). Clearly then, the lamp inside the camalig was placed on the floor and a can was placed over it only after the incident when Anastacia left with her son and the police to bring the victims to the hospital. The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of appellant, considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of relatives of victims to strive to observe the faces and appearance of the assailants, if not ascertain their identities, and the manner in which the crime is committed. 17 A relative will naturally be

interested in identifying the malefactor to secure his conviction to obtain justice for the death of his relative(s). 18 It must remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had known him for ten (10) years 19 while Elmer had been acquainted with him for four (4) years. Elmer recalled that appellant used to join the rabuz at the barracks. 20 Familiarity with appellant's face and appearance minimized if not erased the possibility that they could have been mistaken as to his identity. Appellant's allegation that it was "improbable" for him to have committed the crimes without a mask, unlike the other participants, deserves scant consideration. It is not contrary to human experience for a person to commit a crime before the very eyes of people who are familiar to them. Indeed, some may even take pride in their identification as the perpetrator of a criminal act. Appellant also considers as a "positive sign," Bonifacio's failure to immediately identify him as the perpetrator of the crime to the police. 21 The delay in reporting his participation to the police was however sufficiently explained by Bonifacio. Bonifacio was afraid of appellant since the latter was a member of the CAFGU and, as such, was provided with a gun. He was also hesitant in identifying appellant immediately lest he got wind of his impending arrest and posthaste escaped the clutches of the law. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators of the crime does not affect, much less, impair his credibility as a witness. 22 The general or common rule is that witnesses react to a crime in different ways. 23 There is no standard form of human behavioral response to a strange, startling and frightful event, and there is no standard rule by which witnesses to a crime must react. 24 There is no merit in appellant's contention that Bonifacio had a motive in implicating him. According to appellant, Bonifacio suspected that he was hired by the Galicia family to kill Bonifacio's father who had earlier won in a land dispute with the Galicias. It is irrelevant here to talk of motive on the part of Bonifacio inasmuch as to credible witnesses had positively identified appellant as one of the participants in the killing of Emeterio Vasquez and Rufino Agunos. Appellant's alibi thus crumbles in the face of his positive identification as one of the perpetrators of the crimes. 25 For an alibi to prosper, moreover, there must be proof that the defendant was not only somewhere else when the crime was committed but that he could not be physically present at the place of the crime or its immediate vicinity at the time of its commission. 26 Appellant did not prove the physical impossibility of his being in Sitio Tan-agan which is not exactly remote from Sitio Palsong where he claimed to be when the incident happened. Both places are within the Municipality of Bula. Appellant admitted that the distance between the two sitios could be negotiated in three hours even without any means of transportation. 27 On the other hand, his alleged companion in Sitio Palsong, Antero Esteron, testified that the distance could be traveled in thirty-five (35) minutes by "trimobile" or private vehicle. 28 Apart from the fact that appellant's alibi was inherently weak, he was not even sure where he was and who were his companions at the time the crimes were committed. We quote the observation of the trial court on this point: On the premise that the trial court rendered the judgment of conviction on the basis of "mere conjectures and speculations," 29 appellant argues that the negative result of the polygraph test should be given weight to tilt the scales of justice in his favor. A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinee's conscious attempt to deceive the questioner. 30 The theory behind a polygraph or lie detector test is that a person who lie deliberately will have rising blood pressure and a subconscious block in breathing, which will be recorded on the graph. 31 However, American courts almost

uniformly reject the results of polygraphs tests when offered in evidence for the purposes of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and ascertaining truth or deception. 32 The rule is no different in this jurisdiction. Thus, in People v. Daniel, 33 stating that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him. Appellant was therefore correctly adjudged guilty of two counts of Murder. Treachery qualified the killing to murder. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which offended party might make. 34 In other words, there is treachery when the attack on an unarmed victim who has not given the slightest provocation is sudden, unexpected and without warning. 35 The victims in this case were totally unaware of an impending assault Rufino was sleeping and Emetario was going down the stairs when they were shot. WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED.1wphi1.nt SO ORDERED.

28. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 123137 October 17, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO2 ALBERT ABRIOL, MACARIO ASTELLERO, and JANUARIO DOSDOS, accused-appellants. QUISUMBING, J.: On appeal is the decision dated May 17, 1995, of the Regional Trial Court of Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 for murder and CBU-33664 for illegal possession of firearms, finding appellants Albert Abriol, Macario Astellero, and Januario Dosdos guilty beyond reasonable doubt of murder and violation of Presidential Decree No. 1866 on Illegal Possession of Firearms. Its decretal portion reads: WHEREFORE, judgment is hereby rendered: In Criminal Case No. CBU-30350 for Murder, the Court finds accused Albert Abriol, Macario Astellero and Januario Dosdos, GUILTY of murder beyond reasonable doubt and each is hereby sentenced to reclusion perpetua, with the accessory penalties provided by law; to indemnify the heirs of deceased Alejandro Flores the sum of P50,000.00; actual damages of P30,000.00, representing a reasonable amount for the embalming, vigil, wake, and burial expenses; P30,000.00 for attorney's fees; and to pay the costs. For insufficiency of evidence, accused Gaudioso Navales is hereby ACQUITTED with costs de officio. In Criminal Case No. CBU-33664 for Illegal Possession of Firearms, accused Albert Abriol, Macario Astellero and Januario Dosdos, are hereby sentenced to suffer an indeterminate penalty of 14 years, 8 months and 1 day to 17 years and 4 months and to pay the costs. The .38 caliber revolver, SN P08445 and the two .45 caliber pistols with SN PGO 13506 and SN 52469, are hereby confiscated and forfeited in favor of the Government and accordingly, the Clerk of Court of this Branch is directed to turn over the said firearms to the Chief of Police, Cebu City, or to the Firearms and Explosives Office (FEO) of the PNP Region 7, upon proper receipt. The Cebu City Chief of Police is directed to release immediately upon receipt hereof, the person of Gaudioso Navales, unless there be any other valid reason for his continued detention. SO ORDERED.1 This judgment was the culmination of proceedings beginning with the Amended Information dated September 6, 1993, docketed as Criminal Case No. CBU-30350, wherein appellants PO2 Albert Abriol

of the Philippine National Police (PNP), Macario Astellero, Januario Dosdos, and PNP P/Chief Inspector Gaudioso Navales were charged with murder allegedly committed as follows: That on or about the 5th day of June, 1993, at about 11:50 P.M., in the City of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, armed with handguns, conniving and confederating together and mutually helping one another, with treachery and evident premeditation, with deliberate intent, with intent to kill, did then and there shot one Alejandro Flores alias Alex with the said handguns, hitting him on the different parts of his body, thereby inflicting upon him the following physical injuries: CARDIO RESPIRATORY ARREST DUE TO SHOCK AND HEMORRHAGE SECONDARY TO MULTIPLE GUNSHOT WOUNDS TO THE TRUNK AND THE HEAD as a consequence of which the said Alejandro Flores alias Alex died later. CONTRARY TO LAW.2 At the time of the incident, appellant Abriol, a policeman previously detailed as a jailguard at the Bagong Buhay Rehabilitation Center (BBRC) in Cebu City, was himself a detention prisoner in BBRC. He was charged with murder, a non-bailable offense, in Criminal Case No. CBU-28843 before the RTC of Cebu City, Branch 14.3 Appellant Astellero was a former prisoner at BBRC, who had served time for grave threats.4 The warden then, Chief Inspector Navales,5 employed him as his personal driver and general factotum.6 Navales was found guilty of grave misconduct in Administrative Case No. 01-93 for allowing Abriol and Dosdos out of BBRC on the day of the murder and was summarily dismissed from the police force. Dosdos had been convicted by the RTC of Cebu City, Branch 10, of highway robbery in Criminal Case No. CBU-18152 but Navales failed to act on the mittimus ordering Dosdos' transfer to the national penitentiary, and he remained in BBRC.7 Abriol and Dosdos enjoyed special privileges at BBRC as the warden's errand boys8 or "trustees." The victim, Alejandro Flores alias "Alex," was a former policeman. He was dismissed from the PNP in August 1992 after testing positive for prohibited drugs.9 Abriol, Astellero, and Dosdos were also indicted for illegal possession of firearms in Criminal Case No. CBU-33664. The charge sheet reads: That on or about the 5th day of June 1993 at about 11:48 P.M. in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping one another, with deliberate intent, did then and there keep under their control and possession the following: 1. one (1) .38 cal. revolver (Armscor) with SN P08445 with six empty shells; 2. one (1) .45 cal. pistol (Colt) with SN P6013506 with 9 live ammunitions (sic); 3. one (1) .45 cal. Pistol (Colt) with SN 52469 with five live ammunition. without first obtaining a permit or license therefor from competent authority.

CONTRARY TO LAW.10 When arraigned, all the accused pleaded not guilty to both charges. Since the indictments arose from the same incident, the cases were jointly tried. The facts of the case are as follows: At around 11:50 P.M., June 5, 1993, Romeo Sta. Cruz, Jr., a radio news reporter then aboard his jeep, had just reached the ABS-CBN compound in P. del Rosario Street, Cebu City, when he heard a couple of gunshots. He looked around and saw a man running unsteadily towards the intersection of P. del Rosario Street and Jones Avenue (Osmea Boulevard). The man was shouting "Tabang, tabang!" ("Help! Help!"). Sta. Cruz, Jr., saw a red "Jiffy" make a U-turn near the gate of the city central school that nearly ran over the man shouting for help. The man turned back and staggered towards the direction of Bacalso Avenue and Urgello Private Road, but after a few meters on wobbly legs, he stopped and collapsed. Meanwhile, the "Jiffy" followed. It stopped beside the fallen figure and a tall, thin man alighted. The man fired several shots at the prostrate figure. He boarded the "Jiffy" which sped away towards Leon Kilat Street. Romeo Sta. Cruz, Jr., moved his jeep and focused its headlights on the victim. In the meantime, PO3 Alexander Rustela was at a vulcanizing shop near the intersection of Bacalso Avenue and Leon Kilat Street, when he heard gunshots coming from the north. He ran towards where the gunshots came and saw people scampering. All of a sudden, the "Jiffy" with three persons on board sped past him and made an abrupt left turn at Leon Kilat Street. Rustela immediately radioed for assistance. Minutes later, patrol car No. 201 with PO2 Herbert Ramos on board arrived. Rustela boarded the car and they followed the "Jiffy," while broadcasting an alarm to police headquarters and other mobile patrol cars. On nearby Colon Street, SPO1 Eleazar Abrigana and PO2 Romeo Abellana were cruising aboard patrol car No. 208, when they heard a radio message that the suspects in the shooting incident were aboard a "Jiffy." As they turned left at Leon Kilat Street, they saw the "Jiffy" heading towards Carbon Market. They pursued the "Jiffy" which stopped in front of the Don Bosco Building near BBRC, when police car No. 205, with PO Eugenio Badrinas and PO2 Gerald Cue aboard, blocked the "Jiffy's" path. Cue fired a warning shot and three persons alighted. The driver was appellant Astellero, whom Cue had recognized and seen before at the BBRC. Abrigana and Cue approached the trio who stood a meter away from the "Jiffy." SPO1 Abrigana frisked Abriol and seized from his waist a .38 caliber revolver with serial number PO8485 with six (6) empty shells in its cylinder.11 Under Abriol's seat, the police also found a .45 caliber pistol bearing serial number PGO 13506 with nine (9) live rounds in its magazine and another .45 caliber pistol with serial number 52469 loaded with five (5) unfired bullets.12 While the patrol cars were chasing the "Jiffy," another police team proceeded to the crime scene in response to the alarm. This team from Police Station No. 3 in San Nicolas, Cebu City rushed the victim to the Cebu City Medical Center, where he was pronounced dead on arrival. Meanwhile, PO3 Celso Seville, Jr., a homicide investigator of Police Station No. 3 found four (4) .45 caliber shells some four (4) feet away from the victim's body, and two (2) deformed slugs where the victim had lain, and submitted them to the Region 7 PNP Crime Laboratory for ballistics testing.13 Dr. Ladislao Diola, Jr., Chief of the PNP Region 7 Crime Laboratory autopsied the victim's body. He found that the cause of the victim's death was "cardiorespiratory arrest due to shock and hemorrhage secondary to multiple gunshot wounds to the trunk and head.''14 Dr. Diola recovered a .38 caliber slug from the corpse, which he later submitted for ballistics examination. SPO4 Lemuel Caser, ballistician of the PNP Crime Laboratory, reported the following:

1. Fired cartridge cases marked "JA-1" to "JA-3" possesses similar individual characteristics markings with the test cartridge cases fired from cal .45 with SN: PGO13506; 2. Fired cartridge cases marked "JA-4" and "E-69-6" possesses similar individual characteristics markings with the test cartridge cases fired from cal .45 pistol with SN: 52469; 3. Fired bullet metal jacket marked "JA-5" possesses similar individual characteristics markings with test bullets fired from cal .45 pistol with SN: PGO13506; 4. Fired cartridge cases marked "E-45-1 " to "E-45-6" possesses similar individual characteristics markings with the test cartridge cases fired from cal .38 Rev. SN: P8445; 5. Fired bullets marked as "JA-6" and "LD" possesses similar individual characteristic markings with the test bullets fired from cal .38 Rev. SN: P8445.15 The following day, appellants underwent a paraffin test. The hands of appellants were found positive for gunpowder residues. A chemistry test on the firearms showed that the three handguns were also positive. Inspector Myrna Areola, Chief of the Chemistry Section of the PNP Region 7 Crime Laboratory, stated in her testimony that the firearms had been fired,16 and that appellants had fired the guns within a period of seventy-two (72) hours prior to the examination. The widow and relatives of the victim testified on the possible motive behind the killing. They claimed the victim, a confessed drug user, may have been "rubbed out" on the orders of Navales for failure to remit P31,000 as proceeds from pushing prohibited drugs. After failing to deliver the drug money to Navales, for whom he was repeatedly pushing drugs, the victim went into hiding, but later returned to Cebu City because he missed his family.17 Appellants deny the accusations. Abriol averred that he and Dosdos were among the several "trustees" at BBRC assigned to work in the kitchen. Appellant Astellero, who was the warden's driver, was also in charge of marketing for the prisoners' food. On the day of the incident, Astellero realized that there was no money for the next day's marketing so he asked Abriol to accompany him to the house of Navales, but since he was not in, they returned to BBRC and saw Navales an hour later. After they received the money from Navales' niece on their way back to BBRC, Dosdos heard gunshots. Abriol ordered Astellero, who was driving, to turn back. Then Abriol claimed he saw a tall, slim man alight from a "Jiffy" and shoot at a prone figure on the ground. Seconds later, the gunman returned to the "Jiffy," which sped off. Abriol said he ordered Astellero to chase that "Jiffy" but it had too much of a headstart and they lost sight of it. Abriol ordered Astellero to proceed to BBRC. At Colon Street, they heard gunshots behind them and the blaring siren of a police car. They explained that since they were detention prisoners, they had to evade meeting the police. They heard more gun shots. Upon reaching BBRC, the gates were closed, so they drove to the old airport. On their way back to BBRC several police cars blocked them and arrested them. SPO4 Eleazar Abrigana frisked him and took the .38 service revolver from his waist.18 Abriol also testified that he surrendered his service firearm to the BBRC Administrative Officer when he was served a warrant of arrest for murder in Criminal Case No. CBU-28843. However, the handgun was defective and it was returned to him for repair by Armscor, and upon repair he handed it over to the BBRC armory. The armorer returned it to him since there was no place to keep it. He said that although he was a detention prisoner, he had yet to be discharged from the service. He was assigned guard and escort duties by the warden.19 Abriol said that on the day of the incident he was, as a BBRC jailguard, authorized to carry his service firearm.20 He presented a Memorandum Receipt21 authorizing him to carry the government-issued .38 revolver.22

On the witness stand, Astellero and Dosdos narrated a similar version of the incident as did Abriol. Both vehemently denied having any knowledge of the two .45 caliber pistols found by PO3 Cue in the "Jiffy."23 The defense also presented Dr. Jesus P. Cerna, medico-legal officer of the Cebu City PNP Command, to testify on the caliber of the firearms which might have caused the gunshot wounds of the victim. Relying on the Necropsy Report prepared by Dr. Diola, Dr. Cerna declared that wound nos. 1 and 2, which each measured 0.6 cm. by 0.6 cm., may have been caused by a .38 caliber firearm. As to wound nos. 3 and 4, which each measured 0.5 cm. by 0.5 cm., it was possible that a .38 handgun was used, or one with a smaller bore. Dr. Cerna opined that a .45 pistol could not have inflicted all the foregoing wounds, as the entry points were too small for a .45 caliber bullet. With respect to the grazing wounds found on the victim's body, Dr. Cerna testified that it was impossible to determine the caliber of the firearm used.24 The trial court found appellants' version of the incident neither convincing and credible and, as earlier stated, it believed the prosecution's version. Petitioners' were convicted of the offenses charged. Hence, this appeal, with appellants assigning the following errors: I THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIMES OF MURDER AND ILLEGAL POSSESSION OF FIREARMS DESPITE THE FLIMSY AND UNRELIABLE EVIDENCE PRESENTED BY THE PROSECUTION. II THE LOWER COURT ERRED IN FINDING THE GUILT OF THE ACCUSED-APPELLANTS OF THE CRIME OF MURDER AND ILLEGAL POSSESSION OF FIREARMS BEYOND REASONABLE DOUBT. At issue is whether the prosecution's evidence, which is mainly circumstantial, suffices to convict appellants for murder and violation of Presidential Decree No. 1866, beyond reasonable doubt. A. Criminal Case No. CBU-30350 On their conviction for murder, appellants argue that the prosecution's circumstantial evidence against them is weak, ambiguous, and inconclusive. Specifically, appellants contend that they should be acquitted because: First, eyewitness Romeo Sta. Cruz, Jr., did not personally identify them as the culprits. At no point in his testimony did eyewitness Sta. Cruz, Jr., positively identify any of the appellants or appellant Abriol as the gunman. Sta. Cruz, Jr. only gave a general description of the assailants, despite attempts to make him give a categorical identification. He admitted he found out the name of Abriol from television and news reports and could not identify Abriol as the one whom he saw shot the victim. The transcript of his testimony is revealing. Q: Then after the Jiffy stopped in front of the fallen victim, what happened next?

A: I saw that there was a man who disembarked from the Jiffy. He was a tall, thin fellow who disembarked from the Jiffy and at the same time, he shot the fallen victim.

Q: A:

How many times did he shoot the victim? I cannot count attorney but I saw him shooting the victim.

Q: In your affidavit, you said that the person who disembarked from the Jiffy, whose name you know later on as PO2 Albert Abriol, PNP, shot the victim in the different parts of his body. If Albert Abriol is now in the courtroom, will you please point to him? A: I will know him attorney because of the TV shows and newspapers.

COURT: (TO WITNESS) Q: You are referring to the name of that man who disembarked from the Jiffy and fired several shots at the fallen victim? A: Yes, I know his name Your Honor on (sic) the news cast.

COURT: (TO WITNESS) Q: Alright, forget the news. The man you saw when he alighted from the Jiffy and poured (sic) several bullets on the fallen man, look around if he is in the courtroom? A: I cannot identify Your Honor.

COURT: Q: A: You cannot? But [because] what I saw is a man who is tall and thin because it was dark. xxx Q: A: Q: xxx xxx

How many persons fired a shot at the fallen man? I only saw that man Your Honor who alighted from the Jiffy. Did you see his physical features?

A: Only (t)his, I can only tell his height, he was tall and his body build is thin. Tall and thin. (Emphasis supplied)25 Since the sole eyewitness could not identify the gunman and his companions, the prosecution relied on circumstantial evidence from which the trial court could draw its findings and conclusion of culpability.26 Circumstantial evidence may be relied upon, as in this case, when to insist on direct testimony would result in setting felons free. Second, appellants assert that the paraffin tests are judicially recognized as unreliable and inconclusive. A paraffin test could establish the presence or absence of nitrates on the hand. However, it cannot establish that the source of the nitrates was the discharge of firearms. Nitrates are also found in substances other than gunpowder. A person who tests positive may have handled one or more substances with the same positive reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco, and leguminous plants. Hence, the presence of nitrates should only be

taken as an indication of a possibility that a person has fired a gun.27 However, it must be borne in mind that appellants were not convicted on the sole basis of the paraffin test. Third, appellants claim that the autopsy report of prosecution witness Dr. Ladislao Diola revealed serious ambiguities.28 Dr. Jesus P. Cerna, using the same autopsy report, said that the gunshot wounds measuring 0.6 x 0.6 centimeters could not have been caused by a .45 caliber pistol because an entrance wound of that size was too small for a .45 caliber bullet.29 Dr. Cerna claimed that a wound inflicted by a .45 pistol would have an entry point of anywhere from 1.1 to 1.3 centimeters. He declared that it was with more reason that an entrance wound measuring .5 x .5 centimeters could not be caused by a caliber .45 bullet.30 Since no firearm smaller than a .38 caliber pistol was seized from appellants, they claim the observation of Dr. Cerna only shows that they could not have shot the victim. We note, however, that during cross-examination, Dr. Diola carefully explained that a firearm's caliber is not the only basis for determining the cause of the gunshot wound. He said: ATTY. REMOTIQUE: Q: So, normally the size of .5 cm x .5 cm which is the point of entry of gunshot wound No. 3 this may have been caused by a firearm of lesser caliber than caliber .38? A: Not necessarily. There is a very small difference in the size and this does not preclude that gunshot wound No. 3 may have also been caused by the same firearm which caused gunshot wounds Nos. 1 and 2. There are factors which often affect the size of the wounds at the time of the examination, perhaps a recission (sic) of the skin in the area where gunshot Wound No. 3 was inflicted so that gunshot wound becomes smaller. Q: Did you not say that normally the point of entry of the gunshot wounds vary with the caliber of the firearm which caused it, so that the point of entry caused by one firearm of a particular caliber may be bigger than the point of entry of a gunshot wound caused by another firearm of lesser caliber? A: I told you of other factors that often affect the size of the entry of the bullet although the caliber is one basis of the size of the wounds. xxx xxx xxx

