EVIDENCE Assignment Cases (2013)

Compiled by Lex de Leon Espaola
2013

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ASSIGNMENT CASES ON EVIDENCE

Table of Contents

Paraaque Kings Enterprises, Inc. v. Court of Appeals, G. R. 111538, 26 Feb 1997, 268 SCRA 727 [Page] 3

People v. Marcos G. R. 91646, 21 Aug. 1992, 212 SCRA 748 [Page] 15

People v. Santito Jr., G. R. 91626, 22 Aug. 1991, 201 SCRA 87 [Page] 23

Llaban v. Court of Appeals, G. R. No. 63226, 20 Dec. 1991, 204 SCRA 857 [Page] 34

People v. Napat-A, G. R. No. 84951, 14 Nov. 1989, 179 SCRA 403 [Page] 44

Tabuena v. Court of Appeals, G. R. No. 85423, 6 May 1991, 196 SCRA 650 [Page] 47

People v. Mendoza, G. R. No. 96397, 21 Nov. 1991, 204 SCRA 288 [Page] 53

Republic v. Court of Appeals, G. R. No. 119288, 18 Aug. 1997, 277 SCRA 633 [Page] 61

Tan v. Court of Appeals, L-22793, 16 May 1967, 20 SCRA 54 [Page] 67

Tuason v. Court of Appeals, G. R. Nos. 113779-80, 23 Feb. 1995, 241 SCRA 695 [Page] 72

Fule v. Court of Appeals, L-79094, 22 June 1988, 162 SCRA 446 [Page] 82

People v. Hernandez, G. R. No. 108028, 30 Jul 1996, 260 SCRA 25 [Page] 85

Bastida v. Menzi & Co., 58 Phil. 188 (1933) [Page] 96 Resolution [Page] 96

Javellana v. D. O. Plaza Enterprises, Inc., G. R. No. L-28297, 30 Mar. 1970, 32 SCRA 261 [Page] 108

Torres v. Court of Appeals, G. R. No. L-37420, 31 Jul 1984, 131 SCRA 24 [Page] 112

Director of Lands v. Court of Appeals, G. R. No. 31408, 22 Apr. 1991, 196 SCRA 94 [Page] 124

People v. Tandoy, G. R. No. 80505, 4 Dec. 1990, 192 SCRA 28 [Page] 128

Air France v. Carrascoso, G. R. No. 21438, 28 Sep. 1966, 18 SCRA 155 [Page] 132

De Vera v. Aguilar, G. R. No. 83377, 9 Feb. 1993 (1988), 218 SCRA 602 [Page] 144

Cruz v. Court of Appeals, G. R. No. 79962, 10 Dec. 1990, 192 SCRA 209 [Page] 150

Lechugas v. Court of Appeals, G. R. Nos. L-39972 & L-40300, 6 Aug 1986, 143 SCRA 209 [Page] 159

Vidallon-Magtolis v. Salud, A. M. No. CA-05-20-P (Formerly OCA IPI. 05-84-CA-Pj), 9 September 2005 [Page] 169

People v. Jimenez, L-40677, 31 May 1976, 71 SCRA 186 [Page] 197

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People v. Camalog, G. R. No. 77116, 31 Jan. 1989, 169 SCRA 816 [Page] 209

People v. Trinidad, L-38930, 28 June 1988, 162 SCRA 714 [Page] 219

People v. Galit, L-51770, 20 Mar. 1985, 135 SCRA 465 [Page] 228

Morales v. Ponce-Enrile, L-61016, 20 Apr. 1983, 121 SCRA 538 [Page] 234

People v. Policarpio, L-69844, 23 Feb. 1988, 158 SCRA 85 [Page] 296

People v. Barlis, G. R. 101003, 24 Mar 1994, 231 SCRA 426 [Page] 301

People v. Ayson, G. R. 85215, 7 Jul 1989, 175 SCRA 216 [Page] 314

Arroyo v. Court of Appeals, G. R. 96602, 19 Nov. 1991, 203 SCRA 750 [Page] 325

People v. Estenzo, L-41166, 25 Aug. 1976, 72 SCRA 428 [Page] 335

People v. Calixtro, G. R. 92355, 24 Jan 1992, 193 SCRA 303 [Page] 343

Dela Paz Jr. v. Intermediate Appellate Court, L-71537, 17 Sep 1987, 154 SCRA 65 [Page] 352

Ortigas Jr. v. Lufthansa German Airlines, L-28773, 30 June 1975, 64 SCRA 610 [Page] 361

People v. Seeris, L- 48883, 6 Aug 1980, 99 SCRA 92 [Page] 401

People v. Hatton, G. R. 85043, 16 June 1992, 210 SCRA 1 [Page] 411

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THIRD DIVISION
[G.R. No. 111538. February 26, 1997]
PARAAQUE KINGS ENTERPRISES, INCORPORATED, petitioner, vs. COURT OF APPEALS,
CATALINA L. SANTOS, represented by her attorney-in-fact, LUZ B. PROTACIO, and DAVID
A. RAYMUNDO, respondents.
D E C I S I O N
PANGANIBAN, J.:
Do allegations in a complaint showing violation of a contractual right of first option or
priority to buy the properties subject of the lease constitute a valid cause of action? Is the
grantee of such right entitled to be offered the same terms and conditions as those given to a
third party who eventually bought such properties? In short, is such right of first refusal
enforceable by an action for specific performance?
These questions are answered in the affirmative by this Court in resolving this petition for
review under Rule 45 of the Rules of Court challenging the Decision
[1]
of the Court of
Appeals
[2]
promulgated on March 29, 1993, in CA-G.R. CV No. 34987 entitled Paraaque Kings
Enterprises, Inc. vs. Catalina L. Santos, et al., which affirmed the order
[3]
of September 2, 1991,
of the Regional Trial Court of Makati, Branch 57,
[4]
dismissing Civil Case No. 91-786 for lack of a
valid cause of action.
Facts of the Case
On March 19, 1991, herein petitioner filed before the Regional Trial Court of Makati a
complaint,
[5]
which is reproduced in full below:
Plaintiff, by counsel, respectfully states that:
1. Plaintiff is a private corporation organized and existing under and by virtue of the
laws of the Philippines, with principal place of business of (sic) Dr. A. Santos Avenue,
Paraaque, Metro Manila, while defendant Catalina L. Santos, is of legal age, widow,
with residence and postal address at 444 Plato Street, Ct., Stockton, California, USA,
represented in this action by her attorney-in-fact, Luz B. Protacio, with residence and
postal address at No, 12, San Antonio Street, Magallanes Village, Makati, Metro
Manila, by virtue of a general power of attorney. Defendant David A. Raymundo, is of
legal age, single, with residence and postal address at 1918 Kamias Street, Damarias
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Village, Makati, Metro Manila, where they (sic) may be served with summons and
other court processes. Xerox copy of the general power of attorney is hereto attached
as Annex A.
2. Defendant Catalina L. Santos is the owner of eight (8) parcels of land located at (sic)
Paraaque, Metro Manila with transfer certificate of title nos. S-19637, S-19638 and S-
19643 to S-19648. Xerox copies of the said title (sic) are hereto attached as Annexes
B to I, respectively.
3. On November 28, 1977, a certain Frederick Chua leased the above-described
property from defendant Catalina L. Santos, the said lease was registered in the
Register of Deeds. Xerox copy of the lease is hereto attached as Annex J.
4. On February 12, 1979, Frederick Chua assigned all his rights and interest and
participation in the leased property to Lee Ching Bing, by virtue of a deed of
assignment and with the conformity of defendant Santos, the said assignment was
also registered. Xerox copy of the deed of assignment is hereto attached as Annex K.
5. On August 6, 1979, Lee Ching Bing also assigned all his rights and interest in the
leased property to Paraaque Kings Enterprises, Incorporated by virtue of a deed of
assignment and with the conformity of defendant Santos, the same was duly
registered, Xerox copy of the deed of assignment is hereto attached as Annex L.
6. Paragraph 9 of the assigned leased (sic) contract provides among others that:
9. That in case the properties subject of the lease agreement are sold or
encumbered, Lessors shall impose as a condition that the buyer or mortgagee
thereof shall recognize and be bound by all the terms and conditions of this lease
agreement and shall respect this Contract of Lease as if they are the LESSORS
thereof and in case of sale, LESSEE shall have the first option or priority to buy the
properties subject of the lease;
7. On September 21, 1988, defendant Santos sold the eight parcels of land subject of
the lease to defendant David Raymundo for a consideration of FIVE MILLION
(P5,000,000.00) PESOS. The said sale was in contravention of the contract of lease, for
the first option or priority to buy was not offered by defendant Santos to the
plaintiff. Xerox copy of the deed of sale is hereto attached as Annex M.
8. On March 5, 1989, defendant Santos wrote a letter to the plaintiff informing the
same of the sale of the properties to defendant Raymundo, the said letter was
personally handed by the attorney-in-fact of defendant Santos, Xerox copy of the
letter is hereto attached as Annex N.
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9. Upon learning of this fact plaintiffs representative wrote a letter to defendant
Santos, requesting her to rectify the error and consequently realizing the error, she
had it reconveyed to her for the same consideration of FIVE MILLION (P5,000,000.00)
PESOS. Xerox copies of the letter and the deed of reconveyance are hereto attached
as Annexes O and P.
10. Subsequently the property was offered for sale to plaintiff by the defendant for
the sum of FIFTEEN MILLION (P15,000,000.00) PESOS. Plaintiff was given ten (10) days
to make good of the offer, but therefore (sic) the said period expired another letter
came from the counsel of defendant Santos, containing the same tenor of (sic) the
former letter. Xerox copies of the letters are hereto attached as Annexes Q and R.
11. On May 8, 1989, before the period given in the letter offering the properties for
sale expired, plaintiffs counsel wrote counsel of defendant Santos offering to buy the
properties for FIVE MILLION (P5,000,000.00) PESOS. Xerox copy of the letter is hereto
attached as Annex S.
12. On May 15, 1989, before they replied to the offer to purchase, another deed of
sale was executed by defendant Santos (in favor of) defendant Raymundo for a
consideration of NINE MILLION (P9,000,000.00) PESOS. Xerox copy of the second
deed of sale is hereto attached as Annex T.
13. Defendant Santos violated again paragraph 9 of the contract of lease by executing
a second deed of sale to defendant Raymundo.
14. It was only on May 17, 1989, that defendant Santos replied to the letter of the
plaintiffs offer to buy or two days after she sold her properties. In her reply she
stated among others that the period has lapsed and the plaintiff is not a privy (sic) to
the contract. Xerox copy of the letter is hereto attached as Annex U.
15. On June 28, 1989, counsel for plaintiff informed counsel of defendant Santos of
the fact that plaintiff is the assignee of all rights and interest of the former
lessor. Xerox copy of the letter is hereto attached as Annex V.
16. On July 6, 1989, counsel for defendant Santos informed the plaintiff that the new
owner is defendant Raymundo. Xerox copy of the letter is hereto attached as Annex
W.
17. From the preceding facts it is clear that the sale was simulated and that there was
a collusion between the defendants in the sales of the leased properties, on the
ground that when plaintiff wrote a letter to defendant Santos to rectify the error, she
immediately have (sic) the property reconveyed it (sic) to her in a matter of twelve
(12) days.
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18. Defendants have the same counsel who represented both of them in their
exchange of communication with plaintiffs counsel, a fact that led to the conclusion
that a collusion exist (sic) between the defendants.
19. When the property was still registered in the name of defendant Santos, her
collector of the rental of the leased properties was her brother-in-law David Santos
and when it was transferred to defendant Raymundo the collector was still David
Santos up to the month of June, 1990. Xerox copies of cash vouchers are hereto
attached as Annexes X to HH, respectively.
20. The purpose of this unholy alliance between defendants Santos and Raymundo is
to mislead the plaintiff and make it appear that the price of the leased property is
much higher than its actual value of FIVE MILLION (P5,000,000.00) PESOS, so that
plaintiff would purchase the properties at a higher price.
21. Plaintiff has made considerable investments in the said leased property by
erecting a two (2) storey, six (6) doors commercial building amounting to THREE
MILLION (P3,000,000.00) PESOS. This considerable improvement was made on the
belief that eventually the said premises shall be sold to the plaintiff.
22. As a consequence of this unlawful act of the defendants, plaintiff will incurr (sic)
total loss of THREE MILLION (P3,000,000.00) PESOS as the actual cost of the building
and as such defendants should be charged of the same amount for actual damages.
23. As a consequence of the collusion, evil design and illegal acts of the defendants,
plaintiff in the process suffered mental anguish, sleepless nights, bismirched (sic)
reputation which entitles plaintiff to moral damages in the amount of FIVE MILLION
(P5,000,000.00) PESOS.
24. The defendants acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner and as a deterrent to the commission of similar acts, they should be made to
answer for exemplary damages, the amount left to the discretion of the Court.
25. Plaintiff demanded from the defendants to rectify their unlawful acts that they
committed, but defendants refused and failed to comply with plaintiffs just and valid
and (sic) demands. Xerox copies of the demand letters are hereto attached as
Annexes KK to LL, respectively.
26. Despite repeated demands, defendants failed and refused without justifiable
cause to satisfy plaintiffs claim, and was constrained to engaged (sic) the services of
undersigned counsel to institute this action at a contract fee of P200,000.00, as and
for attorneys fees, exclusive of cost and expenses of litigation.

