EXTRAJUDICIAL CONFESSION/ CONFESSION People v. Muit, G.R. No.

181043, October 8, 2008 Millano Muit y Munoz (Muit), Sergio Pancho y Cagumoc, Jr. (Pancho, Jr.), Rolando Dequillo y Tampos (Dequillo), Romeo Pancho (Romeo), Eduardo Eddie Hermano alias Bobby Reyes alias Eddie Reyes (Hermano), and Joseph Ferraer (Ferraer) were charged with kidnapping for ransom with homicide[1] and carnapping[2] in two separate informations. Only Muit, Pancho Jr., Dequillo, Romeo, and Ferraer were arrested and stood trial. However, Ferraer was discharged from the criminal cases by the Regional Trial Court (RTC) and was utilized as a state witness.[3] All appellants pleaded not guilty during their arraignments. The facts as culled from the records are as follows: In the afternoon of 11 November 1997, Orestes Julaton, (Julaton), a relative of Ferraer, arrived at the latters house in Kaylaway, Nasugbu, Batangas with Sergio Pancho, Sr. (Pancho, Sr.), Pancho, Jr., Dequillo and four other men on board a gray Mitsubishi car with plate number PSV-818. Julaton introduced them to Ferraer and told the latter that Pancho, Sr. is also their relative. Pancho, Sr. told Ferraer that they wanted to use his house as a safehouse for their visitor. Ferraer was hesitant at first as he thought it was risky for him and his family. Hermano told Ferraer not to worry because they are not killers; their line of work is kidnap for ransom. Ferraer was assured that the money they will get would be shared equally among them. Ferraer and Pancho, Sr. would guard their victim. Later, five other men came and they were introduced to Ferraer as Muit, Morales, alias Tony, alias David and alias Puri. They had dinner and chatted until midnight. That evening, Morales handed to Ferraer for safekeeping a folded carton wrapped with masking tape contained in a big paper bag, and a green backpack. Hermano told Ferraer that the package contained guns. Ferraer brought the package inside his room; he inspected the contents before placing them under the bed, and saw that the carton contained a shotgun and the green backpack, an Ingram folding. Morales and Udon also showed him their .45 caliber guns tucked at their waists.[4]

At one oclock in the afternoon of 24 November 1997, Ferraer saw Pancho, Jr., and Hermano with a companion, seated under the tree in front of his house. Pancho, Jr. introduced their companion as Romeo. They informed Ferraer that the following day, they would proceed with their plan. Romeo would be the informant since he is an insider and a trusted general foreman of the victim. The next day, at nine oclock in the morning, Pancho, Sr. arrived at Ferraers house alone and asked Ferraer if he was already informed of the plan. Ferraer replied in the affirmative. Pancho, Sr. told him to wait for the groups return. However, the group returned without the intended victim because the latter did not show up at the construction site.[5] On 2 December 1997, the group received a call from Romeo informing them that the victim was already at the construction site. Hermano, Morales, Udon, Manuel, Bokbok, and Muit commuted to the construction site at Barangay Darasa, Tanauan, Batangas. Pancho, Jr. was on board the Mitsubishi car as back-up. At around two oclock in the afternoon of the same date, 2 December 1997, Roger Seraspe (Seraspe), the personal driver of the victim, drove a blue Pajero with plate number UDL-746 carrying Engr. Ruth Roldan and the victim to visit the Flexopac project site at Barangay Darasa, Tanauan, Batangas. At the site, Engr. Roldan and the victim alighted from the Pajero and, along with Engr. Ed dela Cruz, toured the construction site. Seraspe talked with Armand Chavez (Chavez), the warehouseman of ILO Construction, while waiting for his boss.[6] After the site inspection, the three engineers walked towards the direction of the Pajero. Seraspe was surprised to see that the three engineers who stood together suddenly lay prostrate on the ground. Seraspe and Chavez saw an unidentified man standing near the three engineers. Three more armed men surrounded the Pajero. Two of them approached Seraspe and Chavez. One of the armed men, Muit, poked a gun at Seraspe and ordered him and Chavez to lay prostrate on the ground.[7] The assailants dragged the victim towards the Pajero. They forced the victim to order Seraspe to give them the keys to the Pajero. When the victim was already on board the Pajero, Seraspe heard one of them say, Sarge, nandito na ang ating pakay.[8] They then started the Pajero and drove away, passing through the Pag-asa Road gate. Two more persons who were waiting at the Pag-asa road boarded the Pajero.[9] At 2:30 that same afternoon, Lipa City Deputy Chief of Police, Supt. Arcadio Mission (Supt. Mission) received a radio message from the Tanauan Police Station that a kidnapping was ongoing and the kidnappers on board a Pajero with plate number UDL-746 were heading towards Lipa City. Supt. Mission immediately ordered the police posted near the Lipa City bus stop to put up a barricade. In the meantime, two teams were organized to intercept the Pajero. They proceeded to the barricade.[10]

Right after Supt. Mission and the teams arrived at the barricade, the Pajero was spotted. When policemen flagged down the Pajero, the driver stopped the vehicle. While two policemen approached the Pajero, the driver and front passenger opened their car doors and started firing at the policemen. At this point, all the policemen present at the scene fired back. The cross-fire lasted for around four minutes. All the occupants of the Pajero, except the driver and the front passenger who managed to escape, died. SPO1 Rolando Cariaga apprehended one of the escapees who turned out to be Muit, the driver of the Pajero, at Barangay San Carlos, Batangas, about 200 meters from the place of the shootout.[11] On the other hand, after the assailants carried their plan into action, Pancho, Jr. proceeded to their agreed meeting place but did not find Hermanos group there. Pancho, Jr. waited along the highway in front of the construction site. He thought that he had been left behind when he did not see the group, s o he left. When Pancho, Jr. returned to Ferraers house, he told Ferraer what happened to their operation. Worried that something bad might have happened to the group, Pancho, Jr. went back and looked for the rest of his group. Pancho, Jr. came back alone. At around 5:30 in the morning of 3 December 1997, Ferraer saw Pancho, Sr. and Pancho, Jr. watching the TV program Alas Singko y Medya. He joined them and saw on the news the Pajero riddled with bullets. Pancho, Sr. and Pancho, Jr. left Ferraers house at around 9:00 in the morning and they also left behind the Mitsubishi car they used. That night, Ferraer saw on the news program TV Patrol a footage showing the cadavers of Udon, Morales, Manuel, Bokbok and the victim, and the Pajero riddled with bullets. Ferraer also saw Muit in handcuffs. The prosecution presented Ignacio Ong, Sr., the father of the victim Engr. Ignacio Ong, Jr.; Seraspe; Chavez; Dr. Anthony Llamas, the PNP Medico-Legal Officer who conducted the autopsy; Supt. Mission, Ferraer, as the state witness; and Atty. Narzal Mallare[12] (Atty. Mallare), the lawyer who assisted appellants Pancho, Jr. and Dequillo in executing their respective sworn statements as witnesses. Their accounts were corroborated by the prosecutions d ocumentary evidence such as the extra judicial confessions of Pancho, Jr. and Dequillo, which were executed with the assistance of Atty. Mallare. Muit executed two extra judicial confessions: the first statement was dated 4 December 1997, in which he was assisted by Atty. Ernesto Vergara, and the second statement was dated 7 December 1997 in which he was assisted by Atty. Solomon De Jesus and witnessed by his uncle, Bonifacio Muit (Bonifacio), and his brother, Dominador Muit (Dominador). On the other hand, the defense presented appellants Dequillo, Pancho, Jr., and Muit. Dequillo, for his part, claimed that for the period of November to December 1997 he was working as a mason at Villanueva Construction in BF Homes. His work starts at 8:00 in the morning and ends at 5:00 in the afternoon. He stated that on 8 December 1997, he was arrested by the CIDG at his house in Purok Sto. Domingo, Barangay Holy Spirit, Quezon City. At the CIDG Detention Center, he was questioned about the guns used in the kidnapping of the victim. He was allegedly tortured when he denied any knowledge about the kidnapping and was forced to sign a statement without being allowed to read it. Atty. Mallare only came in after he had already signed the statement. He denied any participation in the crimes charged against him.[13] Pancho, Jr. claimed that he was arrested on 7 December 1997 in Calbayog, Samar. He was first brought to the Calbayog City Police Station, and then transferred to Camp Crame. He alleged that the police tortured him and forced him to sign the written confession of his participation in the crimes. He denied having participated in the commission of the offenses charged against him.[14] On the other hand, Muit claimed that on 2 December 1997 he was in Lipa City, near the place of the shootout. He had just attended a gathering of the Rizalistas and was waiting for his uncle Bonifacio when the police arrested him. He denied having any knowledge of the crime. He denied knowing the people whose name appeared in his two extra judicial confessions. He claimed that the names were supplied by the police and that he was not assisted by counsel during the custodial investigation.[15] In a decision[16] dated 22 November 2002, the RTC, Branch 83 of Tanauan City, Batangas found Muit, Pancho, Jr., Dequillo, and Romeo guilty.[17] Only the cases involving the charges of carnapping and kidnapping for ransom which resulted in the death of the victim were automatically appealed to this Court. The RTC held that mere denials and alibis of appellants cannot prevail over the positive declarations of the prosecutions witnesses. It found the prosecutions witnesses more credible than appellants, whose self -serving statements were obviously intended to exculpate themselves from criminal liability. The RTC did not give credence to the claims of appellants that their extra judicial confessions were procured through torture as these were belied by the testimony of Atty. Mallare and appellants med ical certificates which were issued during their incarceration and after the execution of their statements. And the RTC noted that even without appellants extra judicial confessions, there was still sufficient evidence on record to hold them guilty.

In a resolution dated 17 January 2006, the Court referred the case to the Court of Appeals for intermediate review.[18] The Court of Appeals in a decision[19] dated 31 August 2007 affirmed the decision of the RTC.[20] The appellate court held that the RTC was correct in convicting appellants for kidnapping and carnapping. The prosecution was able to prove through Ferraer that appellants conspired with one another in the planning and execution of their plan to kidnap the victim. Moreover, appellants executed extra judicial confessions, duly assisted by their counsels, detailing their participation in the kidnapping. As for Muit, other than his extra judicial confession, he was also positively identified during the kidnapping by eyewitnesses Seraspe and Chavez. Appellants filed their notices of appeal with the Court of Appeals. Before this Court, appellants opted not to file supplemental briefs, and instead adopted the assignment of errors in their respective original briefs.[21] Taken together, appellants claim that: (i) the RTC erred in finding them guilty beyond reasonable doubt of the charges against them; (ii) the RTC erred in its finding that they acted in conspiracy in the commission of the crimes charged against them; and (iii) the RTC erred in giving credence to the extra-judicial confessions of Pancho, Jr. and Dequillo, and to the sworn statement and testimony of Ferraer in convicting them.[22] The appeals are bereft of merit. The elements of the crime of kidnapping and serious illegal detention[23] are the following: (a) the accused is a private individual; (b) the accused kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping is illegal; and (d) in the commission of the offense, any of the four circumstances mentioned in Article 267 is present. The essence of the crime of kidnapping is the actual deprivation of the victims liberty, coupled with indubitable proof of i ntent of the accused to effect the same.[24] The totality of the prosecutions evidence in this case established the commission of kidnapping for ransom with homicide. On the other hand, Republic Act No. 6539, or the Anti-Carnapping Act, as amended, defines carnapping as the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things.[25] The crime was committed in this case when the victims Pajero was forcibly taken away from him contemporaneously with his kidnapping at the construction site. The kidnapping for ransom with homicide and the carnapping were established by the direct testimony of Ferraer, Seraspe and Chavez. Ferraer testified on how the group approached and convinced him to let them use his house to keep the victim they planned to kidnap. They planned the crime in Ferraers house and waited for the call from Romeo to inform them wh en the victim would be at the construction site. The group received a call from Romeo on 2 December 1997 informing them that the victim was already at the construction site, and so they went there to carry out their plan. At the construction site, as testified to by Seraspe and Chavez, Muit and the other members of the group pointed their guns at the victim and his companion and ordered them to lie prostrate on the ground. After getting the keys to the Pajero from Seraspe, they forced the victim to board the vehicle with Muit driving it. They immediately reported the kidnapping of the victim to the police and the kidnappers were intercepted by the group led by Supt. Mission. Supt. Mission testified that the kidnappers refused to surrender and engaged the police in a shoot out in which the victim was among the casualties. Muit was one of the two persons who survived the shoot out, but was apprehended by the police. Pancho, Jr. returned to the house of Ferraer alone when the group did not arrive at their meeting place. Ferraer, Pancho, Jr., and Pancho, Sr. learned from the news that the group engaged the police in a shoot out and most of them were killed, and that Muit was arrested by the police. After investigation, the police were able to apprehend appellants Pancho, Jr., Romeo, and Dequillo who all took part in the botched criminal conspiracy to kidnap the victim. During the investigation, Pancho, Jr., Dequillo, and Muit, with the assistance of their counsels and family members, executed extra judical confessions divulging their respective roles in the planning and execution of the crimes. Even though Pancho, Jr., Dequillo and Romeo did not participate in the actual abduction of the victim, they should still be held liable, as the courts below did, because of the existence of conspiracy. Conspiracy is a unity of purpose and intention in the commission of a crime.[26] Where conspiracy is established, the precise modality or extent of participation of each individual conspirator becomes secondary since the act of one is the act of all.[27] The degree of actual participation in the commission of the crime is immaterial. The conspiracy to kidnap the victim was proven through circumstantial evidence. The group thoroughly planned the kidnapping in Ferraers house and patiently waited for the day when the victim would be at the construction site. Then on 2

December 1997, the group received a call from Romeo so they proceeded to the construction site and carried out their plan. All the appellants took active part in the criminal conspiracy and performed different roles to consummate their common plan. The roles which Muit and his other companions played in the actual abduction were described earlier. As for Dequillo, he was the one who procured the guns used by the group. Pancho, Jr. served as the driver of the back-up vehicle, and Romeo was the groups informant. Section 4, Rule 133 of the Revised Rules of Evidence states that circumstantial evidence is sufficient 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. The extra judicial confessions of Pancho, Jr., Dequillo, and Muit strengthened the case against them. There is nothing on record to support appellants claim that they were coerced and tortured into executing their extra judicial confessions. O ne of the indicia of voluntariness in the execution of appellants extra judicial statements is that each contains many details and facts which the investigating officers could not have known and could not have supplied, without the knowledge and information given by appellants. Moreover, the appellants were assisted by their lawyers when they executed their statements. Atty. Mallare testified that Pancho, Jr. and Dequillo executed their statements voluntarily and affixed their signatures after he talked with them alone and informed them of their constitutional rights.[28] Muit, on the other hand, was assisted by counsels in each instance when he executed his two extra judicial confessions; his second statement was even witnessed by his uncle, Bonifacio, and his brother, Dominador. Muit cannot just conveniently disclaim any knowledge of the contents of his extra judicial confession. Nevertheless, in Muits case, he was also positively identified by Seraspe and Chavez as the one who pointed a gun at them during the kidnappi ng and ordered them to lay prostrate on the ground.[29] Appellants claims of torture are not supported by medical certificates from the physical examinations done on them.[30] These claims of torture were mere afterthoughts as they were raised for the first time during trial; appellants did not even inform their family members who visited them while they were imprisoned about the alleged tortures.[31] Dequillo, for his part, also had the opportunity to complain of the alleged torture done to him to the Department of Justice when he was brought there.[32] Claims of torture are easily concocted, and cannot be given credence unless substantiated by competent and independent corroborating evidence.[33] The extra judicial confessions of Pancho, Jr., Dequillo, and Muit also strengthened the prosecutions case against Romeo. The rule that an extra judicial confession is evidence only against the person making it recognizes various exceptions. One such exception is where several extra judicial statements had been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions, the fact that the statements are in all material respects identical is confirmatory of the confession of the co-defendants and is admissible against other persons implicated therein. They are also admissible as circumstantial evidence against the person implicated therein to show the probability of the latters actual participation in the commission of the crime and may likewise serve as corroborative evidence if it is clear from other facts and circumstances that other

persons had participated in the perpetration of the crime charged and proved. These are kno wn as interlocking confessions.[34] Nonetheless, the RTC, in convicting Romeo, relied not only on the aforesaid extra judicial statements but also on Ferraers t estimony that Romeo was introduced to him in his house as the informant when they were planning the kidnapping. As for the penalty, the RTC did not err in imposing the penalty of death since the kidnapping was committed for the purpose of extorting ransom from the victim or any other person. Neither actual demand for nor payment of ransom is necessary for the consummation of the felony. It is sufficient that the deprivation of liberty was for the purpose of extorting ransom even if none of the four circumstances mentioned in Article 267 were present in its perpetration.[35] The death of the victim as a result of the kidnapping only serves as a generic aggravating circumstance for the rule is that when more than one qualifying circumstances are proven, the others must be considered as generic aggravating circumstances.[36] The imposition of death penalty is also proper in the carnapping of the victims Pajero because it was committed by a band, which serves as a generic aggravating circumstance, without any mitigating circumstance.[37] There is band whenever more than three armed malefactors shall have acted together in the commission of the offense.[38] As planned, Muit and three other armed men kidnapped the victim and drove away with the latters Pajero while two more persons waiting near the Pag-asa road boarded the Pajero.