Q: Will you explain further on that because my understanding is that .5 cm wound must perforce be caused by a firearm of lesser caliber than that which caused the .6 cm wound? A: As I said there are ranges in the size of the wounds. The variance in the size of the wound when it is minimal does not exclude the possibility that a wound with a .5 cm size and .6 cm size could have been caused by the same caliber. (Emphasis supplied).31 The Office of the Solicitor General points out that Dr. Diola's testimony is supported by Dr. Pedro P. Solis, a medical expert, in his book entitled Legal Medicine. The factors which could make the wound of entrance bigger than the caliber include: (1) shooting in contact or near fire; (2) deformity of the bullet which entered; (3) a bullet which might have entered the skin sidewise; and (4) an acute angular approach of the bullet. However, where the wound of entrance is smaller than the firearm's caliber, the same may be attributed to the fragmentation of the bullet before entering the skin or to a contraction of the elastic tissues of the skin (stress supplied).32 Dr. Diola testified that a .45 caliber pistol could have caused the grazing wounds on the victim's head and extremities.33 Dr. Cerna

corroborated Dr. Diola's findings in this regard.34 Such expert opinions disprove appellants' theory that the .45 caliber handguns confiscated from them could not have been used in killing the victim. Fourth, appellants allege that the testimony of P/Inspector Lemuel Caser, the prosecution's ballistics expert, clearly shows that: (1) He is ignorant about such ballistics instruments such as the micrometer, goniometer, and pressure barrel.35 (2) He is not conversant with "the required references concerning ballistics," particularly books on the subject by foreign authorities.36 (3) He could not "scientifically determine the caliber of a bullet."37 Since P/Inspector Caser lacked adequate training and expertise in ballistics, they claim that his opinion that the test bullets and cartridges matched the slugs and cartridges recovered from the scene of the crime was not reliable. Appellants also assail Caser's failure to take the necessary photographs to support his findings. An expert witness is "one who belongs to the profession or calling to which the subject matter of the inquiry relates and who possesses special knowledge on questions on which he proposes to express an opinion."38 There is no definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert. It is sufficient that the following factors be present: (1) training and education; (2) particular, first-hand familiarity with the facts of the case; and (3) presentation of authorities or standards upon which his opinion is based.39 The question of whether a witness is properly qualified to give an expert opinion on ballistics rests with the discretion of the trial court.40 In giving credence to Caser's expert testimony, the trial court explained: The defense downgraded the capability of Caser in forensics ballistics and identifying firearms. Much stress is given to the absence of photographs of his examination. Nonetheless, the Court is satisfied (with) Caser's examination, findings and conclusions with the use of a microscope. Caser's conclusion based on his examination deserves credit. He found the impressions on the primer of the fired cartridges that were test-fired to have the same characteristics with those recovered at the scene of the crime. Whenever a triggerman pumps a bullet (into) the body of his victim, he releases a chunk of concrete evidence that binds him inseparably to his act. Every gun barrel deeply imprints on every bullet its characteristic marking peculiar to that gun and that gun alone. These marking might be microscopic but they are terribly vocal in announcing their origin. And they are as infallible for purposes of identification, as the print left by the human finger.41 We agree with the trial court that P/Inspector Caser qualifies as a ballistics expert. He is a licensed criminologist, trained at the Ballistics Command and Laboratory Center in Fort Bonifacio, in the PNP Crime Laboratory in Camp Crame, and in the National Bureau of Investigation. He had previously testified as an expert witness in at least twenty-seven (27) murder and homicide cases all over the country.42 An expert witness need not present comparative microphotographs of test bullets and cartridges to support his findings.43 Examination under a comparison microscope showing that the test bullet and the evidence bullet both came from the same gun is sufficient.44 Moreover, the ballistician conclusively found similar characteristic markings in the evidence, test cartridges and slugs. Fifth, appellants aver that the prosecution failed to show any plausible motive for appellants to kill the victim. The prosecution tried to prove that their co-accused Navales instigated them to kill the victim because Navales had a grudge against him. However, as Navales was acquitted, appellants insist that Navales' acquittal should redound to their benefit since no motive was imputed on their part. Motive is not an essential element of a crime,45 particularly of murder.46 It becomes relevant only where there is no positive evidence of an accused's direct participation in the commission of a crime.47 Stated otherwise, proof of motive becomes essential to a conviction only where the

evidence of an accused's participation in an offense is circumstantial.48 A careful perusal of the State's evidence reveals that the prosecution had established sufficient motive why appellants killed the victim, independent of any grudge which Navales may have had against the latter. At the time of the incident, appellants Abriol and Dosdos were both BBRC detention prisoners during Navales' term as warden. Abriol and Dosdos were treated as highly favored "trustees" of Navales and were never locked up. Abriol and Dosdos were even allowed to go out of BBRC to do the marketing for the prison's kitchen. Appellant Astellero, a former detention prisoner, was also a recipient of Navales' favors. Navales hired Astellero as his personal driver after the latter served his sentence. Navales and the victim, a former BBRC jailguard, were associates in dealing with prohibited drugs, until they had a falling out allegedly after the victim failed to remit to Navales proceeds from the sale of illegal drugs amounting to P31,000. Appellants apparently killed the victim to return the "special favors" Navales had showered them. Lack of a motive does not necessarily preclude conviction. Persons have been killed or assaulted for no reason at all, and friendship or even relationship is no deterrent to the commission of a crime.49 Sixth, in the present case, appellants contend that the PNP cannot be presumed to have done their work since it committed errors and blunders in transferring possession and custody of the physical evidence. They allege there was a possibility that the evidence was tainted, planted, or manufactured. Besides, appellants point out that the presumption of regularity cannot prevail over the constitutional presumption of innocence of the accused. The record shows that the police officers did not issue acknowledgment receipts in some instances. However, minor lapses do not mean that the State had failed to show an unbroken chain of custody of the subject firearms and ammunition, nor that said firearms and ammunition were tampered. The slugs and spent shells recovered from the scene of the crime and the victim's corpse were plainly identified in open court by the PNP investigators. The ballistician testified that the bullets and cartridges recovered from the crime scene had been fired from the subject handguns. Under these circumstances, we must respect the presumption of the regularity in the performance of duties. Seventh, appellants insist that the prosecution failed to show that the red "Jiffy" used by them and seized by the police officers was the same vehicle used by the gunmen who killed Alejandro Flores. Appellants point out that PO3 Rustela, who was aboard police car No. 201, testified that they lost sight of the red "Jiffy" while chasing it along Leon Kilat Street. Appellants argue that the "Jiffy" which was chased by patrol car No. 208 until it was cornered near BBRC by the other pursuing patrol cars was not the same vehicle originally sighted and tailed by patrol car No. 201. In rejecting this theory, the trial court stated that: . . . PO3 Rustela who was nearby, immediately ran to the scene of the crime and met the red jiffy with three persons on board, that speedily passed by him proceeding towards Leon Kilat Street. Car 208 readily picked up the trail and pursued the red jiffy from Leon Kilat, then making abrupt turns on downtown streets until other patrol cars joined the chase and captured them in Lahug, near the BBRC. The identity of the red jiffy was never interrupted. Members of the Mobile Patrol Cars identified in court without batting an eyelash, the red jiffy which was the object of the shooting alarm. There was no interruption, no let-up in the chase, right after Alejandro Flores was shot and there was no other red jiffy that the crews of the (pursuing) patrol cars noticed. The Court rejects their claim of innocence, for their very acts belied the same. Astellero could have stopped the jeep upon noticing that patrol cars were already running after them with sirens, blinkers and warning shots fired. From Leon Kilat Street to Lahug airport, there were several police stations that they could have sought shelter and police assistance.

Guilt has many ways of surfacing. Instead of stopping, Abriol ordered Astellero to accelerate their speed. Their obvious purpose was to elude the patrol cars. Flight is indicative of guilt.50 But, in this case, is the totality of the circumstantial evidence relied upon by the trial court sufficient to support a conviction? Circumstantial evidence is that which indirectly proves a fact in issue. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the theory that the accused is guilty of the offense charged, and at the same time inconsistent with the hypothesis that he is innocent and with every other possible, rational hypothesis, except that of guilt.51 An accused can be convicted on the basis of circumstantial evidence where all the circumstances constitute an unbroken chain leading to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the culprit.52 In our assessment, the prosecution's evidence constitutes an unbroken chain of events leading to the inevitable conclusion of guilt on the part of appellants. First, the fatal shooting of Alejandro Flores occurred at around 11:50 P.M. of June 5, 1993 in front of the ABS-CBN compound in Cebu City. The gunman, who was tall and thin, alighted from a red "Jiffy," pumped several bullets into the prone victim, and got back aboard the "Jiffy" which then sped towards Leon Kilat Street. Second, eyewitness Romeo Sta. Cruz, Jr.'s description of the gunman as "tall and thin" perfectly matches the physique of appellant Abriol. Third, PO3 Alexander Rustela, who was close to the crime scene, heard the gunshots and ran towards the place where the sound of gunshots emanated. A red "Jiffy" with three persons aboard whizzed by him and abruptly turned at Leon Kilat Street. After Sta. Cruz, Jr. informed him that the gunmen were aboard a red "Jiffy," Rustela boarded patrol car No. 201, radioed an alarm, and commenced a pursuit of the fleeing vehicle. Police car no. 208 received the alarm, and on turning into Leon Kilat Street, encountered the speeding red "Jiffy." They immediately chased the "Jiffy" but failed to catch it. Police cars Nos. 208 and 205 cornered the vehicle in front of the Don Bosco building near BBRC. PO2 Gerald Cue, on patrol car no. 205 fired a warning shot at the vehicle and directed all those aboard to disembark. Three men got out, with their hands raised. SPO1 Abrigana, on patrol car no. 208 and PO2 Cue approached the trio. Abrigana frisked the man who was seated in the front passenger seat, who turned out to be appellant Abriol, and recovered from his waist a .38 caliber revolver with six empty shells. Cue searched the red "Jiffy" and found two loaded .45 caliber pistols under the front seat where Abriol had sat. Other police officers immediately went to the crime scene where they found the victim barely alive. PO3 Seville retrieved four .45 caliber slugs and two deformed slugs at the spot where the victim was shot. The autopsy of the victim's remains showed that he died of cardio respiratory arrest due to shock and hemorrhage secondary to gunshot wounds. A deformed metal jacket of a .38 caliber slug was recovered from the corpse. Ballistics tests showed that the bullets and cartridges had identical individual characteristics with those of the test bullets and cartridges. Paraffin tests conducted on each of the appellants, one day after the incident, revealed that all were positive for gunpowder residues. The subject firearms were also chemically examined and found positive for gunpowder residue. Before the shooting incident, appellants were seen at Navales' house until around 7:30 P.M., when they left aboard Navales' red "Jiffy" with Astellero driving, Abriol in the front passenger seat, and Dosdos in the back seat.53 Appellants' seating arrangements were exactly the same, several hours later, after they were pursued and cornered by police cars near BBRC. Appellants admitted that they dropped by the Navales residence at around 7:00 P.M. and 11:00 P.M. These unbroken chain of events prove not only appellants' identities but also their participation and collective responsibility in the murder of Alejandro Flores. They reveal a unity of purpose and concerted action evidencing their conspiracy to kill him. Against this matrix of facts and circumstances, appellants' bare denials cannot stand. Their story of chasing a red "Jiffy" is merely a disingenuous diversion of no evidentiary value for the defense.

Finally, the information for murder alleged treachery and evident premeditation. We note, though, that the trial court did not state which circumstance qualified the killing into murder. A review of the record would reveal that there was no evident premeditation. There is evident premeditation when the following are shown: (a) the time when the accused determined to commit the crime; (b) an act or acts manifestly indicating that the accused has clung to his determination; and (c) a lapse of time between the determination to commit the crime and the execution thereof sufficient to allow him to reflect upon the consequences of his act.54 Evident premeditation indicates deliberate planning and preparation. Nowhere in the record is it shown when and how appellants planned and prepared to kill the victim. Concerning treachery, however, it was shown that: (1) the means of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously adopted.55 These twin requisites were adequately proved. Appellants had superiority in numbers and weapons. The victim was without any means to defend himself as no weapon was found or even intimated to be in his possession. The victim was running away from the "Jiffy" prior to the killing. That he was warned or threatened earlier is of no moment. Even when the victim is warned of danger to his person, if the execution of the attack made it impossible for the victim to defend himself or to retaliate, treachery can still be appreciated.56 The victim was lying prostrate on the ground when he was deliberately and mercilessly riddled with bullets. The weapons used, the number of assailants, the swift and planned manner of the attack, and the multiple number of wounds inflicted upon the victim all demonstrate a determined assault with intent to kill the victim. No doubt there was treachery. B. Criminal Case No. CBU-33664 On their conviction for illegal possession of firearms, appellants contend that the handguns and ammunition allegedly taken from them by the police officers were illegally seized. They assert that the police had no warrant to effect a search and seizure, such that these illegally seized firearms were inadmissible as evidence, and it was error for the trial court to admit them. There are eight (8) instances where a warrantless search and seizure is valid. They are: (1) consented searches;57 (2) as an incident to a lawful arrest;58 (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws;59 (4) searches of moving vehicles;60 (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;"61 (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations.62 In this case, the warrantless search and seizure of the subject handguns and ammunition is valid for two reasons. It was a search incidental to a lawful arrest. It was made after a fatal shooting, and pursuit of a fast-moving vehicle seeking to elude pursuing police officers, and a more than reasonable belief on the part of the police officers that the fleeing suspects aboard said vehicle had just engaged in criminal activity. The urgent need of the police to take immediate action in the light of the foregoing exigencies clearly satisfies the requirements for warrantless arrests under the Rules of Court.63 Moreover, when caught in flagrante delicto with firearms and ammunition which they were not authorized to carry, appellants were actually violating P.D. No. 1866, another ground for valid arrest under the Rules.64 Appellants further contend that the trial court erred in convicting appellants Astellero and Dosdos of illegal possession of firearms. They point out that the .38 caliber revolver was recovered from appellant Abriol, who as a policeman was authorized to carry and possess said firearm, as evidenced by his Memorandum Receipt (MR), which had "not been recalled, cancelled or revoked

until the time of the trial of these cases." Appellants claim that the two .45 caliber pistols could have been left in the vehicle by PNP personnel assigned at BBRC, considering that the red "Jiffy" was generally used as a service vehicle by BBRC personnel. They also argue that the prosecution failed to prove appellants' ownership, control, and possession of the .45 caliber pistols, considering that appellants were six meters away from the "Jiffy" when said handguns were allegedly found. To sustain a conviction for violation of P.D. No. 1866, the prosecution must prove two elements of the offense: (1) the existence of the subject firearm; (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess it.65 These the prosecution did. It presented a .38 caliber revolver with serial number PO8445, a .45 caliber pistol with serial number PGO 13506 Para Ordinance, and a .45 caliber pistol with serial number 52469. The .38 caliber handgun was recovered from appellant Abriol, while the two .45 caliber automatics were found and seized from under the front passenger seat of appellants' vehicle. SPO4 Aquilles Famoso of the Cebu City PNP Metropolitan District Command's Firearms and Explosive Unit testified that appellants were not listed as licensed firearm owners in Cebu City.66 The prosecution also presented a certification from P/Senior Inspector Edwin Roque of the Firearms and Explosives Division of PNP Headquarters at Camp Crame, Quezon City that appellant Abriol is not licensed to hold any firearm; that the .45 caliber pistols were unlicensed; and that a certification from the PNP Firearms and Explosives Office attesting that a person is not a licensee of any firearm, proves beyond reasonable doubt the second element of illegal possession of firearm.67 Abriol insists that he had a valid MR authorizing him to carry the .38 revolver. We agree with the observation of the trial court that: The claim of Abriol that .38 caliber was issued to him, as evidenced by the corresponding receipt (MR), is of no moment. While an MR is an authority of Abriol to possess the government firearm that was issued to him, when he was charged and detained at BBRC for an earlier case of murder, other than the case at bar, he was already then at that moment a detained prisoner and therefore, (un)authorized to carry a firearm. A military man or a member of the PNP who commits a crime, is immediately disarmed upon his arrest and stripped of all the rights and privileges that go with the function of his office, and this includes, in the case of Abriol, his MR. Thus, when he shot Alejandro Flores with his .38 caliber revolver, this firearm was already unauthorized and its use and possession illegal.68 Even if Abriol's MR was valid, said authorization was limited only to the .38 caliber revolver and not the two .45 caliber automatic pistols found under the front passenger seat of the "Jiffy." Appellants were still in the unlawful possession of the .45 caliber pistols. Under P.D. No. 1866, possession is not limited to actual possession.69 In this case, appellants had control over the pistols. They were all liable since conspiracy was established and the act of one is the act of all.70 Appellants claim that they were six meters away from the "Jiffy" when it was searched and the two .45 caliber pistols were seized. They suggest that the policemen who searched the vehicle could have planted said firearms. The trial court found that they were in fact only one meter away from the vehicle. Findings of fact of the trial court, when supported by the evidence on record, are binding and conclusive upon appellate courts.71 All told, on the charge of illegal possession of firearms, no reversible error was committed by the trial court when it found appellants guilty beyond reasonable doubt. The Office of the Solicitor General recommends that although appellants were charged with and convicted of two separate offenses of murder and violation of P.D. No. 1866, R.A. No. 8294, which amended said decree, should be applied to appellants retroactively, citing People v. Molina, 292 SCRA 742, 779 (1998) interpreting R.A. No. 8294.

We agree. We ruled in Molina that with the passage of R.A. No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or homicide is not a separate crime, but merely a special aggravating circumstance. This was recently reiterated in People v. Castillo, G.R. Nos. 131592-93, February 15, 2000.72 Appellants are thus guilty only of murder with the special aggravating circumstance of use of unlicensed firearms. The imposition of the penalty of reclusion perpetua cannot however be modified since the murder took place before the effectivity of R.A. No. 7659. A final word on the damages. In addition to the award of P50,000 as indemnity ex delicto, the trial court awarded P30,000 in actual damages, "representing a reasonable amount for the embalming, vigil, wake and burial expenses," and P30,000 as attorney's fees. To be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof, and on the best evidence obtainable by the injured party.73 No such evidence was offered. The award of actual damages must, therefore, be deleted. However, temperate damages may be awarded since the family of the victim has demonstrably spent for the wake, funeral and burial arrangements. The amount of P20,000 should suffice as temperate damages. In addition, we find an award of exemplary damages in order, pursuant to Article 2230 of the Civil Code.74 The killing was attended by the special aggravating circumstance of use of unlicensed firearms. Moreover, the public good demands that detained prisoners should not abuse their status as "trustees." Had the police been unsuccessful in their pursuit of appellants, the latter would have used the BBRC as shelter and as an alibi that they could not have committed the crime since they were then in detention. Thus, we find an award of P10,000 as exemplary damages in order. Accordingly, the award of attorney's fees is sustained.75 WHEREFORE, the assailed Decision of the Regional Trial Court of Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 and CBU-33664 is hereby MODIFIED. Appellants Albert Abriol, Macario Astellero, and Januario Dosdos are hereby found GUILTY of murder, qualified by treachery, with the special aggravating circumstance of use of unlicensed firearms and are hereby sentenced to suffer the penalty of reclusion perpetua with the accessory penalties provided for by law. Appellants Abriol, Astellero, and Dosdos are also ordered to pay, jointly and severally, the heirs of Alejandro Flores the sum of P50,000 as death indemnity, P20,000 as temperate damages, P10,000 as exemplary damages, and P30,000 as attorney's fees, as well as the costs. SO ORDERED. Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

29. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 129667 July 31, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERIC BAID Y OMINTA, accused-appellant. DECISION MENDOZA, J.: This is an appeal from the decision1 of the Regional Trial Court, Branch 95, Quezon City, finding accused-appellant Eric Baid y Ominta guilty of the crime of rape against Nieva Garcia y Saban, a mental patient, and sentencing him to suffer the penalty of reclusion perpetua and to pay the victim the amount of P50,000.00 as moral damages. The information against accused-appellant, based on the complaint filed by the offended woman and her mother, alleged That on or about the 22nd day of December 1996, in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there [willfully], unlawfully and feloniously undressing one NIEVA GARCIA y SABAN, a mental patient suffering [from] schizophrenia and put himself on top of her, and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. CONTRARY TO LAW.2 When arraigned, accused-appellant entered a plea of not guilty, whereupon trial of the case on the merits proceeded. The prosecution presented three witnesses, namely, the complainant, Dr. Herminigilda Salangad, the complainant's attending psychiatrist, and Dr. Emmanuel Reyes, the medico-legal officer who examined the complainant. Complainant is a 27-year old single woman, who was diagnosed as having suffered from schizophrenia since 1988. In December 1996, she was confined at the Holy Spirit Clinic in Cubao, Quezon City because of a relapse of her mental condition.3 On the other hand, accused-appellant was a nurse-aide of said clinic. On December 22, 1996, at around 3 a.m., accused-appellant sneaked into the patients' room. He woke the complainant up and offered her a cigarette, at the same time touching her foot. Complainant took the cigarette. As she smoked it, accused-appellant caressed her. Apparently, she was aroused, because she afterward removed her pants. It turned out she was not wearing any underwear. Accused-appellant also removed his pants and the two had sexual intercourse. Afterwards, they transferred under the bed and continued their sexual intercourse. Complainant said

she felt accused-appellant had an orgasm. A female patient who had been awakened tried to separate the two, and, as she failed to do so, she went out to call the two nurses on duty. The nurses responded but, when they arrived, accused-appellant had left, while complainant had already put on her pants.4 Complainant was brought later during the day before Dr. Emmanuel Reyes for medico-legal examination. She told him what happened. Dr. Reyes reduced her narration of the incident into writing5 and then gave her a physical examination. His report stated:6 FINDINGS: GENERAL AND EXTRAGENITAL: Fairly developed, and coherent female subject. Breasts are hemispherical with pale brown areola and nipples from which secretions could be pressed. Abdomen is flabby and soft. GENITAL: There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pale brown labia minora presenting in between. On separating the same disclosed an abraided posterior fourchette and an elastic, fleshy-type hymen with deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice offers moderate resistance to the introduction of the examining finger and the virgin-sized speculum. Vaginal canal is wide with flattened rugosities. Cervix is normal in size, color and consistency. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of violence. REMARKS: Vaginal and peri-urethral smears are negative for gram negative diplococci and for spermatozoa. Dr. Reyes said the fresh abrasion, located at 6 o'clock posterior of the complainant's genitalia, could have been recently caused by a hard blunt object, such as an erect penis during sexual intercourse, or by the insertion of a finger. Dr. Reyes found that complainant was suffering from mental illness and that she had lapses in the course of her interview.7 Accused-appellant testified in his behalf. He stated that he had been a nurse-aide of the Holy Spirit Clinic since September 18, 1995. His job was to watch the patients, especially when they become violent. He also fetched them from their homes. He admitted that he knew the complainant but claimed he did not know the reason for her confinement. He denied the allegations against him. He testified that, on the date and time referred to by the complainant, he was asleep in the nurse-aide quarters located about ten meters from the room where complainant was staying. He admitted, however, that to go to the patients' room, he did not have to pass by the nurses' station. He said he knew that, at the time in question, there were two nurses on duty and ten patients in the room. He described the patients' room as having an area of about eight by five square meters with wooden beds arranged one foot apart from each other.8

Accused-appellant was questioned by the trial court. He testified that on December 22, 1996, he was on duty from 4 p.m. to 12 midnight. He was a stay-in nurse-aide of the clinic. He stated that the clinic consisted of two floors and five rooms. The room where complainant and the other patients were staying and his quarters were both on the ground floor of the building. He admitted that the clinic was for the mentally ill and that, as a nurse-aide, he was supposed to know the status of every patient and his job was to watch them and pacify them whenever they become violent. He said he was very well acquainted with the behavior of the patients considering the length of time he had been working in the clinic. He claimed, however, that he did not specifically know from what ailment complainant was suffering, but only that she was undergoing treatment because of mental deficiency.9 On cross-examination, accused-appellant admitted that he knew it was prohibited to give cigarettes to patients. He further admitted that, as a nurse-aide, he could enter the patients' room anytime to check their condition and see to it that the lights were turned off when they were not needed. He further stated that he was not investigated by the police when he was invited to their headquarters.10 On June 20, 1997, the trial court rendered its decision,11 the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding the accused Eric Baid y Ominta GUILTY beyond reasonable doubt of the crime of rape defined in and penalized by Art. 335 of the Revised Penal Code, as amended by Rep. Act 7659, and hereby sentences the said accused to suffer the penalty of reclusion perpetua. The accused is further ordered to indemnify the victim Nieva Garcia y Saban the amount of P50,000.00, as moral damages. IT IS SO ORDERED. Accused-appellant contends that the trial court erred in convicting him of rape.12 Complainant is suffering from schizophrenia, a psychotic disorder of unknown etiology, characterized by disturbance in thinking involving a distortion of the usual logical relations between ideas, a separation between the intellect and the emotions so that the patient's feelings and his or her manifestations seem inappropriate to his or her life situation, and a reduced tolerance for the stress of interpersonal relations so that the patient retreats from social intercourse into his or her own fantasy life and commonly into delusions and hallucinations, and may, when untreated or unsuccessfully treated, go on to marked deterioration or regression in his or her behavior though often unaccompanied by further intellectual loss.13 The following are the symptoms of schizophrenia: A. Characteristic symptoms: Two (or more) of the following, each present for a significant portion of time during a 1-month period (or less if successfully treated): (1) delusions (2) hallucinations (3) disorganized speech (e.g., frequent derailment or incoherence) (4) grossly disorganized or catatonic behavior (5) negative symptoms, i.e., affective flattening, alogia, or avolition

Note: Only one criterion A symptom is required if delusions are bizarre or hallucinations consist of a voice keeping up a running commentary on the person's behavior or thoughts, or two or more voices conversing with each other. B. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self-care are markedly below the level achieved prior to the onset (or when the onset is in childhood or adolescence, failure to achieve expected level of interpersonal, academic, or occupational achievement). C. Duration: Continuous signs of the disturbance persist for at least 6 months. This 6-month period must include at least 1 month of symptoms (or less if successfully treated) that meet criterion A (i.e., active-phase symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms listed in criterion A present in an attentuated form (e.g., odd beliefs, unusual perceptual experiences). D. Schizoaffective and mood disorder exclusion: Schizoaffective disorder and mood disorder with features have been ruled out because either (1) no major depressive, manic, or mixed episodes have occurred concurrently with the active-phase symptoms; or (2) if mood symptoms, their total duration has been brief relative to the duration of the active and residual periods. E. Substance/general medical condition exclusion: The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition. F. Relationship to a pervasive developmental disorder: If there is a history of autistic disorder or another pervasive developmental disorder, the additional diagnosis of schizophrenia is made only if prominent delusions or hallucinations are also present for at least a month (or less if successfully treated).14 Schizophrenia is classified into five subtypes, namely, paranoid, disorganized (hebephrenic), catatonic, undifferentiated, and residual.15 Dr. Herminigilda Salangad, the complainant's attending psychiatrist and consultant at the Medical Center in Muntinlupa, the Perpetual Help Medical Center, the Philippine National Police, and the Holy Spirit Clinic, was presented as an expert witness. According to her, complainant was, at the time of the incident, suffering from an undifferentiated type of schizophrenia, described as having the characteristic symptoms of schizophrenia but does not fit the profile for paranoid, disorganized, or catatonic schizophrenia. Dr. Salangad stated that complainant seemed to shift from one type of schizophrenia to another. Complainant was catatonic when she first treated her, a situation where the patient shows waxy flexibility (e.g., when a limb is repositioned, that limb remains in that position for a prolonged period of time as if the patient is made of wax), mutism or agitation, and the patient mimics words and actions during examination. Later, complainant became paranoid, i.e., suspicious, hostile and aggressive. She also manifested a behavior where she mumbled and smiled to herself.16 It is contended that as complainant is a schizophrenic, her testimony should not have been given credence by the trial court. It is argued that: (1) there were serious inconsistencies between her sworn statement and her testimony in court; (2) the prosecution failed to present witnesses to corroborate her testimony; (3) complainant failed to identify accused-appellant; (4) the results of the medicolegal examination were negative for spermatozoa; (5) the healed lacerations showed that

complainant had sexual intercourse seven days before the alleged incident; and (6) the probability was that her allegations of rape were merely a product of her fantasy.17 We disagree. Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could perceive and was capable of making known her perceptions to others.18 Her testimony indicates that she could understand questions particularly relating to the incident and could give responsive answers to them. Thus she testified: PROSECUTION: (to the witness) Q Miss Nieva Garcia, are you still confined at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City? A Not anymore, sir. Q On December 22, 1996, do you know whether you are at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City? A Yes, sir. Q Why were you there, Miss Witness? A My mother asked me if I want to be confined at the Holy Spirit Clinic and I chose to be confined at the Holy Spirit because during that time, I was then taking my medicine. Q At around three o'clock in the morning of December 22, 1996, do you know where were you? A Yes, I was lying on the bed inside the Holy Spirit Clinic. Q And while lying on the bed, inside the Holy Spirit Clinic, do you know what happened then, Miss Witness? A At that time, there was a person shorter than the person (witness pointing to the person dressed in yellow t-shirt whose name when asked, answered the name Eric Baid) and that person is smaller than the person inside the courtroom was disturbing "kinakalabit" another person inside the room. Q And what happened after that first man entered the room at the Holy Spirit Clinic? A The girl was trying to avoid the other person because at that time, the accused Eric Baid was entering the room. Q And what happened after Eric Baid entered the room? A When Eric Baid entered the room as if he knew me already and he asked me, "Nieva, gusto mo ng sigarilyo?", at the same time, Eric Baid was touching my foot. ATTY. VENTURANZA: I would just want to manifest that the witness while testifying, she was smiling.