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PRAYER
WHEREFORE, it is respectfully prayed, that judgment be rendered in favor of the plaintiff
and against defendants and ordering that:
a. The Deed of Sale between defendants dated May 15, 1989, be annulled and the
leased properties be sold to the plaintiff in the amount of P5,000,000.00;
b. Dependants (sic) pay plaintiff the sum of P3,000,000.00 as actual damages;
c. Defendants pay the sum of P5,000,000.00 as moral damages;
d. Defendants pay exemplary damages left to the discretion of the Court;
e. Defendants pay the sum of not less than P200,000.00 as attorneys fees.
Plaintiff further prays for other just and equitable reliefs plus cost of suit.
Instead of filing their respective answers, respondents filed motions to dismiss anchored
on the grounds of lack of cause of action, estoppel and laches.
On September 2, 1991, the trial court issued the order dismissing the complaint for lack of
a valid cause of action. It ratiocinated thus:
Upon the very face of the plaintiffs Complaint itself, it therefore indubitably appears that the
defendant Santos had verily complied with paragraph 9 of the Lease Agreement by twice
offering the properties for sale to the plaintiff forP15 M. The said offers, however, were plainly
rejected by the plaintiff which scorned the said offer as RIDICULOUS. There was therefore a
definite refusal on the part of the plaintiff to accept the offer of defendant Santos. For in
acquiring the said properties back to her name, and in so making the offers to sell both by
herself (attorney-in-fact) and through her counsel, defendant Santos was indeed
conscientiously complying with her obligation under paragraph 9 of the Lease Agreement. x x x
x x x x x x x x x
This is indeed one instance where a Complaint, after barely commencing to create a cause of
action, neutralized itself by its subsequent averments which erased or extinguished its earlier
allegations of an impending wrong. Consequently, absent any actionable wrong in the very face
of the Complaint itself, the plaintiffs subsequent protestations of collusion is bereft or devoid
of any meaning or purpose. x x x
The inescapable result of the foregoing considerations point to no other conclusion than that
the Complaint actually does not contain any valid cause of action and should therefore be as it
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is hereby ordered DISMISSED. The Court finds no further need to consider the other grounds of
estoppel and laches inasmuch as this resolution is sufficient to dispose the matter.
[6]

Petitioners appealed to the Court of Appeals which affirmed in toto the ruling of the trial
court, and further reasoned that:
x x x Appellants protestations that the P15 million price quoted by appellee Santos was
reduced to P9 million when she later resold the leased properties to Raymundo has no valid
legal moorings because appellant, as a prospective buyer, cannot dictate its own price and
forcibly ram it against appellee Santos, as owner, to buy off her leased properties considering
the total absence of any stipulation or agreement as to the price or as to how the price should
be computed under paragraph 9 of the lease contract, x x x
[7]

Petitioner moved for reconsideration but was denied in an order dated August 20, 1993.
[8]

Hence this petition. Subsequently, petitioner filed an Urgent Motion for the Issuance of
Restraining Order and/or Writ of Preliminary Injunction and to Hold Respondent David A.
Raymundo in Contempt of Court.
[9]
The motion sought to enjoin respondent Raymundo and
his counsel from pursuing the ejectment complaint filed before the barangay captain of San
Isidro, Paraaque, Metro Manila; to direct the dismissal of said ejectment complaint or of any
similar action that may have been filed; and to require respondent Raymundo to explain why
he should not be held in contempt of court for forum-shopping. The ejectment suit initiated by
respondent Raymundo against petitioner arose from the expiration of the lease contract
covering the property subject of this case. The ejectment suit was decided in favor of
Raymundo, and the entry of final judgment in respect thereof renders the said motion moot
and academic.
Issue
The principal legal issue presented before us for resolution is whether the aforequoted
complaint alleging breach of the contractual right of first option or priority to buy states a
valid cause of action.
Petitioner contends that the trial court as well as the appellate tribunal erred in dismissing
the complaint because it in fact had not just one but at least three (3) valid causes of action, to
wit: (1) breach of contract, (2) its right of first refusal founded in law, and (3) damages.
Respondents Santos and Raymundo, in their separate comments, aver that the petition
should be denied for not raising a question of law as the issue involved is purely factual --
whether respondent Santos complied with paragraph 9 of the lease agreement -- and for not
having complied with Section 2, Rule 45 of the Rules of Court, requiring the filing of twelve (12)
copies of the petitioners brief. Both maintain that the complaint filed by petitioner before the
Regional Trial Court of Makati stated no valid cause of action and that petitioner failed to
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substantiate its claim that the lower courts decided the same in a way not in accord with law
and applicable decisions of the Supreme Court; or that the Court of Appeals has sanctioned
departure by a trial court from the accepted and usual course of judicial proceedings so as to
merit the exercise by this Court of the power of review under Rule 45 of the Rules of Court.
Furthermore, they reiterate estoppel and laches as grounds for dismissal, claiming that
petitioners payment of rentals of the leased property to respondent Raymundo from June 15,
1989, to June 30, 1990, was an acknowledgment of the latters status as new owner-lessor of
said property, by virtue of which petitioner is deemed to have waived or abandoned its first
option to purchase.
Private respondents likewise contend that the deed of assignment of the lease agreement
did not include the assignment of the option to purchase. Respondent Raymundo further avers
that he was not privy to the contract of lease, being neither the lessor nor lessee adverted to
therein, hence he could not be held liable for violation thereof.
The Courts Ruling
Preliminary Issue: Failure to File Sufficient Copies of Brief
We first dispose of the procedural issue raised by respondents, particularly petitioners
failure to file twelve (12) copies of its brief. We have ruled that when non-compliance with the
Rules was not intended for delay or did not result in prejudice to the adverse party, dismissal of
appeal on mere technicalities in cases where appeal is a matter of right -- may be stayed, in
the exercise of the courts equity jurisdiction.
[10]
It does not appear that respondents were
unduly prejudiced by petitioners nonfeasance. Neither has it been shown that such failure was
intentional.
Main Issue: Validity of Cause of Action
We do not agree with respondents contention that the issue involved
is purely factual. The principal legal question, as stated earlier, is whether the complaint filed
by herein petitioner in the lower court states a valid cause of action. Since such question
assumes the facts alleged in the complaint as true, it follows that the determination thereof is
one of law, and not of facts. There is a question of law in a given case when the doubt or
difference arises as to what the law is on a certain state of facts, and there is a question of fact
when the doubt or difference arises as to the truth or the falsehood of alleged facts.
[11]

At the outset, petitioner concedes that when the ground for a motion to dismiss is lack of
cause of action, such ground must appear on the face of the complaint; that to determine the
sufficiency of a cause of action, only the facts alleged in the complaint and no others should be
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considered; and that the test of sufficiency of the facts alleged in a petition or complaint to
constitute a cause of action is whether, admitting the facts alleged, the court could render a
valid judgment upon the same in accordance with the prayer of the petition or complaint.
A cause of action exists if the following elements are present: (1) a right in favor of the
plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on
the part of the named defendant to respect or not to violate such right, and (3) an act or
omission on the part of such defendant violative of the right of plaintiff or constituting a breach
of the obligation of defendant to the plaintiff for which the latter may maintain an action for
recovery of damages.
[12]

In determining whether allegations of a complaint are sufficient to support a cause of
action, it must be borne in mind that the complaint does not have to establish or allege facts
proving the existence of a cause of action at the outset; this will have to be done at the trial on
the merits of the case. To sustain a motion to dismiss for lack of cause of action, the complaint
must show that the claim for relief does not exist, rather than that a claim has been defectively
stated, or is ambiguous, indefinite or uncertain.
[13]

Equally important, a defendant moving to dismiss a complaint on the ground of lack of
cause of action is regarded as having hypothetically admitted all the averments thereof.
[14]