However, pursuant to Republic Act No. 9346 which prohibits the imposition of the death penalty, the penalties imposed are commuted to reclusion perpetua with all its accessory penalties and without eligibility for parole under Act No. 4103.[39] As to damages, the RTC erred in awarding compensation for loss of earning capacity. Pursuant to jurisprudence, the Court precludes an award for loss of earning capacity without adequate proof as it partakes of the nature of actual damages.[40] The bare testimony of the father of the deceased that, at the time of his death, the victim was earning P5,000.00 per month as an engineer is not sufficient proof.[41] But pursuant to the Courts ruling in People v. Abrazaldo[42] wherein we deemed it proper to award temperate damages in the amount of P25,000.00 in cases where evidence confirms the heirs entitlement to actual damages but the amount of actual damages cannot be determined because of the absence of supporting and duly presented receipts, the Court awards P25,000.00 temperate damages to the heirs of the victim in the present case. The civil indemnity should be increased to P75,000.00.[43] The award of civil indemnity may be granted without any need of proof other than the death of the victim.[44] In line with jurisprudence, the moral damages should also be increased to P 500,000.00.[45] Moreover, exemplary damages in the amount of P100,000.00 for the crime of kidnapping for ransom with homicide[46] and P25,000.00 for the crime of carnapping should be awarded. The law allows exemplary damages in criminal cases as part of the civil liability of the malefactors when the crime is attended by one or more aggravating circumstances.[47] WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 02044 which commuted the death penalties imposed in Criminal Case Nos. P-521 and P-607 to reclusion perpetua without eligibility for parole is AFFIRMED with the MODIFICATIONS that the compensation for loss of earning capacity be deleted while the civil indemnity be increased to P75,000.00 and the moral damages to P500,000.00, and that appellants shall also pay the heirs of Ignacio Earl Ong, Jr. temperate damages of P25,000.00 and exemplary damages of P100,000.00 for the crime of kidnapping for ransom with homicide and P25,000.00 for the crime of carnapping. Costs against appellants. People v. Satorre, G.R. No. 133858, August 12, 2003 Appellant Herminiano Satorre alias Emiano Satorre was charged with Murder in an information which reads: That on or about the 25 day of May, 1997 at 2:00 oclock dawn, more or less, in Sitio Kamari, Barangay Calidngan, Municipality of Carcar, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with the use of .38 paltik revolver and by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack and shoot ROMERO PANTILGAN, hitting the latter at the head which caused his instantaneous death. CONTRARY TO LAW.[1] On arraignment, appellant pleaded not guilty. Trial on the merits then ensued. Gliceria Saraum, wife of the victim Romero Pantilgan, testified that at 2:00 a.m. of May 25, 1997, she and her two children were asleep inside the house of her parents at Tagaytay, Calidngan, Carcar, Cebu. Her mother, Florida Saraum, was also in the house. Her husband, Romero, went out to attend a fiesta. While she was asleep, she was awakened by a gunshot. Gliceria got up and went out to the porch, where she found her dead husband lying on the ground. Blood oozed out of a gunshot wound on his head. Rufino Abayata, a barangay kagawad, testified that around 7:00 a.m. of May 25, 1997, his fellow barangay kagawad, Pio Alvarado, fetched him from his house and, together, they went to verify a report regarding a dead person on the porch of the Saraum residence. Upon confirming the incident, they reported the matter to the Carcar Police. Rufino further narrated that appellants father, Abraham Satorre, informed them that it was appellant who shot Pantilgan. They looked for appellant in the house of his brother, Felix Satorre, at Dumlog, Talisay, Cebu, but were told that he already left. Nevertheless, appellants brothers, Margarito and Rosalio Satorre, went to Rufinos house and surrendered the gun which was allegedly used in killing Pantilgan. Flavio Gelle narrated that he accompanied appellant and his father, Abraham, to the Barangay Captain of Can-asohan, Carcar, Cebu where appellant admitted killing Pantilgan. Thereafter, appellant was detained.
th

Corroborating Gelles story, Cynthia Castaares, Barangay Captain of Can -asuhan, Carcar, Cebu testified that Abraham Satorre and Gelle brought appellant to her residence where he confessed having killed Pantilgan. Appellant allegedly informed her that he killed Pantilgan because the latter struck him with a piece of wood. That same evening, she went to the Carcar Police Station with appellant where she executed an affidavit. She further averred that appellant voluntarily narrated that he killed Pantilgan with the use of a handgun which he wrestled from his possession. Dr. Plebia Villanueva, Municipal Health Officer of Carcar, Cebu cert ified that the cause of Pantilgans death was gunshot wound.[2] Bonifacio Ayag, NBI Ballistician, testified that the deformed bullet taken from Pantilgans head wound was fired from the gun surrendered by appellants brothers to the Carcar Police. [3] Denying the charges against him, appellant claimed that he was asleep inside his house at the time of the incident. He alleged that Rufino Abayata had a grudge against him because of an incident when he tied Rufinos cow to prevent it from eati ng the corn in his farm. He denied having confessed to the killing of Pantilgan. He disclaimed ownership over the paltik .38 revolver and stated that he could not even remember having surrendered a firearm to Castaares. Abraham Satorre corroborated appellants testimony. He denied having accompanied appellant to Castaares house to surrender him. Appellants brother, Rosalio Satorre, claimed that he never accompanied appellant to Castaares house to surrender. His other brother, Felix, also testified that he never surrendered any firearm to anybody. After trial, the court a quo gave credence to the prosecutions evidence and rendered a decision convicting appellant of Murder,[4] the dispositive portion of which reads: WHEREFORE, IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, accused Herminiano Satorre is found guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of RECLUSION PERPETUA, with accessory penalties of the law; to indemnify the heirs of Romero Pantilgan in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole period of his detention provided he will signify in writing that he will abide by all the rules and regulations of the penitentiary. SO ORDERED. Appellant interposed this appeal, contending that the trial court erred: (1) in giving full faith and credence to the testimonies of prosecution witnesses; (2) in proceeding with the trial of the instant case amounting to lack of due process provided by law due to its denial of accuseds motion for preliminary investigation or reinvestigation; and (3) in rejecting the testimony of the defenses witnesses. The appeal has merit. In particular, appellant claims that his alleged confession or admission, which was concocted by the Barangay Captain, is inadmissible in evidence for being hearsay and for being obtained without a competent and independent counsel of his choice. In effect, the quantum of evidence adduced by the prosecution was not sufficient to overcome the constitutional presumption of innocence. The bare allegation that he confessed or admitted killing Romero Pantilgan is not proof of guilt. Rule 130, Section 26 of the Rules of Court defines an admission as an act, declaration or omission of a party as to a releva nt fact. A confession, on the other hand, under Section 33 of the same Rule is the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. Both may be given in evidence against the person admitting or confessing. On the whole, a confession, as distinguished from an admission, is a declaration made at any time by a person, voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime.[5] Evidently, appellants alleged declaration owning up to the killing before the Barangay Captain was a confession. Since the declaration was not put in writing and made out of court, it is an oral extrajudicial confession. The nexus that connects appellant to the killing was his alleged oral extrajudicial confession given to Barangay Captain Cynthia Castaares and two barangay kagawads. According to the trial court, their testimonies were positive and convincing. Appellants retraction of his oral extrajudicial confession should not be given much credence in the assessment of evidence. However, appellant disputes the admissibility and sufficiency of the testimonial evidence offered to prove the alleged oral

extrajudicial confession. There is no question as to the admissibility of appellants alleged oral extrajudicial confession. Indeed, as far as admissibility is concerned, Rule 130, Section 33 of the Rules of Court makes no distinction whether the confession is judicial or extrajudicial. The rationale for the admissibility of a confession is that if it is made freely and voluntarily, a confession constitutes evidence of a high order since it is supported by the strong presumption that no sane person or one of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, unless prompted by truth and conscience.[6] Accordingly, the basic test for the validity of a confession is was it voluntarily and freely made. The term voluntary means that the accused speaks of his free will and accord, without inducement of any kind, and with a full and complete knowledge of the nature and consequences of the confession, and when the speaking is so free from influences affecting the will of the accused, at the time the confession was made, that it renders it admissible in evidence against him.[7] Plainly, the admissibility of a confession in evidence hinges on its voluntariness. The voluntariness of a confession may be inferred from its language such that if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could only be supplied by the accused reflecting spontaneity and coherence, it may be considered voluntary.[8] The problem with appraising voluntariness occurs when the confession is an oral extrajudicial confession because the proof of voluntariness cannot be inferred from the testimony of a witness who allegedly heard the confessant since there is no written proof that such confession was voluntarily made. Neither can the confessant be appraised by the court since, precisely, it was made outside the judicial proceeding. The problem posed therefore by an oral extrajudicial confession is not only the admissibility of the testimony asserting or certifying that such confession was indeed made, but more significantly whether it was made voluntarily. On the question of whether a confession is made voluntarily, the age, character, and circumstances prevailing at the time it was made must be considered. Much depends upon the situation and surroundings of the accused. This is the position taken by the courts, whatever the theory of exclusion of incriminating statements may be. The intelligence of the accused or want of it must also be taken into account. It must be shown that the defendant realized the import of his act.[9] In the case at bar, appellant was a 19-year old farmer who did not even finish first grade. Granting that he made the confession in the presence of Barangay Captain Castaares, he may not have realized the full import of his confession and its consequences. This is not to say that he is not capable of making the confession out of a desire to tell the truth if prompted by his conscience. What we are saying is that due to the aforesaid personal circumstances of appellant, the voluntariness of his alleged oral confession may not be definitively appraised and evaluated. At any rate, an extrajudicial confession forms but a prima facie case against the party by whom it is made. Such confessions are not conclusive proof of that which they state; it may be proved that they were uttered in ignorance, or levity, or mistake; and hence, they are, at best, to be regarded as only cumulative proof which affords but a precarious support and on which, when uncorroborated, a verdict cannot be permitted to rest.[10] Main prosecution witness Castaares testified that after appellants alleged oral confession, she brought the latter to the office of the police at the Municipal Hall of Carcar, Cebu.[11] At the police station, Castaares was investigated, after which she executed her sworn statement.[12] Also at the police station, appellant allegedly admitted before policemen that he killed Pantilgan.[13] His statement was not taken nor was his confession reduced into writing. This circumstance alone casts some doubt on the prosecutions account that appellant freely and voluntarily confessed killing Pantilgan. It raises questions not only as to the voluntariness of the alleged confession, but also on whether appellant indeed made an oral confession. To be sure, a confession is not required to be in any particular form. It may be oral or written, formal or informal in character. It may be recorded on video tape, sound motion pictures, or tape.[14] However, while not required to be in writing to be admissible in evidence, it is advisable, if not otherwise recorded by video tape or other means, to reduce the confession to writing. This adds weight to the confession and helps convince the court that it was freely and voluntarily made. If possible the confession, after being reduced to writing, should be read to the defendant, have it read by defendant, have him sign it, and have it attested by witnesses.[15] The trial court gave credence to appellants oral extrajudicial confession relying on jurisprudence which we find are not applicable. In the cases cited by the trial court,[16] the convictions were based on circumstantial evidence in addition to the appellants confessions, or the extrajudicial confessions were reduced to writing and were replete with details which only ap pellants could have supplied. In the case at bar, however, there was no circumstantial evidence to corroborate the extrajudicial confession of appellant. More importantly, the said confession does not contain details which could have only been known to appellant.

Furthermore, the events alleged in the confession are inconsistent with the physical evidence. According to Barangay Captain Castaares, appellant narrated to her that during the struggle between him and the deceased, he fell to the ground after the latter hit him on the head with a piece of wood. In the autopsy report, however, Dr. Plebia Villanueva found that the entrance wound on the deceased was located at the top of the head or the crown, indicating that the victim was probably lying down when he was shot.[17] Indeed, an extrajudicial confession will not support a conviction where it is uncorroborated. There must be such corroboration that, when considered in connection with confession, will show the guilt of accused beyond a reasonable doubt. Circumstantial evidence may be sufficient corroboration of a confession. It is not necessary that the supplementary evidence be entirely free from variance with the extrajudicial confession, or that it show the place of offense or the defendants identity or criminal agency. All facts and circumstances attending the particular offense charged are admissible to corroborate extrajudicial confession.[18] Nonetheless, the fatal gun and the slug extracted from Pantilgans brain can not be considered as corroborative evidence. While the slug embedded in Pantilgans brain came from the fatal gun, the prosecution was not able to conclu sively establish the ownership of the gun other than the bare testimony of prosecution witnesses that appellants brothers surrender ed the gun to them. This was denied by appellant and his brothers and there was no other proof linking the gun to him. On the whole, it appears that the trial court simply based appellants conviction on the testimonial evidence of prosecution witnesses that appellant orally owned up to the killing. We cannot affirm appellants conviction on mere testimonial evidence, considering that the voluntariness of said confession cannot be conclusively established because of appellants personal circumstances and the failure of the police to reduce the alleged oral confession into writing. The doubts surrounding the alleged oral confession, the conduct of the investigation as well as the inapplicable jurisprudential precedents cited by the trial court do not lead to the same moral certainty of appellants guilt. To conclude, it must be stressed that in our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused, but whether it entertains a reasonable doubt as to their guilt. Where there is no moral certainty as to their guilt, they must be acquitted even though their innocence may be questionable. The constitutional right to be presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt.[19] In fact, unless the prosecution discharges the burden of proving the guilt of the accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.[20] WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 18, Cebu City, convicting appellant Herminiano Satorre alias Emiano Satorre of Murder and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the heirs in the amount of P50,000.00 as well as costs, is REVERSED and SET ASIDE. For lack of evidence to establish guilt beyond reasonable doubt, appellant Herminiano Satorre alias Emiano Satorre is ACQUITTED and is ordered immediately RELEASED from confinement, unless he is lawfully held in custody for another cause. OFFER OF COMPROMISE People V. Erguiza, G.R. No. 171348, November 26, 2008 The Court is confronted with another case of rape. The victim, a 13-year-old girl. And although the Court may be moved by compassion and sympathy, the Court, as a court of law, is duty-bound to apply the law. Basic is the rule that for conviction of a crime, the evidence required is proof beyond reasonable doubt -- conviction with moral certainty. For review before this Court is the November 18, 2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR H. C. No. 00763 which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of San Carlos City, Pangasinan, Branch 57, finding Larry Erguiza (appellant) guilty of one count of rape and sentencing him to suffer the penalty of reclusion perpetua. The Information, dated April 10, 2000, in Criminal Case No. SCC 3282 reads as follows: That on or about 5:00 oclock in the afternoon of January 5, 2000, at the back of the Bical Norte Elementary School, municipality of Bayambang, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife, by means of force and intimidation, did then and there, willfully, unlawfully, and feloniously have sexual intercourse with AAA[3], a minor of 13 years old, against her will and consent and to her damage and prejudice.[4] When arraigned, appellant pleaded not guilty.[5] Thereafter trial ensued.

The prosecution presented four witnesses, namely: private complainant (AAA), her mother BBB and father CCC, and Dr. James Sison. The defense presented five witnesses, namely: Joy Agbuya, Juanito Macaraeg, Juanita Angeles, Albina Erguiza, and appellant. On November 27, 2000, the RTC found appellant guilty of the crime of rape, the dispositive portion of which reads as follows: In view whereof, the Court finds the accused LARRY C. ERGUIZA guilty of RAPE under Article 266-a paragraph 1(a) in relation to Article 266-b of R.A. 8353 and R.A. 7659 and sentences (sic) to suffer the penalty of reclusion perpetua and to pay the offended party, AAA P50,000 as civil indemnity, P50,000 as moral damages, P50,000 as exemplary damages, to give support to AAA's offspring and to pay the costs. SO ORDERED.[6] On appeal, the CA aptly summarized the respective versions of the parties, based on the evidence presented before the trial court, thus: PROSECUTION'S VERSION: On January 5, 2000, at around 4:00 o'clock in the afternoon, AAA, a thirteen-year old first year high school student, together with her friends, siblings Joy and Ricky Agbuya , went to the mango orchard located at the back of ZZZ Elementary School to gather fallen mangoes.[7] When they were bound for home at around 5:00 o'clock in the afternoon, AAAs short pants got hooked on the fence. AAA asked Joy and Ricky to wait for her but they ran away and left her .[8] While AAA was trying to unhook her short pants, Larry suddenly grabbed and pulled her. Poking a knife at her neck, Larry threatened to hurt her if she would make a noise.[9] Accused-appellant dragged AAA towards a place where a tamarind tree and other thorny plants grow. Then Larry removed his maong pants and forced AAA to lie down on the grassy ground. Thereafter, he removed her short pants and panty, mounted himself on top of her and inserted his penis into her private parts and made push and pull movements. He likewise raised AAAs sando and mashed her breast. AAA felt pain when accused-appellant entered her and she felt something sticky in her private part after Larry made the push and pull movements.[10] Larry told AAA not to tell anybody about the incident otherwise he would kill her and all the members of her family and then he ran away.[11] AAA lingered for a while at the place and kept crying. Having spent her tears, she wore her panty and short pants and proceeded to the adjacent store of her Aunt Beth who was asleep. After staying for some time at the store, AAA decided to come (sic) home. Upon reaching home, she directly went to bed. Fearing Larry's threat, AAA kept mum on the incident.[12] On April 7, 2000, BBB brought her daughter AAA to her grandmother (BBB's mother), a hilot residing in XXX, Tarlac, to consult her on the unusual palpitation on the mid-portion of AAA's throat and the absence of her monthly period.[13] After examining AAA, her grandmother told BBB that her daughter was pregnant. BBB asked AAA who was the father of her unborn child but AAA refused to talk. After much prodding, and in the presence of her Uncle, Rudy Domingo, AAA finally revealed that she was raped by accusedappellant.[14] On April 8, 2000, AAA, accompanied by her mother and uncle, went to the police headquarters in YYY, Pangasinan to report the incident.[15] Then the police brought her to YYY District Hospital[16] where Dr. James Sison, Medical Officer III of said hospital conducted the examination on Michelle. Dr. Sison made the following findings: Q. x x x No extragenital injuries noted. Complete healed hymenal laceration 11:00 o'clock. x x x. In layman's term, Dr. Sison found no physical injury from the breast, the body except the genital area wherein he found a significant laceration complete (sic) healed over 11:00 o'clock. [17] Dr. Sison also testified that a single sexual intercourse could make a woman pregnant.