PROSECUTION: (to the witness) Q And after he asked you whether you like a stick of cigarette and touched your foot, what happened next, Madam Witness? A I said yes. Q And what happened next after you said yes, I liked cigarette? A After that, he caressed me. COURT: (to the witness) Q How did he caress you? A He went on top of me. COURT: (to the prosecutor) Go ahead. PROSECUTION: (to the witness) Q How about the other man who entered earlier, what happened him? A The smaller person went in and out of our room twice, the first time that he went, he touched the other woman beside me on the foot but the woman resisted and shouted. After that, the second time, the other man went inside the room, he touched the other woman but the woman shouted and that smaller one went outside of the room. Q When Eric Baid placed himself on top of you, where was that other man? A He was no longer there. . PROSECUTION: (to the witness) Q When Eric Baid was already on top of you, do you know if the small man entered again your room? A No, sir. Q And then, what happened when Eric Baid placed himself on top of you? A I agreed. Q Agreed to what? A I agreed to the sex. Q You mean to say that you and Eric Baid has sexual intercourse while on top of your bed?

A Yes, sir. Q And what happened during the sexual intercourse while both of you were on top of the bed? A Somebody was awakened and told me, "Hoy, asawa mo ba iyan? Kinukubabawan ka." and I answered no. Q And was Eric Baid, was he able to consummate that sexual intercourse, Miss Witness? A Yes, sir. Q And more or less, how long did the sexual intercourse last, Miss Witness? A Around three to five minutes. COURT: (to the witness) Q Why, was he able to insert his private organ into your private organ? A Yes, your Honor. Q What did he do when he was able to insert his private organ into your private organ? A As if his orgasm suddenly appeared. Q Do you understand when you say as if his orgasm suddenly appeared? A They are like what they call, your Honor, as if "naiputok". Q And what did he do when according to you "naiputok"? A As if it was okay for him. Q You were wearing an underwear? A None, your Honor. Q You were actually naked? A I was wearing pants but I have no panty. Q But who removed your pants? A I was the one, your Honor. Q What about Eric Baid, what was he wearing? A He was also wearing pants. Q Who removed the pants of Eric Baid? A He was the one.19

When complainant was questioned on cross and redirect examination, she explained how she was able to identify accused-appellant, to wit: ATTY. SALATANDRE: Q You said a while ago that when the sex affair happened it was dark so all throughout you did not see the face of the accused? A During that time it was dark but the latter part when he opened the light, I saw his face, sir. Q When the light was opened, he was about to leave the room? A About to leave, sir. Q He was already facing the door? A Yes, Sir. Q And you were at his back left inside the room? A No, Sir. Q Where were you then? A I was just inside the room in my bed not at his back, sir. Q You were already on your bed when he was about to leave the room? A Yes, Sir. Q At that time that sex affair transpired between you and the accused, you did not even know his name? A Yes, Sir. Q You were only told later on about this person? A Yes, Sir. ATTY. SALATANDRE: (to the Court) That will be all, Your Honor. COURT: Any redirect? PROSECUTION: Yes, your Honor. COURT:

Go ahead. PROSECUTION: Q You said that you were only able to identify the accused when he put on the lights, when he was about to leave the room, how far were you from the accused? A This distance, sir. (parties stipulated a distance of four meters, more or less) Q You said that you saw his face at that time? A Yes, sir. Q And before this incident of December 22, 1996, were there any other occasion that he had any sexual intercourse with you? A None, sir. Q And you often saw him as attendant in that clinic? A Yes, sir. Q And when you said that room was dark, is it totally dark or was it only a little dark? A Little light, sir. It was a little bit dark and a little bit light. (medyo may ilaw) Q So the time that you had sexual intercourse with the accused at that time, you can identify the face of this person? A Yes, sir. COURT: (to the witness) Q You said that medyo may ilaw, where was the light emanating at about 3:00 in the morning? A From the window outside, the room can be illuminated through the window, Your Honor. Q So when the light came from outside, was the source from the moon, from the bulb of the Meralco post or from another light coming from another building or house? A It is the light actually coming from the ceiling of the building of the clinic which was outside the window, Your Honor.20 Though she may have exhibited emotions inconsistent with that of a rape victim ("inappropriate affect") during her testimony, such as by smiling when answering questions, her behavior was such as could be expected from a person suffering from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent. Furthermore, aside from the testimony of Dr. Salangad on complainant's consciousness and memory,21 it is established that schizophrenic persons do not suffer from a clouding of consciousness and gross deficits of memory.22 It has long been settled that a person should not be disqualified on the basis of mental handicap alone.23

With regard to the alleged inconsistencies between complainant's sworn statement24 and her testimony as to the number of times she and accused-appellant had sexual intercourse and where they did the same, an examination of the evidence for the prosecution, particularly complainant's sworn statement and her interview with the examining medico-legal officer, shows that accusedappellant had sexual intercourse with her in different positions at various places in the same room. When complainant testified, she stated that, aside from the fact that accused-appellant had sexual intercourse with her on her bed, he made her transfer later under the bed. Be that as it may, complainant has consistently established in all of her statements that he had sexual intercourse with her on her bed. Whether or not he had sex with her near the window and while facing him is of no moment and does not negate the finding of rape. Whatever may be the inconsistencies in her testimony, they are minor and inconsequential. They show that complainant's testimony was unrehearsed, and rather than diminish the probative value of her testimony, they reinforce it.25 In the case at bar, the rape of complainant occurred in a room where other patients were sleeping. This circumstance, it is argued, is antithetical to the possibility of the commission of rape. As this Court has repeatedly said, lust is no respecter of time and place and the crime of rape can be consummated even when the malefactor and the victim are not alone.26 The plausibility of an allegation of rape does not depend on the number of witnesses presented during the trial, so much so that, if the testimonies so far presented clearly and credibly established the commission of the crime, corroborative evidence would only be a mere surplusage.27 In this case, the trial court gave credence to the testimonies of the prosecution witnesses on the basis of which it adjudged accused-appellant guilty. In the absence of bias, partiality, and grave abuse of discretion on the part of the presiding judge, his findings as to their credibility are entitled to utmost respect as he had the opportunity to observe their demeanor on the witness stand.28 Nor does the absence of spermatozoa in the genitalia of complainant destroy the finding of rape since ejaculation is never an element thereof.29 What consummates the felony is the contact of the penis of the perpetrator, however slight, to the vagina of his victim without her consent.30 Neither is it required that lacerations be found in the victim's hymen. We have held that a medical examination is not a requisite for a rape charge to prosper as long as the victim categorically and consistently declares that she has been defiled.31 In this case, aside from complainant's positive testimony, the medical examination of the complainant showed an abrasion on her labia minora, indicating that she had recent sexual intercourse.32 That the deep healed lacerations found on the complainant's genitalia may have been caused seven days prior to December 22, 1996 is immaterial and irrelevant considering that she is a non-virgin. Accused-appellant also claims that complainant could have been hallucinating in alleging that she had sexual intercourse with him on December 22, 1996. In answer, suffice it to say that complainant was steadfast and consistent in stating that she was raped by accused-appellant. She maintained her allegation of rape when she was physically examined by the medico-legal officer, when she made her statement to the police and again when she testified in court.33 Accused-appellant assails the trial court's finding of lack of consent on the part of the complainant to the sexual act. As the facts show, complainant herself admitted that she agreed to have sex with him after he gave her a stick of cigarette. However, it should be stressed that complainant was in no position to give her consent. As Dr. Salangad said in her testimony: COURT: Q If you claim that the private complainant is suffering from this kind of illness, schizophrenia, and manifests behavior to the effect that she can not be active during lucid intervals now if she is

suffering from this kind or mental state, can she give an intelligent consent considering that the private complainant is already above 20 years of age? A In her case, I would say no, Your Honor. Q I will rephrase my question. Because when I asked to give an intelligent consent, you might be referring to acts that are very important to her like, for example, "do you want to eat?" of course, she will give an intelligent consent. "Do you want to sleep?" of course, she will give an intelligent consent? A Yes, Your Honor. Q But things that would destroy her honor or reputation like for example having sex with her, can she give an intelligent consent? A No, Your Honor. Q In other words, she would not know the consequences of her consenting to such a proposal to have sex? A Yes, Your Honor. .... ATTY. SALATANDRE: Q She can not give an intelligent consent to sex, your patient? A Yes, sir. Q Meaning she will just agree? A She has said so when I asked her. She was just offered a cigarette. Q Meaning if she opens her legs, she does not understand what she was doing? A She probably knew what she was doing but when we say an intelligent consent, she has weighed the pros and cons on an action and its future significance and also based on the upbringing, sir. Q That she was on top of the bed, then the accused allegedly opened the zipper of his pants and pulled down the pants up to his knees and placed himself on top of the patient and tried to insert his organ to her organ and the girl said she agreed to it because she likes it, does it mean all those things that transpired she does not know or understand what was happening? A She knew what was happening but there is a difference in her judgment, in her discernment. A child can be asked to lie down and knows that somebody was on top of him or her and that is the thing of being aware. But the judgment of the consent itself, the significance, the effect, we all know that a normal person does not do these unless he or she contemplates it. Q I just do not know if I am correct, my interpretation about what you are saying is that physically they are doing that, meaning the organ of the accused was inserted into the organ of the patient allegedly but the girl did not resist, the girl did not comment whatsoever because she did not understand what is happening?

COURT: No, she did not say that she did not understand what was happening, she can not discern. A Let me give you a little information. In the psychological state of mentally ill patients, the basic instinct of a person is very prominent. They respond, they eat and they can have sex, that is normal and they are just responding on the level of their basic instinct. When you are a mature person or a normal person and you have attained maturity and clearness of mind, you now, of course, try to put things into their proper perspective, socially and morally, that is where upbringing and education come in. I would say that the patient's case, she is more responding in an instinctual level without the use of intellect.34 Accused-appellant questions in this appeal the qualifications of Dr. Salangad as an expert witness. However, he cannot do this now as he did not raise any objection to Dr. Salangad's qualifications in the trial court. On the contrary, he even cross-examined her on the matters on which she testified. In accordance with Rule 132, 36, objections not timely raised are deemed waived. The fact that Dr. Salangad was hired by the family of complainant to give expert testimony as a psychiatrist did not by that fact alone make her a biased witness and her testimony unworthy of consideration. As has been said: . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.35 It has not been shown in this case that the trial court abused its discretion in appreciating the testimony of Dr. Salangad so as to justify setting aside its findings. Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides: ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances. (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. ....

To warrant a conviction for rape under paragraph (2) of Art. 335, a woman need not be proven as completely insane or deprived of reason.1wphi1 The phrase "deprived of reason" has been construed to include those suffering from mental abnormality or deficiency or some form of mental retardation, those who are feebleminded although coherent.36 That the complainant was suffering from schizophrenia at the time of the rape is shown by the fact that she was in the clinic precisely because of such illness and by her behavior at the trial, during which she would smile for no reason at all while answering the questions. Though she may not have totally lost her memory, it was shown that she was suffering from an impairment of judgment, which made her incapable of giving, an intelligent consent to the sexual act. It has been held that where the rape victim is feeble-minded, the force required by the statute is the sexual act itself.37 Even assuming then that the complainant consented to have sexual intercourse with accusedappellant, the copulation would fall under the third paragraph of Art. 335 of the Revised Penal Code in view of the fact that complainant was mentally ill. Sexual intercourse with an insane, deranged, or mentally deficient, feebleminded, or idiotic woman is rape, pure and simple.38 At any rate, complainant said in her sworn statement that she was afraid of accused-appellant because of the nature of his job as a nurse-aid. Thus she stated: 28. Tanong : Ikaw ba ay natatakot kay Eric? Sagot : Kaunti lang, dahil sa trabaho niya.39 As Dr. Salangad explained: ATTY. SALATANDRE: . Q Meaning that when she was asked on page 2 "Tanong 27 Q - Ikaw ba ay tinakot o sinaktan ni Eric? S - Hindi naman po." This is her own answer, nobody threatened her at that time? A Yes, sir, but may I add. There was no direct threat but in her situation she was brought there for confinement and treatment and for safekeeping. She is in a situation wherein the attendants and the nurses are all authorities around her, who dictate what to do. I believe that there was some kind of threat or force in that level, although there was no direct threat in the action. COURT: Q In the mind of Nieva Garcia, who were those that might be threatening to her? A The accused somehow had made the threat. Because in their daily activity, the attendants and nurses dictate the things to do, they follow, they are bosses in the clinic, they are in that kind of situation always, Your Honor. Q That explains your presence during the investigation? A To assist her in order that she is not afraid and in response to earlier question of counsel if the patient was directly threatened or intimidated during the act, I am giving you a general situation in an institution, in this kind of institution. Sometimes they are restrained if they go out of line, they are ones who restrain them, the attendants and the nurses do these, Your Honor.40

As already stated, accused-appellant invoked alibi in his defense. He claimed that, at the time of the incident, he was in his quarters at the Holy Spirit Clinic sleeping. For the defense of alibi to be believed, the following requisites must be met: (a) his presence at another place at the time of the perpetration of the offense must be proven; and (b) it was physically impossible for him to be at the scene of the crime.41 Accused-appellant's testimony itself demonstrates the untenability of his alibi. First, his declaration that he was in another room of the clinic is uncorroborated. Second, the room in which he said he was sleeping at that time of the incident was only a few meters away from the patients' room where complainant was confined. Third, he admitted that, as a nurse-aide, he was allowed to enter the patients' room anytime for purposes of checking on the patients. Above all, his alibi cannot be given credence because complainant has pointed to him as the culprit of the rape. In cases in which the accused-appellant was identified by the victim herself who harbored no ill motive against him, the defense of alibi was rejected.42 The trial court correctly awarded moral damages in the amount of P50,000.00, in accordance with our recent rulings that moral damages may be awarded in rape cases without any need of proof of moral suffering. However, in addition, civil indemnity in the amount of P50,000.00 should have been awarded the complainant consistent with the ruling that rape victims are entitled to such an award without need of proof except the fact of the commission of the offense.43 On the other hand, the plea of the prosecution that the indemnity should be raised to P75,000.00 cannot be granted because such amount is awarded only in cases of qualified rape. In this case, there were no qualifying circumstances raising the penalty to death.44 WHEREFORE, the decision of the Regional Trial Court, Branch 95, Quezon City is AFFIRMED with the modification that, in addition to the award of P50,000.00 for moral damages made by the trial court, complainant should be indemnified in the amount of P50,000.00. SO ORDERED. Quisumbing, Buena, and De Leon, Jr., JJ., concur. Bellosillo, J., (Chairman), on leave.

30. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 187246 July 20, 2011

EDWIN TABAO y PEREZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. RESOLUTION BRION, J.: Edwin Tabao (petitioner) seeks reconsideration of our Resolution, dated June 8, 2009, denying his petition for review on certiorari for failure to show any reversible error in the assailed Court of Appeals (CA) decision to warrant the exercise of this Courts discretionary appellate jurisdiction, and for raising substantially factual issues. The evidence for the prosecution reveals the following facts: At around 10:00 p.m. of January 21, 1993, the petitioner was driving his Toyota Corolla car bearing plate number PCH-111 along Governor Forbes corner G. Tuazon Street towards Nagtahan when it suddenly ramped on an island divider, bumping Rochelle Lanete who was crossing the street. As a result of the impact, Rochelle was thrown into the middle of the road on her back.1 Thereafter, Leonardo Mendez speeding blue Toyota Corona car with plate number PES-764 ran over Rochelles body. Bystanders armed with stones and wooden clubs followed Mendez car until it stopped near the Nagtahan Flyover.2 Francisco Cielo, a newspaper delivery boy, pleaded with the bystanders not to hurt Mendez. Cielo went inside Mendez car, sat beside him, got his drivers license, and ordered him to move the car backwards. Mendez followed his order, but his car hit the center island twice while backing up.3 Cielo went out of the car and approached the sprawled body of Rochelle; he and the petitioner brought Rochelles body inside Mendez car. The three of them (the petitioner, Cielo and Mendez) brought Rochelle to the UST Hospital,4 where she died on February 6, 1993 due to septicemia secondary to traumatic injuries.5 The defense presented a different version of the incident. The petitioner narrated that at around 10:00 p.m. of January 21, 1993, he was driving along Governor Forbes corner G. Tuazon Street when his car ramped on an island at the foot of the Nagtahan Flyover. He tried to move the car backwards, but failed to do so. He alighted from his car and then saw that its two rear wheels had been elevated.6 He returned inside his car to turn off its engine; he then noticed that many people were approaching his car.7 He again alighted from his vehicle and saw a person lying on the road.8 He looked at his left side and saw a car that was "running fast like a wind" pass by. He approached the person lying on the road, and noticed that she was still breathing and moaning. Afterwards, he saw Mendez car backing up; he carried the victim towards that car.9 Thereafter, he, Mendez and Cielo brought the victim to the UST Hospital.10

Mendez, for his part, testified that at around 9:00 to 9:30 p.m. of January 21, 1993, he left his girlfriends house in Blumentritt, Sta. Cruz, Manila. As he was driving along Governor Forbes corner G. Tuazon Street on his way home, he saw a vehicle that had ramped on an island divider. Suddenly, another vehicle overtook his car from the right and cut his lane. He slowed down his car when he saw a rug-like object fall from the car that overtook him,11 and stopped when he realized that what had fallen was a persons body. When he moved his car backwards to help this person, many people approached his car. He alighted from his car and inquired from them what had happened. The people replied that someone was run over; some of them pointed to him as the culprit. He denied having run over the victim when they tried to hurt him. The petitioner carried the victim and placed her inside Mendez car. Thereafter, the two of them brought the victim to the UST Hospital.12 The Office of the City Prosecutor found probable cause and thereafter charged the petitioner and Mendez with reckless imprudence resulting to homicide before the Regional Trial Court (RTC), Branch 39, Manila.13 The RTC, in its decision14 dated September 15, 2003, found that it was "very clear that both accused are responsible for the death of Rochelle Lanete,"15 and convicted the two (2) accused of the crime charged. It found that the petitioners car first hit the victim, causing her to be thrown into the road on her back, and that Mendez car ran over her as she was lying down. It held that the two failed to observe the necessary precaution and due care in operating their respective vehicles, to wit: the petitioner was not attentive to his driving such that he failed to see the island divider and bumped Rochelle; Mendez was driving his car too fast at nighttime such that he was unable to avoid running over her as her body lay prone on the street. The RTC sentenced them to suffer the indeterminate penalty of four months and one day of arresto mayor, as minimum, to two years, 10 months and 20 days of prision correccional, as maximum. It also ordered them to pay the heirs of the victim the following amounts: (a) P478,434.12 as actual damages; (b) P50,000.00 as civil indemnity; and (c) P50,000.00 as moral damages.16 The petitioner filed an appeal before the CA, docketed as CA-G.R. CR. No. 28401. The CA, in its decision17 dated July 27, 2007, agreed with the factual findings of the RTC, and affirmed its decision with the modification that the petitioner be sentenced to suffer an indeterminate penalty of four months and one day of arresto mayor, as minimum, to four years, nine months and 10 days of prision correccional, as maximum. The petitioner moved to reconsider this decision, but the CA denied his motion in its resolution18 of March 17, 2009. The petitioner filed before this Court a petition for review on certiorari alleging that the courts a quo erred in convicting him of the crime charged. As earlier stated, we denied this petition for failure to show any reversible error in the assailed CA decision to warrant the exercise of our discretionary appellate jurisdiction, and for raising substantially factual issues. The petitioner now comes to us via the present motion for reconsideration, raising the following arguments: I. THE FINDINGS OF FACTS OF BOTH THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ARE HIGHLY SPECULATIVE, MANIFESTLY MISTAKEN AND UNSUPPORTED BY THE EVIDENCE [ON RECORD;] II. [THE] COURT OF APPEALS [ERRED IN UPHOLDING HIS] CONVICTION [ON THE BASIS OF THE] INCREDIBLE AND UNRELIABLE TESTIMONY OF x x x VICTOR SORIANO[; and] III. THE [SUPREME] COURT DISREGARDED [HIS CONSTITUTIONAL] PRESUMPTION OF INNOCENCE.19

In its Comment, the People of the Philippines, through the Office of the Solicitor General, prays that the motion be denied for being pro forma; the petitioner merely advanced the same arguments which he raised in his appellants brief and motion for reconsideration before the CA. After due consideration, we resolve to DENY the motion. As a general rule, findings of fact of the trial court, especially when affirmed by the CA, are binding and conclusive upon this Court; we will not normally disturb these factual findings unless they are palpably unsupported by the evidence on record or unless the judgment itself is based on a misapprehension of facts.20 After a careful review of the records, we see no reason to overturn the lower courts factual findings that found the petitioner guilty of the crime charged. Reckless imprudence, generally defined by our penal law, consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Imprudence connotes a deficiency of action. It implies a failure in precaution or a failure to take the necessary precaution once the danger or peril becomes foreseen.21 Thus, in order for conviction to be decreed for reckless imprudence, the material damage suffered by the victim, the failure in precaution on the part of the accused, and the direct link between material damage and failure in precaution must be established beyond reasonable doubt. We are morally convinced that all three were established in this case in accordance with the required level of evidence in criminal cases. The petitioner was positively identified by an eyewitness The fact of Rochelle Lanetes death was stipulated during pre-trial, as well as duly established during trial.22 What remain to be proven beyond reasonable doubt are the inexcusable lack in precaution on the part of the petitioner and the direct link of his negligence to the victims death. An eyewitness account established that the petitioners vehicle actually hit Rochelle Lanete. Eyewitness identification is vital evidence, and, in most cases, decisive of the success or failure of the prosecution.23 One of the prosecution witnesses, Victor Soriano, unfortunately for the petitioners cause, saw the incident in its entirety; Victor thus provided direct evidence as eyewitness to the very act of the commission of the crime.24 In his September 1, 1994 testimony, Victor positively identified the petitioner as the person who drove the car that ramped on an island divider along Governor Forbes corner G. Tuazon Street, and hit Rochelle. To directly quote from the records: ATTY. ALICIA SERRANO: Q: Mr. Soriano, do you remember where were you on or about 10:00 oclock (sic) of January 21, 1993? VICTOR SORIANO: A: Yes, maam. Q: Where were you? A: I was at the corner of Governor Forbes and G. Tuazon. Q: What were you doing at the corner of Governor Forbes and G. Tuazon at that time?