A careful examination of the complaint reveals that it sufficiently alleges an actionable
contractual breach on the part of private respondents. Under paragraph 9 of the contract of
lease between respondent Santos and petitioner, the latter was granted the first option or
priority to purchase the leased properties in case Santos decided to sell. If Santos never
decided to sell at all, there can never be a breach, much less an enforcement of such
right. But on September 21, 1988, Santos sold said properties to Respondent Raymundo
without first offering these to petitioner. Santos indeed realized her error, since she
repurchased the properties after petitioner complained. Thereafter, she offered to sell the
properties to petitioner for P15 million, which petitioner, however, rejected because of the
ridiculous price. But Santos again appeared to have violated the same provision of the lease
contract when she finally resold the properties to respondent Raymundo for only P9 million
without first offering them to petitioner at such price. Whether there was actual breach which
entitled petitioner to damages and/or other just or equitable relief, is a question which can
better be resolved after trial on the merits where each party can present evidence to prove
their respective allegations and defenses.
[15]

The trial and appellate courts based their decision to sustain respondents motion to
dismiss on the allegations of Paraaque Kings Enterprises that Santos had actually offered the
subject properties for sale to it prior to the final sale in favor of Raymundo, but that the offer
was rejected. According to said courts, with such offer, Santos had verily complied with her
obligation to grant the right of first refusal to petitioner.
We hold, however, that in order to have full compliance with the contractual right granting
petitioner the first option to purchase, the sale of the properties for the amount of P9 million,
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the price for which they were finally sold to respondent Raymundo, should have likewise been
first offered to petitioner.
The Court has made an extensive and lengthy discourse on the concept of, and obligations
under, a right of first refusal in the case of Guzman, Bocaling & Co. vs. Bonnevie.
[16]
In that case,
under a contract of lease, the lessees (Raul and Christopher Bonnevie) were given a right of
first priority to purchase the leased property in case the lessor (Reynoso) decided to sell. The
selling price quoted to the Bonnevies was P600,000.00 to be fully paid in cash, less a mortgage
lien of P100,000.00. On the other hand, the selling price offered by Reynoso to and accepted
by Guzman was only P400,000.00 of which P137,500.00 was to be paid in cash while the
balance was to be paid only when the property was cleared of occupants. We held that even if
the Bonnevies could not buy it at the price quoted (P600,000.00), nonetheless, Reynoso could
not sell it to another for a lower price and under more favorable terms and conditions without
first offering said favorable terms and price to the Bonnevies as well. Only if the Bonnevies
failed to exercise their right of first priority could Reynoso thereafter lawfully sell the subject
property to others, and only under the same terms and conditions previously offered to the
Bonnevies.
Of course, under their contract, they specifically stipulated that the Bonnevies could
exercise the right of first priority, all things and conditions being equal. This Court
interpreted this proviso to mean that there should be identity of terms and conditions to be
offered to the Bonnevies and all other prospective buyers, with the Bonnevies to enjoy the right
of first priority. We hold that the same rule applies even without the same proviso if the right
of first refusal (or the first option to buy) is not to be rendered illusory.
From the foregoing, the basis of the right of the first refusal
*
must be the current offer to
sell of the seller or offer to purchase of any prospective buyer. Only after the grantee
**
fails to
exercise its right of first priority under the same terms and within the period contemplated,
could the owner validly offer to sell the property to a third person, again, under the same terms
as offered to the grantee
***
.
This principle was reiterated in the very recent case of Equatorial Realty vs. Mayfair
Theater, Inc.
[17]
which was decided en banc. This Court upheld the right of first refusal of the
lessee Mayfair, and rescinded the sale of the property by the lessor Carmelo to Equatorial
Realty considering that Mayfair, which had substantial interest over the subject property, was
prejudiced by its sale to Equatorial without Carmelo conferring to Mayfair every opportunity to
negotiate within the 30-day stipulated period (underscoring supplied).
In that case, two contracts of lease between Carmelo and Mayfair provided that if the
LESSOR should desire to sell the leased premises, the LESSEE shall be given 30 days exclusive
option to purchase the same. Carmelo initially offered to sell the leased property to Mayfair
for six to seven million pesos. Mayfair indicated interest in purchasing the property though it
invoked the 30-day period. Nothing was heard thereafter from Carmelo. Four years later, the
latter sold its entire Recto Avenue property, including the leased premises, to Equatorial
for P11,300,000.00 without priorly informing Mayfair. The Court held that both Carmelo and
Equatorial acted in bad faith: Carmelo for knowingly violating the right of first refusal
*
of
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Mayfair, and Equatorial for purchasing the property despite being aware of the contract
stipulation. In addition to rescission of the contract of sale, the Court ordered Carmelo to allow
Mayfair to buy the subject property at the same price of P11,300,000.00.
No cause of action under P.D. 1517
Petitioner also invokes Presidential Decree No. 1517, or the Urban Land Reform Law, as
another source of its right of first refusal. It claims to be covered under said law, being the
rightful occupant of the land and its structures since it is the lawful lessee thereof by reason
of contract. Under the lease contract, petitioner would have occupied the property for
fourteen (14) years at the end of the contractual period.
Without probing into whether petitioner is rightfully a beneficiary under said law, suffice it
to say that this Court has previously ruled that under Section 6
[18]
of P.D. 1517, the terms and
conditions of the sale in the exercise of the lessees right of first refusal to purchase shall be
determined by the Urban Zone Expropriation and Land Management Committee. Hence, x x x
certain prerequisites must be complied with by anyone who wishes to avail himself of the
benefits of the decree.
[19]
There being no allegation in its complaint that the prerequisites
were complied with, it is clear that the complaint did fail to state a cause of action on this
ground.
Deed of Assignment included the option to purchase
Neither do we find merit in the contention of respondent Santos that the assignment of
the lease contract to petitioner did not include the option to purchase. The provisions of the
deeds of assignment with regard to matters assigned were very clear. Under the first
assignment between Frederick Chua as assignor and Lee Ching Bing as assignee, it was expressly
stated that:
x x x the ASSIGNOR hereby CEDES, TRANSFERS and ASSIGNS to herein ASSIGNEE, all his rights,
interest and participation over said premises afore-described, x x x
[20]
(underscoring supplied)
And under the subsequent assignment executed between Lee Ching Bing as assignor and
the petitioner, represented by its Vice President Vicenta Lo Chiong, as assignee, it was likewise
expressly stipulated that:
x x x the ASSIGNOR hereby sells, transfers and assigns all his rights, interest and participation
over said leased premises, x x x
[21]
(underscoring supplied)
One of such rights included in the contract of lease and, therefore, in the assignments of
rights was the lessees right of first option or priority to buy the properties subject of the lease,
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as provided in paragraph 9 of the assigned lease contract. The deed of assignment need not be
very specific as to which rights and obligations were passed on to the assignee. It is understood
in the general provision aforequoted that all specific rights and obligations contained in the
contract of lease are those referred to as being assigned. Needless to state, respondent Santos
gave her unqualified conformity to both assignments of rights.
Respondent Raymundo privy to the Contract of Lease
With respect to the contention of respondent Raymundo that he is not privy to the lease
contract, not being the lessor nor the lessee referred to therein, he could thus not have violated
its provisions, but he is nevertheless a proper party. Clearly, he stepped into the shoes of the
owner-lessor of the land as, by virtue of his purchase, he assumed all the obligations of the
lessor under the lease contract. Moreover, he received benefits in the form of rental
payments. Furthermore, the complaint, as well as the petition, prayed for the annulment of
the sale of the properties to him. Both pleadings also alleged collusion between him and
respondent Santos which defeated the exercise by petitioner of its right of first refusal.
In order then to accord complete relief to petitioner, respondent Raymundo was a
necessary, if not indispensable, party to the case.
[22]
A favorable judgment for the petitioner will
necessarily affect the rights of respondent Raymundo as the buyer of the property over which
petitioner would like to assert its right of first option to buy.
Having come to the conclusion that the complaint states a valid cause of action for breach
of the right of first refusal and that the trial court should thus not have dismissed the
complaint, we find no more need to pass upon the question of whether the complaint states a
cause of action for damages or whether the complaint is barred by estoppel or laches. As these
matters require presentation and/or determination of facts, they can be best resolved after
trial on the merits.
While the lower courts erred in dismissing the complaint, private respondents, however,
cannot be denied their day in court. While, in the resolution of a motion to dismiss, the truth of
the facts alleged in the complaint are theoretically admitted, such admission is merely
hypothetical and only for the purpose of resolving the motion. In case of denial, the movant is
not to be deprived of the right to submit its own case and to submit evidence to rebut the
allegations in the complaint. Neither will the grant of the motion by a trial court and the
ultimate reversal thereof by an appellate court have the effect of stifling such right.
[23]
So too,
the trial court should be given the opportunity to evaluate the evidence, apply the law and
decree the proper remedy. Hence, we remand the instant case to the trial court to allow
private respondents to have their day in court.
WHEREFORE, the petition is GRANTED. The assailed decisions of the trial court and Court
of Appeals are hereby REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial
Court of Makati for further proceedings.
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SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

[1]
Rollo, pp. 75-80.
[2]
Fifteenth Division, composed of J. Emeterio C. Cui, Chairman and ponente, with JJ. Jainal D. Rasul and Eduardo G. Montenegro, concurring.
[3]
Rollo, pp. 67-72.
[4]
Judge Francisco X. Velez, presiding.
[5]
Rollo, pp. 63-65.
[6]
Rollo, pp. 71-72.
[7]
Ibid., p. 80.
[8]
Ibid., p. 82.
[9]
Ibid., pp. 195-205.
[10]
Soriano vs. Court of Appeals, 222 SCRA 545, May 25, 1993. See also Goulds Pumps (Phils.), Inc. vs. Court of Appeals, 224 SCRA 127, June 30,
1993; Insular Bank of Asia and America vs. Court of Appeals, 228 SCRA 420, December 14, 1993.
[11]
Paras, Rules of Court Annotated, 1989 Ed., Vol. I, p. 790.
[12]
Dulay vs. Court of Appeals, 243 SCRA 220, April 3, 1995.
[13]
Ibid.
[14]
Rava Development Corporation vs. Court of Appeals, 211 SCRA 143, July 3, 1992.
[15]
Dulay, supra.
[16]
206 SCRA 668, March 2, 1992.
*
In this Decision, we used right of "first option" and right of "first refusal" interchangeably -- only because the subject contract so used them
interchangeably. However, we are not unmindful of the fact that legally, an "option" is different from "right of first refusal" or "right of first
priority.***
**
"optionee" is being changed to "grantee"
***
"or "right of first priority" is being added.
[17]
G.R. No. 106063, November 21, 1996. See also the Concurring Opinion of the undersigned ponente on why and under what circumstances a
right of first refusal may be enforced by an action for specific performance.
*
"option" is being changed to "refusal".
[18]
Sec. 6 of P.D. No. 1517 provides:
SECTION 6. Land Tenancy in Urban Land Reform Areas.-- Within the Urban Zones legitimate tenants who have resided on the land for ten
years or more who have built their homes on the lands and residents who have legally occupied the lands by contract, continuously
for the last ten years shall not be dispossessed of the land and shall be allowed the right of first refusal to purchase the same within
a reasonable time and at reasonable prices, under terms and conditions to be determined by the Urban Zone Expropriation and Land
Management Committee created by section 8 of this Decree.
[19]
Lagmay vs. Court of Appeals, 199 SCRA 501, July 23, 1991.
[20]
Rollo, p. 37.
[21]
Rollo, p. 40.
[22]
Sec. 8, Rule 3, Rules of Court.
[23]
Home Savings Bank vs. Court of Appeals, 237 SCRA 360, October 6, 1994.
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15 | P a g e
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 91646 August 21, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMIL MARCOS Y ISIDRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Emerito M. Salva & Associates for accused-appellant.