BBB testified that her daughter AAA stopped going to school after she was raped and that no amount of money could bring back the lost reputation of her daughter. CCC (AAA's father), testified that on May 2, 2000, the family of accused-appellant went to their house and initially offered P50,000 and later P150,000; that in January 5, 2000, while they were repairing his house for the wedding reception[18], Larry left at around 4:00 o'clock p.m. DEFENSE'S VERSION On January 5, 2000, Larry Erguiza helped in the repair of CCC's[19] house from 8:00 o'clock in the morning up to 5:00 o'clock in the afternoon. When he reached home at around 5:00 pm, his mother Albina Erguiza instructed him to fetch a hilot as his wife Josie was already experiencing labor pains. He proceeded to fetch the hilot Juanita Angeles and stayed in their house until his wife delivered a baby at around 3:00 o'clock in the morning of January 6, 2000.[20] Juanita Angeles corroborated Larry's testimony that he indeed fetched her at around 5:10 pm on January 5, 2000 to attend to his wife who was experiencing labor pains and who delivered a baby at about 3:00 a.m. of January 6, 2000; and that Larry never left his wife's side until the latter gave birth. Albina, mother of the accused-appellant, testified that AAA is the daughter of her balae Spouses CCC and BBB; that her son Larry, her husband and two others left CCC and BBB's residence at about 5:00 o'clock in the afternoon on January 5, 2000; that she went to Spouses CCC and BBB to talk about the charge of rape against her son; that Spouses CCC and BBB were asking for P1,000,000.00 which was later reduced to P250,000.00 and that she made a counter-offer of P5,000.00.[21] Joy Agbuya testified that she and AAA were at the mango orchard of Juanito Macaraeg on January 5, 2000; that she never left AAA when her short pants got hooked; that they went together to the store of Auntie Beth where they parted.[22] Juanito Macaraeg, the mango orchard caretaker, testified that the house of Larry was a walking distance of about three minutes from the mango orchard; that if one runs fast, it would only take a minute to reach his house; and that he could not recall having seen Larry in the orchard.[23] (Emphasis supplied) In its Decision dated November 18, 2005, the CA affirmed the decision of the RTC, but modified the amount of the award of exemplary damages and costs as follows: WHEREFORE, in view of all the foregoing circumstances, the Decision of the Regional Trial Court of San Carlos (Pangasinan), Branch 57 dated November 27, 2000 in Criminal Case No. SCC-3282 is AFFIRMED with MODIFICATION. Accused-appellant Larry Erguiza is held GUILTY of Rape and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the victim AAA P50,000.00 as civil indemnity; P50,000.00 as moral damages, and P25,000.00 as exemplary damages and to give support to AAAs offspring. SO ORDERED.[24] Hence, herein appeal. In his appeal Brief,[25] appellant raises the following errors: 1. THE CO RT A Q O GRA E ERRED IN GI ING CREDENCE TO THE INCREDIB E, TH S NBE IE AB E TESTIMON OF PRI ATE COMP AINANT AAA. THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED APPELLANT OF THE CRIME OF RAPE DESPITE THE FACT THAT THE PROSECT ION E IDENCE FAI ED TO ESTAB ISH HIS G I T BE OND REASONAB E DO BT. THE COURT A QUO GRAVELY ERRED IN NOT APPRECIATING ACCUSED-APPELLANT'S DEFENSE OF ALIBI

2.

3.

10

CORROBORATED BY THE WITNESSES PRESENTED BY THE DEFENSE.*26+ The appeal is meritorious. The prosecution's evidence does not pass the test of moral certainty. This Court has ruled that in the review of rape cases, the Court is guided by the following precepts: (a) an accusation of rape can be made with facility, but it is more difficult for the accused, though innocent, to disprove it; (b) the complainant's testimony must be scrutinized with extreme caution since, by the very nature of the crime, only two persons are normally involved; and (c) if the complainant's testimony is convincingly credible, the accused may be convicted of the crime.[27] In the case at bar, the CA upheld the conclusion of the RTC in finding the complainant credible, to wit: The testimonies of victims who are young and of tender age, like AAA, deserve full credence and should not be dismissed as mere fabrication especially where they have absolutely no motive to testify against the accused-appellant as in this case. Larry even admitted that AAA had no ill motive for charging him with rape. The Supreme Court in several cases, ruled that full credence is accorded the testimony of a rape victim who has shown no ill motive to testify against the accused. This being so, the trial court did not err in giving full credence to AAA's testimony.[28] This Court does not agree with the CA. The Court is not unmindful of the general rule that findings of the trial court regarding credibility of witnesses are accorded great respect and even finality on appeal.[29] However, this principle does not preclude a reevaluation of the evidence to determine whether material facts or circumstances have been overlooked or misinterpreted by the trial court.[30] In the past, this Court has not hesitated to reverse a judgment of conviction, where there were strong indications pointing to the possibility that the rape charge was false.[31] Generally, 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. And so long as her testimony meets the test of credibility and unless the same is controverted by competent physical and testimonial evidence, the accused may be convicted on the basis thereof.[32] After a judicious examination of the records of the case, the Court finds that there is testimonial evidence that contradicts the findings of the RTC and CA on the basis of which no conviction beyond reasonable doubt could arise. It is the unrebutted testimony of a credible defense witness. The testimony of Joy Agbuya (Joy) casts doubt as to the possibility of rape having taken place as narrated by complainant. In addition, the testimony of a disinterested defense witness, Juanita Angeles (Juanita) corroborated the alibi of appellant. Before dwelling on the testimonies of Juanita and Joy, the Court shall first scrutinize the testimonial evidence presented by the prosecution and the defense. Aside from the testimony of complainant, the prosecution presented the following witnesses: Dr. James Sison, BBB, and CCC. The pertinent portions of their testimonies may be summarized as follows: Dr. James Sison testified that he conducted the medical examination of complainant. His diagnosis was that there was a significant laceration completely healed at the 11:00 o'clock position.[33] However, Dr. Sison testified that his findings were not conclusive, but were rather suggestive that complainant was raped. Furthermore, as to the question of paternity of the child of complainant, Dr. Sison suggested doing a DNA match.[34] BBB testified the she brought AAA to her grandmother, a hilot residing in XXX, Tarlac, to consult her on the unusual palpitation on the mid-portion of complainant's throat and the absence of her monthly period.[35] After examining complainant, the hilot told BBB that her daughter was pregnant. AAA later revealed that she was raped by appellant.[36] BBB further testified that she accompanied AAA to the police headquarters in YYY, Pangasinan to report the incident.[37] Afterwards, the police brought complainant to YYY District Hospital[38] where Dr. James Sison, Medical Officer III of said hospital, conducted the examination on complainant. On cross-examination, BBB testified that the family of appellant offered her money to settle the case.[39] CCC, the father of AAA, was the lone rebuttal witness of the prosecution. In order to rebut the allegation made by appellant's family that the present case was filed because appellant's family did a poor job in preparing for the wedding of CCC's daughter DDD and apellant's brother Carlito, CCC testified that on the contrary, the wedding went smoothly.[40] CCC further claimed that the family of appellant knelt before him crying and offered money to settle the case.[41] Moreover, CCC testified that appellant left his

11

house at 4:00 p.m. on January 5, 2000. On the other hand, the defense presented four witnesses, namely: Juanito Macaraeg (Macaraeg), Albina Erguiza (Albina), Juanita and Joy. Macaraeg, the caretaker of the mango orchard, testified that he did not see appellant on any occasion in the orchard.[42] More specifically, Macaraeg emphasized that he did not see appellant on January 5, 2000.[43] However, on crossexamination, he testified that the house of appellant is only a three-minute walk from the mango orchard and probably a minute if one walks fast.[44] Albina, the mother of appellant, testified that on January 5, 2000, she was with appellant at the house of CCC and BBB preparing for the wedding of CCC's daughter DDD and appellant's brother Carlito. She said that they left the house of CCC at around 5:00 p.m.[45] Albina narrated that when they arrived home, at around 5:02 or 5:03 p.m., she sent appellant to fetch a hilot, as the wife of appellant was having some labor pains.[46] She said that appellant and the hilot arrived at around 5:30 p.m.[47] According to Albina appellant never left their house.[48] On the day of the wedding, Albina testified that she had an altercation with BBB regarding the bills and that they never resolved their quarrel.[49] She spoke to BBB and CCC because she learned that they were falsely accusing appellant of raping AAA.[50] After talking to BBB and CCC, she and her husband confronted appellant and asked if he had raped complainant, which appellant denied.[51] Albina claimed that CCC and BBB were demanding P1,000,000.00 and that they later reduced it to P250,000.00.[52] Albina said that she offered P5,000.00 to BBB and CCC only to preserve their relationship as in-laws and for peace.[53] In sum, with the exception of the claim of AAA that she was raped by appellant, other evidence presented by the prosecution did not identify appellant as the perpetrator of the crime. Moreover, the testimonies of the witnesses for both the prosecution and the defense conflict on certain points, more notably the claim by BBB and CCC that the family of appellant offered to settle the case. This, however, was denied by Albina, who claimed that it was BBB and CCC who demanded P1,000,000.00. The offer of compromise allegedly made by Albina is critical to the case at bar in light of law and jurisprudence that an offer of compromise in a criminal case may be received in evidence as an implied admission of guilt.[54] In the case at bar, the offer of compromise was first testified to by BBB on cross-examination, to wit: Q. A. Is it not a fact that there was an offer by you to the mother of the accused that they pay you 1 million and you have reduced it to P250,000.00? No, sir, it was they who were the ones offering for settlement, but we never offer them any settlement, sir.[55]

On rebuttal, CCC corroborated the testimony of BBB that the family of appellant offered to settle the case, to wit: Q. And according to Larry Erguiza as well as his witnesses they told the Honorable Court that you and your wife are demanding from Larry Erguiza and his parents the amount of one million pesos so that you will not file this case against the accused, what can you say about that? There is no truth about that, sir. And what is the truth about it? It was they who went to my house, they even knelt before me crying and they were offering money, sir.[56]

A. Q. A.

However, Albina, the mother of appellant, denied the foregoing allegations, to wit: Q. A. Q. What happened when you went to the house of BBB and CCC talking with them about their problem of the alleged rape on AAA, their daughter? They were asking for a settlement price for one million pesos but we have no money, sir. What did you do when they were asking one million pesos from you?

12

A.

We told them that we do not have that money until they reduced the price to P250,000.00 but we have no money because we are poor, sir. Were you around when BBB testified to the witness stand? I was here, sir. Did you hear what BBB said that you were the one offering money? Yes, sir, I was here and I heard that. What can you say to that allegation of BBB? That is not true, sir. She was saying that we were the ones offering money for one million to them but she was telling a lie, it was they who were asking for one million pesos, sir. What is your proof that is was they who are demanding the amount of one million and reduced that to two hundred fifty thousand (P250,000.00)? We already left because we cannot afford to give that much, sir. Aside from the fact that you do not have money, was there any reason or what was your other reason in going there? Our reason in talking to them was that when Larry said that he did not commit the alleged rape and so we went there to talk to them so that we could preserve our relationship as in-laws even if it is for the sake of peace we could try our best to cope up even P5,000.00 just for the sake of peace because our intention in going to their house was to extract the truth, sir.[57]

Q. A. Q. A. Q. A.

Q. A. Q. A.

On cross-examination, appellant gave the following statements: Q. A. Q. A. Q. A. Q. A. Before the filing of this case with this Honorable Court, your parents and you were pleading to the parents of AAA not to continue anymore the case, is it not? Yes, sir, so that the case will not be filed and our relationship will not be destroyed, sir. In fact you asked your parents to do so, is it not? No, sir. They were the ones who went to the house of AAA, sir. But the family of AAA did not agree to the pleadings of your parents that the case be not filed anymore, is it not? They will agree if we will pay then 1 million, but we do not have 1 million, sir. Did you offer them 1 million? No, sir. They were the ones who told that to us.[58] (Emphasis Supplied)

The alleged offer of the parents of appellant to settle the case cannot be used against appellant as evidence of his guilt. Appellant testified that he did not ask his parents to settle the case. Moreover, appellant was not present when the offer to settle was allegedly made. An offer of compromise from an unauthorized person cannot amount to an admission of the party himself.[59] Although the Court has held in some cases that an attempt of the parents of the accused to settle the case is an implied admission of guilt,[60] we believe that the better rule is that for a compromise to amount to an implied admission of guilt, the accused should have been present or at least authorized the proposed compromise.[61] Moreover, it has been held that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution.[62] In addition, the Court, in weighing the evidence presented, may give less weight to the testimonies of Albina, on the one hand, and BBB and CCC, on the other, as they are related to the appellant and the victim, respectively[63] Their testimonies relating to the offer of settlement simply contradict each other. As a matter of fact, even the lower courts did not consider the alleged offer of settlement in resolving the case. Thus, the Court now considers the testimonies of Juanita and Joy. Testimony of Juanita Angeles

13

Juanita, a hilot, testified that appellant fetched her at around 5:10 in the afternoon of January 5, 2000.[64] She asserted that they arrived at the house of appellant at 5:30 p.m. She said that appellant's wife gave birth at dawn at 3:00 a.m. of January 6, 2000.[65] Juanita said that appellant was with her the entire time and never left the house.[66] Testimony of Joy Agbuya For a better perspective on the testimony of Joy, it is necessary to repeat the testimony of AAA. AAA testified that on January 5, 2000, she was accompanied by 12-year-old Joy and the latter's brother Ricky Agbuya (Ricky) to the mango orchard at the back of the elementary school to pick fallen mangoes. Further, complainant claims that she was left behind by Joy and Ricky when her shorts got hooked to the fence and that while she was unhooking her pants from the fence, appellant grabbed her and raped her.[67] This was however contradicted by Joy, to wit: Q. How many times did you go to the mango orchard of Juanito Macaraeg? A. Three (3) times, sir. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. When you usually go to the mango orchard of Juanito Macaraeg, where did you met [sic] with AAA? In their house, I dropped by her house, sir. Was there an occasion wherein you brought your brother Ricky when you went with AAA to the mango orchard of Juanito Macaraeg? No, sir. Are we made to understand that Ricky, your brother did not go even once to the mango orchard of Maning Macaraeg? Yes, sir. According to AAA in her sworn statement she stated that in [sic] January 5, 2000 you were with your brother Ricky and AAA in going to the mango orchard, what can you say about that? What she is saying is not true. I was not with my brother, sir. I did not tug him along with me. It is also said by AAA that you left her behind in was hooked, what can you say about that? No, sir I waited for her. the mango orchard when her pants

Are we made to understand Madam Witness, that there was no instance or never that happened that you left her in the mango orchard alone? No, sir, I waited for her and both of us went home together, sir. Going back to the occasion wherein you were with AAA, who were with you in going back home? Just the two (2) of us, sir. In your way home, where did you part or separate with each other? In front of the store of auntie Beth, sir.[68]

xxxx Q. A. Q. A. Is AAA your bestfriend? Yes, sir. Since you said that AAA is your bestfriend was there an occasion wherein she told you that she was raped? None, sir.[69] (Emphasis and underscoring supplied)

On cross-examination, Prosecutor Ely Reintar elicited the following statements from Joy:

14

Q. A. Q. A. Q. A. Q. A. Q. A.

In the year 2000, when was the last time that you talked to AAA? April, sir. After April, you did not talk to AAA anymore? No more, sir. Your friendship was severed? Yes, sir. Will you please tell the Honorable Court why your friendship became severed? Because she quarreled with me, sir. And because you quarreled, that is the reason why you are now testifying against her? Yes, sir.[70]

On re-direct examination, Joy clarified, thus: Q. A. Madam Witness, you said that you have a quarrel with the private complainant, AAA, will you please tell this Honorable Court what is the reason or cause of your quarrel with AAA? Because they wanted me to say another statement that I left AAA behind, sir.[71] (Emphasis supplied)

On re-cross examination, Joy gave the following answers to the questions of Prosecutor Reintar: Q. You said that the reason for your quarrel is that they wanted you to change your statement, that you left behind AAA, who are those they, that you are referring to?