A: My sidecar was parked there because I was waiting for my wife, maam. Q: And when you were there at the corner of G. Tuazon and Governor Forbes at the said time and place, was there any unusual incident that happened? A: Yes, sir. Q: And what was that unusual incident? A: I saw an accident involving a speeding car which ramped over the island and bumped a woman who was crossing the street. Q: When you saw that the car ramped over the island and hit and bumped a woman, what happened to the woman that was hit and bumped by the car which you said ramped over the island? A: The woman was thrown at the middle of the road on her back, maam. Q: When you saw this woman after being hit and bumped by the car that ramped over the island and was thrown at the middle of the road, what else happened? xxxx A: The woman was no longer moving at that time when I saw another car coming. xxxx Q: What else happened when you saw the car coming very fast? A: The woman sprawled at the middle of the road was ran over by the speeding car and that car stopped while going up to the flyover. xxxx Q: You said you saw a car that ramped over the island and that the car that ramped over the island was the car that hit and bumped the victim that was thrown at the middle of the street. Now, will you be able to identify before this court the driver of that car that ramped over the island and hit and bumped the victim? A: Yes, maam. Q: If that driver of the car that hit and bumped the victim is inside the courtroom, would you be able to point to him before this Honorable Court? A: Yes, maam, he is here. Q: Will you kindly point before this courtroom who is that driver of the car that hit and bumped the victim? Although, Your Honor, there was already a stipulation at the start of the pre-trial admitting that the accused Tabao is the driver of the car which ramped at the divider. INTERPRETER:

Witness approaching a man seated inside the courtroom and who stood up and identified as Edwin Tabao, the accused in this case.25 [emphases ours] On cross-examination, Victor further elaborated on what he saw of the incident: ATTY. ESTEBAN NANCHO: Q: Mr. Soriano, you said that the first car ramped over the island and bumped a woman, and as a result of that, the woman was thrown at the middle of Forbes Street. Do you confirm that? VICTOR SORIANO: A: Yes, sir, that is true. Q: And can you tell us how the woman was hit, was bumped by the car that ramped over the island? A: The woman was crossing the street and when she saw the on-coming car, she tried to avoid that but the car [which] ramped over the island bumped the woman. Q: In other words, the car first ramped over the island before it hit the woman? A: Yes, sir. Q: What part of the car bumped the woman? A: The bumper of the car, the left side of the bumper. Q: What part of the body of the victim was hit by the car? A: Her left side of the body. Q: Are you saying that the victim was facing the car when the car bumped her. A: Yes, sir, she was facing the car. She was about to avoid that car. Q: How was the woman thrown at the middle of Forbes Street? A: She was thrown backwards. Q: And what part of the body of the victim first hit the pavement? A: The back of her head. xxxx Q: And you said after the woman was thrown at the middle of the street[,] another speeding car ran over the body of the woman? A: Yes, sir. xxxx

Q: Now, from the time the body of the victim was thrown at the middle of the street, how much time had lapsed when the second car ran over the body of the victim? A: Not more than one minute. When I saw the car, it was a little bit far then I saw the car running very fast. It did not take more than a minute. xxxx Q: Now, did you point at any person gathered at the scene of the accident that it were (sic) the 2 accused who were responsible for the accident? A: I told Cielo about that and I told him that whoever brought the victim to the hospital is the one who ran over the victim.26 The petitioner nonetheless claims that Victor is not a credible witness due to inconsistencies between his affidavit and court testimony. He harps on the fact that Victor declared in his affidavit that the petitioners car first hit Rochelle before it ramped on an island divider; while he testified in court that the petitioners vehicle ramped on the island divider before hitting the victim. We find these arguments unmeritorious. Discrepancies and/or inconsistencies between a witness affidavit and testimony in open court do not impair credibility as affidavits are taken ex parte and are often incomplete or inaccurate for lack or absence of searching inquiries by the investigating officer.27 At any rate, Victor was able to sufficiently explain the discrepancies between his affidavit and court statements. Victor reasoned out that the secretary who typed his affidavit made a mistake; and explained that he signed the affidavit despite the inaccuracies in paragraph 2 because the secretary told him, "kasi ho magugulo ang naimakinilya na."28 Accordingly, when Victor informed his lawyer during the first day of the hearing about the inaccuracy, the latter told him to state the truth regardless of what was written in his affidavit. The general rule that contradictions and discrepancies between the testimony of a witness and his statements in an affidavit do not necessarily discredit him is not without exception, as when the omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness would not be expected to fail to mention, or when the narration in the sworn statement substantially contradicts the testimony in court.29 In the present case, we see no substantial contradiction in Victors affidavit and in his court statements as he declared in both that he saw the petitioners car ramp on the island divider and bump Rochelle. As to whether the car ramped on the center island before or after it bumped the victim does not detract from the fundamental fact that Victor saw and identified the petitioner as the driver of the car that ramped on the island divider and hit Rochelle. As earlier discussed, Victor sufficiently explained this inconsistency during the trial. Victor, who stood only seven meters from the incident, clearly and in a straightforward manner described how the petitioners car had bumped the victim. We thus see no reason to overturn the lower courts finding regarding Victors credibility, more so since the petitioner did not impute any ill motive that could have induced Victor to testify falsely. The fundamental and settled rule is that the trial court's assessment regarding the credibility of witnesses is entitled to the highest degree of respect and will not be disturbed on appeal, especially when the assessment is affirmed by the CA. The positive identification in this case, coupled with the failure of the defense to impute any ill-motive on the eyewitness, to our mind, works to dispel reasonable doubt on the fact that the petitioners car had in fact hit Rochelle. The eyewitness account provides the necessary link between the petitioners failure to exercise precaution in operating his vehicle and Rochelle Lanetes death.

The petitioner failed to exercise precaution in operating his vehicle The right of a person using public streets and highways for travel in relation to other motorists is mutual, coordinate and reciprocal.30 He is bound to anticipate the presence of other persons whose rights on the street or highway are equal to his own.31 Although he is not an insurer against injury to persons or property, it is nevertheless his duty to operate his motor vehicle with due and reasonable care and caution under the circumstances for the safety of others as well as for his own.32 The petitioner repeatedly admitted that as he drove his vehicle on his way home from work on January 21, 1993, he did not notice the island divider at the foot of the Nagtahan Flyover. As a result, his car ramped on the island so that both its rear wheels became "elevated" from the road and he could no longer maneuver the vehicle.33 The petitioner even testified that his car had to be towed.34 Later, during cross-examination, he admitted that all four wheels of his car, not just the two rear wheels mentioned in his earlier testimony, lost contact with the ground.35 The entire vehicle, therefore, ended up on top of the island divider. He puts the blame for the ramping and, essentially, his failure to notice the island on the darkness of nighttime and the alleged newness of the island.36 To our mind, the fact that the petitioners entire vehicle ended up ramped on the island divider strongly indicates what actually happened in the unfortunate incident. The vehicle could not have ended up in that condition had the petitioner been driving at a reasonable speed. We are not persuaded by the petitioners rather simplistic account that mere darkness, coupled with the traffic islands alleged newness, caused his car to veer off the traffic trajectory of Governor Forbes Street and to end up jumping on top of the traffic island intended to channel vehicular traffic going to the Nagtahan Flyover. A motorist is expected to exercise ordinary care and drive at a reasonable rate of speed commensurate with all the conditions encountered,37 to enable him to keep the vehicle under control and, whenever necessary, to put the vehicle to a full stop to avoid injury to others using the highway.38 It has not escaped our notice that the intersection of Governor Forbes Street and G. Tuazon Street is adjacent to the vicinity of the incident. A driver approaching an intersection is generally under duty, among others, to keep and maintain his vehicle under control so he can, if needed, stop at the shortest possible notice.39 Ordinary or reasonable care in the operation of a motor vehicle at an intersection would naturally require more precaution than is necessary when driving elsewhere in a street or highway.40 The fact that the petitioner was driving near the Governor Forbes Street and G. Tuazon Street intersection gives rise to the expectation that he would drive at a speed that anticipated or would have anticipated that other persons are on the road, whether as pedestrians or as motorists. The facts show, however, that the petitioner was driving his car at an inappropriate speed for a vehicle crossing an intersection. Otherwise, he should have been able to put his vehicle to a complete stop or, at the very least, at a speed that would have prevented his car from climbing entirely on top of the island divider. That the petitioners entire vehicle landed on top of the traffic island body, chassis, four wheels and all sufficiently indicates his speed at that time. The force that propels an entire car off the street and on top of a traffic island could only have been inordinate speed, or at least speed beyond that of a motorist coming from or going to an intersection. In short, the ramping of his vehicle demonstrably indicates to us that the petitioner failed to observe the duty to maintain a reasonable speed. We therefore believe Victors testimony that the petitioner was speeding when he bumped the victim.41 We are likewise not persuaded by the petitioners claim that darkness and the traffic islands alleged newness justify his failure to notice the island. The petitioners admission that he did not notice the traffic island is in itself an indication of his failure to observe the vigilance demanded by the circumstances. Ultimately, it shows the criminal recklessness for which he has been convicted. The

record shows that pedestrians were present in the vicinity at the time of the incident. The CA even pointed out that the vicinity is near residential areas, while we pointed out its proximity to an intersection. The darkness and these circumstances should have caused the petitioner to be more alert and more vigilant, to say nothing of slowing his car down. Newly constructed or not, the island divider should have received the petitioners due attention. His bare allegation that the island lacked markers or reflectorized marks is likewise not persuasive. As the trial court correctly observed, many other vehicles passed the same road that night but only the petitioner failed to notice the island divider.42 We thus find the trial court to be correct when it held that the petitioner failed to exercise precaution in operating his vehicle on the night of the incident. The location of the victims injuries vis--vis the position of the petitioners vehicle The petitioner insists that his car could not have bumped the victim because his car was coming from the right side (i.e., from Espaa), while the victim was hit on the left side of her body. He argues that if the victim was on her way to her house on Mabini Street coming from the corner of Governor Forbes Street and G. Tuazon Street (where she alighted), then the responsible vehicle could only have come from the left (i.e., from Nagtahan) as only those vehicles coming from this direction could hit the victim on the left side of her body. He further claims that his car had no dents or scratches. The petitioners arguments are misleading. Dr. Sergio Alteza, Jr., the attending physician, testified that the victim suffered multiple injuries "compatible and consistent with a vehicular accident."43 He did not state that the injuries suffered by the victim were only on her left side. In fact, a perusal of Dr. Altezas initial medical report shows that the victim suffered injuries both on the left and right sides of her body. In addition, Dr. Floresto Arizala, Jr., the National Bureau of Investigation medico-legal officer who conducted an autopsy on Rochelles body, confirmed that the victim suffered injuries on various parts of her lower right and left extremities as a result of the initial or primary impact. The petitioner relies heavily on Dr. Altezas statement allegedly declaring that the victims injuries on her lower left leg and left thigh were the "primary impact" injuries. However, this statement was not based on the actual incident but on Dr. Altezas presumptions. For clarity, we reproduce Dr. Altezas testimony: ATTY. SERRANO: Q: Now doctor, you said that these injuries you found x x x on the body of the victim are compatible and consistent with a vehicular accident. Would you tell this court how these injuries were sustained? xxxx Doctor, what would be the possible situation when you use compatible and consistent vehicular accident? DR. ALTEZA: A: If I would be allowed to make some presumptions, if the patient was standing up at that time he was hit by a vehicle, I would presume that the primary impact injuries, injuries hit first by the vehicle are the injuries of the lower leg and the left thigh considering that the height of the injuries are approximately the height of the bumper as well as the hood of the car.

Q: There are several kinds of vehicles, doctor? A: Yes, Your Honor, I was thinking of a car. Now, after being hit by [a] car, under normal condition, the victim is normally thrown at the surface of the street.44 [emphases ours] From this exchange, we find it clear that Dr. Alteza was merely making a hypothetical statement that a person who is presumed to be standing when hit by a vehicle would suffer primary impact injuries on his lower leg and left thigh. He never declared that Rochelle suffered primary impact injuries on her lower left extremities. At any rate, it was not improbable for the victim to have been hit on the left side of her body as Victor testified that she (victim) tried to avoid the petitioners car, and was in fact facing the car when she was hit. We likewise do not believe the petitioners claim that his vehicle was not involved in the incident due to the absence of dents or scratches. As the petitioner himself admitted, his vehicle was not subjected to any investigation after the incident. Moreover, the pictures of the car, presented by the petitioner in court, were taken long after the incident and after a repair had already been done to the vehicle. There was therefore no way of verifying petitioners claim that his car did not have any dent or scratch after the incident. At any rate, the absence of a dent or a scratch on the petitioners car, assuming it to be true, does not conclusively prove his non-participation in the incident. The absence of any dent or scratch is influenced by several factors: the type of paint, the speed of the car, the points of impact, and the material used on the cars exteriors. Weight of expert testimony The petitioner likewise claims that the CA violated Section 49, Rule 130 of the Revised Rules of Court when it disregarded the testimony of defense witness Police Senior Inspector Danilo Cornelio who testified that the petitioners car could not have bumped the victim because the latters body was not thrown in line with the car, but on its side. The petitioner argues that P/Sr. Insp. Cornelio is highly qualified in the field of traffic accident investigation, and as such, his statements are "backed-up by [the] principles of applied physics, engineering, and mathematics."45 The petitioners arguments fail to convince us. Section 49, Rule 130 of the Revised Rules of Court states that the opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of the word "may" signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law. It has been held of expert testimonies: Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect. The problem of the

credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of discretion.46 We emphasize that P/Sr. Insp. Cornelio was not an eyewitness to the incident; his testimony was merely based on the Traffic Accident Report prepared by SPO4 Edgar Reyes who himself did not witness the incident. At any rate, nowhere in P/Sr. Insp. Cornelios testimony did he conclusively state that the petitioner could not have been involved in the incident. For clarity, we reproduce the pertinent portions of P/Sr. Insp. Cornelios testimony: ATTY. SERRANO: Q: When you said in line with the motor vehicle that bumped the victim, is it that when a victim is bumped by the motor vehicle, the victim would be thrown in line with the vehicle? P/SR. INSP. CORNELIO: A: Yes, Maam. Usually, that is the outcome of the incident. Q: He cannot be thrown sideward? A: Maybe if another vehicle would hit the pedestrian because that also happened. When a pedestrian is hit by a vehicle and another vehicle hit the pedestrian, it will be thrown somewhere else. Q: Mr. Witness, you are testifying as far as the vehicle of Tabao is concerned. You said that the line of vehicle that bumped the victim would be in line. Are you telling us that it is not possible that when the vehicle of Tabao hit the victim, the victim would be thrown sidewards? A: Yes, Maam. Q: What do you mean, yes, Maam? A: He can be thrown either in front of the vehicle that hit the victim or slightly offset with the car of Tabao. It [may be] but not far from the side. Q: But he would be thrown sidewise[,] not frontal? A: Slightly to the side but not considerable length of distance away from the car. It is sidewards. Q: In your Mathematics, do you consider that if a vehicle is speeding fast, he could have thrown anything that is bumped by that vehicle far away from the vehicle? A: Yes, Maam, possible. Q: So, that probability is also possible aside from the probability that you said the victim is thrown in line or in front. So, you are now saying it could be said that the victim can be thrown sidewise? A: It [may be] thrown sidewise. As I said [a while] ago, it might be slightly offset with the vehicle that hit the pedestrian but not too far from the side of the bumping vehicle. Q: So, it could depend on the speed of the vehicle that bumped the object bumped? A: Yes, Maam.

Q: Whether it is forward or sidewise, the distance of the object thrown would depend on the speed of the vehicle that bumped? A: Yes, Maam. Q: So, if it is speeding, it could be thrown farther? A: Yes, Maam. Q: Sidewise or frontal? A: It should be frontal. Q: You said it could be thrown sidewise do I take it correct[ly,] it can be thrown sidewise also? A: Maybe. As I have said [a while] ago, it [may be] slightly offset with the line of the vehicle. xxxx Q: So, do we take it from you that your basis only of telling the court that Tabao is not in [any way] responsible is the distance of the victim from the car that bumped? A: I am not saying categorically that the car of Tabao is not responsible. But as I can see in the sketch presented today in this Honorable Court, the position of the victim is too far from the vehicle of Mr. Tabao. If I were the investigator in this particular case, I should indicate the measurement of the victim from the car and this sketch [does] not indicate the distance. Q: Now, failure of the investigator to indicate the distance, would that show that it was not Tabao who bumped the victim? A: I cannot say categorically that the car of Tabao indeed, hit the victim. Because the distance is very significant in this sketch for proper evaluation. xxxx Q: So, it cannot be said that when an object is bumped by a vehicle, it will be thrown forward. It will all depend on which portion of the bumper hit by object bumped? A: Yes, Maam.47 From the foregoing, it is clear that P/Sr. Insp. Cornelio did not discount the possibility that the victim could have been thrown on the side. He likewise admitted that the location of an accident victim in relation to the vehicle would also depend on the speed of the vehicle and the point of impact. The defense of denial The petitioner denied that his car had bumped the victim, and insists that he just saw the victims body sprawled on the road after his car had already ramped on the island divider. The petitioners defense of denial must crumble in light of Victors positive and specific testimony.1avvphi1 We reiterate that the petitioner, aside from merely alleging the inconsistency between Victors affidavit and court testimony, did not impute any ill motive on Victors part to falsely

testify against him. The petitioner, in fact, admitted that he and Victor did not know each other prior to the incident. We have consistently held that positive identification of the accused, when categorical and consistent, and without any showing of ill-motive on the part of the testifying eyewitness, should prevail over the denial of the accused whose testimony is not substantiated by clear and convincing evidence.48 A denial is negative evidence. To be believed, it must be buttressed by strong evidence of non-culpability; otherwise, the denial is purely self-serving and has no evidentiary value.49 We significantly note that the petitioner claimed for the first time in his present petition that he saw a "rug-like thing"50 being thrown out of a passing car as he was about to alight from his car after turning off its engine; he later discovered that the thing thrown was a persons body. He reiterated this claim in his motion for reconsideration before this Court. This assertion was a clear rip-off from his coaccused Mendez version who likewise claimed to have seen the same thing. To our mind, the modification of the petitioners story was a belated attempt to cover up his failure to convincingly explain the presence of the victims slumped body on the road near his car and a last-ditch effort to exculpate himself. Nowhere in his affidavit or earlier court testimonies, or even in his previous pleadings with the lower courts, did he ever state that a passing car had thrown a "rug-like thing"51 on the street. The petitioners sudden change of story at this stage of the proceedings casts doubt on the veracity of his claim. In addition, we are baffled by the petitioners act of frequenting the hospital after the incident. Amanda Ycong, the victims aunt, testified that she saw the petitioner "several times" at the hospital when the victim was confined there; but would immediately leave whenever he saw members of the victims family. We find it highly unusual for a person who allegedly had no participation in the incident to be overly concerned with the victims well-being. What puzzles us even more is why the petitioner would evade members of the victims family whenever he was seen by them at the hospital. All told, we see no reason to overturn the lower courts findings of fact and conclusions of law finding the petitioner guilty beyond reasonable doubt of the crime charged. WHEREFORE, premises considered, the Court resolves to DENY the motion with FINALITY, no substantial argument having been adduced to warrant the reconsideration sought. Costs against the petitioner. SO ORDERED.

31. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. Nos. 100225-26 May 11, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAUL SANTOS Y NARCISO, MARIO MORALES Y BACANI, PETER DOE and RICHARD DOE, Accused, RAUL SANTOS y NARCISO, accused-appellant. The Solicitor General for plaintiff-appellee Valmonte Law Offices for accused-appellant.

FELICIANO, J.: Raul N. Santos appeals from a judgment of the trial court convicting him of murder and frustrated murder. On 26 October 1989, appellant Santos was charged with the crimes of murder with the use of unlicensed firearms and frustrated murder, under the following informations: In Crim. Case No. 8517-MN: 1 That on or about the 26th day of May, 1989 in Navotas, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping with one another, without any justifiable cause, with deliberate intent to kill, treachery and evident premediation, did then and there willfully, unlawfully and feloniously shoot GLICERIO CUPCUPIN y REYES with the use of unlicensed firearms of unknown caliber, thereby inflicting upon the latter serious physical injuries which caused his death at the Tondo Medical Center, Manila. Contrary to Law. In Crim. Case No. 8518-MN: 2 That on or about the 26th of May, 1989 in Navotas, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with one another, witout any justifiable cause, with deliberate intent to kill, treachery and evident premeditation did, then and there, willfully, unlawfully and feloniously shoot ALBERTO BAUTISTA Y CAYETANO, with the use use of firearms of unknown caliber, thereby inflicting upon the latter serious physical injuries, thus performing all the acts of execution which would have produced the crime of