GUTIERREZ, JR., J.:
Appellant Romil Marcos y Isidro was charged with the crime of Violation of Section 4, Article II
of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 in an
information filed by the Office of the City Fiscal of Zamboanga City with the Regional Trial Court
of Zamboanga City. The information alleged:
That on or about June 7, 1989, in the City of Zamboanga, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, not being
authorized by law, did then and there wilfully, unlawfully and feloniously sell to
one SGT. AMADO ANI six (6) sticks of marijuana cigarettes, knowing same to be a
prohibited drug. (Rollo, p. 7)
When arraigned the appellant pleaded not guilty.
After trial on the merits, the appellant was found by the court guilty as charged and was
sentenced to suffer imprisonment of reclusion perpetua at the San Ramon Penal Colony and to
pay the costs.
The trial court gave credence to the buy-bust operation conducted by the prosecution
witnesses, all of them Narcom agents, wherein the appellant sold six (6) sticks of marijuana to
Sgt. Amado Ani, a member of the operation, who acted as the poseur-buyer. The other target
of the operation, a certain Ballena eluded arrest and escaped.
The trial court summarized the buy-bust operation leading to the arrest of the appellant as
follows:
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. . . The arrest of the accused was carefully planned. After receiving the
information from the civilian informant named "Bobby" that the accused and
another person was selling marijuana at Talon-Talon more particularly at Lucy's
Store, the Narcom Agents conducted a surveillance in said place riding on two
motorcycles a day before the raid. They saw the accused selling marijuana. The
following day, again, the Narcom Agents held a conference and each of them
was briefed by their team leader. One of them who was Sgt. Amado Ani was to
act as poseur buyer while others, namely: Sgt. Jesus Belarga, Sgt. Bernardo Lego
and Sgt. Julieto Vega as arresting officers. The following day, June 7, 1989, at
about 11:00 a.m., said team consisting of Narcom Agents proceeded to the
place. Three were left at a vulcanizing shop, namely, Sgts. Belarga, Lego, and
Vega; while Sgt. Amado Ani, the poseur buyer, proceeded to the Lucy's store.
There he met the accused Romil Marcos who asked said poseur buyer how much
he was buying and the latter answered him P10.00 worth. The accused entered
the store, gave the P10.00 marked money given by Sgt. Ani to his companion
Ballena and the latter gave the accused Romil Marcos the six sticks of marijuana
cigarettes which were wrapped. Sgt. Ani examined the same and upon verifying
that it was marijuana, he proceeded to the street and made the pre-arranged
signal by wiping his face with a handkerchief. The three Narcom Agents rushed
to the place where Sgt. Amado Ani was. However, after Sgt. Ani gave the signal,
he returned to where the accused Romil Marcos and alias Ballena were,
introduced himself as Narcom Agent and grabbed the accused Romil Marcos but
the latter was able to escape. While escaping, the Narcom Agents saw him throw
a stick of marijuana cigarette which Sgt. Belarga retrieved. Later, they
apprehended Romil Marcos and brought him to their office at Upper Calarian,
this City. He was turned over to the chief investigator Sgt. Mihasun together with
the six sticks of marijuana cigarettes that were sold by the said accused Romil
Marcos to the poseur buyer, Sgt. Ani. The Five sticks were examined by the PCCI
and found the same to be positive of marijuana (Rollo, p. 24)
The trial court rejected the appellant's defense that he was not the object of the buy-bust
operation and that he was arrested when he refused to testify against Ballena who was actually
the target of the buy-bust operation. He testified as follows:
. . . That on June 7, 1989, past 11:00 o'clock in morning, he was at Lucy's Store
waiting for a jeep going to Sta. Catalina to find out when he was going to work at
the Peninsula Construction Company because he was temporarily laid off. That
while he was at the Lucy's Store, a motorcycle stopped in the store. Immediately,
the people on board said motorcycle chased a certain Ballena who is his
neighbor. That Ballena's complete name is Romeo Ballena who is known as Mimi
or Mi. Then he heard a shot when they were chasing Ballena but does not know
who fired the same. The people on board the motorcycle were not able to catch
up with Ballena, so they returned to the store. Upon returning to the store, one
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of them pointed at him and said that he was a companion of Ballena at the same
time handcuffing him. At that time there were many people at the Lucy's Store
numbering about thirty; that there were three CAFGUs who arrived in the place
and one of them asked the people who were riding earlier in the motorcycle
what were those shots for. One of them in the motorcycle answered that they
must not interfere as they are Narcom Agents, and the CAFGU did not interfere.
After that they placed him between the motorcycle driver and the other person
and took him with them to Calarian; that the persons who took him were the
same people who chased Ballena; that while on their way to Calarian, one of the
two persons who chased Ballena in a motorcycle told him that he must act as
witness against Ballena. However, said accused told them that he would not like
to testify because he does not know what was that about. They said that they
are going to place him in jail because he does not want to be a witness against
Ballena. (RTC Decision, p. 6, Rollo, p. 21)
In his appeal the appellant assigns the alleged errors of the trial court as follows:
A. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON
TESTIMONIES OF PROSECUTION WITNESSES WHICH WERE NOT PROPERLY
OFFERED IN EVIDENCE AND ON REAL EVIDENCE CONSISTING OF SIX (6) STICKS OF
MARIJUANA WHICH WERE NOT ALSO OFFERED IN EVIDENCE.
B. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON THE
TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION WHICH WERE
FRAUGHT WITH SERIOUS DOUBT, AND THEREFORE, CLEARLY APPEAR TO BE
INCREDIBLE AND UNBELIEVABLE.
C. THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT THE GUILT OF
ACCUSED-APPELLANT HAS BEEN PROVED BEYOND REASONABLE DOUBT.
(Appellant's Brief, p. 20)
In the first assigned error, the appellant contends that the testimonies of prosecution witnesses
Sgt. Jesus Belarga, Sgt. Amado Ani, Jr. and Mrs. Athena Elias Anderson were not formally
offered, hence, the trial court erred in considering their testimonies. He cites sections 34 and
35, Rule 132 of the Rules of Court to prove his point, to wit:
Sec. 34. Offer of Evidence. The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be
specified.
Sec. 35. When to make offer. As regards the testimony of a witness, the offer
must be made at the time the witness is called to testify.
xxx xxx xxx
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Contrary to the assertion of the appellant, Sgt. Amado Ani's testimony was formally offered by
the prosecution. Hence, when Sgt. Ani was called to testify for the prosecution, Prosecuting
Fiscal Deogracias Avecilla said that Sgt. Amado Ani's testimony was being offered "to the effect
that he was the poseur-buyer of this case." (TSN October 23, 1989, p. 15)
As regards the other mentioned prosecution witnesses, we agree with the appellant that their
testimonies were not formally offered at the time the said witnesses were called to testify.
However, the records reveal that the testimonies of the prosecution witnesses were offered
during the formal offer of documentary evidence by the prosecuting Fiscal. The appellant did
not object to such offer. In such a case we rule that the appellant is now estopped from
questioning the inclusion of the subject testimonies by the trial court in convicting him of the
crime charged.
At any rate, the appellant was not deprived of any of his constitutional rights in the inclusion of
the subject testimonies. The appellant was not deprived of his right to cross-examine all these
prosecution witnesses.
The appellant also faults the trial court for considering the six (6) marijuana sticks as evidence
for the prosecution despite the fact that they were not offered as evidence.
The record reveals that when the prosecuting Fiscal offered the prosecution's documentary
evidence among these offered was Inhibit "E" which was described as "the wrapper containing
the six (6) sticks handrolled cigarette which were sold by the accused Romil Marcos to the
poseur-buyer Sgt. Ani, and as part of the testimony of the Forensic Chemist Athena Anderson
and Sgt. Belarga and also Sgt. Mihasun" Marcos alleges that nowhere in the offer of
documentary evidence is there a mention as regards the six (6) sticks of marijuana sold by the
appellant to Sgt. Ani during the buy-bust operation. Under these circumstances, the appellant
argues that the appellant should be acquitted for failure of the prosecution to offer the six (6)
sticks of marijuana sold by the appellant to Sgt. Ani.
This argument is not well taken.
We rule that Exhibit "E" does not refer to the wrapper alone but also refers to the six (6)
marijuana sticks sold by the appellant to Sgt. Ani during the buy-bust operation. It is to be
noted that Exhibit "E" was offered as evidence in relation to the testimonies of Sgt. Belarga,
Forensic Chemist Athena Anderson and Sgt. Mihasun. The record is clear to the effect that in
their testimonies, Sgt. Belarga, Forensic Chemist Athena Anderson and Sgt. Mihasun referred to
Exhibit "E" as the six (6) sticks of marijuana sold by the appellant to Sgt. Ani during the buy-bust
operation conducted by the Narcom agents led by Sgt. Belarga at Talon-Talon, Zamboanga City
on June 7, 1989.
The second and third assigned errors raise the issue on credibility of witnesses. In this regard
the appellant points out alleged circumstances of the prosecution witnesses which "render
their testimonies lacking in probative weight or value." The appellant focuses on the alleged
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19 | P a g e
inconsistent statements of the Narcom agents as regards how long they have known their
informant named "Bobby" to the point that the appellant suggests that there was no informant
and that the surveillance on June 6, 1989 and the buy-bust operation conducted on June 7,
1989 never took place at all.
Whether or not the prosecution witnesses, particularly the Narcom agents have known their
informant Bobby for one year is not a material point in the crime of illegal sale of marijuana
drug under Section 4, Art. II of the Dangerous Drugs Act. This crime requires merely the
consummation of the selling transaction. (People v. Dekingco, 189 SCRA 512 [1990]; and People
v. Catan, G.R. No. 92928, January 21, 1992) in case of a "buy-bust operation", the crucial point
is that the poseur-buyer received the marijuana from the appellant and the same was
presented as evidence in court. Proof of the transaction is sufficient. (People v.
Catan, supra; and People v. Mariano, 191 SCRA 136 [1990])
In the case at bar, the transaction was established by the evidence on record. Prosecution
witness Sgt. Ani who acted as poseur-buyer positively identified the appellant as the one who
sold him six (6) sticks of marijuana for the amount of P10.00. He testified as follows:
Q On June 7, 1989, at 11:00 o'clock in the morning, who were
those who proceeded to Bandariba, Talon-Talon, this City?
A We were together with Sgt. Belarga, Sgt. Lago and Sgt. Vega.
Q And from your headquarters to Talon-Talon, this City, how did
you go?
A We went there to Bandariba by using the motorcycle.
Q What particular place at Bandariba, Talon-Talon, Zamboanga
City, did your group go?
A We stopped first at a little vulcanizing area near the road.
Q What did you do there in that area of vulcanizing?
A Our team leader, Sgt. Lego and Sgt. Vega left at the vulcanizing
area.
Q How about you?
A I proceeded to the vicinity where the Lucy store is located.
Q How far is this vulcanizing to Lucy store where you proceeded?
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A About 30 to 40 meters.
Q You were able to proceed to the Lucy store?
A Yes, sir.
Q What happened when you were at the Lucy Store?
A In front of the store I was met by Romil Marcos and he asked
me what I want.
Q In that dialect did Romil Marcos ask to what you like for?
A In Tagalog dialect.
Q What did you say to this question of Romil Marcos?
A I said "mayroon ba tayong stock?"
COURT:
Q What do you mean by that?
A "If you have marijuana stock."
FISCAL AVECILLA:
Q Did Romil answer you when you asked that question?
A Yes, he answered.
Q What did he say to you?
A He asked me, "How much?"
Q What did you do when he asked "How much?"
A I handed the P10.00.
Q When you handed that P10.00, what happened next?
A He said "you wait for me near the waiting shed."
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Q What happened when you were told to wait in the waiting
shed?
A After a while, Romil Marcos left and went inside in a portion of
the store.
Q What happened there, if any?
A When he came back, he brought a paper wrapper where the six
(6) sticks of marijuana cigarettes were found inside.
Q How did you know inside that wrapper are the six sticks of
marijuana?
A I opened the wrapper and I found these six sticks of marijuana
cigarettes inside.
Q Do you know where Romil got this wrapper in which you found
the six sticks of marijuana cigarettes?
A Yes, sir.
Q Please tell the court.
A Romil told me, "you wait for a while". I saw he approached a
certain fellow whom we later came to know as Ballena. Then that
person got the money from Romil Marcos, placed inside his
pocket and he got inside from his pocket the paper wrapper
containing several sticks of marijuana.
Q You have been talking about this Romil Marcos. Would you be
able to recognize if you see him again?
A Yes, sir.
Q Please look inside the courtroom and see around, and go down
from the witness stand and tap him on his shoulder.
(Witness pointed to a man in court who identified himself as
Romil Marcos when asked) (TSN, October 23, 1989, pp. 18-19)
Second, the appellant points out the supposed inconsistency of the testimonies of Sgt. Ani, the
poseur-buyer and prosecution witness Athena Elias Anderson, document examiner and forensic
chemist of the PC/INP Crime Laboratory Service, Recom IX, Zamboanga City, who examined the
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six (6) marijuana sticks (Exhibit "E") submitted for analysis as regards the wrapper containing
the six (6) marijuana sticks which were sold to the former by the appellant. Thus, while Sgt. Ani
testified that the six (6) sticks of marijuana sold to him by the appellant were wrapped in
newspaper, Anderson declared that the wrapper used and submitted to her containing the six
(6) sticks of marijuana was a primary ruled pad and not a newspaper. The appellant submits
that what was obtained from the appellant is different from the one submitted for examination
by Anderson.
We are not impressed.
The records show that when Sgt. Ani turned over the six (6) marijuana sticks wrapped in paper
sold to him by the appellant, Sgt. Belarga placed his initial, the date, as well as the sign of a star
on the six (6) sticks for identification purposes. (TSN, p. 8, October 23, 1989) The records
further reveal that the six (6) sticks of marijuana examined and analyzed by Anderson were
identified in court by Sgt. Belarga as the same six (6) sticks of marijuana sold by the appellant to
Sgt. Ani during the buy-bust operation conducted at Talon-Talon, Zamboanga City. (TSN, p. 6,
October 25, 1989 in relation to TSN pp. 12-13, October 25, 1989)
In sum we find no compelling reason to disturb the findings of facts of the trial court. We give
credence to the narration of the incident by the prosecution witnesses who are police officers
and presumed to have performed their duties in a regular manner in the absence of any
evidence to the contrary. (People v. Napat-a, 179 SCRA 403 [1989]; People v. Castillo y
Martinez, G.R. No. 93408, April 10, 1992.) Moreover, the buy-bust operation was methodically
executed with surveillance operations done one (1) day before the arrest of the appellant. We
find the procedure adapted by the police officers in consonance with the application of
regularity in the performance of official duties. (People v. De Jesus, G.R. No. 93852, January 24,
1992; People v. Castillo y Martinez, supra).
However, the trial court erred in sentencing the appellant to suffer imprisonment of reclusion
perpetua. The proper penalty to be imposed on appellant should be life imprisonment,
not reclusion perpetua and a fine of TWENTY THOUSAND PESOS (P20,000.00) in accordance
with Sec. 4, Article II of Republic Act No. 6425, as amended. (People v. Catan, supra).
WHEREFORE, the judgment appealed from is AFFIRMED except for the MODIFICATION that the
penalty shall be life imprisonment and a fine of TWENTY THOUSAND PESOS (P20,000.00)
instead of reclusion perpetua.Judgment appealed from is AFFIRMED.
SO ORDERED.
Bidin, Davide, Jr. and Romero, JJ., concur.
Feliciano, J., is on leave.