INTERPRETER No answer. Witness I, sir. PROS. REINTAR Q. Who told you to change your statement that you left AAA behind? A. Because they are saying that I will change my statement that I left AAA but I did not sir. Q. A. Q. A. Who are these who are telling that? They, sir. Will you please mention them? BBB, only her, sir.[72]

The testimony of 12-year-old Joy makes it impossible for the appellant to have raped AAA the way complainant narrated it, to wit: Q. A. Q. A. Q. A. You try to understand clearly the question, Madam Witness, and may I repeat that, at the time of the rape when according to you, you were the one raped, where were Joy and Ricky Agbuya? They left ahead of me because my short pants was hooked at the fence so I was left behind, sir. Were you able to remove the pants of yours at the fence? I was removing it sir, when he suddenly grabbed me. And who is this person you are referring to as the one who grabbed you? Larry Erguiza, sir.[73]

15

Put simply, complainant could not have been raped because Joy waited for complainant when the latters shorts got hooked to the fence and thereafter both went home together. The Court finds no cogent reason for Joy to lie and say that she had waited for complainant and that they both went home together. She had nothing to gain for lying under oath. Moreover, the records are bereft of any showing or claim that Joy was related to or was a close friend of appellant or his family. On the contrary, Joy considers herself the best-friend and playmate of complainant.[74] When Prosecutor Reintar questioned her as to her understanding of the oath she took, Joy answered, That I will swear to God, sir. x x x The truth, sir.[75] Furthermore, Joy did not succumb to pressure even as she was being conscientiously examined by Prosecutor Reintar. Joy boldly testified that BBB, the mother of complainant, was forcing her to change her statement. The testimony of Joy clearly lays down the following facts which are damaging to the case of the prosecution: first, that Joy did not leave behind AAA when the latters shorts got hooked to the fence; and secondly, that Joy and AAA left the orchard, went home together and separated at their Aunt Beth's house, indicating that no untoward incident, much less rape, was committed by appellant at the time and place that complainant had testified on. Necessarily, either Joy or AAA lied under oath. It was thus critical for the prosecution to show that Joy gave false statements. Unfortunately for AAA, the prosecution miserably failed to rebut Joys testimony. Neither complainant nor Ricky, BBB or any other witness was called to the witness stand to refute Joys testimony. True, it is up to the prosecution to determine who to present as witnesses.[76] However, considering that the testimony of Joy critically damaged the case of the prosecution, it behooved the prosecution to present evidence to rebut the defense evidence. Witnesses such as Ricky, AAA and BBB should have been presented by the prosecution to demolish Joy's testimony. The testimony of Ricky is particularly significant, especially since AAA claimed that he was with her and his sister Joy at the mango orchard on the day of the alleged rape incident. The failure on the part of the prosecution to present Ricky or AAA bolsters the defense evidence, that no rape happened on the date and time claimed by AAA. The prosecution presented CCC, the father of complainant, as it's lone rebuttal witness.[77] However, the testimony of CCC covered facts and issues not related to the testimony of Joy. The testimony of CCC merely rebutted the allegation made by appellant's family that the present case was filed because appellant's family did a poor job of preparing for the wedding of CCC's daughter DDD and apellant's brother Carlito. To this, CCC testified that on the contrary, the wedding went smoothly.[78] Furthermore, CCC claimed that the family of appellant knelt before him crying and offered money to settle the case.[79] In addition, CCC testified that appellant left his house at 4:00 p.m. on January 5, 2000. Thus, the testimony of CCC did not in any way rebut the testimony of Joy. Further, Joy testified that during the three times she went with AAA to the mango orchard, the time was 1:00 p.m.[80] However, AAA testified that she went to the mango orchard with Joy at 4:00 p.m.[81] The variance in the testimonies of Joy and AAA as to the time they went to the mango orchard on the day of the alleged rape incident may be disregarded as they are de minimis in nature and do not relate to the commission of the crime. There is a common point uniting the testimonies of both Joy and AAA; that is, that both referred to the day when AAAs short got hooked to the f ence. Moreover, assuming arguendo that the variance between the testimonies of AAA and Joy as to the time they were together at the mango orchard is an indicia that AAA may have been raped by appellant on a different day, not on January 5, 2000, to still impute to appellant the crime of rape is not plausible. The Court is not unmindful of the rule that the exact date of the commission of the crime of rape is extraneous to and is not an element of the offense, such that any inconsistency or discrepancy as to the same is irrelevant and is not to be taken as a ground for acquittal.[82] Such, however, finds no application to the case at bar. AAA and Joy may differ in their testimonies as to the time they were at the mango orchard, but there could be no mistake as to the actual day when AAA was supposed to have been raped; it was the day when AAA's shorts got hooked to the fence at the mango orchard. The RTC and CA unwittingly brushed aside the testimonies of Juanita and Joy and gave full credence to the testimony of AAA. As a matter of fact, their probative weight were not considered or evaluated in the text of the lower courts' decision. As mentioned earlier, the prosecution could have rebutted the testimony of Joy, but for some reason or oversight, it chose not to do so. Consequently, in view of the unrebutted testimony of Joy, appellants defense of alibi and denial assumes considerable

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weight. It is at this point that the issue as to the time that the rape was committed plays a significant factor in determining the guilt or innocence of appellant. This Court must therefore address this issue for a thorough evaluation of the case. The Court takes note that Macaraeg, the caretaker of the orchard, testified that appellant's house was only a minute away from the orchard if one would run. As earlier mentioned, CCC testified that appellant left CCC's house at 4:00 p.m. on January 5, 2000, contrary to the testimony of Albina that she and appellant left at 5:00 p.m. AAA declared that the alleged rape took place after 5:00 p.m. Q. A. Q. A. Q. A. So at 4:00 o'clock you were at the house and you left and proceeded at the back of the school to pick mangoes? Yes, sir. That was already around 5:00 o'clock? Yes, sir. I asked my companion Joy. What did you ask of her? She was wearing a wristwatch and I asked Joy what time is it and when I looked at her wristwatch, it was already 5:00 o'clock, sir.[83] (Emphasis Supplied)

Moreover, on cross-examination, AAA gave the following statements, to wit: Q. A. Q. A. So it is almost 5:00 p.m. When you went to the mango orchard with Joy Agbuya and Ricky Agbuya? What I only know was that, it was already about 5:00 o'clock then, sir. How many minutes did you consume in getting mangoes? When we went there, we were not able to get some mango and when I asked sir what was the time then and when I looked at the wristwatch, it was already 5:00 o'clock, sir.[84] (Emphasis Supplied)

The testimony of Joy makes it impossible for AAA to have been raped at 4:00 p.m. or 5:00 p.m. or any time thereafter since it was not rebutted that Joy never left complainant at the mango orchard even when AAA's shorts got hooked to the fence, and both went home together without any other untoward incident. This Court is not unmindful of the doctrine that for alibi to succeed as a defense, appellant must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime.[85] In the case at bar, although the orchard is just a minute away from the house of appellant, in view of the testimony of the hilot Juanita that appellant was with her from 5:10 p.m. and never left his house from that time until his wife gave birth at 3:00 a.m.; and the testimony of Joy that she never left AAA in the orchard and that they both went home together, the defense of alibi assumes significance or strength when it is amply corroborated by a credible witness.[86] Thus, the Court finds that appellant's alibi is substantiated by clear and convincing evidence. What needs to be stressed is that a conviction in a criminal case must be supported by proof beyond reasonable doubt -- moral certainty that the accused is guilty.[87] The conflicting testimonies of Joy and complainant, and the testimony of Juanita that corroborated appellants alibi preclude the Court from convicting appellant of rape with moral certainty. Faced with two conflicting versions, the Court is guided by the equipoise rule.[88] Thus, where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[89] The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused.[90] It is the primordial duty of the prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion.[91] What is required of it is to justify the conviction of the accused with moral certainty.[92] Upon the prosecution's failure to meet this test, acquittal becomes the constitutional duty of the Court, lest its mind be tortured with the

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thought that it has imprisoned an innocent man for the rest of his life.[93] WHEREFORE, the Decision dated November 18, 2005 of the Court of Appeals in CA-G.R. CR H. C. No. 00763 is REVERSED and SET ASIDE. Larry Erguiza is ACQUITTED and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio. ADMISSION BY CONSPIRATOR Tamargo v. Awigan, G.R.No. 177727, January 19, 2010 This is a petition for review on certiorari of the November 10, 2006 decision and May 18, 2007 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 93610. Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely 4 resembled Columna. After conducting a preliminary investigation and on the strength of Gerons affidavit, the investigating prosecutor issued a 6 resolution dated December 5, 2003 finding probable cause against Columna and three John Does. On February 2, 2004, the corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 7 27 for the death of Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail Franzielle. Columna was 8 arrested in the province of Cagayan on February 17, 2004 and brought to Manila for detention and trial. On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation as "look out" during the shooting and implicated respondent Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He 9 also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda. The former was the exmayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor. Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by 10 Columna in the Office of the City Prosecutor of Manila. On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor 12 questions.
11 5 1 2 3

who subjected him to clarificatory

Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were dismissed as Lloyd emerged as the winner in the 13 elections and Licerio was acquitted by the Sandiganbayan. During the preliminary investigation, respondent icerio presented Columnas unsolicited handwritten letter dated May 3, 2004 to respondent loyd, sent from Columnas jail cell in Manila. In the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had 14 no participation in the killings. Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter. Due to the submission of Columnas letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna

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to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that any 15 violence had been employed to obtain or extract the affidavit from him. 1avvphi1 Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved by the city prosecutor. Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the 16 threats to his life inside the jail. He requested that he be transferred to another detention center. Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ). On May 30, 2005, the DOJ, 18 through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for murder. He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation and that there was 19 enough evidence to prove the probable guilt of respondents. Accordingly, the Informations were filed and the cases were 20 consolidated and assigned to the RTC of Manila, Branch 29. However, on August 12, 2005, Secretary Gonzales granted the Antipordas motion for reconsideration (MR) and directed the 21 withdrawal of the Informations. This time, he declared that the extrajudicial confession of Columna was inadmissible against 22 respondents and that, even if it was admissible, it was not corroborated by other evidence. As a result, on August 22, 2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied petitioners MR. The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated October 26, 23 2005. Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were re-raffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She ruled that, based on Columnas March 8, 2004 affidavit which he affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February 6, 2006. Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188. In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into account in concluding that there was no probable cause against all the accused. It also held that Columnas extrajudicial confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was arrested and not while the conspirators were engaged in carrying out the conspiracy. After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the petition for 24 certiorari of respondents Antiporda. Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental petition. The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of discretion in denying the withdrawal of the Informations for murder against respondents. Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columnas recantation. Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that Columnas extrajudicial confession was inadmissible against respondents because of the rule on res inter alios acta.
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We find no merit in the petition. It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent assessment of the 25 merits of the motion. It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution 26 of the Secretary would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case. The court must 27 itself be convinced that there is indeed no sufficient evidence against the accused. We agree with the CA that Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004 whe rein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation to file t he 28 murder charges. She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent loyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit. We declared in Jimenez v. Jimenez that [although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence 30 might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. (Emphasis supplied) Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this point: The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the informations effectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the 31 public prosecutor. Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession in his March 8, 2004 affidavit was not admi ssible as evidence against respondents in view of the rule on res inter alios acta. Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by 32 an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant, is not 33 34 admissible against his or her co-accused and is considered as hearsay against them. The reason for this rule is that: on a principle of good faith and mutual convenien ce, a mans own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their 35 acts or conduct be used as evidence against him. An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court: Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.1avvphi1
29

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This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial 36 confession. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object 37 and (c) it has been made while the declarant was engaged in carrying out the conspiracy. Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with the witnesses against them and to cross38 examine them. Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be 39 relieved from the pain of going through a full blown court case. When, at the outset, the evidence offered during the preliminary investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint 40 should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive litigation. The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the 41 warrant of arrest issued by Judge Daguna. Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable cause or sufficient ground to hold respondents for trial as co-conspirators. Given that she had no sufficient basis for a finding of probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued with grave abuse of discretion. Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents. WHEREFORE, the petition is hereby DENIED. SIMILAR CONDUCT Bank of Commerce v. Manalo, G.R. No. 158149, February 9, 2006 ** Evidence In Question: the deeds of Conditional Sale between Xavierville Estate Inc. and three other lot buyers to prove that there indeed is a stipulated manner of payment in the purported Contract to Sell (the August 22, 1972 letter). FACTS: 1. Xavierville Estate Inc. (XEI) owns the Xavierville Estate Subdivision. 2. XEIsoldsomeresidentiallotstoOverseasBankofManila (OBM) and they executed a Deed of Real Estate. 3. The transaction was subject to the approval of the Board of Directors of OBM and was covered by real estate mortgages in favor of the PNB as security for its account and the Central Bank of the Philippines as security for advances 4. Nevertheless, XEI continued selling the residential lots in the subdivision as agent of OBM. 5. XEI president Emerito Ramos, Jr. contracted the services of Engr. Carlos Manalo, Jr. who was in business of drilling deep water wells and installing pumps under the business name Hurricane Commercial, Inc 6. Manalo, Jr. installed a water pump at Ramos residence 7. Manalo, Jr. then proposed to XEI, through Ramos, to purchase a lot in the Xavierville subdivision, and offered as part of the downpayment the P34,887.66 Ramos owed him 8. XEI, through Ramos, agreed.

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9. Manalo, Jr. met with Ramos and informed him that he and his wife Perla had chosen Lots 1 and 2 of Block 2 with a total area of 1,740.3 square meters. 10. VERY IMPORTANT FACT (this is the fact relevant to the topic in Evidence): In a letter dated August 22, 1972 to Perla Manalo, Ramos confirmed the reservation of the lots. He also pegged the price of the lots at P200.00 per square meter, or a total of P348,060.00, with a 20% down payment of the purchase price amounting to P69,612.00 less the P34,887.66 owing from Ramos, payable on or before December 31, 1972; the corresponding Contract of Conditional Sale would then be signed on or before the same date, but if the selling operations of XEI resumed after December 31, 1972, the balance of the down payment would fall due then, and the spouses would sign the aforesaid contract within five (5) days from receipt of the notice of resumption of such selling operations. It was also stated in the letter that, in the meantime, the spouses may introduce improvements thereon subject to the rules and regulations imposed by XEI in the subdivision. Perla Manalo conformed to the letter agreement. Manalo spouses took possession of the property and constructed a house thereon and installed a fence around the perimeter lots.

11.

12. Important Fact: The spouses Manalo were notified of the resumption of the selling operations of XEI. However, they did not pay the balance of the downpayment on the lots because Ramos failed to prepare a contract of conditional sale and transmit the same to Manalo for their signature 13. 14. 15. Perla Manalo went to the XEI office and requested that the payment of the amount representing the balance of the downpayment be deferred, which, however, XEI rejected XEI furnished Mrs. Manalo with the statement of account showing the balance plus interests. Manalo, Jr. stated they had not yet received the notice of resumption of eis selling operations, and that there had

been no arrangement on the payment of interests; hence, they should not be charged with interest on the balance of the down payment on the property 16. 17. Sometime in June 1976, Manalo constructed a business sign in the sidewalk near his house. XEI informed Manalo, Jr. that business signs were not allowed along the sidewalk. It demanded that he remove the same, on the ground, among others, that the sidewalk was not part of the land which he had purchased on installment basis from XEI.