MURDER as a consequence but which nevertheless did not produce it by reason of causes independent of the will of the herein accused, that is due to the timely, able and efficient medical attendance rendered to the victim at the Tondo Medical Center, Manila. Contrary to Law. Three (3) other persons were charged in the same informations. Upon request of the City Prosecutor who had conducted a re-investigation of the cases, the trial court ordered the amendment of the information on 4 April 1990 so as to insert the name of one Mario Morales, in lieu of John Doe, as a coaccused. Morales for whom a warrant of arrest was issued, is, however, still at large, The identities of the two (2) other accused remain unknown. At arraignment, Raul Santos entered a plea of not guilty. A joint trial of the two 92) criminal cases ensued, culminating in a judagment of conviction. The dispositive portion of this judgment reads as follows: WHEREFORE, premises considerd, judgment is hereby rendered finding accused Raul Santos guilty beyond reasonable doubt of the offenses charged against him in these cases. He is accordingly sentenced to two (2) prision terms as follows: 1) In Crim. Case No. 8517-MN for Murder, to life imprisonment, the death penalty which should have been imposed in this case having been abolished under the present Constitution; 2) In Crim. Case No. 8518-MN for Frustrated Murder, to a prison term ranging from SIX (6) YEARS OF prision correccional, as minimum to TWELVE (12) YEARS of prision mayor as maximum. Accused Santos is also odered to proportionately pay the heirs of Glicerio Cupcupin the sum of P30,000.00 for the loss of the latter's life and to pay said heirs, proportionately aldo, P100,000.00 by way of indemnification for the expenses incurred in connection with Cupcupin's death. Costs against accused in both cases. SO ORDERED. 3 The relevant facts as found by the trial court are the following: Glicierio Cupcupin and Alberto Bautista were riding on a jeep driven by the former on May 26, 1989. At around 11:45 o'clock in the morning of said date, the jeep was at a stop at the corner of Estrella and Yangco Streets in navotas, Metro Manila and was about to make a right turn when two (2) persons armed with short guns approached the jeep and fired at Cupcupin and Bautista. Cupcupin was hit several itmes in different parts of his body and he died as a result of the multiple gunshot wounds he sustained (Exh. V). Bautista sustained gunshot wounds, one at the left thigh, one in theloer abdomen, one at the back of the right foot and another at the back of the body. Bautista was able to run away even as he was bieng fired upon. He took cover in a store. The one firing the gun at thim was a man he later identified to be accused Raul Santos. The other one which he saw similary firing his gun was aiming at Cupcupin. He identified the man to be one Mario Morales. He added that he saw Cupcupin hit by

gunshots at the left side of the body near the waist which made Cupcupin fall-off the steering wheel. After running away, Bautista could not remember anymore what else happened. He could not rmember anymore what else happened. He at thim and Cupcupin. After hearing a shout that the ambushers were no longer around, he learned that a woman bystander was hit and was boarded on a jeep to be brought to the hospital. He was boarded on said jeep too but later transferred to was brought to the Martinez General Hospital and to the Mary Jonston hospital where he was treated. Bautista was oeporated on (Exhs. B, B-1, C, D and E). Upon the apprehensionof accused where he picked out from a line-up accused Raul Santos. In another line-up, he also picked out accused Morales. Bautista also gave a sworn statement narrating the shooting incident (Exh. F). Police Aide Victorino Bohol was on duty and directing traffic at the corner of Plaza Rizal and Estrella Streets when he heard gunshots. When he looked around the saw two 92) persons who were holding Cal. 45 pistols firing at persons on board a stainless steel owner jeep. Bohol was not able to approach the men firing their guns because he was not provided with a gun. What he did was to run to headquarters to call for policemen and when he returned to the scene of the shooting he learned that one of hte passengers of the jeep was killed. He learned also that the slain man was killed. He learned also that the slain man was Glicerio Cupcupin and that his companion was Alberto Bautista alias "Tiwa". Bohol also added that tere were two (2) other persons who were also firing at the passengers of the jeep although he did not recognize these two (2) other persons. After the arrest of accused Santos, Bohol was called to the police station and through a one-way mirror he was able to identify accused Santos as one of the persons who shot Cupcupin and Bautista. Bohol also gave a sworn statement to the police (Exh. A). On cross-examination, Bohol admitted that at the time of the shooting he was at the Jim Bread Store talking to someone. When he heard gunshots thier guns at the same time at the jeep. He added that the accused was arrested some months later in connectiion with another shooting incident wherein Santos was suspected of involvement. He confirmed that Bautista was bieng shot at while running away from the place. Cpl. Sabino Patood of the Navotas Police delcared that he was investigating a shooting incident which resulted in the death of one Abudl Rosas wherein the suspect was accused Santos when he was tipped by police intelligence operatives that Santos was involved in the ambush of Cupcupin. This made him conduct further investigation by calling for Bautista and Bohol. Patood also interviewed Santos who admitted his participation inthe ambush to him. He did not take any written statement from accused Santos because there was nocounsel available at that time and because Santos was not willing to give any written statement. Dr. Maximo Reyes of the NBI Medico Legal Division performed an autorpsy onthecadaver of victim Cupcupin and found out that the latter sustained nineteen (19) gunshot wounds in different parts of his body. The cause of death gunshot wounds. Dr. Reyes added that the assailants were probably at the left side of the victim as they were shooting at the latter with the victim possibly seated at the time he was shot and hit. The victim's wife Lucia Cupcupin declared that P100,000.00 was spent in connection with the death of her husband who was earning P5,000.00 a month as a businessman

dealing in junk materials and marbale. 4 The trial court found that the accused Raul Santos had been identified positively by the surviving vicitm of the shooting incident Alberto Bautista, and by teh Traffic Aide who had witnessed the execution of the crime Victorino Bohol. The defensse of alibi offered by the accused and supported by the testimonies of a friend and a sister, was rejected as weak and unavailing. As noted, a judgment of conviction followed. Inhis appeal, Raul Santos assings the following as errors committed by the trial court: i the lower court erred in holding that accused's identification by proscution's witnesses was "positive" and, and, therefore it erred when it rejected accused's defense of alib. ii the lower court erred in considering one of the two cases (not the instant ones) filed against the accused in holding also for his guilt. iii the lower court erred in convicting the accused. 5 In respect of the first assigned error, appellant Santos contendes that the testimonies of the principal prosecution witnesses do not coform with the "knowledge and common experience of mankind." Appellant argues that the two (2) prosecution witnesses, the victim Bautista and Police Aide Bohol, testified that they saw the accused for the first time in their lives when the crime was committed and yet identified him as one of the gunmen five (5) months later in the Police headquarters in Navotas. The ambuscade and the slaying of Glicierio Cupcupin happened on 26 May 1989; appellant Santos was identified at the police station on 25 October 1989. Appellant argues that this lapse of time was unreasonable, which, when coupled with the brief, limited and obstructed view which the prosecution witnesses had of the gunmen at the time of the shooting, casts serious doubt on the accuracy and reliabitlity of the identification by the witnesses. Appellant's argument does not persuade. Police Aide Bohol was only abot twelve (12) armlengths away from teh ambush vehicle. The ambush slaying occurred under conditions of high visibility: the victim Cupcupin was shot to death at 11:45 o'clock in the morning, in good weahter, when the sun was almost at its zenith. On cross-examination, Bohol stated that there were no passing vehicles that blocked his view of the slaying of the victim as the vehicles stopped some distance away from the jeep when the shooting began. In addition, Bohol testified that he saw one of teh gunmen take a wrist watch and a gun form Cupcupin's lifeless body. Clearly, Bohol had the opportunity to observe the extraordinary and startling events which unfolded on the corner of two (2) busy streets almost at high noon, events which may be expected to leave a strong impression upon the minds of an eye-witnesses who, like Police Aide Bohol, had a duty to maintain law and order. Alberto Bautista who had been riding on a jeep and hwo escped death (but not gunshot wounds) by reason of his quick reflexes, had every reason to remember the faces of those whom he saw firing at the jeep and at himself. This has been recognized a number of times in ouir case law. In People v. Jacolo, et al., 6 the Couirt said: [W]hile evidence as to the identity of the accused as the person who committed the crime should be carefully analyzed, . . . "were the conditions of visibility are favorable and the witness does not appear to be biased agains teh man on the dock, his or her assertions as to the identity of the malefactore should normally be accpeted. And this is more so where the witness is the victim or his near-relative, as in this case, because these (people) usually strive to remember the faces of the assailants." (Emphasis supplied.) 7

Appellant Santos also contended that Police Aide Bohol could not have had a clear view of the ambuscade and the shooting of Cupcupin since he (Bohol) was situated on the left side of the gunmen. As observed by teh Solicitor General, however, the trial court had pointed out that "if he [Bohol] was to the front right of the jeep" then he must [have been] a little by the left side of the persons firing at the jeep . . ." 8 "Bohol's view, therefore," the Solicitor General continued, "was not limited to the left side of the assilants, especially since he was able to see them [the gunmen] move around the site of the ambush after the [had] stopped firing, specifically when one of them stripped victim Cupcupin of his gun and jewelry and they all walked away from the place." 9 The trial court obviously concluded that Bohol had ample opportunity actually to observe tha events on which he testified, and we find no basis for overtunring this conclusion of the trial court. In respect of the identification by Bautista, accused also suggests that Bautista had no real opoortunityto see and impress upon his memory the faces of the assailants. In his testimony, Bautista stated that two (2) men armed with handguns suddenly apporoached the jeep in which he and Cupcupin were riding. He agreed that his attention had been "focused" (defense counsel's own language) on vehicles passing along Estrella Street as Cupcupin maneuvered the jeep to turn right at the corner and to head towards Navotas. When the assailants started shooting, Bautista jumped from the jeep, was hit on the left thigh and other parts of the body, but managed to run for cover from repeated shots or bursts of gunfire. Bautista testified further that he was shot by appellant Raul Santos while Morales pumped bullets into Cupcupin; that the gunmen fired at Cupcupin and Bautista from close range, Morales being a mere half an arm-length to the left of Cupcupin while appellant Santos was about two (2) arm-lengths away from the ambushed jeep; and that Bautista saw his compaion, Cupcupin, slump on the steering wheel as the bullets crashed into him. Once more, the trial court was led by the above circumstances to conclude that Bautista had adequate oportunity to see appellant Santos and to retain his face in his memory. We find no basis for rejecting this factual conclusion of the trial court. Appellant Santos makes two (2) additional arguments. Firstly, he complains that he was not afforded his right to counsel int he course of the police line-up, at the police station where he was identified by the prosecution witnesses. This argument, of course, assumes that during the police line-up, accused was under custodial investigation, a stage which, per the appellant, began the instant the police suspected Santos then had no lawyer present nor was one provided, his counsel argues, Santos's identification was "tainted" and inadmissible. The argument is creative, but has no legal bais. In Gamboa v. Cruz, 10 the Court said that there is "no real need to afford a suspect the serivce of counsel at police line-up," 11 a declaration reiterated in People v. Loveria. 12 The customary practice is, of course, that it is the witness who is investigaged or interrogated in the course of a police line-up and who gives a statement to the police, rather than the accused who is not questioned at all at that stage. The Court is aware of the caveat in Gamboa. 13 But there is nothing in the record of this case which shows that in the course of the line-up, the police investigators sought to extract any admission or confession from appellant Santos. The investigators did not in fact interrogate appellant Santos during the line-up and he remained silent after he had bee identified by Bautista and Bohol. Appellant Santos's secon dcontention is that there had bee "improper suggestiveness" in the course of the police line-up amounting to an uncounselled confession. In effect, defense counsel claims that Bautista and Bohol were induced by the plice investigators to point to appellant Santos as one of the gunmen. The record does not show that the police investigators had coached Bautista. Appellant Santos's counsel directed the attention of this Court to a portion of Bohol's testimony during crossexamination, to wit: Atty. Valmonte:

Alright, that somebody who told you to go to the office of Capt. Puzon you were informed that on the other side of the office of Capt. Puzon there was already the person whom they would like to identfy? Victorino Bohol: Yes, sir. Atty. Valmonte: And was there somebody who asked you who among those in the investigation room the person whom you saw? Victorino Bohol: No, sir. Somebody approached me and said, iyan po. But before answering, I made a very careful look at the person. 14 We are not convinced, however, that the phrase "iyan po" constituted an "improper suggestion," certainly not in the context of a situation where, as here, appellant Santos was identified successively by Bautista and Bohol from a group of person. We consider that the phrase "iyan po" is too cryptic. What that Court warned against in People v. Acosta, 15 i.e., against an identification process that was "pointedly suggestive, or generated confidence when there was noen, activated visual imagination, and all told, subverted [a person's] reliablity as [an] eye-witness [..]," has not been successfully shown in the case at bar. Appellant Santos next seeks to assail the credibility of Bautista and Bohol by citing supposed inconsistencies between statements made in their affidavits before trial and their testimony given in the course of the trial. Appellant's counsel complains 16 that while witness Bohol could recall the gunmen's general apperance, he could not remember the kind of shoes that appellant Santos was wearing nor the color of their guns; that he had stated in his swon statement that he had picked out appellant Santos from a line-up consisting of seven (7) persons, while he testified in open court that he had identified appellant when the later was together with only one (1) detainee in the investigation froom of the police station; that Bohol had intiallystated that Bautista was driving the jeep but on direct examination, he stated that it was Cupcupin instead who had been driving the jeep; that in his sworn statement, Bohol had claimed that he was directing traffic when he first heard gunshots, but on cross-examination, stated that at the point he was engaged in taking his merienda. Close examination of the record will, however, show that the supposed inconsistenceise adduced by appellant Santos are either non-existent or clearly minor and inconsequential in character. The fact that witness Bohol might not have remembered the kind of shoes appellant Santos was wearing onthat violent occassion nor the color of the gunmen's weapons, is clearly inconsequential. Close scrutiny of the sworn statement of Bohol (Exhibit "A") does not reveal any statement that he (Bohol) had picked out appellant Santos from a seven (7) - person line-up nor does the transcript show that witness Bohol had identified appellant Santos when appellant was alone with only one detainee in the investigation room at the police station. 17 Appellant's counsel did not document his averments. Moreover, as pointed out by the Solicitor General, 18 whether a police line-up considted of two (2) or seven (7) persons is actually immaterial since a police line-up is not essential to a proper and positive identification. 19 Whether it was Bautista or Cupcupin who had been driving the jeep and whether Bohol was direcitng traffic or enjoying his merienda when the first gun shots rang out, cannot be regarded as critical in nature; such questions do not detract from the basic facts that Bohol was in a position and Bautista and saw both assailants and the victims. The netrenched principle is that minro

inconsistencies in the testimony of a witness tend to strengthen rather than to weaken the credibility of the witness as they erase any suspicion of rehearsed testimony. 20 In his second assignment of error, appellant Santos in effect questions the trial court for admitting a sworn statement by one Ronaldo Guerrero (Exhibit "EE"), a witnesses in another criminal case (Criminal Case No. 8117) where appellant Santos was also charged with the murder of one Daniel Nuguera which had taken place in the very same site where Bautista and Cupcupin were ambushed, i.e., at the corner of Yangco Street and Estrella Street, Malabon, Metro Manila. When the prosecution first presented the sworn statement of Guerrero in order to show criminal propensity on the part of appellant Santos, the defesne objected to admission of such sworn statment; the trial court sustained the objection and rejected the evidence for the purpose it was initially offered. However, the trial court admitted the same as falling within one or more of the exceptions set out in Section 34, Rule 130 of the Rules of Court, which reads: Sec. 34. Similar Acts as Evifence. Evidence that one did or didnot do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, shceme, habit, custom or usage and the like. (Empahsis supplied). Appellant Santos now complains that the affidavit of Ronaldo Guerrero was hearsay evidence, considering that the prosecution did not present Ronaldo Guerrero as a witness during the trial. We consider that the trial court did not commit reversible error in admitting the Guerrero affidavit for the limited purpose for provign knowledge or plan or shceme, and more specifically, that appellant knew that the particular corner of two (2) particular streets in Manila was a good place to ambus a vehicle and its passenters. Appellant also had waived the hearsay character of this evidence by failure seasonably to ojbect to the admission of the affidavit; it is too late in that day to raise the hearsay rule in the appellant's memorandum after prosecution and defense had presented their respective cases and had made their repsective offers of evidence. 21 Finally, and in any cae, as pointed out by the Solicitor General, the exclusion of the Guerrero affidavit would not result in any change in the result reache by the trial court. For that result is esentially and adequately based upon the positive identification of appellant Santos as one of the gunmen by Baustisa and Bohol. That it took the police authorities five (5) months to locate and apprehend appellant Santos who, it turned out, resided close by the very locale of the ambush-slaying, did not in any way weaken the evidence of the prosecution of detract from the conclusions reached by the trial court. The length of that period of time shows only that police procedures are not always as efficient as they could be and that witnesses are frequently reluctant to voluntee information to the police authorities in criminal cases, a point noted so frequently as to have become a matter of judicial notice. 22 Finally, we come to the defense of alibi which appellant Santos raised before the trial court and which was recounted by the trial court in the following manner: Accused Raul Santos, after denying the accusations against him, insisted that he was on the date and time that Cupcupin and Bautista were ambushed somwhere in Ibaan, Batangas to which place he went on May 20, 1989, because his sister Teresita received a subpoena in a case involving one Apolonio Nuguera and which subpoena was given to him by another sister named Isabel. Accused Santos claimed that he was surprised and confused by said subpoena (Exh. 2) and had to got to Batangas while his sisters are verifying the complaint against him. Accused Santos also maintained that from the time he left the place on June 12, 1989, he remained continuously in said place. xxx xxx xxx

The testimony of accused Santos regarding his stay in Batangas was corroborated by Melinda David in show house he stayed and by this sister Isabel Santos. 23 In respect of the weight properly given to a defense of a alibi, the Court has, times beyond numbering, ruled that such defense is weak most especially when established exclusively or mainly by the accused himself and his relatives and nto by independent and credible persons, 24 and that such a defense will not prevail over the positive idenfication made by credible witnesses, 25 especially where the witness is the victim-complainant himself. WHEREFORE, for all the foregoing, we hold that the judgment of conviction rendered by the trial court must be, and it is hereby, AFFIRMED with the following modifications: the civil indemnity payable to the heirs of Glicerio Cupcupin shall be INCREASED to P50,000.00; the penalty of life imprisonment in Criminal Case No. 8517-MN shall be CHANGED to reclusion perpetua, which is the proper imposable penalty under the Revised Penal Code. Costs against apellant. SO ORDERED. Bidin, Davide Jr., Romero and Melo, JJ., concur.

32. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 133888 March 1, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO NARDO Y ROSALES, accused-appellant. PER CURIAM: This case is before this Court on automatic review from the Regional Trial Court of Legazpi City, Albay, Branch III, which imposed on accused-appellant the death penalty for rape in Criminal Case No. 7170. The victim, Lorielyn R. Nardo, is the eldest daughter of accused- appellant. She was born on September 11, 1981 and, at the time of the incident, was fourteen (14) years old.1 On February 24, 1996, around noon, Lorielyn was in their house located in Barangay 3, Camalig, Albay, together with her father, accused-appellant Alfredo Nardo, two younger brothers, Leonel and Louie, and maternal grandfather, Vicente Remot. At 1:30 o'clock in the afternoon, after they had lunch, Vicente left for work. Alfredo told his sons, Leonel and Louie, to go out. He then ordered Lorielyn to get his cigarettes in his bedroom. When Lorielyn went inside the bedroom, her father followed her. He embraced Lorielyn from behind and began mashing her breasts. Lorielyn pleaded, "Papa, please stop it. Have mercy." Her father ignored her. Instead, he undressed her and pushed her to the bed. Lorielyn started to cry, while Alfredo took off his clothes. Then, he lay on top of her and had sexual intercourse with her. He kissed her from the neck down. She tried to free herself but Alfredo took hold of a knife from a nearby cabinet and pointed it at her right ear. He threatened to kill their whole family if Lorielyn told anyone what he did. When he was finished, Alfredo left the house. During all this time, Lorielyn's mother, Elizabeth Nardo, was washing clothes about five houses away.2 Elizabeth returned home at about 3:00 o'clock p.m. She saw Lorielyn crying while washing the dishes. She asked Lorielyn why she was crying, but her daughter said nothing.3 On March 19, 1996, Lorielyn was washing clothes when her father approached her and whispered, "We will play tonight near the river." Lorielyn understood this to mean that her father wanted to have sexual intercourse with her again. She finished the laundry and left the house. She took a passenger jeepney to Barangay Libod, Camalig, Albay and proceeded to the house of her aunt, Carol Navera. She stayed there until her aunt arrived at around 5:00 o'clock in the afternoon. When it became late, Carol told Lorielyn to go home, but she decided to spend the night at her aunt's house because she was afraid to undergo the ordeal from her father again.4 The next day, Lorielyn's brother, Leonel, was sent by her father to fetch her, but she refused to go with him. Her aunt asked her again why she did not want to go home. She merely said she had a problem. She slept at her aunt's house again that night. The following day, her mother came to fetch her. Lorielyn told her mother she did not want to go home. She said "Mama, do you want me to

become pregnant in that house?" Her mother asked, "Who will impregnate you there?" Lorielyn replied, "Your husband." Her mother retorted that Alfredo could not do that to her, then left.5 Lorielyn stayed at her aunt's house until March 22, 1996. On that date, Carol again asked Lorielyn what her problem was. Finally, she told her aunt that her father raped her. Immediately, Carol went to report the matter to the police. She later returned home with two policemen, and together they brought Lorielyn to the Camalig Police Station. The rape was entered in the police blotter.6 The policemen then brought Lorielyn to the Municipal Health Office of Camalig, Albay, where she was examined by Dr. Melvyn F. Orbe, the Municipal Health Officer.7 From there Lorielyn was brought to the Municipal Trial Court of Camalig-Albay to file a formal complaint for rape against her father, Alfredo Nardo.8 On May 29, 1996, an Information for rape was filed against Alfredo Nardo, charging as follows: That on or about the 24th day of February 1996, at more or less 1:30 o'clock in the afternoon, at Brgy. No. 3, Municipality of Camalig, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of the herein victim, with lewd and unchaste design, by means of violence, force and intimidation, armed with a knife, did then and there wilfully, unlawfully and feloniously have carnal knowledge with her (sic) own daughter, LORIELYN R. NARDO, a 14 year old girl, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW.9 At the arraignment on August 8, 1996, accused-appellant pleaded not guilty.10 The prosecution presented Dr. Melvyn Orbe, who testified on the following findings as a result of his examination of the victim, Lorielyn Nardo: Pelvic Examination: whitish to yellowish discharge irritation lateral aspect of the posterior vulva at 3 o'clock healed laceration hymenal in origin posterior aspect of the fourchette11 Dr. Orbe stated that based on these findings, it is possible that Lorielyn had sexual intercourse.12 Carolina Navera, testifying for the prosecution, corroborated Lorielyn's statement that the latter went to her house on March 20, 1996. Lorielyn cried and told her that she did not want to go home because she had a problem. Elizabeth, Lorielyn's mother, came to fetch her but she refused to go home, saying that she was raped by her father. Upon hearing this, Elizabeth left and told Carolina not to let Lorielyn leave her house. After Elizabeth was gone, Carolina went to the police station. She returned later with two policemen, who then brought Lorielyn to the police headquarters.13 Ma. Francia Aguilar, the social welfare officer of the Department of Social Welfare and Development, also testified that in the evening of March 22, 1996, she responded to a report of a rape incident. She met the victim, Lorielyn Nardo, at the house of Cely Bantog, a social worker, at Camalig, Albay. She interviewed Lorielyn and her mother, Elizabeth, for the purpose of preparing a Social Case Study Report.14 Thereafter, she endorsed Lorielyn to the DSWD Center for Girls in Sorsogon, Sorsogon to undergo therapeutics.15

SPO3 Jose Nuylan, a member of the Camalig police force, testified that he investigated the rape incident and took the statement of Lorielyn Nardo.16 Elizabeth Nardo, the victim's mother, was called to the witness stand. She testified that she and Alfredo are not married, but they have been living together. They have seven children, the eldest of whom is Lorielyn. She stated that Lorielyn was born on September 11, 1981 at Anei, Claveria, Misamis Oriental; that Lorielyn's birth certificate was burned in the Municipal Building of Misamis Oriental.17 However, Elizabeth presented and identified Lorielyn's baptismal certificate showing that she was born on September 11, 1981.18 The defense, on the other hand, presented lawyer Santer G. Gonzales, the employer of accusedappellant. He testified that accused-appellant worked as a helper at his farm in Quirangay, Camalig, Albay. On February 24, 1996, accused-appellant arrived at his farm before 8:00 o'clock in the morning. He was followed by his father-in-law, Vicente Remot, who lived with him in the same house. It started to rain hard, so they decided not to work that day. Vicente Remot went home at around 8:30 or 9:00 o'clock in the morning. Accused-appellant stayed behind. After a while, Paterno Ramas, a neighbor of Atty. Gonzales, arrived. They started to drink. None of them left the farmhouse since Atty. Gonzales kept bottles of gin and cigarettes in stock. They were joined later in the afternoon by Didjo Mujar, another friend of Atty. Gonzales. They drank about five bottles of gin and sang while Atty. Gonzales played the guitar. The rain subsided at around 3:30 o'clock in the afternoon, so they stopped drinking. At 4:00 o'clock in the afternoon, accused-appellant left.19 The farm is located around 400 to 500 meters away from Barangay 3, where accused-appellant and the victim reside, and can be reached in 15 minutes.20 When asked to comment on the victim, Lorielyn Nardo, Atty. Gonzales described her as one capable of telling a lie. He narrated that once, she went to his farm to collect the amount of P50.00 as daily wage of her grandfather, Vicente Remot, but she gave only P35.00 to her mother. Elizabeth thus went to Atty. Gonzales' to ask about the deficiency. They later learned from Lorielyn's younger sister that she spent the missing P15.00 on snacks.21 Vicente Remot, accused-appellant's father-in-law, corroborated Atty. Gonzales' testimony that he reported for work at the latter's farm in the morning of February 24, 1996, but he was unable to work because of the rain, so he went home instead, leaving accused-appellant in the farm. At 1:00 o'clock in the afternoon of that day, he was at home watching television with Elizabeth and his grandchildren, including Lorielyn. He refuted Lorielyn's claim that he left after lunch to work, saying that he stayed in the house the whole afternoon since it was raining.22 Elizabeth also testified that on February 24, 1996, she was at home watching television with her father and children, namely, Lorielyn, Lewcherd, Lailani, Leonel, Louie Boy and Leo Boy. All her children were at home because it was a Saturday. She claimed that Lorielyn filed the complaint for rape against her father because he was very strict with her. She learned from Lorielyn's best friend that she had a problem with her boyfriend, a certain Erwin Loreno. At one time, Lorielyn asked permission to attend a holy retreat, but Elizabeth found out from the school that there was no such retreat. Lorielyn lied on another occasion, when she told Mrs. Bonifacia "Paz" Nieva that her grandfather was sick so she can borrow money.23 Mrs. Bonifacia Nieva testified that her daughter was a classmate of Lorielyn. Once, Lorielyn visited her saying that she was sent by Elizabeth to borrow money because her grandfather was sick. Mrs. Nieva gave Lorielyn P200.00. Later, when she went to see Elizabeth to collect payment, she found out that Lorielyn's grandfather did not get sick. Lorielyn admitted to her that she lied about it to be able to borrow money.24