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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 91628 August 22, 1991
vs.
MACARIO SANTITO, JR., ALLAN CABALLERO, DIOSCORO CANDIA, BENJAMIN CAPANGPANGAN
and WILLIAM NARCISO, accused-appellants.
Rolindo A Navarro for accused-appellants.

REGALADO, J.:p
Appellants seek the reversal of the decision of the Regional Trial Court of Toledo City, Branch
XXIX, in Criminal Case No. TCS-792,
1
finding them guilty of robbery with homicide and
sentencing them to suffer the penalty ofreclusion perpetua and to restitute jointly and severally
the amount of P10,000.00, to indemnify the heirs of the victim in the amount of P30,000.00
and to pay compensatory damages representing funeral expenses in the amount of P23,240.00
and moral damages of P10,000.00. They were, however, "given full credit of their preventive
imprisonment provided they complied with the rules and regulations (for) convicted
prisoners."
2

As found by the lower court, in the morning of January 20, 1987, Jovil Pesquera * was sent on
an errand by his father-in-law, Paulino Rosario, to Abucayan and Arpili and was given
P10,000.00 to buy cattle there. However, he was not able to buy any so he went home, arriving
at Balamban at about 5:00 o'clock in the afternoon of the same day. He returned the money to
his father-in-law who placed the same in the left side pocket of his trousers. After they had
conversed for about two hours on business matters, his father-in-law then directly went with
his son, Emmanuel Rosario, to the church plaza where his cattle were grazing with the money
still in his pocket since he never gave it to any person.
3

At about 8:00 o'clock in the evening of that day, thirteen-year old Emmanuel Rosario and his
father, Paulino Rosario, were accordingly at the church plaza in Balamban, Cebu, to get their
three cows which were pastured there. Emmanuel noticed the presence of appellants Allan
Caballero, Dioscoro Candia, William Narciso, Benjamin Capangpangan and Macario Santito, Jr.
who were sitting near the statue in the place where the cows were tied. After Emmanuel had
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24 | P a g e
untied the ropes of the cows, appellants approached them and encircled Paulino. Allan
Caballero "wrestled" the neck of Paulino while Macario Santito, Jr. grappled with the latter. The
three other appellants attempted to help Caballero and Santito, Jr. by trying to participate in
the wrestling. Out of fear, Emmanuel ran away and went to the store of his brother-in-law, Jovil
Pesquera, to report the incident and obtain help.
Forthwith, he and Jovil ran to the plaza and saw appellants still around Paulino who was lying
unconscious. Allan Caballero, Dioscoro Candia and Benjamin Capangpangan were holding the
body of Paulino while William Narciso and Macario Santito, Jr. were standing by. As Emmanuel
and Jovil approached the place appellants ran away toward the rear of the rural bank.
Emmanuel went to his father and noticed that his face was covered with blood.
4
Jovil ran after
appellants but failing to catch up with them, he went back to the place where his father-in-law
was and told Emmanuel that he knew the said assailants. They checked the pockets of Paulino
which they noticed were turned inside out and found out that the P10,000.00 in the left pocket
of his trousers was missing.
5
All the aforesaid facts and events were visible and known to them
as the scene of the crime was lighted by a nearby mercury lamp and two fluorescent lamps.
6

Emmanuel and Jovil then went to their mother and to the Philippine Constabulary detachment
to report the incident. Sgt. Cueva and Sgt. Cabarrubias accompanied them back to the scene of
the crime and recovered the following: one slipper of Paulino, one stone, one broken hollow
block and one handkerchief. They then brought Paulino to the family store, then to the
Balamban Emergency Hospital where he was treated.
7
On the advice of the doctor in
Balamban, Paulino Rosario was brought to the Cebu Doctor's Hospital in Cebu City where he
died of "intra-cranial hemorrhage, massive, with skull fracture, traumatic" that evening of
January 20, 1987.
8

Dr. Jesus P. Cerna, medical officer of the PC-INP, Cebu Metrodiscom testified that he conducted
a medico-legal examination and submitted a necropsy report on Paulino Rosario showing that
the victim sustained hematoma on the temporal region, lacerated wounds on the occipital
region and a depressed fracture on the right occipital region. He opined that the injuries could
have been caused by a blunt instrument or hard object with a rough surface in view of the
abrasions on the skin.
9