18.Another Important Fact: Subsequently, XEI turned over its selling operations to OBM, including the receivables for lots already contracted and those yet to be sold 19. Register of Deeds issued Transfer Certificate of Title (TCT) No. T-265822 over Lot 1, Block 2, and TCT No. T- 265823 over Lot 2, Block 2, in favor of the OBM 20. Another Important Fact: Commercial Bank of Manila (CBM) acquired the Xavierville Estate from OBM. CBM wrote Edilberto Ng, the president of Xavierville Homeowners Association that, as of January 31, 1983, Manalo, Jr. was one of the lot buyers in the subdivision. CBM reiterated in its letter to Ng that, as of January 24, 1984, Manalo was a homeowner in the subdivision 21. CBM, the new owner of the Xavierville Estate, told Manalo to stop any constructin in the property, because it is the owner of the lot (CMB that is). 22. Mrs. Manalo met with CBM officers and she told them that her husband had a contract with OBM, through XEI to purchase the property. 23. When asked to prove her claim, she promised to send the documents to CBM. However, she failed to do so 24. CBM filed a complaint for unlawful detainer against the spouses with the Metropolitan Trial Court of Quezon City 25. spouses Manalo wrote CBM to offer an amicable settlement, promising to abide by the purchase price of the property (P313,172.34), per agreement with XEI, through Ramos. But the CBM proposed that they pay the price of 1,500 per sq. m. Manalos

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rejected the proposal. 26. Manalos then filed a case against CBM (which was then named as Boston Bank) for specific performance and damages. 27. Manalos stance we were always ready, able and willing to pay the installments. We already offered to pay the balance of the purchase price hence, the Deed of Absolute Sale should be executed in our favor! 28. CBMs Answer of course not! The August 22, 1972 letter was not binding. There is no contract to sell executed by OBM, through XEI, in favor of you Manalos! Hence, we cant be obliged to execute the Deed of Sale. 29. ANOTHER VERY IMPORTANT FACT FOR OUR TOPIC: Manalos evidence During the trial, the Manalos adduced in evidence the separate Contracts of Conditional Sale executed between XEI and Alberto Soller; Alfredo Aguila, and Dra. Elena Santos-Roque to prove that XEI continued selling residential lots in the subdivision as agent of OBM after the latter had acquired the said lots (these people are other purchasers of the lots in the Xavierville Estate) 30. CBMs evidence presented in evidence letter dated August 22, 1972, where XEI proposed to sell the two lots subject to two suspensive conditions: the payment of the balance of the downpayment of the property, and the execution of the corresponding contract of conditional sale. Since plaintiffs failed to pay, OBM consequently refused to execute the corresponding contract of conditional sale and forfeited the P34,877.66 downpayment for the two lots, but did not notify them of said forfeiture. It alleged that OBM considered the lots unsold because the titles thereto bore no annotation that they had been sold under a contract of conditional sale, and the plaintiffs were not notified of XEIs resumption of its selling operations. 31. RTC in favor of Manalos. The Aug 22, 1972 letter is equivalent to a Complete Contract to Sell, and that they had already partially consummated the same. It declared that the failure of the defendant to notify the plaintiffs of the resumption of its selling operations and to execute a deed of conditio nal sale did not prevent the defendants obligation to convey titles to the lots from acquiring binding effect. Consequently, the plaintiffs had a cause of action to compel the defendant to execute a deed of sale over the lots in their favor. 32. CA (important to note CAs reasoning) affirmed RTC with modification. It said that that the balance of the purchase price of the property amounting to P278,448.00 was payable in fixed amounts, inclusive of pre-computed interests, from delivery of the possession of the property to the appellees on a monthly basis for 120 months, based on the deeds of conditional sale executed by XEI in favor of other lot buyers. (Digesters Note: medyo malabo ito pero later on the SC said that the CA ruled na walang indicated na schedule of payment sa letter/Contract to Sell na yun. The Court discussed that for a valid Contract to Sell to exist, such shall indicate a schedule/manner of payment and here, CA said na wala but still they said na may valid contract to sell...later we will see na may error ang CA for ruling in such a way) 33. Hence this petition by CBM/Boston Bank 34. CBMs stance unless the parties had agreed on the manner of payment of the principal amount, including the other terms and conditions of the contract, there would be no existing contract of sale or contract to sell. Petitioner avers that the letter agreement to respondent spouses dated August 22, 1972 merely confirmed their reservation for the purchase of Lot Nos. 1 and 2, consisting of 1,740.3 square meters, more or less, at the price of P200.00 per square meter (or P348,060.00), the amount of the downpayment thereon and the application of the P34,887.00 due from Ramos as part of such downpayment (Digesters Note: in other words, sabi ng CBM, wala pang agreed na manner of payment kaya there cannot be a Contract to Sell) 35. Manalos stance as long as there is a meeting of the minds of the parties to a contract of sale as to the price, the contract is valid despite the parties failure to agree on the manner of payment. In such a situation, the balance of the purchase price would be payable on demand, conformably to Article 1169 of the New Civil Code. They insist that the law does not require a party to agree on the manner of payment of the purchase price as a prerequisite to a valid contract to sell. Important to note: They point out that such letters referred to the terms of the terms of the deeds of conditional sale executed by XEI in favor of the other lot buyers in the subdivision, which contained uniform terms of 120 equal monthly installments (excluding the downpayment, but inclusive of pre-computed interests) (please refer to fact #29; they based their positions on the alleged uniformity of terms as to the manner of payment as stipulated in the three contracts of conditional sale in favor of the three other lot buyers). Simply put, ang sinasabi lang nila Manalo is, since yung three other deeds of conditional sales (fact #29) have in their stipulations the uniform terms of 120 equal monthly installments, then it can be said na yun rin ang manner of payment na na- agreed upon nila Manalo at OBM, through XEI as agent. (parang lumalabas ganun ang policy ng OBM) ISSUE:WON OBM, through its agent XEI, really executed a Contract to Sell in favor of the Manalos? NO. There was no stipulated

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manner of payment, hence, a valid Contract to Sell did not exist. RATIO: 1. Rule: for a perfected contract of sale or contract to sell to exist in law, there must be an agreement of the parties, not only on the price of the property sold, but also on the manner the price is to be paid by the vendee 2. In the case at bar: We agree with the contention of the petitioner that, as held by the CA, there is no showing, in the records, of the schedule of payment of the balance of the purchase price on the property amounting to P278,448.00. We have meticulously reviewed the records, including Ramos February 8, 1972 and August 22, 1972 letters to respondents, and find that said parties confined themselves to agreeing on the price of the property (P348,060.00), the 20% downpayment of the purchase price (P69,612.00), and credited respondents for the P34,887.00 owing from Ramos as part of the 20% downpayment. The timeline for the payment of the balance of the downpayment (P34,724.34) was also agreed upon, that is, on or before XEI resumed its selling operations, on or before December 31, 1972, or within five (5) days from written notice of such resumption of selling operations. The parties had also agreed to incorporate all the terms and conditions relating to the sale, inclusive of the terms of payment of the balance of the purchase price and the other substantial terms and conditions in the corresponding contract of conditional sale, to be later signed by the parties, simultaneously with respondents settlement of the balance of the downpayment. (The SC went on further saying that based on the letters, the determination of the terms of payment of the P278,448.00 had yet to be agreed upon on or before December 31, 1972, or even afterwards, when the parties sign the corresponding contract of conditional sale 3. EVIDENCE TOPIC: (again please refer to fact #29) We reject the submission of respondents that they and Ramos had intended to incorporate the terms of payment contained in the three contracts of conditional sale executed by XEI and other lot buyers in the corresponding contract of conditional sale, which would later be signed by them. We have meticulously reviewed the respondents complaint and find no such allegation therein. Indeed, respondents merely alleged in their complaint that they were bound to pay the balance of the purchase price of the property in installments. When respondent Manalo, Jr. testified, he was never asked, on direct examination or even on cross-examination, whether the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and other lot buyers would form part of the corresponding contract of conditional sale to be signed by them simultaneously with the payment of the balance of the downpayment on the purchase price. 4. FURTHER ON WITH THE EVIDENCE DISCUSSION Respondents, as plaintiffs below, failed to allege in their complaint that the terms of payment of the P278,448.00 to be incorporated in the corresponding contract of conditional sale were those contained in the contracts of conditional sale executed by XEI and Soller, Aguila and Roque. They likewise failed to prove such allegation in this Court. The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment of the P278,448.00. DOCTRINE AS APPLIED IN THE CASE AT BAR: (Caveat: cut and paste ito, kasi I think everything is important) Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time, although such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties. Similar acts as evidence. Evidence that one did or did not 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, scheme, habit, custom or usage, and the like. CASE AT BAR: However, respondents failed to allege and prove, in the trial court, that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with pre- computed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the purchase price of said lots in 120 months. It further failed to prove that the trial court admitted the said deeds as part of the testimony of respondent Manalo, Jr. Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before

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they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semiautomatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion. In determining whether the examples are numerous enough, and sufficiently regular, the key criteria are adequacy of sampling and uniformity of response. After all, habit means a course of behavior of a person regularly represented in like circumstances. It is only when examples offered to establish pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that examples are admissible. The key criteria are adequacy of sampling and uniformity of response or ratio of reaction to situations. There are cases where the course of dealings to be followed is defined by the usage of a particular trade or market or profession. As expostulated by Justice Benjamin Cardozo of the nited States Supreme Court: ife casts the moulds of conduct, which will someday become fixed as law . aw preserves the moulds which have taken form and shape from life. sage furnishes a standard for the measurement of many o f the rights and acts of men. It is also well-settled that parties who contract on a subject matter concerning which known usage prevail, incorporate such usage by implication into their agreement, if nothing is said to be contrary. However, the respondents inexplicably failed to adduce sufficient competent evidence to prove usage, habit or pattern of conduct of XEI to justify the use of the terms of payment in the contracts of the other lot buyers, and thus grant respondents the right to pay the P278,448.00 in 120 months, presumably because of respondents belief that the manner of payment of the said amount is not an essential element of a contract to sell. There is no evidence that XEI or OBM and all the lot buyers in the subdivision, including lot buyers who pay part of the downpayment of the property purchased by them in the form of service, had executed contracts of conditional sale containing uniform terms and conditions. Moreover, under the terms of the contracts of conditional sale executed by XEI and three lot buyers in the subdivision, XEI agreed to grant 120 months within which to pay the balance of the purchase price to two of them, but granted one 180 months to do so. There is no evidence on record that XEI granted the same right to buyers of two or more lots. 5. Manalos failed and refused to pay the balance of the downpayment and price of property despite the notice to them of the resumption by XEI of its selling operations. XEI and OBM failed and refused to transmit the deed of conditional sale to the Manalos. Manalos could have consigned the balance of the downpayment after notice of the resumption of the selling operations of XEI and filed an action to compel XEI and OBM to transmit the deed of conditional sale, but they failed to do so. HELD: CA ruling reversed and set aside. DYING DECLARATION People v. Tabarnero, G.R. No. 168169, February 24, 2010 This is an appeal from the Decision[1] of the Court of Appeals in CA-G.R. CR.-H.C. No. 00027 dated April 29, 2005. In said Decision, the Court of Appeals affirmed with modification the August 29, 2002 Decision[2] of the Regional Trial Court (RTC), Branch 78 of Malolos, Bulacan, in Crim. Case No. 888-M-2000, convicting herein appellants Alberto Tabarnero (Alberto) and Gary Tabarnero (Gary) of the crime of Murder. The factual and procedural antecedents of the case are as follows: Late at night on October 23, 1999, Gary went to the house of the deceased Ernesto Canatoy (Ernesto), where the former used to reside as the live-in partner of Mary Jane Acibar (Mary Jane), Ernestos stepdaughter. Gary and Ernesto had a confrontation during which the latter was stabbed nine times, causing his death. The versions of the prosecution and the defense would later diverge as regards the presence of other persons at the scene and other circumstances concerning Ernestos death. On March 3, 2000, Gary and his father, Alberto, were charged with the crime of Murder in an Information which read: That on or about the 23 day of October, 1999, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, armed with bladed instrument and with intent to kill one Ernesto Canatoy, did then and there willfully, unlawfully, and feloniously, with evident
rd

25

premeditation, abuse of superior strength and treachery, attack, assault and stab with the said bladed instrument the said Ernesto Canatoy, hitting the latter on the different parts of his body, thereby causing him serious physical injuries which directly caused his death.[3]

On 27 March 2000, warrants for the arrest of Gary and Alberto were issued by the RTC of Malolos, Bulacan.[4] On April 22, 2001, Gary surrendered to Barangay Tanod Edilberto Alarma.[5] When he was arraigned on April 30, 2001, Gary pleaded NOT GUILTY to the crime charged. [6] During this time, Alberto remained at large. On May 21, 2001, a pre-trial conference was conducted. Therein, Gary admitted having killed Ernesto, but claimed that it was an act of self-defense. Thus, pursuant to Section 11(e), Rule 119 of the Rules of Court, a reverse trial ensued. Gary, a 22-year-old construction worker at the time of his testimony in June 2001, testified that he stayed in Ernestos house from 1997 to 1999, as he and Mary Jane were living together. Mary Jane is the daughter of Teresita Acibar, the wife[7] of Ernesto. However, Gary left the house shortly before the October 23, 1999 incident because of a misunderstanding with Ernesto when the latter allegedly stopped the planned marriage of Gary and Mary Jane, who was pregnant at that time. On October 23, 1999, Gary was allegedly in his house in Longos, Malolos, Bulacan at around 11:40 p.m. with his friend, Richard Ulilian; his father, co-appellant Alberto; his mother, Elvira; and his brother, Jeffrey. Overcome with emotion over being separated from Mary Jane, Gary then went to Ernestos house, but was not able to enter as no one went out of the house to let him in. He instead shouted his pleas from the outside, asking Ernesto what he had done wrong that caused Ernesto to break him and Mary Jane up, and voicing out several times that he loved Mary Jane and was ready to marry her. When Gary was about to leave, the gate opened and Ernesto purportedly struck him with a lead pipe. Ernesto was aiming at Garys head, but the latter blocked the blow with his hands, causing his left index finger to be broken. Gary embraced Ernesto, but the latter strangled him. At that point, Gary felt that there was a bladed weapon tucked at Ernestos back. Losing control of himself, Gary took the bladed weapon and stabbed Ernesto, although he cannot recall how many times he did so.[8] According to Gary, Ernesto fell to the ground, and pleaded, saklolo, tulungan niyo po ako three times. Gary was stunned, and did not notice his father, co-appellant Alberto, coming. Alberto asked Gary, anak, ano ang nangyari? To which Gary responded nasaksak ko po yata si Ka Erning, referring to Ernesto. Gary and Alberto fled, allegedly out of fear.[9] Gary denied that he and Alberto conspired to kill Ernesto. Gary claims that it was he and Ernesto who had a fight, and that he had no choice but to stab Ernesto, who was going to kill him.[10] Garys sister, Gemarie Tabarnero, testified that she was a childhood friend of Mary Jane. Gemarie attested that Mary Jane was Garys girlfriend from 1995 to 1999. Sometime in 1999, however, Gary and Mary Jane were prevented from talking to each other. During that time, Gary was always sad and appeared catatonic, sometimes mentioning Mary Janes name and crying. [11] On the night of the incident on October 23, 1999, Gemarie observed that Gary was crying and seemed perplexed. Gary told Gemarie that he was going to Ernestos house to talk to Ernesto about Mary Jane. Gary allegedly did not bring anything with him when he went to Ernestos house.[12] In the meantime, on August 5, 2001, Alberto was apprehended.[13] On August 20, 2001, he pleaded NOT GUILTY to the charge.[14] However, while Albertos defense is denial and not self-defense like Garys, the court decided to proceed with the reverse trial, as it had already started that way.[15] Next on the witness stand was Edilberto Alarma (Alarma), who was a barangay tanod of Longos, Malolos, Bulacan since February 2000. Alarma testified that while he was in a meeting at around 4:00 p.m. on April 22, 2001, Gary arrived and told him of his intention to surrender to him. Gary told him that he was responsible for the incident *that+ happened at Daang Riles. Together with his fellow barangay tanod Zaldy Garcia, Alarma brought Gary to the Malolos Police Station, where the surrender was entered in the blotter report.[16] Appellant Alberto, a construction worker employed as leadman/foreman of Alicia Builders, was 45 years old at the time of his testimony in September 2001. He testified that at the time of the incident, he was living in Norzagaray, Bulacan. On October 23, 1999, however, he went to visit his children, Gary and Gemarie, in Barangay Longos, Malolos, Bulacan. Before going to sleep at 11:00 p.m., he realized that Gary was not in the place where he would usually sleep. He went downstairs, thinking that Gary was

26

just urinating. He waited for five minutes; when Gary did not show up, he proceeded to Daang Bakal, where Gary had many friends. He walked for about 10 minutes. About 400 meters from the site of the incident, he saw Gary and asked him what happened and why he was in a hurry, to which Gary replied: Wag na kayong magtanong, umalis na tayo, napatay ko po yata si Kuya Erning. Alberto and Gary ran in different directions. Alberto passed through the railways and exited in front of the capitol compound to wait for a jeepney going to Sta. Maria, his route toward his home in Norzagaray.[17] Alberto claims that he had no knowledge of the accusation that he conspired with Gary in killing Ernesto. It was three months after the incident that he came to know that he was being charged for a crime. At this time, he was already residing in Hensonville Plaza, Angeles City, Pampanga, where he was assigned when his engineer, Efren Cruz, secured a project in said place.[18] During cross-examination, Alberto repeated that he did not return to Garys house after the incident. He said that it did not occur to him to inform the authorities about the killing of Ernesto. Later, Alberto learned from his sibling, whom he talked to by phone, that Gary had already surrendered. He did not consider surrendering because, although he wanted to clear his name, nobody would work to support his family. He said that he had no previous misunderstanding with Ernesto.[19] Answering questions from the court, Alberto stated that he immediately went home to Norzagaray because he was afraid to be implicated in the stabbing of Ernesto. It did not occur to him to stay and help Gary because he did not know where Gary proceeded after they ran away. The next time he saw Gary was three months after the incident, when Gary went to Norzagaray.[20] The first to testify for the prosecution was its eyewitness, Emerito Acibar (Emerito). Emerito, the brother of Mary Jane,[21] was inside their house in Daang Bakal, Longos, Malolos, Bulacan with his brother and his stepfather, Ernesto, at around eleven oclock on the night of the incident on October 23, 1999. He heard somebody calling for Ernesto, but ignored it. He then heard a kalabog, followed by Ernestos plea for help. Emerito was about to go outside, but, while he was already at the door of their one-room[22] house, he saw Ernesto being held by a certain Toning Kulit and another person, while G ary and Alberto were stabbing Ernesto with fan knives. Emerito lost count of the number of thrusts made by Gary and Alberto, but each inflicted more than one, and the last stab was made by Alberto. Emerito shouted for help. The four assailants left when somebody arrived, allowing Emerito to approach Ernesto and bring him to the Bulacan Provincial Hospital.[23] On cross-examination, Emerito confirmed that Gary and Mary Jane used to reside in Ernestos house. On the date of the incident, however, Gary had already left the house, while Mary Jane had moved to Abra with Teresita (the mother of Emerito and Mary Jane). According to Emerito, his family did not know that Mary Jane and Gary had a relationship because they treated Gary like a member of the family. Ernesto got mad when his wife, Teresita, found out about Gary and Mary Janes relationship. On the night of the incident, at past 11:00 p.m., Emerito was fixing his things inside their house, when he heard someone calling from outside, but was not sure if it was Gary. Emerito neither saw Ernesto leaving the room, nor the fight between Ernesto and Gary. All he saw was the stabbing, which happened seven to eight meters away from the doorway where he was standing. He was sure that there were four assailants, two of whom went to a bridge 8 to 10 meters from the incident, where they boarded a yellow XLT-type car.[24] Senior Police Officer 2 (SPO2) Ronnie Morales of the Malolos Philippine National Police testified that he was on duty at the police station on the night of October 23, 1999. During that night, Emerito reported at the police station that Ernesto had been stabbed. SPO2 Morales and Emerito proceeded to the Bulacan Provincial Hospital, where SPO2 Morales saw Ernesto in the operating room, very weak due to multiple injuries. While in the presence of two doctors on duty, SPO2 Morales asked Ernesto who stabbed him. Ernesto answered that the assailants were the father and son, Gary and Alberto Tabarnero from Longos, Bulacan.[25] Cross-examined, SPO2 Morales clarified that it was already 1:00 a.m. of the following day when he and Emerito proceeded to the hospital. As they went to the hospital, Emerito did not inform SPO2 Morales that he witnessed the incident. SPO2 Morales did not find it odd that Emerito did not tell him who the suspects were when Emerito reported the incident, because they immediately proceeded to the hospital, considering that the victim, Ernesto, was still alive. Ernesto was not able to affix his signature on the Sinumpaang Salaysay[26] because he could no longer talk after the fourth question. Answering questions from the court, SPO2 Morales further stated that he could not remember talking to Emerito on their way to the hospital, since they were in a hurry.[27] The government physician at the Bulacan Provincial Hospital who prepared Ernestos death certificate, Dr. Apollo Trinidad, clarified that Ernesto died on October 25, 1999. However, considering the admission by the defense of the fact of death, the cause thereof, and the execution of the death certificate, the prosecution no longer questioned Dr. Trinidad on these matters.[28]