The prosecution recalled Lorielyn to the witness stand by way of rebuttal evidence. She refuted Atty. Gonzales' statement that she did not turn over in full the salary of her grandfather in the amount of P50.00. She denied that she lied to her mother about a holy retreat held by her school. Anent the amount of P200.00 she borrowed from Mrs. Nieva, she asserted that it was her father who ordered her to do that, and that she gave the whole sum of P200.00 to him.25 On clarificatory questioning by the presiding judge, Lorielyn maintained that her grandfather, Vicente Remot, indeed came home in the morning of February 24, 1996, but he left again to go to Atty. Gonzales' farm after lunch. That afternoon, her mother was at the public faucet located far away from their house washing clothes. The judge wondered aloud why she was doing the laundry in the afternoon when this is usually done in the morning. Lorielyn replied that her mother had started doing the laundry in the morning but that she was not able to finish it, so she returned in the afternoon to continue her chore. She denied having any male friends, saying all her friends are girls. When asked once more by the judge, Lorielyn reiterated that her father had sexual intercourse with her.26 Carolina Nieva and Elizabeth Nardo were presented as sur-rebuttal witnesses. They testified in sum that Lorielyn had a boyfriend.27 Accused-appellant was presented as the last witness. He denied that he raped his daughter on February 24, 1997, saying that he was at the farm of Atty. Gonzales. He scolded Lorielyn when he learned from her sister and brother that she was always going around with a boy. He also stated that Lorielyn got mad at him because he did not permit her to leave the house whenever she wanted to.28 On March 3, 1998, the trial court rendered judgment as follows: WHEREFORE, IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, this court finds the accused ALFREDO NARDO Y ROSALES GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE and sentences him to suffer the penalty of DEATH. The said accused in likewise ordered to pay Lorielyn Nardo the amount of Fifty Thousand Pesos (P50,000.00) for moral damages. For humanitarian reasons, however, it is recommended that the DEATH penalty be commuted to RECLUSION PERPETUA. SO ORDERED.29 Accused-appellant raises the following assignment of errors: I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE VICTIM LORIELYN AND DISREGARDING THE EVIDENCE FOR THE DEFENSE. II THE TRIAL COURT ERRED IN REFUSING TO RECITE THE REASONS WHY IT WAS RECOMMENDING EXECUTIVE CLEMENCY FOR THE ACCUSED.30 Accused-appellant assails the trial court's finding that Atty. Gonzales was his employer and therefore was likely to testify in his favor; and that he could not have noticed accused-appellant leave the farm in the afternoon of February 24, 1996 because he had one drink too many. Accused-appellant contends that the court should not have been too quick to condemn him when his witness was a

lawyer. Furthermore, he argues that Lorielyn's conduct after the alleged rape, specifically from February 25 to March 19, 1996, during which she stayed in the house with her father and continued to do her daily chores, creates a doubt on the veracity of the charge. In the Reply Brief for accused-appellant,31 defense counsel reveals that Lorielyn wrote her the following letter: 7-13-99 Dear Atty. De Guzman: Ako nga po pala si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinbin pa sa ngayon sa Maximum Security Compound NBP I-D Muntinlupa City. Sumulat po ako sa inyo upang humingi ng tulong na gawin po sana ang lahat, wala po talagang kasalanan ang aking ama ako na po mismong nag-akusa ang nagsasabi na walang katotohanan ang lahat ng mga sinabi ko na pinagsamantalahan niya ako. Nagawa ko lang po 'yon dahil masyado po kasi siyang mahigpit sa aming magkakapatid. Atty. tulungan ninyo sana ako, nalaman ko nga po pala ang inyong address dahil dumalaw po ang mama ko noon sa papa ko at hiningi ko naman po para masulatan ko po kayo. Umaasa po akong lubos na ako'y inyong matutulungan. Lubos na umaasa LORIELYN NARDO32 On May 4, 2000, counsel for accused-appellant filed a Supplemental Reply Brief,33 alleging that she received another letter from Lorielyn Nardo which states: 04-17-2000 Dear Atty. Teresita de Guzman, Unung-una po sa lahat ay nagpapasalamat po ako sa pag-response mo sa letter. Ako nga po pala si Lorielyn Nardo na anak ni Mr. Alfredo Nardo na nakapiit ngayon sa DORM 1-D ng Muntinlupa, ako po yung nagpadala ng liham sa inyo. Attorney, lagi ko pong ipinagdarasal na nawa'y matapos na ang paghihirap at pagdurusa ng aking ama sa loob ng piitan, nawa'y matapos na ang lahat ng problema upang manumbalik muli ang sigla ng aming pamilya. Nagpapasalamat nga rin po pala ako sa ginagawa mong pagtulong sa amin, attorney nawa po ay makamit nyo ang tagumpay. Hanggang na lamang po ang aking liham, umaasa po ako sa inyong pang-unawa at tagumpay. Nagpapasalamat at umaasa, Lorielyn Nardo34

In compliance with the Court's Resolution dated November 14 2000,35 the Office of the Solicitor General filed its comment on the letters of Lorielyn Nardo,36 contending that there is no mention of her father's innocence in her letter dated April 17, 2000. Rather, she merely expressed therein her deep sympathy for her father's situation in prison. The Solicitor General argues that a recantation is not sufficient to warrant the exoneration of accused-appellant after he has been proven guilty beyond reasonable doubt based on Lorielyn's candid, categorical and straightforward testimony before the trial court. In the meantime, counsel for accused-appellant, by way of a Manifestation and Motion,37 submitted two more letters from Lorielyn Nardo which are hereunder reproduced, viz: August 10, 2000 Dear Attorney, Unang-una po sa lahat ay ang taos-puso kong pasasalamat, sa dahilang pagpapaunlak niyo sa kahilingan kong maipasa sa korte ang isang liham ng katotohanan, at kahit wala pa po ang isang desisyon mula sa korte ay lubos po akong umaasa at nagtitiwala sa inyong kakayahan. Attorney, kung alam niyo lang po ng matanggap at mabasa ang isang letter na nagmula sa'yo ay punung-puno po ng kaligayahan ang aking puso dahil kahit papaano ay nabawasan na ang pag-aalinlangan sa aking isipan. Sa ngayon po ay patuloy na lang akong umaasa na sana isang araw ay makita kong muling masaya ang aking pamilya. Attorney, isang pabor po ang nais kong hilingin, na sana bago magpasko ay muli ko ng makasama ang aking ama, at gusto ko pong maging ninyo 'to sa akin sa darating na pasko. Hanggang dito na lamang po ang aking liham, at lubos po akong nagtitiwala sa inyong kakayahan na mapapawalang sala ang aking ama. Truly yours, Lorielyn Nardo38 January 17, 2001 Dear Atty. Teresita De Guzman, Ako po muli si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinhin sa NBP Dorm-1-D Muntinlupa. Kahit hindi po natupad ang hinihiling kong sana'y makalaya ang aking ama noong nakaraang Disyembre ay patuloy ko pa rin pong inaasahan at hinihiling ang inyong tulong na sana po ay makalaya na ang aking ama. Patuloy pong nangingibabaw ang aking konsensiya dahil sa aking ginawa, usmaasa po ako na sana ay lalo pang mapadali ang paglabas niya sa loob ng kulungan, maniwala po kayo wala siyang kasalanan. Attorney, alam ko po na ginagawa niyo (po) ang lahat kaya't ngayon pa lang po ay nagpapasalamat ako sa inyo at patuloy na umuasa ng inyong tulong at sana 'y maunawaan niyo ako. Patuloy na umaasa, Lorielyn Nardo (anak)39

Accused-appellant relies on these letters to obtain a reversal of the trial court's judgment of his conviction. However, the said letters were not subscribed and sworn to by Lorielyn. Be that as it may, recantations are frowned upon by the courts. A recantation of a testimony is exceedingly unreliable, for there is always the probability that such recantation may later on be itself repudiated. Courts look with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary consideration. A retraction does not necessarily negate an earlier declaration.40 Especially, recantations made after the conviction of the accused deserve only scant consideration.41 Moreover, any recantation or affidavit of desistance, by itself, even when construed as a pardon in the so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted.42 The pardon to justify the dismissal of the complaint should be made prior to the institution of the criminal action.43 Parenthetically, the crime in the case at bar was committed in 1996, i.e., prior to the passage of the R.A. 8353, The Anti-Rape Law of 1997, which reclassified rape as a crime against persons. Even if it were sworn, Lorielyn's recantation could hardly suffice to overturn the finding of guilt by the trial court which was based on her own clear and convincing testimony, given during a full-blown trial. An affidavit of recantation, being usually taken ex parte, would be considered inferior to the testimony given in open court. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his/her mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses.44 As stated, the trial court arrived at its finding of guilt after a careful assessment of the evidence presented, foremost of which was the testimony of the victim in open court, where the trial judge was able to personally evaluate her manner of testifying, and from there reach a studied opinion as to her credibility. As a rule, we do not disturb the findings by the trial court on the credibility of witnesses, for the trial court is in a better position to pass upon the same.45 "The trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked; she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien."46 We find nothing in the records which would indicate that the findings of fact of the trial court are not supported by the evidence or were arrived at in manifest or palpable error, such as to warrant a departure from the foregoing rule. The trial court was correct in lending credibility to the testimony of Lorielyn. The sole testimony of Lorielyn was sufficient to establish the guilt of accused-appellant. It is settled that a person accused of rape can be convicted solely on the testimony of the victim if the trial court finds said testimony to be credible, natural, convincing, and consistent with human nature and the course of things.47 Indeed, a daughter, especially one in her minority, would not accuse her own father of such an unspeakable crime as incestuous rape had she really not been aggrieved.48 More importantly, Lorielyn withstood all the rigors of the case, starting from the initial police interrogation, the medical examination, the formal charge, the public trial, to the cross-examination. She went through the court hearings, where she came face to face with her father. If it was true that she merely made up

the charge, she should have been bothered by her conscience at the sight of her father in prison garb and upon the realization of his sorry state while in detention. The fact that she maintained her story during her testimony-in-chief all the way up to her rebuttal testimony only serves to substantiate the veracity of her claim. Well settled is the rule that no woman would concoct a story of defloration, allow an examination of her private parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid tale was not true and her sole motivation was not to have the culprit apprehended and punished.49 A young girl's revelation that she has been raped, coupled with her voluntary submission to medical examination and her willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity by, as in this case, her own father, cannot be so easily dismissed as a mere concoction. 50 Courts usually give credence to the testimony of a girl who is a victim of sexual assault, particularly if it constitutes incestuous rape because, normally, no person would be willing to undergo the humiliation of a public trial and to testify on the details of her ordeal were it not to condemn an injustice. Needless to say, it is settled jurisprudence that testimonies of child-victims are given full weight and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape was committed. Youth and immaturity are generally badges of truth and sincerity.51 During the trial, the defense endeavored to portray Lorielyn as an incorrigible liar. Occasions were cited wherein Lorielyn supposedly lied in order to obtain money or her parents' permission to leave the house. However, Rule 130, Section 34, of the Rules of Court provides that: "Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did nor did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like." While lying may constitute a habit, we believe that the falsehoods committed by Lorielyn, assuming them for the moment to be true, are petty and inconsequential. They are not as serious as charging one's own father of the sordid crime of rape, with all of its serious repercussions. Accused-appellant argues that the trial court should have given credence to his witness, Atty. Santer G. Gonzales, because he is a member of the bar. Atty. Gonzales, however, took the witness stand not as a lawyer but as an ordinary person. He testified in his capacity as accused-appellant's employer. As such, no special privilege should be accorded him by the trial court by reason only of his being a member of the bar. He did not appear in that case as an officer of the court but as a mere witness, and hence should be treated as one. Likewise, accused-appellant insists that Lorielyn's conduct after the rape, during which she continued to perform her tasks and lived with her father in their house, negates the commission of rape. Accused-appellant's proposition is derived from Lorielyn's perfunctory yes-or-no answers to the leading questions propounded to her on cross-examination. Rather than sustain this argument, we rely instead on the observations of the Social Welfare Officer, whom we find to be an impartial witness, in this wise: Per observation, Lorielyn is a shy and silent type person. She talked in a very small voice and during the interview she only talks when being asked. She also appears to be very sad and have been staring blankly (sic).52 Accused-appellant assigns as error the trial court's failure to give the reasons for recommending the commutation of his sentence from death to reclusion perpetua. As correctly observed by the Solicitor General, the trial court was impelled by humanitarian reason.53 Moreover, the commutation of sentence is a prerogative of the Chief Executive.

As against the positive and categorical testimony of Lorielyn, accused-appellant can only proffer the defense of alibi. However, in order to overcome the evidence of the prosecution with the defense of alibi, he must establish not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been at the scene of the crime at the time it was committed.54 In the instant case, the testimonies for the defense sought to establish that accusedappellant was 400 to 500 meters, or 15 minutes, away from the scene of the crime. This hardly qualifies as proof that it was physically impossible for him to be at the scene of the crime when it was committed. Accused-appellant's defense of alibi must, therefore, necessarily fail. Carefully sifting through the entire body of evidence presented in this case, we find nothing which would destroy the moral certainty of accused- appellant's guilt. While there may be some inconsistencies in the testimony of Lorielyn, these to our mind are minor inconsistencies which serve to strengthen her credibility as they are badges of truth rather than indicia of falsehood.55 Minor inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than weaken their credibility. Inconsistencies in the testimony of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony. Such minor flaws may even enhance the worth of a testimony, for they guard against memorized falsities.56 Besides, a rape victim can not be expected to recall vividly all the sordid details of the violation committed against her virtue. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, provides: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim. . . ..57 The concurrence of the two special qualifying circumstances, namely the victim's minority and the relationship between the victim and the culprit, increases the penalty of rape to one (1) degree, thus resulting in the imposition of the death penalty. In order to be appreciated as qualifying circumstances, however, these must be properly pleaded in the indictment.58 In addition, the qualifying circumstances should be duly proved during the trial.59 These requirements are met in this case. The Information sufficiently alleges that accused-appellant is the father of the victim, and that the latter was fourteen (14) years old at the time of commission of the rape. These elements, furthermore, were categorically affirmed by Elizabeth Nardo, the victim's mother and the most competent witness. She testified that accused-appellant is Lorielyn's father, and that Lorielyn was born on September 11, 1981,60 thus placing her age at the time of the rape at fourteen (14) years. Moreover, the Lorielyn's birth date and her relationship to accused-appellant are shown by her Certificate of Baptism.61 This was presented by her mother, Elizabeth, in lieu of her Certificate of Live Birth, which was destroyed by fire.62 The baptismal certificate, coupled by her mother's testimony, is sufficient to establish Lorielyn's age.63 We therefore affirm the trial court's imposition of the death penalty. Four justices of the Court have continued to maintain the unconstitutionality of Republic Act No. 7659 insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the majority to the effect that this law is constitutional and that the death penalty can be lawfully imposed in the case at bar.

We likewise affirm the award of P50,000.00 for moral damages which is consistent with prevailing jurisprudence.64 No proof is required to substantiate the award of moral damages in rape cases. In People vs. Prades,65 we held: x x x The Court has also resolved that in crimes of rape, such as that under consideration, moral damages may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore been the practice. Indeed, the conventional requirement of allegata et probata in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are filed wherein such allegations can be made. Corollarily, the fact that complainant has suffered the trauma of mental, physical and psychological sufferings which constitute the bases for moral damages are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assumes and acknowledges such agony on her part as a gauge of her credibility. What exists by necessary implication as being ineludibly present in the case need not go through the superfluity of still being proved through a testimonial charade. In addition to moral damages, the amount of P75,000.00, is awarded to the victim as indemnity. x x x Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. The Court believes that, on like considerations, the jurisprudential path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence of heinous crimes against chastity.66 WHEREFORE, the judgment of the Regional Trial Court of Legaspi City, Albay, Branch III, convicting accused-appellant Alfredo Nardo y Rosales of the crime of rape, sentencing him to death, and ordering him to pay the victim, Lorielyn Nardo moral damages in the amount of P50,000.00, is AFFIRMED with the MODIFICATION that accused-appellant is, further, ordered to pay the victim civil indemnity in the amount of P75,000.00. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let certified true copies thereof, as well as the records of this case, be forwarded without delay to the Office of the President for possible exercise of the clemency or pardoning power. SO ORDERED. Davide, Jr., C .J ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ ., concur. 33.

Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. 139070 May 29, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL LEE, accused-appellant. PUNO, J.: On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98), which sentenced accused-appellant Noel Lee to death for the murder of Joseph Marquez. On May 27, 1998, an Information was filed against accused-appellant charging him with the crime of murder committed as follows: "That on or about the 29th day of September 1996, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation did then and there willfully, unlawfully and feloniously attack and shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a handgun, thereby inflicting upon the latter serious physical injuries, which ultimately caused the victims death. CONTRARY TO LAW."1 Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution presented the following witnesses: (a) Herminia Marquez, the mother of the victim; (b) Dr. Darwin Corpuz, a resident doctor at the Manila Caloocan University (MCU) Hospital; (c) PO2 Rodelio Ortiz, a police officer who examined the crime scene; and (d) Dr. Rosaline Cosidon, a medico-legal officer of the Philippine National Police (PNP) Crime Laboratory. The prosecution established the following facts: At 9:00 in the evening of September 29, 1996, Herminia Marquez, 46 years of age and her son, Joseph, 26 years of age, were in the living room of their house located at No. 173 General Evangelista St., Bagong Barrio, Caloocan City. The living room was brightly lit by a circular fluorescent lamp in the ceiling. Outside their house was an alley leading to General Evangelista Street. The alley was bright and bustling with people and activity. There were women sewing garments on one side and on the other was a store catering to customers. In their living room, mother and son were watching a basketball game on television. Herminia was seated on an armchair and the television set was to her left. Across her, Joseph sat on a sofa against the wall and window of their house and the television was to his right. Herminia looked away from the game and casually glanced at her son. To her complete surprise, she saw a hand holding a gun coming out of the open window behind Joseph. She looked up and saw accused-appellant Noel Lee peering through the window and holding the gun aimed at Joseph. Before she could warn him, Joseph turned his body towards the window, and simultaneously, appellant fired his gun hitting Josephs head. Joseph slumped on the sofa. Herminia stood up but could not move as accused-appellant fired a second shot at Joseph and three (3) shots more two hit the sofa and one hit the cement floor. When no more shots were fired, Herminia ran to the

window and saw accused-appellant, in a blue sando, flee towards the direction of his house. Herminia turned to her son, dragged his body to the door and shouted for help. With the aid of her neighbor and kumpare, Herminia brought Joseph to the MCU Hospital where he later died.1wphi1.nt Police investigators arrived at the hospital and inquired about the shooting incident. Herminia told them that her son was shot by Noel Lee. From the hospital, Herminia went to the St. Martin Funeral Homes where Josephs body was brought. Thereafter, she proceeded to the Caloocan City Police Headquarters where she gave her sworn statement about the shooting.2 Upon request of the Caloocan City police, a post-mortem examination was made on Josephs body. Dr. Rosaline O. Cosidon, a medico-legal officer of the PNP Crime Laboratory Service made the following findings: "FINDINGS: Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the dependent portions of the body. Conjunctiva are pale, Lips and nailbeds are cyanotic. A needle puncture mark was noted at the dorsum of the right hand. HEAD: (1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just right of the anterior midline, 161 cm from heel, with an upbraded collar, measuring 0.2 cm superiorly and laterally, 0.1 cm medially and inferiorly directed posteriorwards, downwards and to the left fracturing the frontal bone, lacerating the brain. A deformed slug was recovered embedded at the left cerebral hemisphere of the brain. (2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2 cm left of the posterior midline, 162 cm from heel, with a uniform 0.2 cm upbraded collar, directed slightly anteriorwards, downwards and lateralwards, fracturing the occipital bone and lacerating the brain. A deformed slug was recovered at the left auricular region. (3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the anterior midline. There are subdural and subarachnoidal hemorrhages. Stomach is full of partially digested food particles and positive for alcoholic odor. CONCLUSION: Cause of death is intracranial hemorrhage as a result of gunshot wounds. Head."3 At the time of his death, Joseph was employed as driver by the Santos Enterprises Freight Services earning P250.00 a day.4 He left behind two children by his live-in partner who are

now under his mothers care and support. Herminia spent approximately P90,000.00 for the funeral and burial expenses of her deceased son. The expenses were supported by receipts5 and admitted by the defense.6 Herminia filed a complaint for murder against accused-appellant. The complaint, docketed as I.S. No. 96-3246, was however dismissed for insufficiency of evidence in a Resolution dated December 4, 1996 by Prosecutor Dionisio C. Sison with the approval of Caloocan City Prosecutor Rosauro J. Silverio.7 Herminia appealed the order of dismissal to the Secretary of Justice. In a letter dated March 16, 1998, Secretary of Justice Silvestre Bello III reversed and set aside the appealed Resolution and ordered the City Prosecutor of Caloocan City to file an information for murder against the accused-appellant.8 Accordingly, the Information was filed and a warrant of arrest issued against accused-appellant on June 8, 1998. On October 16, 1998, appellant was arrested by agents of the National Bureau of Investigation (NBI). Appellant is a well-known figure in their neighborhood and has several criminal cases pending against him in Caloocan City. He was charged with frustrated homicide in 1984 and attempted murder in 1989.9 For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a neighbor; and (b) himself. He denies the killing of Joseph Marquez. He claims that from 8:00 to 10:00 in the evening of September 29, 1996, he was in his house located at 317 M. de Castro St., Bagong Barrio, Caloocan City. He was having some drinks with his neighbor, Orlando Bermudez, and his driver, Nelson Columba. They were enjoying themselves, drinking and singing with the videoke. Also in the house were his wife, children and household help. At 10:00 P.M., Orlando and Nelson went home and accused-appellant went to sleep. He woke up at 5:30 in the morning of the following day and learned that Joseph Marquez, a neighbor, was shot to death. To appellants surprise, he was tagged as Josephs killer.10 Accused-appellant had known the victim since childhood and their houses are only two blocks apart. Joseph had a bad reputation in their neighborhood as a thief and drug addict. Six days before his death, on September 23, 1996, accused-appellant caught Joseph inside his car trying to steal his car stereo. Joseph scampered away. As proof of the victims bad reputation, appellant presented a letter handwritten by his mother, Herminia, addressed to Mayor Reynaldo Malonzo of Caloocan City, and sent through PO3 Willy Tuazon and his wife, Baby Ruth. In the letter, Herminia was surrendering her son to the Mayor for rehabilitation because he was hooked on shabu, a prohibited drug, and was a thief. Herminia was scared that eventually Joseph might not just steal but kill her and everyone in their household because of his drug habit.11 The accused-appellant likewise explained the two criminal cases filed against him in 1984 and 1989. The information for attempted murder was dismissed as a result of the victims desistance while in the frustrated homicide case, the real assailant appeared and admitted his crime.12 In a decision dated June 22, 1999, the trial court found accused-appellant guilty and sentenced him to the penalty of death. The court also ordered appellant to pay the heirs of the victim civil indemnity of P50,000.00, actual damages of P90,000.00, moral damages of P60,000.00 and exemplary damages of P50,000.00 and the costs of the suit. Thus:

"WHEREFORE, foregoing premises considered and the prosecution having established beyond an iota of doubt the guilt of accused NOEL LEE of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code as amended by R.A. 7659, this court, in view of the presence of the generic aggravating circumstance of dwelling and without any mitigating circumstance to offset it, hereby sentences the said accused to suffer the extreme penalty of DEATH; to indemnify the legal heirs of the deceased civil indemnity of P50,000.00; to pay the private complainant actual damages of P90,000.00 plus moral and exemplary damages of P60,000.00 and P50,000.00, respectively; and to pay the costs. Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules on Criminal Procedure, as amended, let the entire records hereof including the complete transcripts of stenographic notes be forwarded to the Supreme Court for automatic review and judgment, within the reglementary period set forth in said section. SO ORDERED.13 Hence, this appeal. Before us, accused-appellant assigns the following errors: I THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELF-SERVING AND CONTRADICTORY TESTIMONY OF THE MOTHER OF THE VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF OCCURRENCE THAT LED TO THE DEATH OF JOSEPH MARQUEZ WAS BEYOND BELIEF. II THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE ACCUSED-APPELLANT, NOEL LEE, AS THE ASSAILANT BASED MERELY ON THE BIASED DECLARATION OF THE MOTHER WITHOUT CONSIDERING THE SHADY CHARACTER OF THE VICTIM AGAINST WHOM OTHERS MIGHT HAVE AN AXE TO GRIND. III THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT ON THE ACCUSEDAPPELLANT WITHOUT EVEN RAISING A FINGER IN SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996 ARE STILL PREVAILING IN 1999 WHEN THE CASE WAS TRIED ON THE MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT BEYOND DOUBT. IV THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY HERMINIA MARQUEZS VACILLATION WITH RESPECT TO THE "BUTAS NG BINTANA" AS CONTAINED IN HER SWORN STATEMENT AND THE "BUKAS NA BINTANA" AS PER HER REPAIRED TESTIMONYA SERIOUS PROCEDURAL ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF THE ACCUSED-APPELLANT. V

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH UPON ACCUSED-APPELLANT DESPITE OBVIOUS REASONABLE DOUBT."14 The assigned errors principally involve the issue of the credibility of Herminia Marquez, the lone prosecution eyewitness. Accused-appellant claims that the trial court should not have accepted Herminias testimony because it is biased, incredible and inconsistent. Herminias testimony on direct examination is as follows: "x x x

ATTY. OPENA: Now who was your companion, if any, at that time? WITNESS: Me and my son, Joseph Marquez, and the wife upstairs putting the baby to sleep. Q: A: What were you and your son, Joseph, doing then? Watching TV.