On the strength of the foregoing facts, the following information was filed on July 17, 1987:
That on or about the 20th day of January 1987 at 8:00 o'clock in the evening,
more or less, inside the church plaza of Poblacion, Municipality of Balamban,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused conspiring, confederating and mutually helping one
another by means of violence against and intimidation upon persons, with intent
to gain did then and there willfully, unlawfully and feloniously take, steal and
carry away without the consent of the owner thereof, cash in the amount of
P10,000.00, Philippine currency, belonging to Paulino Rosario, to the damage
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and prejudice of the owner in the amount aforestated; that by reason or on
occasion of said robbery and for the apparent purpose of enabling the accused
to take, steal and carry away the amount aforementioned, the herein accused
conspiring, confederating and mutually helping one another in pursuance of
their intention to rob and to gain, with intent to kill, did then and there
treacherously attack, assault and use personal violence upon said Paulino
Rosario by inflicting several injuries which resulted (in) his instantaneous death.
CONTRARY TO LAW.
10

Upon arraignment, duly assisted by their respective counsel, appellants entered pleas of not
guilty to the crime charged.
11
Thereafter, trial on the merits ensued.
Appellants offered alibi as their defense. Dioscoro Candia was allegedly viewing a betamax
show in the house of Mayor Lito To-ong at Asturias, Cebu at about the time of the incident in
question.
12
This was corroborated by his friend, Edilberto Ypil who supposedly also viewed the
show together with Candia.
13
Benjamin Capangpangan was reportedly at Lahug, Cebu City on
that fateful night as he delivered money for the house rental of his sister, Virginia
Capangpangan, who was then a tenant of Vernon Hermoso.
14
This was corroborated by Vemon
Hermoso.
15
William Narciso claimed he was at Pasil, Cebu City at the time of the incident as he
worked there as a fish laborer.
16
Allan Caballero declared that he was at a mahjongg den at Sta.
Cruz, Balamban, Cebu, just watching the gambling among several persons.
17
Macario Santito,
Jr. asserted that he was at his home at Prensa, Balamban, Cebu.
18

On the bases of the evidence presented by the parties, the trial court rendered the assailed
decision. Appellants interposed the present appeal after their motion for new trial or
reconsideration was denied, faulting the court a quo with this lone error:
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO SUPPOSED
EYEWITNESSES' ACCOUNTS DESPITE SUBSTANTIAL INCONSISTENCIES IN THEIR
TESTIMONIES vis-a-vis THE ENTRY IN THE POLICE BLOTTER, AND THE
INCREDIBILITY OF THEIR TESTIMONIES.
19

It is doctrinally entrenched that the evaluation of the testimony of witnesses by the trial court is
received on appeal with the highest respect because it is the trial court that has the direct
opportunity to observe them on the stand and detect if they are telling the truth or lying in
their teeth. The assessment is accepted as correct by the appellate court is indeed binding
upon it in the absence of a clear showing that it was reached arbitrarily.
20
Thus, the principle
is firmly settled that the consequent findings of the trial court as to the credibility of witnesses
are entitled to such a degree of respect by the appellate court.
21

It is the contention of appellants that the testimonies of the prosecution witnesses are belied
by Entry No. 08 dated January 21, 1987 in the Police Blotter of the Balamban Police Station.
They make much of the fact that the said entry is not completely consistent with the
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26 | P a g e
prosecution witnesses' testimonies in open court, although there is no indication as to who
supplied the data appearing in said entry. The pertinent part thereof which is relied upon by
appellants is as follows:
... Investigation conducted revealed that Paulino Rosario together with his son
got their cows which were pastured at the church plaza. The son went ahead
leaving his father. But because Paulino Rosario have (sic) not yet returned, his
son went back and his son found out that Paulino Rosario was struck at his head
and it was further discovered that the money amounting to P8,000.00 capital for
purchase of livestock was lost. In this connection, investigation relative to the
incident is going on.
22

A police blotter is a book which records criminal incidents reported to the police.
23
Entries in
official records, as in the case of a police blotter, are only prima facie evidence of the facts
therein stated. They are not conclusive. The entry in the police blotter is not necessarily entitled
to full credit for it could be incomplete and inaccurate, sometimes from either partial
suggestions or for want of suggestion or inquiries, without the aid of which the witness may be
unable to recall the connected collateral circumstances necessary for the correction of the first
suggestion of his memory and for his accurate recollection of all that pertain to the subject. It is
understandable that the testimony during the trial would be more lengthy and detailed than
the matters stated in the police blotter.
24

Furthermore, the said entry in the police blotter was never presented nor offered as evidence
by the defense during the proceedings a quo.
25
Counsel for appellants, however, insists that
said entry appears in "Annex 'A-l'" to Urgent Ex-Parte Motion, Etc. filed by Atty. Crescendo N.
Perolino for accused Santito found on pages 36, 37, 38, 39 and 40 of the Records.
26
This is
merely a motion dated March 25, 1987 filed in the Municipal Circuit Court of Asturias-
Balamban, Cebu for the early disposition of the preliminary investigation and the immediate
remand of the same to the provincial fiscal.
Even assuming that the same had been identified in court, it would have no evidentiary value.
Identification of documentary evidence must be distinguished from its formal offer as an
exhibit. The first is done in the course of the trial and is accompanied by the marking of the
evidence as an exhibit. The second is done only when the party rests its case and not before.
The mere fact that a particular document is identified and marked as an exhibit does not mean
it will be or has been offered as part of the evidence of the party. The party may decide to
formally offer it if it believes this will advance its cause, and then again it may decide not to do
so at all.
27

In the case at bar, the defense did not identify or formally offer the said entry in the police
blotter as evidence for appellants. Section 35, Rule 132 of the Rules of Court provides that the
court shall consider no evidence which has not been formally offered; and it could not have
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27 | P a g e
been offered without being identified and marked as an exhibit. Hence, contrary to the
desperate gambit of appellants, the said entry cannot be given any consideration at all.
Moreover, the imputed inconsistency in the testimonies of the prosecution witnesses on minor
details reinforces rather than weakens their credibility
28
for the reaction of persons when
confronted with a shocking incident varies,
29
as what happened to the obviously excited and
agitated prosecution witnesses in this case when they reported the incident to the police.
Testimonial discrepancies could be caused by the natural fickleness of memory which tend to
strengthen, rather than weaken, credibility as they erase any suspicion of rehearsed testimony.
It would have been more suspicious if complainant had been able to pinpoint with clarity or
describe with precision the exact sequence of events. The most candid witness oftentimes
makes mistakes but such honest lapses do not necessarily impair his intrinsic credibility.
30

It is true that there was no eyewitness to the actual killing of Paulino Rosario in the mortiferous
robbery subject of this case. However, the prosecution circumstantiates the guilt of appellants
through the testimonies of its principal witnesses, Emmanuel Rosario and Jovil Pesquera, whose
testimonies are positive, straightforward and clearly revelatory only of the truth of the facts
they witnessed, without any dubious motive shown why they would bear false witness against
appellants.
Essential in the success of the prosecution of an offense is the proof of the identity of the
offender. In lieu thereof, the prosecution endeavors to gather all other evidence that will lead
to the inescapable inference of one's culpability. Necessity justifies and both jurisprudence and
law consistently accept resort to circumstantial evidence which consists in the piecing together
of tiny bits of evidence with a view to ascertaining that the accused is the person responsible
for the commission of the offense.
31
To technically require eyewitness testimony would be, in
some cases, placing a premium against crime detection and granting a passport of immunity to
a malefactor.
Circumstantial evidence is sufficient to convict where the circumstances point to the accused as
the culprits. The following circumstances are sufficient to establish the culpability of appellants
in this case beyond reasonable doubt: (a) appellants were all present and recognized by
Emmanuel Rosario when he and his father arrived at the church plaza to get their cows; (b)
appellants were the ones who approached Emmanuel and his father; (c) appellants concertedly
encircled Paulino, "wrestled" his neck and held him; (d) they were still there when Emmanuel
ran away from the place to seek help from his brother-in-law; (e) when Emmanuel and Jovil
Pesquera returned to the church plaza, appellants were clustered around and holding the body
of their father, whose face was covered with blood; (f) when appellants saw Emmanuel and
Jovil, they ran away toward the rear of the rural bank; (g) they were the same persons who
were chased by Jovil; and (h) the stone and the broken hollow block near the body of the victim
were the probable and logical instruments used in the infliction of the cranial injuries on the
victim.
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In a similar case, it was held that direct evidence of the actual stabbing is not necessary when
circumstantial evidence sufficiently establishes that fact. A resort to circumstantial evidence is,
in the very nature of things, a necessity.
32
Circumstantial evidence is sufficient for conviction if
(a) there is more than one circumstance, (b) the facts from which the inference is derived are
proven, and (c) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.
33
All the aforementioned requisites are present in the case at bar.
Furthermore, Emmanuel and Jovil easily identified appellants because the place where the
crime occurred was sufficiently lighted. Where considerations of visibility are favorable and the
witness does not appear to be biased against the accused, his or her assertions as to the
identity of the malefactor should be normally accepted. This is more so when the witness is the
victim or his near relative because such witness usually strives to remember the faces of the
assailants.
34

The same considerations hold true for the component of robbery in the composite crime
charged. The untraversed evidence shows that the money returned by his son-in-law to the
victim was placed in the latter's pocket and he never gave the same to any person or passed by
any other place to leave the amount there; the victim went directly to the church plaza to get
his cattle, presumably in a hurry to do so because of the lateness of the hour; he was then set
upon and overpowered by appellants; when help came, he was lying bloody and unconscious,
surrounded and his body being held by appellants and all his pockets turned inside out, all
empty and with the money gone; appellants ran away upon the approach of the victim's son-in-
law; and the money was never found or recovered. It bears further mention, for both the killing
and the robbery, that the only interval of time in the entire series of events which did not have
the benefit of an eyewitness was the few minutes from the time Emmanuel Rosario ran away
from where his father was being ganged upon up to the time when he and Jovil Pesquera
returned to the crime scene to rescue the victim.
Finally, the defense interposed by appellants was properly disregarded by the trial court. Their
alibi is unavailing due to the positive identification by the prosecution witnesses. Alibi is
admittedly and consistently considered the weakest defense an accused can concoct. In order
to prosper, it must be so convincing as to preclude any doubt that the accused could not have
been physically present at the place of the crime or its vicinity at the time of its
commission.
35
Appellants failed to show that they could not have gone to the locus
criminis from the place where they claimed to be at the time the crime was committed.
Thus, appellant Candia claimed that he was then watching a betamax show at Asturias, but
Asturias and Balamban are just adjoining municipalities. Appellant Caballero alleged that he
was watching a game in a mah-jongg den right in Sta. Cruz, Balamban barely a kilometer away.
Appellant Capangpangan was supposedly in Cebu City to pay rentals on a house rented by his
sister; but although the alleged receipts of payment were marked as exhibits, the same were
not even presented in evidence. Appellant Santito, Jr. testified that he was in their house at
Prensa, Balamban, around three kilometers away. Appellant Narciso claimed that he was then
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29 | P a g e
working in Pasil, Cebu City, carrying fish from the fishing boat to the market but although he
had allegedly been working as such since 1986, he could not give the names of the pumpboat
owner., any of his co-workers or the fish vendor for whom he carried the fish.
36
These facts
were not denied. Furthermore, categorical declarations of witnesses for the prosecution on the
details of the crime are more credible than the denials and uncorroborated alibi interposed by
the accused.
37

The Court is satisfied from its evaluation of the evidence that the trial court acted correctly in
finding appellants guilty as charged. That appellants acted in conspiracy in the commission of
the special complex crime is evident from their proven coordinated acts before, during and
after the perpetration of the offense.
WHEREFORE, the assailed judgment of the trial court is hereby AFFIRMED, with the
modification that the indemnity for the death of the victim is increased to P50,000.00
consonant with the present policy of the Court.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras and Sarmiento, JJ., concur.