27

Teresitas testimony was likewise dispensed with, in light of the admission by the defense that she was the common -law wife of Ernesto, and that she incurred P55,600.00 in expenses in relation to Ernestos death.[29] On August 29, 2002, the RTC rendered its Decision convicting Gary and Alberto of the crime of murder. The decretal portion of the Decision reads: WHEREFORE, the foregoing considered, this Court hereby finds accused Alberto Tabarnero and Gary Tabarnero GUILTY beyond reasonable doubt of the Crime of Murder defined and penalized under Art. 248 of the Revised Penal Code, as amended, and sentences them to suffer the penalty of Reclusion Perpetua and to pay private complainant Teresita Acibar the amount of P55,600.000 (sic) as actual damages[,] P50,000.00 as indemnity for the death of Ernesto Canatoy[,] P50,000.00 as moral damages, and the costs of suit.[30]

Gary and Alberto appealed to this Court. After the parties had filed their respective briefs, this Court, in People v. Mateo,[31] modified the Rules of Court in so far as it provides for direct appeals from the RTC to this Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Pursuant thereto, this Court referred[32] the case to the Court of Appeals, where it was docketed as CA-G.R. CR.-H.C. No. 00027. On April 29, 2005, the Court of Appeals affirmed the conviction with modification as regards exemplary damages, disposing of the case in the following manner: WHEREFORE, the decision of the Regional Trial Court of Malolos, Bulacan, Branch 78 dated 29 August 2002 is hereby AFFIRMED with the modification that exemplary damages in the amount of P25,000.00 is awarded because of the presence of treachery.[33]

From the Court of Appeals, the case was elevated to this Court anew when Gary and Alberto filed a Notice of Appeal on May 13, 2005.[34] In its Resolution on August 1, 2005, this Court required both parties to submit their respective supplemental briefs, if they so desire. Both parties manifested that they were adopting the briefs they had earlier filed with this Court. Gary and Alberto, in their brief filed in this Court before the referral of the case to the Court of Appeals, assigned the following errors to the RTC: I. THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE JUSTIFYING CIRCUMSTANCE OF SELFDEFENSE AND THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER INTERPOSED BY ACCUSEDAPPELLANT GARY TABARNERO II. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR III. ASSUMING ARGUENDO THAT ACCUSED-APPELLANTS ARE CULPABLE, THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY[35]

The justifying circumstance of self-defense on the part of Gary cannot be considered

The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2) lack of sufficient provocation on the part of the accused; and 3) employment of reasonable means to prevent and repel aggression.[36]

28

The defense invokes the said justifying circumstance, claiming that all of the above three elements are present in the case at bar. There was allegedly unlawful aggression on the part of Ernesto when the latter delivered the first blow with the lead pipe. According to the defense, the means Gary used to defend himself was reasonable, and the shouted professions of his feelings for Mary Jane could not be considered provocation sufficient for Ernesto to make the unlawful aggression. The Court of Appeals noted that the only evidence presented by the defense to prove the alleged unlawful aggression was Garys own testimony. Citing Casitas v. People,[37] the Court of Appeals held that the nine stab wounds inflicted upon Ernesto indicate Garys intent to kill, and not merely an intent to defend himself. The number of wounds also negates the claim that the means used by Gary to defend himself was reasonable. We agree with the Court of Appeals. Unlawful aggression is an indispensable requirement of self-defense.[38] As ruled by the Court of Appeals, the evidence presented by Gary to prove the alleged unlawful aggression, namely, his own testimony, is insufficient and self-serving. The alleged sudden appearance of Ernesto and his first attack with the lead pipe the very moment Gary decided to leave seems to this Court to be all too convenient, considering that there was no one around to witness the start of the fight. The RTC, which had the opportunity to observe the demeanor of the witnesses, found Garys account concerning the alleged unlawful aggression on the part of Ernesto to be unconvincing. Factual findings of the trial court, especially when affirmed by the Court of Appeals, as in this case, are binding on this Court and are entitled to great respect.[39] It also bears to emphasize that by invoking self-defense, Gary, in effect, admitted killing Ernesto, thus, shifting upon him the burden of evidence to prove the elements of the said justifying circumstance.[40] A plea of self-defense cannot be justifiably appreciated where it is not only uncorroborated by independent and competent evidence, but also extremely doubtful in itself.[41] The defense further argues that assuming that Gary is not qualified to avail of the justifying circumstance of self-defense, he would nevertheless be entitled to the mitigating circumstance of incomplete self-defense under Article 13(1) of the Revised Penal Code, which provides: Art. 13. Mitigating circumstances. The following are mitigating circumstances: 1. Those mentioned in the preceding chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant.

We disagree. Unlawful aggression is a condition sine qua non, without which there can be no self-defense, whether complete or incomplete.[42] There is incomplete self-defense when the element of unlawful aggression by the victim is present, and any of the other two essential requisites for self-defense.[43] Having failed to prove the indispensable element of unlawful aggression, Gary is not entitled to the mitigating circumstance, even assuming the presence of the other two elements of selfdefense. Gary is not entitled to the mitigating circumstance of voluntary surrender

The first assignment of error presents another issue for the consideration of this Court. The defense argues that Garys yielding to Alarma should be credited as a mitigating circumstance of voluntary surrender. The Solicitor General agreed with the defense on this point. The Court of Appeals, however, disagreed, and held that the delay of six months[44] before surrendering negates spontaneity,[45] a requisite for voluntary surrender to be considered mitigating. We agree with the Court of Appeals. In order that the mitigating circumstance of voluntary surrender may be credited to the accused, the following requisites should be present: (a) the offender has not actually been arrested; (b) the offender surrendered himself to a person in authority; and (c) the surrender must be voluntary. A surrender, to be voluntary, must be spontaneous, i.e., there must be an intent to submit oneself to authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses in capturing him.[46] In People v. Barcimo, Jr.,[47] the pending warrant for the arrest of the accused and the latters surrender more than one

29

year after the incident were considered by the Court as damaging to the plea that voluntary surrender be considered a mitigating circumstance. Thus: The trial court did not err in disregarding the mitigating circumstance of voluntary surrender. To benefit an accused, the following requisites must be proven, namely: (1) the offender has not actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. Voluntary surrender presupposes repentance. In People v. Viernes [G.R. No. 136733-35, 13 December 20010], we held that going to the police station to clear ones name does not show any intent to surrender unconditionally to the authorities. In the case at bar, appellant surrendered to the authorities after more than one year had lapsed since the incident and in order to disclaim responsibility for the killing of the victim. This neither shows repentance or acknowledgment of the crime nor intention to save the government the trouble and expense necessarily incurred in his search and capture. Besides, at the time of his surrender, there was a pending warrant of arrest against him. Hence, he should not be credited with the mitigating circumstance of voluntary surrender. The records show that Gary surrendered on April 22, 2001.[48] The commitment order commanding that he be detained was issued on April 24, 2001.[49] The surrender was made almost one year and six months from the October 23, 1999 incident, and almost one year and one month from the issuance of the warrant of arrest against him on March 27, 2000 .[50] We, therefore, rule that the mitigating circumstance of voluntary surrender cannot be credited to Gary. Alberto is a principal by direct participation in the killing of Ernesto

In insisting upon Albertos innocence, the defense claims that there was no conspiracy between him and his son, Gary. The defense asserts that Alberto just happened to be near the scene of the crime as he was looking for his son, whom he saw only after the altercation. The basis of Albertos conviction, however, is not solely conspiracy. A review of the proven facts shows that conspiracy need not even be proven by the prosecution in this case, since Alberto was categorically pointed by the eyewitness, Emerito, as one of the assailants who actively and directly participated in the killing of Ernesto: Q A Q A Those 2 persons whom you saw and who stabbed your stepfather in the evening of October 23, 1999, if they are now in court, will you be able to identify them? Yes, sir. Would you please point to those 2 persons? (Witness pointing to the persons who, when asked answered to the name of Alberto Tabarnero and Gary Tabarnero) What was the position of Alberto Tabarnero in that stabbing incident? He was the one whom I saw stabbed last my stepfather.

Q A xxxx

COURT (TO THE WITNESS): Q A How many times did you see Gary stabbed your father? I cannot count how many stabs Gary made.

PROS. SANTIAGO: Q Was it many times or just once?

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A Q A

I cannot count but more than 1. How about Alberto Tabarnero, how many times did you see him stabbing your stepfather? I cannot count also but he was the last one who stabbed my stepfather.[51]

Having actually participated in the stabbing of Ernesto, it was adequately proven that Alberto is a principal by direct participation. Even more persuasive is the statement of the victim himself, Ernesto, as testified to by SPO2 Morales, that it was the father and son, Gary and Alberto Tabarnero from ongos, Bulacan who stabbed him. [52] While Ernesto was not able to testify in court, his statement is considered admissible under Section 37, Rule 130 of the Rules of Court, which provides: Sec. 37. Dying declaration. The declaration of a dying person, made under the consciousness of an 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.

In applying this exception to the hearsay rule, we held as follows: It must be shown that a dying declaration was made under a realization by the decedent that his demise or at least, its imminence -- not so much the rapid eventuation of death -- is at hand. This may be proven by the statement of the deceased himself or it may be inferred from the nature and extent of the decedents wounds, or other relevant circumstances.[53]

In the case at bar, Ernesto had nine stab wounds which caused his death within the next 48 hours. At the time he uttered his statement accusing Gary and Alberto of stabbing him, his body was already very rapidly deteriorating, as shown by his inability to speak and write towards the end of the questioning. We have considered that a dying declaration is entitled to the highest credence, for no person who knows of his impending death would make a careless or false accusation. When a person is at the point of death, every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.[54] It is hard to fathom that Ernesto, very weak as he was and with his body already manifesting an impending demise, would summon every remaining strength he had just to lie about his true assailants, whom he obviously would want to bring to justice. The killing of Ernesto is qualified by treachery Emerito had testified that he saw Ernesto being held by two persons, while Gary and Alberto were stabbing him with fan knives: Q A Q A Q A Q A Q A When you said lalabas po sana, what do you mean by that? I am at the door and saw what happened. What did you see? I saw my stepfather being held by two persons and being stabbed. Will you describe the appearance of your stepfather and the 2 persons whom according to you were stabbing your stepfather at that time? My stepfather is lupaypay and he was being stabbed. When you said lupaypay, will you describe to this Honorable Court his position and appearance? When I saw my stepfather he was about to fall on the ground. Could you describe their appearance? They were helping each other in stabbing my grandfather. (sic)

31

Q A Q A

Those two persons whom you saw and who stabbed your stepfather in the evening of October 23, 1999 if they are now in Court, will you be able to identify them? Yes, sir. Could you please point to those 2 persons? (Witness pointing to the persons who, when asked answered to the name of Alberto Tabarnero and Gary Tabarnero) What was the position of Alberto Tabarnero in that stabbing incident? He was the one whom I saw stabbed last my stepfather. What about Gary, what is his position? He was helping in the stabbing.

Q A Q A xxxx Q A Q A

What kind of weapon or instrument were used by Gary and Alberto? Fan knife, sir. Both of them were armed by a knife? Yes, sir.[55]

From said testimony, it seems uncertain whether Emerito saw the very first stabbing being thrust. Thus, the defense asseverates that since Emerito failed to see how the attack commenced, the qualifying circumstance of treachery cannot be considered, citing People v. Amamangpang,[56] People v. Icalla,[57] and People v. Sambulan.[58] In said three cases, this Court held that treachery cannot be appreciated as the lone eyewitness did not see the commencement of the assault. Treachery is defined under Article 14(16) of the Revised Penal Code, which provides: 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 the offended party might make.

The Solicitor General argues that treachery was amply demonstrated by the restraint upon Ernesto, which effectively rendered him defenseless and unable to effectively repel, much less evade, the assault.[59] We agree with the Solicitor General. In the cases cited by the appellants, the eyewitnesses were not able to observe any means, method or form in the execution of the killing which rendered the victim defenseless. In Amamangpang, the first thing the witness saw was the victim already prostrate on the bamboo floor, blood oozing from his neck and about to be struck by the accused. In Icalla, the witnesses merely saw the accused fleeing from the scene of the crime with a knife in his hand. In Sambulan, the witness saw the two accused hacking the victim with a bolo. Since, in these cases, there was no restraint upon the victims or any other circumstance which would have rendered them defenseless, the Court ruled that it should look into the commencement of the attack in order to determine whether the same was done swiftly and unexpectedly. However, the swiftness and unexpectedness of an attack are not the only means by which the defenselessness of the victim can be ensured. In People v. Montejo,[60] the prosecution witnesses testified that after challenging the victim to a fight, the accused stabbed the victim in the chest while he was held in the arms by the accused and a companion. Not requiring a swift and unexpected commencement to the attack, the Court held: Thus, there is treachery where the victim was stabbed in a defenseless situation, as when he was being held by the others while he was being stabbed, as the accomplishment of the accused's purpose was ensured without risk to him from any defense the victim may offer [People v. Condemena, G.R. No. L22426, May 29, 1968, 23 SCRA 910; People v. Lunar, G.R. No. L-15579, May 29, 1972, 45 SCRA 119.] In the

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instant case, it has been established that the accused-appellant stabbed the victim on the chest while his companions held both of the victim's arms.

In People v. Alvarado,[61] the accused and his companions shouted to the victim: Lumabas ka kalbo, kung matapang ka. When the victim went out of the house, the accuseds companions held the victims hands while the accused stabbed him. Despite the yelling which should have warned the victim of a possible attack, the mere fact that the accuseds companions held the hands of the victim while the accused stabbed him was considered by this Court to constitute alevosia. We, therefore, rule that the killing of Ernesto was attended by treachery. However, even assuming for the sake of argument that treachery should not be appreciated, the qualifying circumstance of abuse of superior strength would nevertheless qualify the killing to murder. Despite being alleged in the Information, this circumstance was not considered in the trial court as the same is already absorbed in treachery. The act of the accused in stabbing Ernesto while two persons were holding him clearly shows the deliberate use of excessive force out of proportion to the defense available to the person attacked. In People v. Gemoya,[62] we held: Abuse of superior strength is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which is selected or taken advantage of in the commission of the crime ( People vs. Bongadillo, 234 SCRA 233 [1994]). When four armed assailants, two of whom are accused-appellants in this case, gang up on one unarmed victim, it can only be said that excessive force was purposely sought and employed. (Emphasis ours.)

In all, there is no doubt that the offense committed by the accused is murder.

The award of damages should be modified to include civil indemnity ex delito

In the Decision of the RTC convicting Gary and Alberto, it awarded the amount of P55,600.00 as actual damages, P50,000.00 as indemnity for the death of Ernesto, P50,000.00 as moral damages and an unidentified amount as costs of suit.[63] The Court of Appeals modified the RTC Decision by awarding an additional amount of P25,000.00 as exemplary damages on account of the presence of treachery.[64] The Solicitor General claims that the award of P55,600.00 in actual damages is not proper, considering the lack of receipts supporting the same. However, we held in People v. Torio[65] that: Ordinarily, receipts should support claims of actual damages, but where the defense does not contest the claim, it should be granted. Accordingly, there being no objection raised by the defense on Alma Paulos lack of receipts to support her other claims, all the amounts testified to are accepted . (Emphasis supplied.)