Q: Will you please tell us your position, I am referring to you and your son in relation to the television set where you are watching the show. A: We were facing each other while watching television which is on the left side.

Q: Will you please tell us where exactly was your son, Joseph, seated while watching television? A: Q: A: At the end most of the sofa. The sofa you are referring to is the one near the window. Yes, sir. Dikit lang po.

Q: Will you give us an idea or describe to us that window which you mentioned awhile ago? A: Q: Transparent glass. How high is it from the ground?

COURT: Which one? ATTY. OPENA: The window glass? WITNESS: About three feet from the ground. ATTY. OPENA TO WITNESS:

Q: You said three feet. What do you mean by that? Is that window elevated from the ground? A: The same height as this court window which is about three feet from the ground, and from one another about four by four window [sic], three feet by the ground. Q: Now, you demonstrated by showing a portion, you mean to tell us that window was mounted on a concrete or hollow block? A: Q: Hollow block, po. How high is that hollow block that you were referring to?

COURT: She said three feet. ATTY. OPENA TO WITNESS: Q: A: Q: A: Which is higher, that sofa which is posted near the window or the hollow block? Hollow block. By how many inches or feet? About half a foot.

Q: You said the sofa was long. Will you please tell us in what portion of your sofa your son Joseph was seated? ATTY. VARGAS: Already answered, your Honor. She said dulo, end of the sofa. COURT: Sustained. ATTY. OPENA TO WITNESS: Q: A: When you said end of sofa which portion, the left side or the right side? The right.

Q: Now, while you and your son were watching television, was there anything unusual that transpired? A: Q: Yes, sir. Tell us what was that all about.

A: Mayroon po akong napansin na kamay na nakatutok sa anak ko. Nakita ko po si Noel Lee na nakatayo sa may bintana. Q: What do you mean by the word "kamay?"

A: Q:

Hawak hawak po niya iyong baril, nakatutok po sa anak ko. What did you do with what you saw?

A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng baril. Tumingin po siya sa may bintana, ganoon po, sabay putok ng baril. COURT: You said he turned the head. Who turned the head? Sino ang gumanyan sa sinabi mo? A: Q: A: (Witness demonstrating that the victim peeped through the window). And then? At the same time the firing of the gun [sic] and I saw my son slumped.

ATTY. OPENA TO THE WITNESS: Q: A: Q: A: Q: A: Q: And after your son was slumped, what did you do? I went to my son and carried him to take him to the hospital. How many shots did you hear? Five shots. That was prior to helping your son? Yes, sir. And how many times was your son hit?

ATTY. VARGAS: Q: Objection, your honor. It was already answered. Because according to her it was five shots. COURT: It does not follow that the victim was hit. So, the witness may answer. WITNESS: Twice, Two shots hit my son, two shots on the sofa and one shot on the cement. COURT: How about the other one? A: Doon po sa semento.

ATTY. OPENA TO WITNESS: Q: And who fired these shots?

A:

Noel Lee.

Q: That Noel Lee that you are referring to, will you please point at him if he is around? A: Q: A: Q: (Witness going down the witness stand and pointing to accused Noel Lee). How do you know that it was Noel Lee who shot your son? Kitang kita ko po. Magkatapat po kami. Will you please describe to us?

A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi doon. Nandoon po kaming dalawa ng anak ko nanonood ng television. (Witness sobbing in tears). Napakasakit sa akin. Hindi ko man lang naipagtanggol and anak ko. COURT: She was emotionally upset. ATTY. OPENA: Ill just make it on record that the witness was emotionally upset. May I ask if she can still testify? xxx xxx xxx

WITNESS: Masakit lang po sa loob ko ang pagkawala ng anak ko. ATTY. OPENA TO WITNESS: Q: You saw that the light was bright. Where were those lights coming from?

A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog. Saka sa labas may nananahi po doon sa alley katapat ng bahay namin. At saka po doon sa kabila, tindahan po tapat po namin, kaya maliwanag ang ilaw. Q: After trying to help your son, what happened?

A: I was able to hold on to my son up to the door. Upon reaching the door, I asked the help of my kumpare. Q: A: Meanwhile, what did the accused do after shooting five times? He ran to the alley to go home.

Q: Now you said he ran to an alley towards the direction of their house. Do you know where his house is located? A: Q: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City. How far is that from your residence?

A: Q: A: Q: A:

More or less 150 to 200 meters. Where did you finally bring your son? MCU. When you say MCU, are you referring to MCU Hospital? Yes, sir. MCU Hospital.

Q: At MCU, life-saving devices were attached to my son. Later, after reaching 11:00, he died. COURT: 11:00 P.M.? A: Q: A: Yes, maam. Same day? Yes, maam. xxx xxx x x x."15

Herminias testimony is positive, clear and straightforward. She did not waver in her narration of the shooting incident, neither did she waffle in recounting her sons death. She was subjected by defense counsel to rigorous cross and re-cross examinations and yet she stuck to her testimony given in the direct examination. She readily gave specific details of the crime scene, e.g., the physical arrangement of the sofa and the television set, the height of the sofa, the wall and the window, because the crime happened right in her own living room. She explained that she was unable to warn Joseph because she was shocked by the sight of accused-appellant aiming a gun at her son. The tragic events unfolded so fast and by the time she took hold of herself, her son had been shot dead. A sons death in his mothers house and in her presence is a painful and agonizing experience that is not easy for a mother to forget, even with the passing of time. Herminias testimony shows that she was living with a conscience that haunted and blamed her own self for failing to protect her son or, at least, save him from death. Nonetheless, accused-appellant points out inconsistencies in the eyewitness testimony. In her affidavit of September 30, 1996 given before PO2 Rodelio Ortiz, Herminia declared that while she and Joseph were watching television, she saw a hand holding a gun pointed at her son. The hand and the gun came out of a hole in the window, i.e., "butas ng bintana." On cross-examination, Herminia stated that she saw a hand holding a gun in the open window, i.e., "bukas na bintana." According to accused-appellant, this inconsistency is a serious flaw which cannot be repaired by her statement on the witness stand. The inconsistency between her affidavit and her testimony was satisfactorily explained by Herminia on cross-examination:

"x x x ATTY. VARGAS

xxx

xxx

Q: You said that you saw a hand from a hole in the window with a gun, is that correct? A: Bukas na bintana. Not from a hole but from an open window.

Q: Madam witness, do you recall having executed a sworn statement before the police, right after the shooting of your son? A: Yes, sir.

Q: I will read to you paragraph 8 of your statement which is already marked as your Exhibit "A" in which is stated as follows: "Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996 habang ang aking anak ay nanonood ng palabas sa TV ng basketball malapit sa kanyang bintana sa labas at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti sa kanya, mayroon akong napansin na kamay na may hawak ng baril at nakaumang sa aking anak sa may butas ng bintana," do you recall that? A: Q: A: Q: A: Opo. What you saw from that butas is a hand with a gun, is that correct? Opo. Madam witness, your window is just like the window of this courtroom? Yes, sir.

Q: In your testimony, you did not mention what part of the window was that hand holding a gun that you saw? Is that correct? A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong bintana namin. Q: So in your sinumpaang salaysay in the statement that you said butas na bintana is not correct? A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect ko.

COURT: You show to the witness. There, butas na bintana. WITNESS: Mali po ang letra, Bukas hindi butas. xxx xxx x x x."16

Herminia corrected her affidavit by saying in open court that she saw the hand and the gun coming out of the open window, not from a hole in the window. In her direct testimony, Herminia presented a photograph of her living room just the way it looked from her side on the night of the shooting.17 The sofa on which Joseph was seated is against the wall, with the window a few inches above the wall. The window is made of transparent glass with six (6) vertical glass panes pushing outwards. The entire window is enclosed by iron grills with big spaces in between the grills. The living room is well-lit and the area outside the house is also lit by a fluorescent lamp. Between Herminias testimony in open court and her sworn statement, any inconsistency therein does not necessarily discredit the witness.18 Affidavits are generally considered inferior to open court declarations because affidavits are taken ex-parte and are almost always incomplete and inaccurate.19 Oftentimes, they are executed when the affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident that transpired.20 They are usually not prepared by the affiant himself but by another who suggests words to the affiant, or worse, uses his own language in taking the affiants statements.21 Accused-appellant argues that since Herminia declared in her affidavit that she saw a hand coming from the window, she did not see the person holding the gun, let alone who fired it.22 A complete reading of the pertinent portion of Herminias affidavit will refute appellants arguments, viz: "x x x xxx xxx

T - Isalaysay mo nga sa akin and buong pangyayari? S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996, habang ang aking anak ay nanonood ng palabas sa T.V. ng basketball malapit sa aming bintanan [sic] sa labas, at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng kaunti sa kanya, mayroon akong napansin akong [sic] kamay na hawak-hawak na baril na nakaumang sa aking anak sa butas na bintana na nakaawang, maya-maya ng kaunti ay nakarinig na ako ng putok at ang unang putok ay tumama sa ulo ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-sunod na ang putok na narinig ko, mga limang beses, kaya kitang kita ko siya ng lapitan ko ang aking anak at nakita ko itong si NOEL LEE, pagkatapos noon ay tumakbo na ito papalabas ng iskinita papunta sa kanila. xxx xxx x x x."23

It is thus clear that when Herminia approached her son, she saw that the person firing the gun was accused-appellant. Appellant continued firing and then ran away towards the direction of his house. This account is not inconsistent with the witness testimony in open court. Herminias declarations are based on her actual account of the commission of the crime. She had no ill motive to accuse appellant of killing her son, or at least, testify falsely against appellant. Accused-appellant himself admitted that he and Herminia have been neighbors for years and have known each other for a long time. Appellant is engaged in the business

of buying and selling scrap plastic and Herminia used to work for him as an agent.24 She would not have pointed to appellant if not for the fact that it was him whom she saw shoot her son.1wphi1.nt Indeed, the Solicitor General points out that it was appellant himself who had strong motive to harm or kill Joseph.25 Appellant revealed that six days before the shooting, he caught Joseph inside his car attempting to steal the stereo. The alibi that appellant was drinking with his friends that fateful night of September 29, 1996 does not rule out the possibility that he could have been at the scene of the crime at the time of its commission. The victims house is merely two blocks away from appellants house and could be reached in several minutes.26 The lone eyewitness account of the killing finds support in the medico-legal report. Dr. Rosalie Cosidon found that the deceased sustained two gunshot woundsone to the right of the forehead, and the other, to the left side of the back of the victims head.27 Two slugs were recovered from the victims head. Judging from the location and number of wounds sustained, Dr. Cosidon theorized that the assailant could have been more than two feet away from the victim.28 Both gunshot wounds were serious and fatal.29 Accused-appellant makes capital of Josephs bad reputation in their community. He alleges that the victims drug habit led him to commit other crimes and he may have been shot by any of the persons from whom he had stolen.30 As proof of Josephs bad character, appellant presented Herminias letter to Mayor Malonzo seeking his assistance for Josephs rehabilitation from drugs. On rebuttal, Herminia admitted that she wrote such letter to Mayor Malonzo but denied anything about her sons thievery.31 Character evidence is governed by Section 51, Rule 130 of the Revised Rules on Evidence, viz: "Section 51. Character evidence not generally admissible; exceptions:-(a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. xxx xxx x x x."

Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him from others. It is the opinion generally entertained of a person derived from the common report of the people who are acquainted with him; his reputation.32 "Good moral character" includes all the elements essential to make up such a

character; among these are common honesty and veracity, especially in all professional intercourse; a character that measures up as good among people of the community in which the person lives, or that is up to the standard of the average citizen; that status which attaches to a man of good behavior and upright conduct.33 The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause.34 There are exceptions to this rule however and Section 51, Rule 130 gives the exceptions in both criminal and civil cases. In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him.35 Sub-paragraph 2 provides that the prosecution may not prove the bad moral character of the accused except only in rebuttal and when such evidence is pertinent to the moral trait involved in the offense charged. This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of bad character.36 The offering of character evidence on his behalf is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence.37 Once the defendant raises the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendants bad character. Otherwise, a defendant, secure from refutation, would have a license to unscrupulously impose a false character upon the tribunal.38 Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.39 And this evidence must be "pertinent to the moral trait involved in the offense charged," meaning, that the character evidence must be relevant and germane to the kind of the act charged,40 e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and integrity.41 Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended party.42 Character evidence, whether good or bad, of the offended party may be proved "if it tends to establish in any reasonable degree the probability or improbability of the offense charged." Such evidence is most commonly offered to support a claim of self-defense in an assault or homicide case or a claim of consent in a rape case.43 In the Philippine setting, proof of the moral character of the offended party is applied with frequency in sex offenses and homicide.44 In rape and acts of lasciviousness or in any prosecution involving an unchaste act perpetrated by a man against a woman where the willingness of a woman is material, the womans character as to her chastity is admissible to show whether or not she consented to the mans act.45 The exception to this is when the womans consent is immaterial such as in statutory rape46 or rape with violence or

intimidation.47 In the crimes of qualified seduction48 or consented abduction,49 the offended party must be a "virgin," which is "presumed if she is unmarried and of good reputation,"50 or a "virtuous woman of good reputation."51 The crime of simple seduction involves "the seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age x x x." 52 The burden of proof that the complainant is a woman of good reputation lies in the prosecution, and the accused may introduce evidence that the complainant is a woman of bad reputation.53 In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the deceaseds aggression; and (2) as evidence of the state of mind of the accused.54 The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor.55 When the evidence tends to prove self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.56 In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Accused-appellant has not alleged that the victim was the aggressor or that the killing was made in self-defense. There is no connection between the deceaseds drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victims bad character he could have been killed by any one of those from whom he had stolen, is pure and simple speculation. Moreover, proof of the victims bad moral character is not necessary in cases of murder committed with treachery and premeditation. In People v. Soliman,57 a murder case, the defense tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection of the prosecution, the trial court disallowed the same. The Supreme Court held: "x x x While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123),58 such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show "that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary (Moran, Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to cases of murder."59 In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. The evidence shows that there was treachery. Joseph was sitting in his living room watching television when accused-appellant peeped through the window and, without any warning, shot him twice in the head. There was no opportunity at all for the victim to defend himself or retaliate against his attacker. The suddenness and unexpectedness of the attack ensured his death without risk to the assailant. Following the ruling in People v. Soliman, where the killing of the victim was attended by treachery, proof of the victims bad character is not necessary. The presence of this aggravating circumstance negates the necessity of proving the victims bad character to establish the

probability or improbability of the offense charged and, at the same time, qualifies the killing of Joseph Marquez to murder. As to the aggravating circumstance of evident premeditation, this cannot be appreciated to increase the penalty in the absence of direct evidence showing that accused-appellant deliberately planned and prepared the killing of the victim.60 Neither can the aggravating circumstance of dwelling found by the trial court be applied in the instant case. The Information alleges only treachery and evident premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, a complaint or Information must specify the qualifying and aggravating circumstances in the commission of the offense.61 The Revised Rules of Criminal Procedure took effect on December 1, 2000, and Section 8, Rule 110 is favorable to the accused. It may be applied retroactively to the instant case. Accordingly, without the aggravating circumstance of dwelling, the penalty of death was erroneously imposed by the trial court. There being no aggravating circumstance, there is no basis for the award of exemplary damages.62 IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is affirmed insofar as accused-appellant Noel Lee is found guilty of murder for the death of Joseph Marquez. The death sentence imposed by the trial court is however reduced to reclusion perpetua, there having been no aggravating circumstance in the commission of said crime. Except for the award of exemplary damages, the award of civil indemnity, other damages and costs are likewise affirmed. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

34. Republic of the Philippines SUPREME COURT Baguio City EN BANC

G.R. No. 119072 April 11, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appelee, vs. JESUS EDUALINO, accused-appellant.

PADILLA, J.: Accused Jesus Edualino was charged with rape in an information dated 5 July 1993 reading as follows: That on or about the 12th day of May, 1994, at Bgy. Mambalot, Municipality of Brooke's Point, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one ROWENA C. NANTIZA, a pregnant woman, against her will and consent to her damage and prejudice. CONTRARY TO LAW. 1 The case for the prosecution, as told by complainant Rowena Nantiza, is as follows: On 12 May 1994, the complainant and her mother Leonora Caabay were in Mambalot, Brooke's Point, Palawan to attend a dance. At about ten (10) o'clock in the evening of that day Rowena saw her cousin Antero Bacosa at the dance and she asked him to drink beer with her. Antero got drunk and fell asleep. It was at this time that accused Jesus Edualino approached her and offered her a glass of beer. Rowena noticed that Edualino was drunk so she accepted the glass. She then felt dizzy after drinking the beer. Edualino then dragged her toward a grassy area where no people were present. The accused then forced himself on top of her and succeeded in raping her while she was in a semi-unconscious state. Rowena further stated that she was continuously resisting the assault upon her but Edualino was stronger and he even boxed her in the stomach. She stated that she passed out after the rape was consummated. Prosecution witness Aileen Yayen testified that she saw the accused in the act of raping Rowena in the grassy area near the store of a certain Sgt. Edep and the house of a certain Mrs. Adier.

Aileen stated that she was looking for her cousin Rowena Nantiza in the early morning of 12 May 1994 at Brooke's Point where a dance was being held. She saw Rowena with the accused on top of her in a dark grassy area near the site of the dance. Both the accused and Rowena were naked. She was able to identify the accused by pointing her flashlight from a distance of less than two (2) meters away. She then called her aunt Erlinda de la Cruz, the victim's mother, but when they returned, the accused immediately left when he noticed their presence. Dr. Rogelio Divinagracia, a physician at the Brooke's Point District Hospital, testified that on 13 May 1994, he examined Rowena Nantiza who alleged that she was sexually abused. The medical certificate issued by Dr. Divinagracia reads as follows: Medical Certificate This is to certify that Mrs. Rowena Nantiza, 22 years old, married, of Bgy. Mambalot, Bks Point, with a 2-1/2 yrs old child, was examined of this date She alleged to have been sexually forcefully assaulted by a known person, last May 12, 1994 She was accompanied by her mother. The patient upon admission was found to be combative, with emotional outburst, shouting and crying. She was then put to sleep. Findings 1. General Fairly developed and nourished, patient was still under sedation during the exam Approximately 5'4" in Ht.; wt., 118 lbs. 2. Head & Face contusion left temporal area 2x2 cm. dia. Multiple superficial abrasions on the left forehead, right and left side of the face. 3. Abdomen Linear abrasion, post lumbar, 3 inches length, longitudinal. 4. Breast slightly globular, dark brown areola and nipple, presence of multiple contusion just below the areola on both breast. 5. Upper extremities: presence of multiple linear abrasions on both arm and forearm. 6. External genitalia: numerous pubic hair, labia majora and minora both gaping, presence of numerous dry leaves (grass) noted on both buttocks. 7. I.E. hymen fimbriated in shape, no laceration noted, easily admits 2 fingers vaginal wall lax, less prominent rugae, uterus enlarges to 2-3 mos. gestation. Note: no sperm cell exam. done no available microscope. Conclusion: hymenal opening admits easily 2 fingers, it can admit an average size penis in erection without laceration, uterus enlarges to 2-3 months gestation. (SGD.) Rogelio C. Divinagracia, M.D.

Medical Officer 2 The defense had a different version of the incident. Accused Jesus Edualino, while admitting that he was at the dance at Brook's Point on 11 May 1994, denied that he raped complainant Rowena Nantiza. Edualino testified that after leaving the dance, he and a certain Calixto Flora went to the store or Sgt Edep to drink beer. After he and Flora had finished a big bottle of beer, complainant Nantiza and a certain Antero Bacosa arrived. They noticed that Nantiza and Bacosa were already drunk. Accused Edualino testified that complainant Nantiza then began teasing him to kiss her. He (Edualino) stood up to get away from her but the latter followed him Flora then held on to Nantiza's arm to prevent the latter from following him Edualino testified that he and Flora then went to his house where the they stayed until the morning of 12 May 1994. Edualino also testified that Bacosa and Nantiza may have been under the influence of marijuana since he heard the two (2) talking about having taken drugs. Calixto Flora corroborated the accused-appellant's version of the incident. Felix Alberto, a resident of Brooke's Point, testified that in the evening of 11 May 1994 while they were walking towards the place where the dance was being held, he and his sister Rose saw complainant Rowena Nantiza sitting by the roadside with her hands cupped covering her mouth. Upon seeing them, Nantiza allegedly called out "Rose, halika, tikman mo, masarap ito." (Rose, come and try this. It's tasty). When they approached Nantiza, Alberto testified that he saw her holding what appeared to be dried marijuana leaves Alberto then testified that he even scolded Nantiza saying. "Why are you doing that? You have already two children and you know that is bad" Alberto then took his sister and left. Rodolfo Caabay, then barangay captain of Mambalot, Brooke's Point, Palawan testified that in the early morning of 12 May 1994, an unusual incident was reported to him Leonora Caabay complained that her daughter Rowena Caabay Nantiza was found lying on the ground about eight (8) meters from the store owned by a certain Sgt. Edep. He found Rowena was very hysterical and he observed that she had too much to drink. He turned over Rowena to the police. He later learned that accused-appellant was picked up for questioning regarding his alleged rape of Rowena Nantiza. Epifania Caabay, Rodolfo's wife, testified that she accompanied Rowena and her mother on board the police vehicle which took them to Brooke's Point District Hospital. She stated that Rowena was hysterical and kept on shouting in the vernacular, "I want water!" Epifania further stated that Rowena's mother slapped her and hit her on different parts of the body to quiet her down. Epifania agreed with the other defense witnesses that Rowena was quite drunk at the time. On 23 December 1994, the trial court rendered a decision, the dispositive part of which reads: WHEREFORE, in view of all the foregoing facts and considerations, the Court hereby finds the herein accused, JESUS EDUALINO guilty beyond reasonable doubt of the crime of RAPE charged in the above-entitled case as defined and penalized under Article 335 of the Revised Penal Code in relation to and as amended by Republic Act No. 7659 and accordingly, he is hereby sentenced to suffer the penalty of DEATH in the gas chamber or in the electric chair and ordered to indemnify the raped victim, ROWENA NANTIZA moral and exemplary damages amounting to P60,000.00, and to pay the costs.