Separate Opinions

PADILLA, J., dissenting:
I regret that I have to dissent, consistent with my opinion in G.R. No. 89376 (People of the
Philippines vs. Dionisio Lorenzo y De Ocampo, et al.) with particular reference to the elements
that make up the complex crime of robbery with homicide.
To sustain a conviction for robbery with homicide, it must be established with certitude that
the killing was a mere incident to the robbery, the latter being the main purpose and objective
of the culprit. A situation is contemplated where the homicide results by reason or on the
occasion of the robbery (People vs. Robante G.R. No. 69307,16 October 1989, 178 SCRA
552,561, citing People vs. Aquino, G.R. No, 50523, 29 September 1983, 124 SCRA 835).
Stated differently, in the complex crime of robbery with homicide, an intent to commit robbery
must precede the taking of human life (U.S. vs. Villorente, 30 Phil. 59). It is not enough
to suppose that the purpose of the author of the homicide was to rob, a mere presumption of
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30 | P a g e
such fact is not sufficient to sustain a conviction for the crime of robbery with homicide (U.S. vs.
Bosito, 4 Phil. 100; U.S. vs. Baguiao 4 Phil. 110).
Stated a little more differently, it is the intention of the actor which supplies the connection
between the homicide and the robbery, which is necessary to constitute the complex offense;
and if that intention comprehends the robbery, it is immaterial that the homicide may
immediately precede instead of follow the robbery in point of time (People vs. Manuel, 44 Phil.
333).
In the present case, the prosecution, in my view, failed to prove that the homicide was
committed for the purpose of committing the robbery. It did not present any evidence as to the
motive which prompted the appellants to kill the deceased. The prosecution also failed to
adduce evidence that the appellants knew of the existence of the amount of P10,000.00 in the
left side pocket of the victim's trousers. The trial court merely presumed that the killing of the
deceased was for the purpose of robbing him. Thus, it held:
From the evidence presented to this court it indicates that the acts and behavior
of the accused reveal their common purpose to assault instinct harm against
Paulino Rosario. There was a concerted execution of that common purpose from
which the elements of conspiracy can be reasonably deduced.
The crime for which the accused stands charged is a special complex crime when
by reason or occasion by robbery means that the homicide, serious physical
injuries defined under par. 1 & 2 Art. 294 must be committed in the course or
the cause of robbery. In the instant case, as testified to by Jovil Pesquera, he
return to his father-in-law, the deceased, the amount of P10,000.00 which the
deceased placed in his left pocket (pp. 1-2 TSN Dec. 9, 1987 Aurelio Mansueto),
before said deceased together with his son Emmanuel Rosario went to the plaza
in order to get the three (3) cows which were pastured there. Prosecution
witnesses Jovil Pesquera as well as Sgt. Eriberto Cabarrubias, testified that when
they went to the crime scene they saw the deceased already lying down and the
left side pocket already inverted where the amount of P10,000.00 was placed
and was already missing. Killing first the victim and thereafter taking the money
from the body of the deceased is robbery with homicide (Pp. vs. Hernandez, 46
Phil. 48). ...
In the case at bar, taking into considerations the circumstances prior to and after
the killing they could deduced that the victim was killed first then afterwards
money was taken from his body, as his left side pocket was already inverted as
observed by Jovil Pesquera. (Rollo, pp. 78-80) (Emphasis supplied)
It would appear, therefore, that the robbery (even if conclusively pinpointed against appellants,
despite absence of direct evidence on this point) followed the homicide only as an afterthought.
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Robbery was not the motive or objective. Hence, the criminal acts of the appellants should be
viewed as two (2) separate offenses (assuming that the robbery is conclusively attributed to
appellants) and not as a single complex offense of robbery with homicide.
Moreover, in People vs. Pacala, G.R. No. L-26647, 15 August 1974, 58 SCRA 370, the Court held
that:
In order for the crime of robbery with homicide to exist it is necessary that it be
clearly established that a robbery has actually taken place, and that, as a
consequence or on the occasion of such robbery, a homicide was committed.
Where the evidence does not conclusively prove the robbery, the killing of the
victim would, therefore, be classified either as a simple homicide or murder,
depending upon the absence of presence of any qualifying circumstances and
not the complex crime of robbery with homicide.
In this case, the circumstantial evidence is insufficient and does not prove conclusively that
robbery was committed by the appellants.
It results from the foregoing opinion that appellants are guilty of homicide or probably murder
for the killing of Paulino Rosario but not of the complex came of robbery with homicide.