In the case at bar, Teresita Acibars testimony was dispensed with on account of the admission by the defense that she incurred P55,600.00 in relation to the death of Ernesto.[66] This admission by the defense is even more binding to it than a failure on its part to object to the testimony. We therefore sustain the award of actual damages by the RTC, as affirmed by the Court of Appeals. The Solicitor General likewise alleges that a civil indemnity ex delito in the amount of P50,000.00 should be awarded. Article 2206[67] of the Civil Code authorizes the award of civil indemnity for death caused by a crime. The award of said civil indemnity is mandatory, and is granted to the heirs of the victim without need of proof other than the commission of the crime.[68] However, current jurisprudence have already increased the award of civil indemnity ex delicto to P75,000.00.[69] We, therefore, award this amount to the heirs of Ernesto.

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Finally, the Court of Appeals was correct in awarding exemplary damages in the amount of P25,000.00. An aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230[70] of the Civil Code.[71] WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 00027 dated April 29, 2005 is hereby AFFIRMED, with the MODIFICATION that appellants Alberto and Gary Tabarnero are further ordered to pay the heirs of Ernesto Canatoy the amount of P75,000.00 as civil indemnity. RES GESTAE Marturillas v. People, G.R. No. 163217, April 18, 2006 NATURE Petition for Review seeking to set aside [1] CA Decision affirming (with modifications as to the award of damages) the RTC Davao City Decision finding Celestino Marturillas (former Brgy Capt of Gatungan, Bunawan District, Davao City) guilty of homicide in Criminal Case No. 42091-98; and the CA resolution denying MR. FACTS [Yeah, I know this digest is very long. Sorry, but I assure you the case is even lo nger. The portions of the Courts ruling relevant to the topic in the outline have been italicized for easier reference. ^_^] Version of the Prosecution-Nov 4, 1998, abt 6pm: Cecilia Santos called her husband Lito and their neighbor and kumpare Artemio Pantinople for supper. After eating, Artemio returned to the bench in front of the Santos store and sat on it together with hi s three children. Lito was still eating supper in their kitchen when he heard a gunshot. From a distance of about 10meters, 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 itos kitchen. Artemio shouted to him, Tabangi ko Pre, gipusil ko ni kapitan, (Help me, Pre, I was shot by the captain). ito did not approach Artemio right after the shooting incident because Cecilia warned him that he might also be s hot. 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. i to then went out of their house and approached Artemio who was lying dead near a banana trunk more than 5meters from his house. Some of their neighbors answered Ernitas call for help and approached them. -When the shooting incident happened [abt 7:30pm], itos house was illumined by a lamp. Their open-type kitchen (no walls) gave him an unobstructed view of Artemio who was about 5meters 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 who 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 ope n the window of their kitchen and saw the accused wearing a black jacket and camouflage pants running towards the direction of the back portion of itos house. From there, the accused crosse d the street and disappeared. Ernita saw the accused carrying a long firearm which looked like an M-14 rifle and also sensed that accused had some companions with him because she heard the crackling sound of the dried leaves around the place. She had a clear view of accused 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. She immediately went out of their house and ran towards Artemio who tried to speak to her but could not do so because his mouth was full of blood. She repeatedly called her neighbors for help; a few responded to her calls and approached them; no brgy tanod or any member of the CFO and CAFGU came to help. -While waiting for the police, Ernita did not allow Artemios body to be touched by anybody. After more than 2hours, *a round 10pm] the police arrived, together with a photographer named Fe Mendez who took pictures of the crime scene. Ernita and Lito then approached PO2 Operario and informed him that accused was the one responsible for the shooting. PO2 Operario stayed at the crime scene for about 1hour 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 togeth er with Lito Santos.

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-Armed with the information that accused was the one responsible for the shooting of Artemio, PO2 Operario proceeded to the house of accused and informed him that he was a suspect in the killing of Artemio. He then invited accused to go with him to the police station and also to bring along with him his M-14 rifle. Accused 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 Nov 4, 1998. Accused did not also give any statement to anybody about the incident. The following day, accused was transferred by the police to Tibungco Police Station where he was detained. -Alicia Pantinople, the 44-year old sister of Artemio, after learning about the incident and seeing his brother sprawled lifeless on the ground went around the Bunawan Police Station and noticed a locked door. When she peeped through the hole of the said door, she saw accused reclining on a bench about 2 12meters away from the door. He 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. Seeing that the accused was tapping the floor with his right foot, Alicia confronted him, asking Nong isting I know that you can recognize my voice. It is me. Why did you kill my brother? What has he done wrong to you? Accused did not answer her. -Nov 5, 1998: Dr. Danilo Ledesma, a medico-legal officer of the Davao City Health Department, conducted an autopsy on Artemios cadaver. His Necropsy Report No. 76 summarized his findings to the effect that the cause of death was a gunshot wound entering at the anterior right side of the chest, perforating the body of the sternum, the heart and the upper lobe of the left lung, and forming an irregular exit at the posterior chest wall left side. During the trial, Dr. Ledesma explained that the trajectory of the bullet indicates that his assailant was in a lower position than Artemio when the gun was fired. Since the wound was negative of powder burns, the assailant must have been 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 h eart and lungs were lacerated and his stomach contained partially digested food particles indicating that he had just eaten his meal when he was shot. Version of the Defense:-Nov 4, 1998, abt 8:30 pm: Marturillas was roused from his sleep by his wife since two brgy kagawads wanted to see him. Dazed after just having risen from bed, he 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. At once, he ordered his Kagawads to assemble the Evidence 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 then proceeded to the crime scene to determin e what assistance they could render. -While approaching the store owned by the Pantinoples and not very far from where the deceased lay sprawled, Marturillas and his team was met by Ernita Pantinople who was very mad and belligerent, immediately accusing him of having shot her husband instead of Lito Santos who was his enemy. Marturillas was taken aback by the instant accusation against him. Not being able to talk sense with Ernita, he and his companions backed off to avoid a heated confrontation. They decided to go back to his house. -Upon reaching his house, he 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 Brgy San Isidro requesting them to contact the Bunawan PNP for police assistance since someone was shot in their locality. Moments later, PO2 Mariano Operario and another police officer arrived at Marturillas house, informing him that he was the principal suspect in the slaying of Artemio Pantinople. Upon their invitation, Marturillas immediately went with the said police officers for questioning at the Bunawan Police Station, taking with him his government-issued M-14 Rifle and one magazine of live M-14 ammunition which he turned over for safe keeping with the Bunawan PNP. Such fact is reflected in Bunawan PNPs police blotter to have occurred at around 10:4 5 pm, Nov 4, 1998. -Nov 5, 1998: Marturillas was subjected to paraffin testing by the PNP Crime Laboratory in Davao City. The next day, the PNP Crime Laboratory released Physical Sciences Report No. C-074-98 finding Marturillas NEGATIVE for gunpowder nitrates. -On this same day, PO2 Operario, after preparing all the affidavits of Ernita Pantinople and her witnesses, prepared and transmitted a Complaint to the City Prosecution Office recommending that Marturillas be indicted for Murder. [see case for full text of the affidavits]. On the basis of these affidavits, then 2nd Asst. City Prosecutor Raul B. Bendigo issued a Resolution finding sufficient evidence to indict Accused for the crime of Homicide and not Murder as alleged in the Affidavit-Complaint. -Defense witness Ronito Bedero testified that on the night Artemio Pantinople was shot, he was at his house and 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 Brgy Gatungan. He 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

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very dark place. After the three men disappeared, he saw from the opposite direction Marturillas and his team of kagawads and 3 SCAA members going to the scene of the crime but they did not reach the crime scene. A little later, he saw the Marturillas group return to where they came from. -Dominador Lapiz testified that 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 4meters 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. 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 Marturillas who shot Artemio Pantinople. He 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 ang akong bana? Ruling of RTC and CA: -The guilt of petitioner had been established beyond reasonable doubt. 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 to the prosecution witnesses. Thus, their positive, credible and unequivocal testimonies were accepted as sufficient to establish the guilt of petitioner beyond reasonable doubt. -Both courts also rejected Marturillas defenses of denial and alibi, saying these were necessarily suspect, especially when established by friends or relatives, and should thus be subjected to the strictest scrutiny. At any rate, alibi and denial cannot prevail over the positive testimonies of the prosecution witnesses found to be more credible. Hence, this Petition. ISSUES 1. WON the prosecutions evidence is credible.2. WON the evidence is sufficient to convict him of homicide. HELD 1. YES. Basic is the rule that the Supreme Court accords great weight and a high degree of respect to factual findings of the trial court, especially when affirmed by the CA. Although there are recognized exceptions 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. Re: Positive Identification-Ernitas testimony that she saw Marturillas 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 the accused, who is her neighbor, and a long-time brgy capt of the locality 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. -Ernitas recognition of the assailant was made possible by the lighted two fluorescent lamps in their store and by the full moon. 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 Evidence 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. -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. 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

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do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. 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. Neither was there any indication that Ernita was impelled by ill motives in positively identifying petitioner. Re: Inconsistency Between Affidavit and Testimony -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. 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. Nevertheless, the alleged inconsistency is inconsequential to the ascertainment of the presence of petitioner at the crime scene. They referred only to that point wherein Ernita ascertained the identity of Artemio as the victim. They did not relate to Ernitas identification of petitioner as the person running away fr om the crime scene immediately after she heard a gunshot. Re: Statements Uttered Contemporaneous with the Crime -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 Help me pre, I was shot by the captain. A shift in his focus of attention would sufficiently explain why Santos was not able to see the assailant. Santos never pointed to petitioner as the perpetrator of the crime. His statements corroborated those of Ernita and therefore simply added credence to the prosecutions version of the facts. If it were tru e that he had an ulterior motive, it would have been very easy for him to say that he had seen petitioner shoot the victim. Re: Dying Declaration-Rule 130.37: 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.-Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the highest degree of credence and respect. Persons aware of an impending death have been known to be genuinely truthful in their words and extremely scrupulous in their accusations. The dying declaration is given credence, on the premise that no one who knows of ones impen ding death will make a careless and false accusation. Hence, not infrequently, pronouncements of guilt have been allowed to rest solely on the dying declaration of the deceased victim.-To be admissible, a dying declaration must1) 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; and5) have been made by a declarant competent to testify as a witness, had that person been called upon to testify.-The law does not require the declarant to state explicitly a perception of the inevitability of death. The perception may be established from surrounding circumstances, such as the nature of the declarants injury and conduct that would justify a con clusion that there was a consciousness of impending death. Even if he 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. -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. Testified to by his wife and neighbor, his dy ing declaration was not only admissible in evidence as an exception to the hearsay rule, but was also a weighty and telling piece of evidence. Re: Res Gestae-The fact that the victims statement constituted a dying declaration does not preclude it from be ing admitted as part of the res gestae, if the elements of both are present. -Rule 130.42: 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. 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. 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. -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; and3) the statements concerned the occurrence in question and its immediately attending circumstances. Evidence -All these requisites are present in this case. The principal act, the shooting, was a startling occurrence. Immediately after, while he

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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, 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. 2. YES. 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. 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. SC considered the ff: a. 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. b. 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. c. Ernitas statement, Captain, why did you shoot my husband? was established as part of the res gestae. d. 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. If he were really innocent, he should not have simply left. e. 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. -These pieces of evidence indubitably lead to the conclusion that it was petitioner who shot and killed the victim. 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. -To be sure, conviction in a criminal case does not require a degree of proof that, excluding the possibility of error, produces absolute certainty. Only moral certainty is required or that degree of proof that produces conviction in an unprejudiced mind. 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. Circumstantial, vis--vis direct, evidence is not necessarily weaker. Re: Paraffin Test & Corpus Delicti- The negative paraffin test result and th e prosecutions failure to present the gun used in the shooting is not enough to exculpate the accused from the crime. 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.-A negative paraffin test result is not a conclusive proof that a person has not fired a gun. 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.-The prosecution was able to give sufficient proof of the corpus delicti -- the fact that a crime had actually been committed. *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. Re: Alibi-As held by the CA: *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. Disposition Petition is denied. Assailed Decision and Resolution are affirmed with modifications. [SC reviewed amount of damages, since an appeal in a criminal proceeding throws the whole case open for review. SC awarded P50k as indemnity ex delicto, P25k for temperate damages, P50k for moral damages, P312k for loss of earning capacity, P20k for attorneys fees, plus costs.+ ENTRIES IN THE REGULAR COURSE OF BUSINESS Security Bank v. Gan, G.R. No. 150464, June 27, 2006 This petition for review on certiorari seeks the reversal of the decision of the Court of Appeals (CA) dated October 18, 2001 in CAG.R. CV No. 45701, the dispositive portion of which read:
1 2

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WHEREFORE, finding no reversible error therefrom, the Decision now on appeal is hereby AFFIRMED in toto. SO ORDERED.
3

The factual antecedents follow. Petitioner Security Bank and Trust Company is a banking institution duly organized and existing under the laws of the Philippines. In 1981, respondent Eric Gan opened a current account with petitioner at its Soler Branch in Santa Cruz, Manila. Petitioner alleged that it had an agreement with respondent wherein the latter would deposit an initial amount in his current account and he could draw checks on said account provided there were sufficient funds to cover them. Furthermore, under a special arrangement with 4 petitioners branch manager then, Mr. Qui, respondent was allowed to transfer funds from his account to another persons account 5 also within the same branch. Respondent availed of such arrangement several times by depositing checks in his account and even before they cleared, he withdrew the proceeds thereof and transferred them to the other account. These transactions were covered 6 by what were known as "debit memos" since respondent had no sufficient funds to cover the amounts he transferred. Later on, respondent purportedly incurred an overdraft or negative balance in his account. As of December 14, 1982, the overdraft balance came up to P153,757.78. According to petitioner, respondent refused to heed petitioners repeated deman ds for payment. For the period December 14, 1982 to September 15, 1990, the total obligation of respondent reached P297,060.01, inclusive of 7 interest. Thus, in 1991, petitioner filed a complaint for sum of money against respondent to recover the P297,060.01 with 12% interest per annum from September 16, 1990 until fully paid, attorneys fees, litigation expenses and costs of suit. The case was docketed as Civil 8 Case No. 91-55605 with the Regional Trial Court of Manila, Branch 13. Respondent denied liability to petitioner for the said amount. He contended that the alleged overdraft resulted from transactions done without his knowledge and consent. In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that petitioner was not able to prove that respondent owed it the amount claimed considering that the ledger cards it presented were merely hearsay evidence. On petitioners appeal, the CA affirmed the trial courts decision. Hence, this petition anchored on the following grounds: I. The honorable Court of Appeals erred in not ruling that petitioner has sufficiently proved its cause of action against respondent; and that the ledger cards and the testimony of Mr. Patricio Mercado constituted the best evidence of the transactions made by the respondent relative to his account. II. The honorable Court of Appeals erred in not applying the principle of estoppel against respondent who has benefited from the special arrangement accorded to him by petitioner which resulted in an overdraft / negative balance. III. The honorable Court of Appeals erred in affirming the decision of the trial court. We deny the petition for lack of merit. It is well established that under Rule 45 of the Rules of Court, only questions of law, not of fact, may be raised before the Supreme Court. It must be stressed that this Court is not a trier of facts and it is not its function to re-examine and weigh anew the respective evidence of the parties. Factual findings of the trial court, especially those affirmed by the CA, are conclusive on this Court when 10 supported by the evidence on record. Here, both the trial court and the CA found that petitioner failed to substantiate its claim that respondent knowingly incurred an overdraft against his account. We see no reason to disturb this finding. To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who handled the account of respondent and recorded his transactions in a ledger. Based on this ledger, respondent allegedly had a negative balance of P153,757.78. This resulted from transfers of funds from respondents current account to another persons account. These transfers were made und er
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the authority of Qui. Respondent categorically denied that he ever authorized these "funds transfers."