With this conviction and imposition of the death penalty to the accused, he is hereby ordered immediately shipped to the national penitentiary. Muntinlupa, Metro Manila, under maximum security, to await the execution of this sentence there and the review of this decision by the Honorable Supreme Court, Manila, Philippines. SO ORDERED. 3 The conviction of accused-appellant is now before this Court on automatic review. Accused-appellant assigns the following errors to the trial court. 1. The trial court acted with grave abuse of discretion and demonstrated bias and partiality in favor of the prosecution during the entire proceedings of the case. 2. The trial court erred in giving credence to the false and incredible testimony of the complainant and other witnesses for the prosecution and in not giving due credence to the evidence for the defense; 3. The trial court erred in making findings of facts not supported by the evidence and in making conclusions based on mere surmises, conjectures and speculation; and 4. The trial court erred in convicting the appellant of the heinous crime of rape instead of upholding his innocence based on the evidence and the law. 4 Accused-appellant contends that the trial judge actively and "enthusiastically" assisted the prosecution, both in the direct and cross-examination of the witnesses. It is argued that "the undue interest and bias of (the trial judge) is revealed by his active participation in the entire proceeding, consistently taking the cudgels for the prosecution, instead of conducting the trial with the cold neutrality of an impartial judge." 5 A close and careful scrutiny of the transcripts of the proceedings before the trial court shows that the trial court judge may have exhibited a degree of zeal which could lead to impressions of partiality and bias. However, this per se does not warrant nullification of the entire proceeding in the case. In People v. Hatton, 6 this Court citing People v. Ibasan 7 held thus: . . . It is not denied that the court had at certain points conducted its own questioning during the proceedings. The records, however, show that the court's questions did not amount to interference as to make the case for the prosecution and deprive the accused of their defense. The question of the judge addressed to the witnesses and the accused were merely to clarify certain points and confirm certain statements. The number of times that a judge intervenes is not necessarily an indication of bias. It cannot be taken against a judge if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. As held in the case of Ventura v. Yatco (105 Phil. 287) "Judges are not mere referees like those of a boxing bout, only to watch and decide the results of a game; they should have as much interest as counsel in the orderly and expeditious presentation of evidence calling attention of counsel to points at issue that are overlooked, directing them to ask questions that would elicit the facts on the issues involved, clarifying ambiguous remarks by witnesses, etc.

A judge may properly intervene in the trial of a case to promote expedition and avoid unnecessary waste of time or to clear up some obscurity (People v. Catindihan, 97 SCRA 196; Par. 14 Canons of Judicial Ethics; Administrative Order No. 162 dated August 1, 1946, 42 O.G. 1803). In this respect, the record shows no irregularity in the conduct of the trial judge. Moreover, it is of note that counsel for accused-appellant did not object, during the trial, to the manner of questioning of the trial judge nor was his inhibition sought by the defense for alleged bias and technicality for the prosecution. The Court will now proceed to determine if the guilt of accused-appellant has been proven beyond reasonable doubt. The elements of the crime of rape, as allegedly committed by accused-appellant, are: 1. That the accused-appellant had carnal knowledge of the complainant. 2. That the act was done against the complainant's will; 3. That force and/or intimidation was used in the commission of the act. In the present case, the prosecution's evidence consists mainly of the testimonies of the complainant Rowena Nantiza, Aileen Yayen and Dr. Rogelio Divinagracia. On the other hand, accused-appellant relies on alternative defenses of alibi and consent on the part of complainant. While accused-appellant's defense before the trial court alleges that he had left the scene of the incident together with defense witness Calixto Flora, he alternatively raises before this Court the contention that the elements of the crime of rape have not been established. 8 Accused-appellant posits the following arguments: 1) No carnal knowledge occurred It is argued that since Dr. Rogelio Divinagracia did not examine specimens from the complainant's private parts for the presence of spermatozoa, then complainant's testimony to the effect she, although in a state of semi-unconsciousness, felt accused-appellant on top of her consummating the sexual act, deserves no credence. 2) No force or intimidation was employed It is argued that the force allegedly employed to consummate the rape was merely implied by the trial court from complainant's testimony that she did nor enjoy the sexual act. Accused-appellant contends that even assuming that the sexual act was consummated, the same could only have been successfully done with the consent of the complainant, "for if she ever attempted to resist or evade the thrust of the penis of appellant, the latter could not have successfully hit the mark and penetrate the vagina." 9 Accused-appellant likewise argues that the medical examination conducted on complainant fails to support the latter's testimony that accused-appellant boxed her in the stomach. 3) The identity of the assailant has not been established

Accused-appellant assails the finding that the complainant and prosecution witness Aileen Yayen had adequately established that it was accused-appellant who committed the rape. It is argued that complainant, who admitted being only semi-conscious, could not have seen who raped her and Aileen Yayen who, in a written statement before trial, stated that she only saw accused-appellant in shorts beside the complainant, at the time and place of the alleged rape, contradicted herself when she testified at the trial that she saw accused-appellant on top of the complainant in a grassy area behind the store of Sgt. Edep. 4) The offense of rape has not been established Accused-appellant contends that the testimony of the complainant tends to show "that there was foreplay before the alleged rape whereby the accused allegedly kissed her, caressed her breast and bit her nipple; that the accused was on top of her and inserted his penis in her vagina and did the push and pull movement, that she cannot remember how long it lasted but she knew [accused] had an orgasm after which the accused stood up and left, all this bear the earmarks of a voluntary and mutual coition, a consensual intercourse. There was no rape." 10 Finally, accused-appellant raises the issue of the character of complainant Rowena Nantiza. It is argued that a responsible and decent married woman, who was then three (3) months pregnant, would not be out at two (2) o'clock in the morning getting drunk much less would a decent Filipina ask a man to accompany her to drink beer. It is contended that complainant merely concocted the charge of rape to save her marriage since her husband had found out that she was using drugs and drinking alcohol and even made a spectacle of herself when she tried to seduce accused-appellant on 11 May 1994 while she was under the influence of drug and alcohol. At the outset of this discussion, it should be pointed out that the moral character of a rape victim is immaterial in the prosecution and conviction of the accused. The Court has ruled that prostitutes can be the victims of rape. 11 In the present case, even if accused-appellant's allegations that the victim was drunk and under the influence of drugs and that she (the victim) cannot be considered a decent and responsible married woman, were true, said circumstances will not per se preclude a finding that she was raped. Accused-appellant cannot successfully argue that no rape occurred because no medical examination was conducted to confirm the presence of spermatozoa in her private parts. The Court has repeatedly held that a medical examination of the victim is not a prerequisite in prosecutions for rape. 12 A person accused of rape can be convicted solely on the testimony of the victim provided the testimony is credible, natural, convincing and otherwise consistent with human nature and the course of things. 13 After a careful and thorough study of the records of the case, the Court is convinced that the constitutional presumption of accused-appellant's innocence has been overcome by proof of guilt beyond reasonable doubt. On accused-appellant's contention that the presence of force and intimidation was not proven, the Court has consistently ruled that force and intimidation should be viewed in the light of the victim's perception and judgment at the time of the commission of the offense. 14

Indeed, there can be no hard and fast rule on the matter specially in a situation like the present case where the victim testified to being in a state of semi-consciousness after drinking a glass of beer given to her by accused-appellant. Besides, the testimony of the victim is supported by the findings in the aforequoted medical certificate which shows that the injuries suffered by the victim are consistent with the charges of rape and contrary to the theory of the defense that the injuries were inflicted by the victim's mother when she was trying to quiet her daughter who was hysterical. The allegation that accused-appellant's identity has not been established deserves scant consideration. It is to be noted that accused-appellant was known to the victim and prosecution witness Aileen Yayen long before the incident. Both witnesses positively identified the accused as the perpetrator of the rape. There is nothing to show that these two (2) witnesses would or did falsely implicate accused-appellant. On whether the acts of accused-appellant constitute rape, the victim Rowena Nantiza's testimony was sufficiently clear to show that the carnal knowledge was without her consent and with force and intimidation. There is no doubt that the crime committed by accused-appellant is rape. Accused-appellant in a final attempt to absolve himself argues that the charge of rape was concocted by the victim to save her marriage. The Court cannot believe that a married woman would invent a story that she was raped in an attempt to conceal addiction to drugs or alcohol, in order to save her marriage. We fail to understand how a false rape story can save a marriage under the circumstances averred by accused-appellant. The other arguments adduced by accused-appellant pertaining to credibility of the two (2) prosecution witnesses are basically issues that cannot be reviewed by the Court absent attendant circumstances that do not exist in this case. The alleged inconsistencies in the testimonies of the prosecution witnesses pertain to minor matters and are even badges that the witnesses were unrehearsed and honest. Besides, in reviewing the entire records of this case, we find no reversible error in the judgment of conviction except as to the penalty of death imposed by the trial court. The Solicitor General correctly points out that absent the attending circumstances provided for under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 wherein the penalty for rape is death, the correct penalty is reclusion perpetua. Under Article 335 of the Revised Penal Code, as amended by Section II, R. A. No. 7659. xxx xxx xxx The death penalty shall be imposed if the crime of rape is committed with any of the following circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

2. When the victim is under the custody of the police or military authorities. 3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. When the victim is a religious or a child below seven (7) years old. 5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. (As amended by Sec. II, R.A. 7659.) 15 In the present case, the prosecution has not proved any circumstance which would justify or call for the imposition of the supreme penalty of death. Finally, with regard to the award of P60,000.00 as moral and exemplary damages, it is noted that there is no basis for said award. Consequently the award of moral and exemplary damages is deleted. However, the accused-appellant is liable to indemnify the victim the amount of Fifty Thousand Pesos (P50,000.00) consistent with prevailing jurisprudence. WHEREFORE, based on the foregoing, the judgment of the trial court finding accused-appellant Jesus Edualino guilty of the crime of rape is AFFIRMED with the following modifications: 1) Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua, and 2) He is ordered to indemnify the victim the amount of Fifty Thousand Pesos (P50,000.00) in lieu of the award of moral and exemplary damages. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

35. SECOND DIVISION [G.R. No. 130601. December 4, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL DIOPITA y GUZMAN, accused-appellant. DECISION BELLOSILLO, J.: RAFAEL DIOPITA y GUZMAN appeals from the Decision of the Regional Trial Court of Davao City finding him guilty of Robbery with Rape, imposing upon him the penalty of reclusion perpetua and ordering him to pay the victim, Dominga Pikit-pikit, P8,500.00 for actual damages and P50,000.00 for moral damages.i[1] Culled principally from the testimonies of Dominga Pikit-pikit and PO3 Steve dela Cruz, the inculpatory facts follow: At about 9:00 o'clock in the evening of 16 April 1995 complaining witness Dominga Pikitpikit, 24 years old, was walking towards Emiville Subdivision, Diversion Road, Sasa, Davao City, on her way home from work. Suddenly, a man appeared from behind, looped his arm around her neck and warned her not to shout or else she would die.ii[2] The man then dragged her through the banana plantation towards the cornfields where the plants were a meter high and far apart.iii[3] When Dominga shouted for help, the man pushed her to the ground and punched her on the stomach saying, "Leche ka, why are you shouting? What do you want me to do, make you unconscious?"iv[4] Dominga Pikit-pikit got a good look at the man, who turned out to be accused-appellant Rafael Diopita y Guzman, as he sat on her thighs and proceeded to divest her of her belongings - ladies watch, bracelet, ring with russian diamonds, wedding ring and P1,000.00 cash. With the full moon shining on his face, the victim clearly saw Diopita place the items on the right pocket of his shorts.v[5] Thereafter, accused-appellant Diopita announced his desire to have carnal knowledge of Dominga. Forthwith, he pulled up her t-shirt and unfastened her brassiere. He also loosened her belt, unzipped her pants and struggled to pull it down, nearly ripping her zipper. Annoyed at the tightness of her pants, Diopita hit her and ordered her to help him pull them down.vi[6] Dominga, fearing for her life and thinking of Diopitas punches, obeyed. She pulled her pants to her hips. Then accusedappellant forcibly pulled them down further and got irritated in fact when he was told that she was wearing a girdle and panty. In frustration, he punched her repeatedly and kept on muttering, "Why is this very tight? What kind of panty is this?" Finally, he succeeded in pulling the girdle and panty down.vii[7] Accused-appellant Diopita then took off his shorts. He kissed the victim, lasciviously caressed her breasts, bit her nipples, and fornicated with her. As he was sexually assaulting her, Dominga made desperate struggles and frantic calls for help but her efforts proved futile until he finally satiated his lust. He then warned Dominga not to tell anyone and that should he hear that she told anybody about the incident he would shoot her to death. Then he dressed up and left, walking casually to the opposite direction of the subdivision before disappearing in the darkness.viii[8] Exhausted, Dominga slowly stood up, put on her clothes and walked away in the direction of her house. Finding it locked, she asked help from her neighbors who called the police. Thereafter, Dominga was brought to Precinct No. 4 of Sasa, Davao City, where SPO1 Stephen Batacan entered

her complaint in the police blotter. Later, she was examined by Dr. Floranne Lam-Vergara at the Davao Medical Center who found her "positive for spermatocytes."ix[9] PO3 Steve dela Cruz, who was on duty at the Intelligence and Investigation Section, made a followup on the case. He went to the victims house and interviewed her between the hours of 1:00 oclock and 3:00 oclock in the morning of the following day, 17 April 1995. Dominga gave a description of the suspect and his possible whereabouts.x[10] Acting on that information, PO3 dela Cruz went to the scene of the crime to investigate and there he recovered a colored white/yellow, size ten (10) slipper. Since the victim earlier disclosed that the suspect headed north after committing the crime, he proceeded to that direction where he came upon four (4) houses about fifteen (15) to fifty (50) meters away from the scene of the crime. A back-up team was called and they rounded up all the residents therein. Afterwards, four (4) men who fitted the description of the suspect were invited to the police station for questioning. They were Placido Laput, William Silvano, Vicente Silvano and accused-appellant Rafael Diopita y Guzman.xi[11] At about 6:00 oclock in the morning of 17 April 1995, the police invited Dominga to identify the suspect at the police station. Thereat, Dominga saw the four (4) men in a police line-up and readily pointed at accused-appellant.xii[12] The police then had him try on the recovered slipper; it easily fitted him.xiii[13] Thus, Diopita was detained while the others were released. The defense denied the charge and invoked alibi. Accused-appellant claimed that between 8:30 to 12:00 oclock in the evening of 16 April 1995 he was with his wife Flora, son Ryan and fellow Jehovahs Witnesses Roger Custorio and Ruben Suarez at the house of Eulalio Nisnisan for an informal Bible session upon the invitation of Juan Nisnisan.xiv[14] Accused-appellant also claimed that during those hours, he never left the place. Flora, Roger, Ruben, Eulalio and Juan corroborated his alibi and testified on his good moral character as a ministerial servant of their faith. On 18 June 1997, the trial court formally rejected his defense of alibi and convicted him of the crime charged; consequently, accused-appellant is now before us on appeal. The trial court ruled Alibi is a weak defense because it can easily be fabricated that it is so easy for witnesses to get confused as to dates and time. The precision with which the witnesses for the defense, who are his co-members in the Jehovahs Witnesses, quoted the respective hours when the participants in the Bible sharing session supposedly arrived is, at best, self-serving and deserves scant consideration because of the facility with which it may be concocted and fabricated. On the other hand, private complainant Dominga Pikit-Pikit positively identified Rafael Diopita as the person who robbed and raped her on April 16, 1995. She testified in a clear, straightforward and convincing manner and no ill-motive on her part had been shown to have prompted her to testify falsely. The failure of the defense to attribute any ill-motive on the part of Pikit-Pikit to pin responsibility on Diopita adds more credence to complainants testimony. In a long line of cases, it has been held that the defense of alibi cannot prevail over the positive identification of the accused by the victim. Pikit-Pikit testified that she was able to see the face of her attacker because the moon was shining brightly that evening. This Court takes judicial notice of the fact that in the month of April 1995 the full moon came out on April 15, 1995, a day before the date of the crime. We affirm his conviction; the guilt of accused-appellant has been established by the evidence beyond reasonable doubt. First. Complaining witness Dominga Pikit-pikit positively and categorically identified accusedappellant as her assailant, first during the police line-up where she singled him out from among the

four (4) suspects and, later during the trial where she pointed at accused-appellant as the one who robbed and sexually molested her Q: Where did you go? A: To the Police Station, there were four persons who lined up for Q: And then? A: First, when I arrived, I peeped behind the place where there were four persons lining up. After that I went to the place where they were receiving visitors and I saw the four persons who were there already and lined up. Q: And then? A: After that the police told me to identify the person who molested me, and I pointed to that person there (witness pointing to the accused whom she previously identified).xv[15] From the circumstances of this case, it cannot be denied that complaining witness Dominga Pikit-pikit had a good look at the face and physical features of accused-appellant during the commission of the crime. While the robbery was in progress, the moonlight sufficiently illumined his face and clothes, thus making it possible for private complainant to identify him.xvi[16] During the rape, private complainant was as close to accused-appellant as was physically possible, for a man and a woman cannot be more physically close to each other than during a sexual act.xvii[17] Victims of criminal violence naturally strive to know the identity of their assailants and observe the manner the crime was perpetrated, creating a lasting impression which may not be erased easily in their memory.xviii[18] There is therefore no reason to doubt the accuracy of private complainants visual perception of accused-appellant as the criminal. Nor is there any reason to doubt her honesty of intention for there is no showing that she implicated accused-appellant due to an evil or corrupt motive. We do not subscribe to accused-appellants contentions that the complaining witness hesitated to point at him during the police line-up, and that she was just forced by the police to choose him from among the four (4) suspects. The identification was made with such certainty by the complaining witness that even accused-appellant had to comment on it Atty. Galicia: What made you say she was hesitant to point at you? x x x x Rafael Diopita: Because during that time, sir, when we confronted each other in the police station, she was looking at me when there were four of us there. So, I asked why x x x xxix[19] The foregoing testimony belied the allegation of hesitancy on the part of Dominga Pikit-pikit to pinpoint accused-appellant during the line-up. His very own words project his guilt as well. Only the guilty experiences neurotic fear in the face of imminent discovery of his malefaction. His paranoia colors his interpretation of the events during the line-up. Consider accused-appellants assertion that Dominga Pikit-pikit was forced by the police to point at him, and Prosecutor Esparagoza's objection thereto Sur-rebuttal of Atty. Galicia: Mr. Diopita, according to private complainant Dominga Pikit-pikit during her rebuttal testimony that she was not forced by the police to point at you when you were in the police station. What can you say to that? Rafael Diopita: That woman hesitated to point at me but the police said you point at him. identification.

Q: What made you say she was hesitant to point at you? Prosecutor Esparagoza: The witness said ITUDLO! ITUDLO! (YOU POINT! YOU POINT!). He did not say he was the one pointed to, your Honor.xx[20] Gleaned from the aforequoted testimony was the absence of suggestiveness in the identification process. There were four (4) men in the line-up and the police did not specifically suggest to Dominga to point particularly at accused-appellant. Not even the shodding of the slipper recovered from the scene of the crime could provide any suggestiveness to the line-up as it came after accused-appellant was already identified by Dominga Pikit-pikit. Second. In light of this positive and direct evidence of accused-appellants culpability, the trial court correctly discarded his defense of alibi. It is an elementary rule that alibi cannot prevail over the clear and positive identification of the accused as the very person who committed the crime. Moreover, in order to justify an acquittal based on this defense, the accused must establish by clear and convincing evidence that (a) he was in another place at the time of the commission of the offense; and, (b) it was physically impossible for him to be at the scene of the crime at the time it was committed.xxi[21] This, accused-appellant miserably failed to do. Accused-appellant admitted that at the time in question he was with his wife, son and fellow members of the Jehovahs Witnesses at the house of one Eulalio Nisnisan supposedly attending Bible studies, which is merely fifteen (15) to fifty (50) meters away from the crime scene. Considering the short and insignificant distance, it was not impossible for accused-appellant to surreptitiously slip away from the house of Nisnisan, commit the crime and then return without arousing the suspicion of his companions who were then busy with their Bible session. This is obviously the situation in this case and, taken together with the preceding considerations, we likewise reject this poor and discredited defense as did the trial court. Verily, even if the defense of alibi is corroborated by the testimony of the friends of accused-appellant, it deserves the barest consideration and will not be given weight if it would not preclude any doubt that he could have been physically present at the locus criminis or its immediate vecino at the time of its commission.xxii[22] Third. Perhaps aware of the crushing impact of complainants positive identification of accusedappellant, the defense attacked the supposed inconsistencies and discrepancies in her testimony in a vain attempt to make it completely unreliable, claiming that: (a) the victim declared that the culprit wore short pants with a zipper, and he had no short pants with zipper; (b) the yellow slipper retrieved by the police did not belong to him as his slippers were colored blue, with his initials inscribed thereon; and, (c) the description given by complainant in the police blotter did not fit the physical appearance of accused-appellant. We are not persuaded. Suffice it to say that these are mere trifles which do not detract from complainants straightforward and consistent identification of accused-appellant as the one who robbed and raped her. Trivial inconsistencies do not shake the pedestal upon which the complainants credibility rests. On the contrary, they are taken as badges of truth rather than as indicia of falsehood for they manifest spontaneity and erase any suspicion of a rehearsed testimony.xxiii[23] Furthermore, entries in police blotters should not be given undue significance or probative value for they are normally incomplete and inaccurate, sometimes from either partial suggestion or want of suggestion or inquiry.xxiv[24] Fourth. We now deal with the more substantial arguments raised by accused-appellant in his brief. He tenaciously maintains that it was impossible for him to have committed the crime charged since he is a person of good moral character, holding as he does the position of "Ministerial Servant" in the congregation of Jehovahs Witnesses, and that he is a godly man, a righteous person, a responsible family man and a good Christian who preaches the word of God.

We are not impressed. The fact that accused-appellant is endowed with such "sterling" qualities hardly justifies the conclusion that he is innocent of the crime charged. Similarly, his having attained the position of "Ministerial Servant" in his faith is no guarantee against any sexual perversion and plunderous proclivity on his part. Indeed, religiosity is not always an emblem of good conduct, and it is not the unreligious alone who succumbs to the impulse to rob and rape. An accused is not entitled to an acquittal simply because of his previous good moral character and exemplary conduct. The affirmance or reversal of his conviction must be resolved on the basic issue of whether the prosecution had discharged its duty of proving his guilt beyond any peradventure of doubt. Since the evidence of the crime in the instant case is more than sufficient to convict, the evidence of good moral character of accused-appellant is unavailing. Accused-appellant likewise bewails and assigns as reversible error the failure of the trial court to give credence to the testimonies of the defense witnesses. He argues that these are Jehovahs Witnesses, and as such, they are God-fearing people who would never lie as to his whereabouts at the time in question. This argument is as puerile as the first. We quote once more, and with approval, the pertinent portion of the trial courts ruling on this point x x x x it is so easy for witnesses to get confused as to dates and time. The precision with which the witnesses for the defense, who are his co-members in the Jehovahs Witnesses, quoted the respective hours when the participants in the Bible sharing session supposedly arrived is, at best, self-serving and deserves scant consideration because of the facility with which it may be concocted and fabricated (underscoring supplied). The matter of assigning values to the declarations of witnesses is best and most competently performed by the trial court who had the unmatched opportunity to observe the demeanor of witnesses while testifying, and to assess their credibility using various indicia available but not reflected in the records.xxv[25] Hence, the court a quo's appraisal on the matter is entitled to the highest respect, and will not be disturbed on appeal unless there is a clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would affect the result of the case.xxvi[26] There is no compelling reason in the present case to depart from this rule. In sum, we find that all the elements of robbery with rape are present in this case. There was asportation of the jewelry and cash of the victim by means of force and violence on her person, showing the initial animus lucrandi of accused-appellant,xxvii[27] and then his lecherous intent when he raped his victim. Accordingly, we hold that the court below did not commit any reversible error in ruling that the requisite quantum of evidence for a finding of guilt has been sufficiently met by the prosecution as to call for our affirmance of the judgment of the court a quo.xxviii[28] However, in addition to the actual and moral damages awarded by the trial court in the amounts of P8,500.00 and P50,000.00, respectively, another amount of P50,000.00 should have also been awarded to the victim Dominga Pikit-pikit for civil indemnity, as it is mandatory upon a conviction of rape. Such indemnity is distinct from moral damages and based on different jural foundations.xxix[29] WHEREFORE, the assailed Decision of the Regional Trial Court of Davao City, convicting accusedappellant RAFAEL DIOPITA y GUZMAN of ROBBERY WITH RAPE, sentencing him to reclusion perpetua, and ordering him to pay DOMINGA PIKIT-PIKIT the sums of P8,500.00 for actual damages and P50,000.00 for moral damages, is AFFIRMED with the MODIFICATION that, in addition, civil indemnity of another P50,000.00 is further awarded to her. Costs against accused-appellant. SO ORDERED.