11

12

The entries in the ledger, as testified to by Mercado, were not competent evidence to prove that respondent consented to the transfers of funds. These entries merely showed that the transfers were indeed made and that Qui approved them. Petitioners claim that respondent availed of a special arrangement to transfer funds from his account to another persons account was a bare 13 allegation that was never substantiated. Admittedly, Mercado had no personal knowledge of this arrangement. In fact, when asked about the details of the alleged consent given by respondent to the transfers, he stated that he could not remember because 14 respondent talked to Qui and not to him. Petitioner could have presented Qui whom they alleged allowed the special arrangement with respondent. But it did not. Neither can we accept petitioners argument that the entries made by Mercado in the ledger were competent evidence to prove how and when the negative balance was incurred. Petitioner invokes Section 43 of Rule 130: 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. Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the satisfaction of the following conditions: 1. the person who made the entry must be dead, or unable to testify; 2. the entries were made at or near the time of the transactions to which they refer; 3. the entrant was in a position to know the facts stated in the entries; 4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. the entries were made in the ordinary or regular course of business or duty. The ledger entries did not meet the first and third requisites. Mercado, petitioners bookkeeper who prepared the entries, was presented to testify on the transactions pertaining to the acc ount of respondent. It was in the course of his testimony that the ledger entries were presented. There was, therefore, neither 16 justification nor necessity for the presentation of the entries as the person who made them was available to testify in court. Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these entries. We agree entirely with the following discussion of the trial court which was affirmed by the CA: The plaintiff submits that the ledger cards constituted the best evidence of the transactions made by the defendant with the bank relative to his account, pursuant to Section 43 of Rule 130 of the Revised Rules on Evidence. There is no question that the entries in the ledgers were made by one whose duty it was to record transactions in the ordinary or regular course of the business. But for the entries to be prima facie evidence of the facts recorded, the Rule interpose[s] a very important condition, one which we think is truly indispensable to the probative worth of the entries as an exception to the hearsay rule, and that is that the entrant must be "in a position to know the facts therein stated." Undeniably, Mr. Mercado was in a position to know the facts of the check deposits and withdrawals. But the transfers of funds through the debit memos in question? Let us be clear, at the outset, what the transactions covered by the debit memos are. They are, at bottom, credit accommodations said to have been granted by the banks branch manager Mr. *Q+ui t o the defendant, and they are, therefore loans, to prove which competent testimonial or documentary evidence must be presented. In the fac[e] of the denial by the defendant of the existence of any such agreement, and the absence of any document reflecting it, the testimony of a party to the transaction, i.e., Mr. [Q]ui, or of any witness to the same, would be necessary. The plaintiff failed to explain why it did not or could not present any party or witness to the transactions, but even if it had a reason why it could not, it is clear that the existence of the agreements cannot be established
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through the testimony of Mr. Mercado, for he was [not in] a position to [know] those facts. As a subordinate, he could not have done more than record what was reported to him by his superior the branch manager, and unless he was allowed to be privy to the latters dealings with the defendant, the information that he received and entered in the ledgers was incapable of being conf irmed by him. There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business records which spring from the duty of other employees to communicate facts occurring in the ordinary course of business are prima facie admissible, the duty to communicate being itself a badge of trustworthiness of the entries, but not when they purport to record what were independent agreements arrived at by some bank officials and a client. In this case, the entries become mere casual or voluntary reports of the official concerned. To permit the ledgers, prepared by the bank at its own instance, to substitute the contract as proof of the agreements with third parties, is to set a dangerous precedent. Business entries are allowed as an exception to the hearsay rule only under certain conditions specified in Section 43, which must be scrupulously observed to prevent them from being used as a source 17 of undue advantage for the party preparing them. (citations omitted) Thus, petitioner did not prove that respondent had incurred a negative balance in his account. Consequently, there was nothing to show that respondent was indebted to it in the amount claimed. lavvphil.net Petitioners next argument is that respondent was estopped from denying the claim of petitioner since he benefited from the s pecial arrangement accorded to him resulting in the negative balance. This must likewise fail. The so-called special arrangement was never established. In addition, there was no evidence that respondent benefited from it. As held by the CA: The trial court satisfactorily explained the reason for not applying the principle of estoppel against defendant-appellee. As held by the trial court: "There is no scope here for the application of estoppel against the defendant-appellee, since it was not established that he had ever received copies of the ledgers, and therefore given the opportunity to review the correctness of the entries. As we see it, the case of the [plaintiff suffers from its failure to document its] transactions with its clients, and it is hardly right to close our eyes to that infirmity at the expense of the defendant-appellee." The temporary overdraft allegedly accorded by plaintiff-appellant to defendant-appellee has not benefited the defendant-appellee in any manner. The 3 debit memos amounting to P150,000.00 appearing on defendant-appellees ledger consisted of fund transfers from and not to defendant-appellees account. The transfers resulted *in+ the benefit of other accounts, not that of defendant 18 appellee. In view of the foregoing, the CA did not err in affirming the decision of the trial court. WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals dated October 18, 2001 in CA-G.R. CV No. 45701 is AFFIRMED in toto. Costs against petitioner. COMMERCIAL LIST Meralco v. Quisumbing, G.R. No. 127598, February 22, 2000 In the Decision promulgated on January 27, 1999, the Court disposed of the case as follows: WHEREFORE, the petition is granted and the orders of public respondent Secretary of Labor dated August 19, 1996 and December 28, 1996 are set aside to the extent set forth above. The parties are directed to execute a Collective Bargaining Agreement incorporating the terms and conditions contained in the unaffected portions of the Secretary of Labor's orders of August 19, 1996 and December 28, 1996, and the modifications set forth above. The retirement fund issue is remanded to the Secretary of Labor for 1 reception of evidence and determination of the legal personality of the MERALCO retirement fund. The modifications of the public respondent's resolutions include the following: January 27, 1999 decision - P1,900.00 for 1995-96 Secretary's resolution P2,200.00

Wages

41

X'mas bonus Retirees Loan to coops GHSIP, HMP and Housing loans Signing bonus Union leave High voltage/pole

- modified to one month - remanded to the Secretary - denied -

2 months granted granted

granted up to P60,000.00 granted denied granted 40 days (typo error) 30 days not apply to those who are members of a team not exposed to the risk Collectors - no need for cash bond, no need to reduce quota and MAPL CBU - exclude confidential employees include Union security - maintenance of membership closed shop Contracting out - no need to consult union consult first All benefits - existing terms and conditions all terms Retroactivity - Dec. 28, 1996-Dec. 27, 199(9) from Dec. 1, 1995 Dissatisfied with the Decision, some alleged members of private respondent union (Union for brevity) filed a motion for intervention and a motion for reconsideration of the said Decision. A separate intervention was likewise made by the supervisor's union 2 3 (FLAMES ) of petitioner corporation alleging that it has bona fide legal interest in the outcome of the case. The Court required the "proper parties" to file a comment to the three motions for reconsideration but the Solicitor-General asked that he be excused from 4 filing the comment because the "petition filed in the instant case was granted" by the Court. Consequently, petitioner filed its own consolidated comment. An "Appeal Seeking Immediate Reconsideration" was also filed by the alleged newly elected president of the 5 Union. Other subsequent pleadings were filed by the parties and intervenors. The issues raised in the motions for reconsideration had already been passed upon by the Court in the January 27, 1999 decision. No new arguments were presented for consideration of the Court. Nonetheless, certain matters will be considered herein, particularly those involving the amount of wages and the retroactivity of the Collective Bargaining Agreement (CBA) arbitral awards. Petitioner warns that if the wage increase of P2,200.00 per month as ordered by the Secretary is allowed, it would simply pass the cost covering such increase to the consumers through an increase in the rate of electricity. This is a non sequitur. The Court cannot be threatened with such a misleading argument. An increase in the prices of electric current needs the approval of the appropriate regulatory government agency and does not automatically result from a mere increase in the wages of petitioner's employees. Besides, this argument presupposes that petitioner is capable of meeting a wage increase. The All Asia Capital report upon which the Union relies to support its position regarding the wage issue cannot be an accurate basis and conclusive determinant of the rate of wage increase. Section 45 of Rule 130 Rules of Evidence provides: Commercial lists and the like. Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. Under the afore-quoted rule, statement of matters contained in a periodical, may be admitted only "if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein." As correctly held in our Decision dated January 27, 1999, the cited report is a mere newspaper account and not even a commercial list. At most, it is but an analysis or opinion which carries no persuasive weight for purposes of this case as no sufficient figures to support it were presented. Neither did anybody testify to its accuracy. It cannot be said that businessmen generally rely on news items such as this in their occupation. Besides, no evidence was presented that the publication was regularly prepared by a person in touch with the market and that it is generally regarded as trustworthy and reliable. Absent extrinsic proof of their accuracy, these reports are not 6 admissible. In the same manner, newspapers containing stock quotations are not admissible in evidence when the source of the 7 reports is available. With more reason, mere analyses or projections of such reports cannot be admitted. In particular, the source of the report in this case can be easily made available considering that the same is necessary for compliance with certain governmental requirements. Nonetheless, by petitioner's own allegations, its actual total net income for 1996 was P5.1 billion. An estimate by the All Asia financial analyst stated that petitioner's net operating income for the same year was about P5.7 billion, a figure which the Union relies on to support its claim. Assuming without admitting the truth thereof, the figure is higher than the P4.171 billion allegedly suggested by petitioner as its projected net operating income. The P5.7 billion which was the Secretary's basis for granting the P2,200.00 is higher than the actual net income of P5.1 billion admitted by petitioner. It would be proper then to increase this Court's
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award of P1,900.00 to P2,000.00 for the two years of the CBA award. For 1992, the agreed CBA wage increase for rank-and-file was P1,400.00 and was reduced to P1,350.00; for 1993; further reduced to P1,150.00 for 1994. For supervisory employees, the agreed wage increase for the years 1992-1994 are P1,742.50, P1,682.50 and P1,442.50, respectively. Based on the foregoing figures, the P2,000.00 increase for the two-year period awarded to the rank-and-file is much higher than the highest increase granted to 9 supervisory employees. As mentioned in the January 27, 1999 Decision, the Court does "not seek to enumerate in this decision the factors that should affect wage determination" because collective bargaining disputes particularly those affecting the national interest and public service "requires due consideration and proper balancing of the interests of the parties to the dispute and of 10 those who might be affected by the dispute." The Court takes judicial notice that the new amounts granted herein are significantly higher than the weighted average salary currently enjoyed by other rank-and-file employees within the community. It should be 11 noted that the relations between labor and capital is impressed with public interest which must yield to the common good. Neither 12 party should act oppressively against the other or impair the interest or convenience of the public. Besides, matters of salary 13 increases are part of management prerogative. On the retroactivity of the CBA arbitral award, it is well to recall that this petition had its origin in the renegotiation of the parties' 1992-1997 CBA insofar as the last two-year period thereof is concerned. When the Secretary of Labor assumed jurisdiction and granted the arbitral awards, there was no question that these arbitral awards were to be given retroactive effect. However, the parties dispute the reckoning period when retroaction shall commence. Petitioner claims that the award should retroact only from 14 such time that the Secretary of Labor rendered the award, invoking the 1995 decision in Pier 8 case where the Court, citing Union 15 of Filipino Employees v. NLRC, said: The assailed resolution which incorporated the CBA to be signed by the parties was promulgated on June 5, 1989, the expiry date of the past CBA. Based on the provision of Section 253-A, its retroactivity should be agreed upon by the parties. But since no agreement to that effect was made, public respondent did not abuse its discretion in giving the said CBA a prospective effect. The action of the public respondent is within the ambit of its authority vested by existing law. On the other hand, the Union argues that the award should retroact to such time granted by the Secretary, citing the 1993 decision 16 of St. Luke's. Finally, the effectivity of the Order of January 28, 1991, must retroact to the date of the expiration of the previous CBA, contrary to the position of petitioner. Under the circumstances of the case, Article 253-A cannot be properly applied to herein case. As correctly stated by public respondent in his assailed Order of April 12, 1991 dismissing petitioner's Motion for Reconsideration Anent the alleged lack of basis for the retroactivity provisions awarded; we would stress that the provision of law invoked by the Hospital, Article 253-A of the Labor Code, speaks of agreements by and between the parties, and not arbitral awards . . . Therefore, in the absence of a specific provision of law prohibiting retroactivity of the effectivity of arbitral awards issued by the Secretary of Labor pursuant to Article 263(g) of the Labor Code, such as herein involved, public respondent is deemed vested with plenary and discretionary powers to determine the effectivity thereof. In the 1997 case of Mindanao Terminal, the Court applied the St. Luke's doctrine and ruled that: In St. Luke's Medical Center v. Torres, a deadlock also developed during the CBA negotiations between management and the union. The Secretary of Labor assumed jurisdiction and ordered the retroaction of the CBA to the date of expiration of the previous CBA. As in this case, it was alleged that the Secretary of Labor gravely abused its discretion in making his award retroactive. In dismissing this contention this Court held: Therefore, in the absence of a specific provision of law prohibiting retroactive of the effectivity of arbitral awards issued by the Secretary of Labor pursuant to Article 263(g) of the Labor Code, such as herein involved, public respondent is deemed vested with plenary and discretionary powers to determine the effectivity thereof. The Court in the January 27, 1999 Decision, stated that the CBA shall be "effective for a period of 2 years counted from December 28, 1996 up to December 27, 1999." Parenthetically, this actually covers a three-year period. Labor laws are silent as to when an arbitral award in a labor dispute where the Secretary had assumed jurisdiction by virtue of Article 263 (g) of the Labor Code shall retroact. In general, a CBA negotiated within six months after the expiration of the existing CBA retroacts to the day immediately 18 following such date and if agreed thereafter, the effectivity depends on the agreement of the parties. On the other hand, the law is silent as to the retroactivity of a CBA arbitral award or that granted not by virtue of the mutual agreement of the parties but by
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intervention of the government. Despite the silence of the law, the Court rules herein that CBA arbitral awards granted after six months from the expiration of the last CBA shall retroact to such time agreed upon by both employer and the employees or their union. Absent such an agreement as to retroactivity, the award shall retroact to the first day after the six-month period following the expiration of the last day of the CBA should there be one. In the absence of a CBA, the Secretary's determination of the date of retroactivity as part of his discretionary powers over arbitral awards shall control. It is true that an arbitral award cannot per se be categorized as an agreement voluntarily entered into by the parties because it requires the interference and imposing power of the State thru the Secretary of Labor when he assumes jurisdiction. However, the arbitral award can be considered as an approximation of a collective bargaining agreement which would otherwise have been 19 entered into by the parties. The terms or periods set forth in Article 253-A pertains explicitly to a CBA. But there is nothing that would prevent its application by analogy to an arbitral award by the Secretary considering the absence of an applicable law. Under Article 253-A: "(I)f any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof." In other words, the law contemplates retroactivity whether the agreement be entered into before or after the said sixmonth period. The agreement of the parties need not be categorically stated for their acts may be considered in determining the duration of retroactivity. In this connection, the Court considers the letter of petitioner's Chairman of the Board and its President addressed to their stockholders, which states that the CBA "for the rank-and-file employees covering the period December 1, 1995 20 to November 30, 1997 is still with the Supreme Court," as indicative of petitioner's recognition that the CBA award covers the said period. Earlier, petitioner's negotiating panel transmitted to the Union a copy of its proposed CBA covering the same period 21 inclusive. In addition, petitioner does not dispute the allegation that in the past CBA arbitral awards, the Secretary granted retroactivity commencing from the period immediately following the last day of the expired CBA. Thus, by petitioner's own actions, the Court sees no reason to retroact the subject CBA awards to a different date. The period is herein set at two (2) years from December 1, 1995 to November 30, 1997. On the allegation concerning the grant of loan to a cooperative, there is no merit in the union's claim that it is no different from housing loans granted by the employer. The award of loans for housing is justified because it pertains to a basic necessity of life. It is part of a privilege recognized by the employer and allowed by law. In contrast, providing seed money for the establishment of the employee's cooperative is a matter in which the employer has no business interest or legal obligation. Courts should not be utilized as a tool to compel any person to grant loans to another nor to force parties to undertake an obligation without justification. On the contrary, it is the government that has the obligation to render financial assistance to cooperatives and the Cooperative Code does 22 not make it an obligation of the employer or any private individual. Anent the 40-day union leave, the Court finds that the same is a typographical error. In order to avoid any confusion, it is herein declared that the union leave is only thirty (30) days as granted by the Secretary of Labor and affirmed in the Decision of this Court. The added requirement of consultation imposed by the Secretary in cases of contracting out for six (6) months or more has been rejected by the Court. Suffice it to say that the employer is allowed to contract out services for six months or more. However, a line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of employees, and in treating the latter, the employer should see to it that its employees are at least properly informed of its decision or modes of action in order to attain a harmonious labor-management relationship and enlighten the workers concerning their 23 rights. Hiring of workers is within the employer's inherent freedom to regulate and is a valid exercise of its management 24 prerogative subject only to special laws and agreements on the matter and the fair standards of justice. The management cannot be denied the faculty of promoting efficiency and attaining economy by a study of what units are essential for its operation. It has the ultimate determination of whether services should be performed by its personnel or contracted to outside agencies. While there 25 should be mutual consultation, eventually deference is to be paid to what management decides. Contracting out of services is an 26 exercise of business judgment or management prerogative. Absent proof that management acted in a malicious or arbitrary 27 manner, the Court will not interfere with the exercise of judgment by an employer. As mentioned in the January 27, 1999 Decision, 28 the law already sufficiently regulates this matter. Jurisprudence also provides adequate limitations, such that the employer must be motivated by good faith and the contracting out should not be resorted to circumvent the law or must not have been the result 29 of malicious or arbitrary actions. These are matters that may be categorically determined only when an actual suit on the matter arises. WHEREFORE, the motion for reconsideration is PARTIALLY GRANTED and the assailed Decision is MODIFIED as follows: (1) the arbitral award shall retroact from December 1, 1995 to November 30, 1997; and (2) the award of wage is increased from the original amount of One Thousand Nine Hundred Pesos (P1,900.00) to Two Thousand Pesos (P2,000.00) for the years 1995 and 1996. This Resolution is subject to the monetary advances granted by petitioner to its rank-and-file employees during the pendency of this case assuming such advances had actually been distributed to them. The assailed Decision is AFFIRMED in all other respects.1wphi1.nt

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OPINION RULE Domingo v. Domingo, G.R. No. 150897, April 11, 2005

CHARACTER EVIDENCE People v. Lee, G.R. No. 139070, May 29, 2002

45