Separate Opinions
PADILLA, J., dissenting:
I regret that I have to dissent, consistent with my opinion in G.R. No. 89376 (People of the
Philippines vs. Dionisio Lorenzo y De Ocampo, et al.) with particular reference to the elements
that make up the complex crime of robbery with homicide.
To sustain a conviction for robbery with homicide, it must be established with certitude that
the killing was a mere incident to the robbery, the latter being the main purpose and objective
of the culprit. A situation is contemplated where the homicide results by reason or on the
occasion of the robbery (People vs. Robante G.R. No. 69307,16 October 1989, 178 SCRA
552,561, citing People vs. Aquino, G.R. No, 50523, 29 September 1983, 124 SCRA 835).
Stated differently, in the complex crime of robbery with homicide, an intent to commit robbery
must precede the taking of human life (U.S. vs. Villorente, 30 Phil. 59). It is not enough
to suppose that the purpose of the author of the homicide was to rob, a mere presumption of
such fact is not sufficient to sustain a conviction for the crime of robbery with homicide (U.S. vs.
Bosito, 4 Phil. 100; U.S. vs. Baguiao 4 Phil. 110).
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32 | P a g e
Stated a little more differently, it is the intention of the actor which supplies the connection
between the homicide and the robbery, which is necessary to constitute the complex offense;
and if that intention comprehends the robbery, it is immaterial that the homicide may
immediately precede instead of follow the robbery in point of time (People vs. Manuel, 44 Phil.
333).
In the present case, the prosecution, in my view, failed to prove that the homicide was
committed for the purpose of committing the robbery. It did not present any evidence as to the
motive which prompted the appellants to kill the deceased. The prosecution also failed to
adduce evidence that the appellants knew of the existence of the amount of P10,000.00 in the
left side pocket of the victim's trousers. The trial court merely presumed that the killing of the
deceased was for the purpose of robbing him. Thus, it held:
From the evidence presented to this court it indicates that the acts and behavior
of the accused reveal their common purpose to assault instinct harm against
Paulino Rosario. There was a concerted execution of that common purpose from
which the elements of conspiracy can be reasonably deduced.
The crime for which the accused stands charged is a special complex crime when
by reason or occasion by robbery means that the homicide, serious physical
injuries defined under par. 1 & 2 Art. 294 must be committed in the course or
the cause of robbery. In the instant case, as testified to by Jovil Pesquera, he
return to his father-in-law, the deceased, the amount of P10,000.00 which the
deceased placed in his left pocket (pp. 1-2 TSN Dec. 9, 1987 Aurelio Mansueto),
before said deceased together with his son Emmanuel Rosario went to the plaza
in order to get the three (3) cows which were pastured there. Prosecution
witnesses Jovil Pesquera as well as Sgt. Eriberto Cabarrubias, testified that when
they went to the crime scene they saw the deceased already lying down and the
left side pocket already inverted where the amount of P10,000.00 was placed
and was already missing. Killing first the victim and thereafter taking the money
from the body of the deceased is robbery with homicide (Pp. vs. Hernandez, 46
Phil. 48). ...
In the case at bar, taking into considerations the circumstances prior to and after
the killing they could deduced that the victim was killed first then afterwards
money was taken from his body, as his left side pocket was already inverted as
observed by Jovil Pesquera. (Rollo, pp. 78-80) (Emphasis supplied)
It would appear, therefore, that the robbery (even if conclusively pinpointed against appellants,
despite absence of direct evidence on this point) followed the homicide only as an afterthought.
Robbery was not the motive or objective. Hence, the criminal acts of the appellants should be
viewed as two (2) separate offenses (assuming that the robbery is conclusively attributed to
appellants) and not as a single complex offense of robbery with homicide.
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Moreover, in People vs. Pacala, G.R. No. L-26647, 15 August 1974, 58 SCRA 370, the Court held
that:
In order for the crime of robbery with homicide to exist it is necessary that it be
clearly established that a robbery has actually taken place, and that, as a
consequence or on the occasion of such robbery, a homicide was committed.
Where the evidence does not conclusively prove the robbery, the killing of the
victim would, therefore, be classified either as a simple homicide or murder,
depending upon the absence of presence of any qualifying circumstances and
not the complex crime of robbery with homicide.
In this case, the circumstantial evidence is insufficient and does not prove conclusively that
robbery was committed by the appellants.
It results from the foregoing opinion that appellants are guilty of homicide or probably murder
for the killing of Paulino Rosario but not of the complex came of robbery with homicide.
Footnotes
1 Penned by Judge Gualberto P. Delgado.
2 Original Record, 270-271.
* This witness is also referred to in some portions of the record as Jovil Pequera.
3 TSN, December 9, 1987, 1-12, 36-37.
4 Ibid., September 21, 1987, 3-8.
5 Ibid., Id., 11-12; December 9, 1987, 11-12.
6 Ibid., November 19, 1987, 4.
7 Ibid., September 21, 1987, 13-16.
8 Ibid., Id., 18-19; Exhibit "G", Original Record, 15.
9 Ibid., January 28, 1988, 4-7.
10 Original Record, 1-2.
11 Rollo, 8.
12 TSN, April 21, 1988, 15.
13 Ibid., December 9, 1988, 4.
14 Ibid., July 25, 1988, 6.
15 Ibid., June 28, 1989, 4.
16 Ibid., October 13, 1988, 3.
17 Ibid., May 26, 1988, 5.
18 Ibid., November 10, 1988,15.
19 Appellant's Brief, 3; Rollo, 61.
20 People vs. Manalansan, 189 SCRA 619 (1990).
21 People vs. Catubig, et al., G.R. No. 71626, March 22, 1991.
22 Appellant's Brief, 6; Rollo, 64.
23 Moreno, Philippine Law Dictionary, 708, 3rd Ed., citing People vs. Panganiban, 20772-CR, December 6,1979.
24 Ford vs. Court of Appeals, et al., 186 SCRA 21 (1990).
25 Rollo, 3-4.
26 Ibid., 60. This is actually found on pages 4044 of the Original Record.
27 Interpacific Transit, Inc. vs. Aviles, 186 SCRA 385 (1990).
28 People vs. Obando, et al., 182 SCRA 95 (1990).
29 People vs. Yagong 181 SCRA 479 (1990).
30 People vs. Pasco, et al., 181 SCRA 233 (1990).
31 People vs. Gamboa, G.R. No. 91374, February 25, 1991.
32 People vs. Roa, 167 SCRA 116 (1988).
33 people vs. Agan, 181 SCRA 856 (1990); Section 4, Rule 133, Rules of Court.
34 People vs. Beringuel et al., G.R. Nos. 63753-54, December 21, 1990.
35 People vs. Cinco, et al., G.R. No. 79497, February 27, 1991.
36 Memorandum for the Private Prosecution, Original Record, 244-247.
37 People vs. Besa, 183 SCRA 533 (1990).
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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-63226 December 20, 1991
EUGENIA LLABAN y CATALAN, LUCIA BARBANERA JURBAN, MARTIN LLABAN, BEATRIZ
BARBANERA JURBAN, LUIS LLABAN NACUA, SERGIO LLABAN NACUA, MANUEL LLABAN NACUA,
EULALIA LLABAN ABELLA , EPIFANIO LLABAN NACUA, LUCRECIA LLABAN ABELLA, JOSEFINA
JABAN FORNOLLES, MARIA SOCORRO JABAN CARUBIO, LOURDES JABAN VERGARA,
BIENVENIDO P. JABAN, JOSE JABAN, CARMEN INTUD, FILOMEN JABAN, LUCIA JABAN OLAES,
ROQUE JABAN and GEN EROSO JABAN, petitioners,
vs.
THE COURT OF APPEALS now known as the Intermediate Appellate Court, HON. JOSE
RAMOLETE, Judge of the Court of First Instance Cebu, Branch III, JOSE G. PAULIN, CEFERINO
GABUTAN, SERAPIO ALCOSEBA, APOLONIA CAVAN, CIRIACO BACATAN TRINIDAD LIM, GERARDO
PANONGALINOG, and FILEMON SOTTO, respondents.
Bienvenido P. Jaban for petitioners.
Paul G. Gorres for private respondents.
DAVIDE, JR., J.:p
Principally involved in this petition for review on certiorari under Rule 45 of the Rules of Court is
the jurisdiction of the then Court of First Instance (now Regional Trial Court) of Cebu, sitting as
a cadastral court, to modify or amend a 1916 decision in a cadastral case by directing the
issuance of a final decree in the names of parties who are not the original adjudicatees of a
cadastral lot.
From the pleadings of the parties, the following facts are not controverted:
In a decision rendered on 13 September 1916 in Cadastral Case No. 12 (LRC Rec. No. 9468), the
then Court of First Instance of Cebu rendered a decision adjudicating Lot No. 6017 of the Cebu
Cadastre as follows:
POR LAS RAZONES EXPUESTAS, el Jusgado adjudica todo el Lote 6017 in la forma
siguente; una octave parte a favor de Juliana y Faustina apellidadas Pacana; una
octave parte a favor de Marcela, Laureana, Mariano, Santiago, Ariste, Calixto,
Marcelo, Bibiano y Antonia apellidados Llaban; una octave parte a favor de Rita y
Julian apellidados de la Sema; una octave parte a favor de Antonia y Maxima
appellidadas Dacula; una octave parte a favor de Maximo Llaban; una octave
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35 | P a g e
parte a favor de Mamerto, Atanasia, Francisco y Crispina apellidados Llaban; una
octave parte a favor de Esteban, Mateo, Natalio, Felipe, Fernando, Apolonia,
Bibiano, Ciriaca y Juana apellidados Cavan; y una octave parte a favor de Tomas y
Bibiana apellidados Llaban. Se sobresee la contestacion presentada por Juan L.
Orbeta; 1
In its Auto of 3 March 1925, the cadastral court issued an order reinstating the above
decision. 2
Upon motions of the spouses Filemon Sotto and Carmen Rallos de Sotto, who claimed to have
purchased the shares of some of the adjudicatees of the lot or their heirs, the cadastral court,
on 1 March 1 932, issued an Auto, the pertinent portion of which reads:
1. Que despues de dictada dicha sentencia, ciertos adjudicatarios o herederos de
adjudicatarios del Lote No. 6017, vendieron su respectiva participacion en el
mencionada terreno a 1os esposos Carmen Rallos de Sotto y Filemon Sotto, a
saber:
Francisco Llaban (hijo de Ariste Llaban).................. 1/64
parte
Bibiana Llaban (alias Flaviana)................................... 1/64 "
Vicenta Jaban (hija de Antonia Llban)...................... 1/64 "
Teodoro Llaban (hijo de Santiago Llaban)............... 1/64 "
Juliana de la Serna....................................................... .1/16 "
Marcela Pacaa (hija de Faustina
de la Serna ques es hermana de Julian
de la Serna..................................................... .1/16 "
Julian de la Serna.......................................................... .1/16 "
Marcela Llaban............................................................. 1/64 "
Vicenta Fernandez (abuela de Tomas)
y Bibiana Llaban, los cuales ya no
tienen made ni padre ni tampoco hijos)..... 1/8 "
Antonia Dacula.............................................................. .1/16 "
Basilia Daclan (hija de Maxima Dacula)
hermana esta de Antonia Dacula................ .1/16 "
Apolonia Cavan............................................................ .1/48 "
Rita de la Serna............................................................... .1/16 "
Matea Cavan................................................................... .1/48 "
Marcelo Llaban............................................................... 1/64 "
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4. Que al llamarse a vista las dos mociones arriba mencionadas, ninguna
oposicion se ha presentado, no obstante al hicho de haber sido notificadas todas
las partes interesadas en el Lote No. 6017; por el contrario, Apolonia Cavan
estaba presente en el acto de la vista de las repetidas rnociones y no manifesto
oposicion alguna.
En vista de todo cuanto antecede, el Juzgado adjudica a los esposos Carmen
Rallos de Sotto y Filemon Sotto, vecinos del municipio de Cebu, (calle Colon No.
410) provincia de Cebu, y ciudadanos filipinos, las porciones o participaciones del
Lote No. 6017 que corresponden a los adjudicatarios o herederos de
adjudicatarios, tales como ellos esthn numbrados en el parrafo tres (3) presente
Auto. 3
No party appealed from the 13 September 1916 decision as modified by the above Auto of 1
March 1932. Neither was any decree issued pursuant thereto.
Forty-two (42) years later, specifically on 7 March 1974, some claimants (private respondents
herein), represented by Atty. Paul Gorres, filed a petition for the issuance of a decree of
registration over the aforesaid lot. Acting on the petition, then vacation Judge Francisco R.
Burgos issued an Order directing the Commissioner of Land Registration to issue a decree in
favor of the adjudicatees based on the dispositive portions of the decision of 13 September
1916 and the Auto of 1 March 1932 4 Complying with the Order, the Commissioner submitted
Report dated 5 August 1977 5 which quoted the dispositive portions adverted to and contained
the following pertinet observations:
2. That as gleaned from the above-quoted portion of the decision, the civil status
of the adjudicatees was inadvertently omitted which is necessary in the
preparation of the final decree of registration of Lot No. 6017 as provided for
under Section 40 of Act 496;
xxx xxx xxx
4. That this Commission entertains a doubt which portions said lot were
adjudicated to spouses Carmen Rallos de Sotto and Filemon Sotto and which
share of the adjudicatees mentioned in th decision dated September 13, 1916
were affected thereof (sic);
5. That it is imperative that the tracing cloth or print copy plan Psd-17733 be
submitted to this Commission prior to the issuance of the decree of registration;
6. That the said plan and its technical descriptions should be approved by the
Court and the same should be in conformity with the decision dated September
13, 1916 and Order dated March 1, 1932.
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The Commissioner then recommended that:
WHEREFORE, it is most respectfully recommended to the Honorable Court
that
1. This Commission be furnished the tracing cloth or print copy of plan Psd-1
7733;
2. Plan Psd-17733 and its technical descriptions be duly approved by the Court;
3. The civil status of the adjudicatees be indicated pursuant to Section 40 of Act
496; and
4. Clarifications be made as to the portions of the lot which were adjudicated to
spouses Camen Rallos de Sotto and Filemon Sotto and which share of the
adjudicatees were affected thereof (sic).
On 14 May 1979, herein private respondent Jose G. Paulin, one of the claimants, in his own
behalf and on behalf of his co-claimants, filed a petition, 6 hereinafter referred to as the Paulin
petition, which sought to submit to the court a certified xerox copy of Subdivision Plan Psd-
17733 of Lot No. 6017 which indicates subdivision Lots Nos. 6017-A to 6017-H, inclusive,
pursuant to the request of the Land Registration Commission. The certification made by one
Roman Mataverde, OIC of the Survey Division, Bureau of Lands, stated that the names and civil
status of the claimants to the respective sublots are indicated in "the petition." It is shown in
the plan that the land was originally surveyed from December 1910 to February 1912 and that
the subdivision plan is based on the Order of 1 March 1932 and was approved by the then
Director of Lands, Hon. Jose Gil, on 12 November 1940.
The Paulin petition further enumerates the subdivided lots corresponding to the following
parties:
(a) For Lot No. 6017-A to Gerardo Panogalinog, single, Filipino,
(b) of legal age, and resident of 234 V. Rama Avenue, Cebu City;
(c) For Lot No. 6017-B to Apolonia Cavan, married to Mamerto Tablada, of legal
ages, Filipinos, residents of 236 V. Rama Avenue, Cebu City;
(d) For Lot No. 6017-C, in lieu of Marcos Nacua, to Jose G. Paulin, single, of legal
age, Filipino, resident of 238 V. Rama Avenue, Cebu City;
(e) For Lot No. 6017-D to Ceferino Gabutan, married to Guillerma Baculi,
Filipinos, of legal ages, residents of 238-1-A V. Rama Avenue, Cebu City;
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(f) For Lot No. 6017-E to Serapio Alcoseba, married to Basilia Minoza, Filipinos, of
legal ages, residents of 238-1-B V. Rama Avenue, Cebu City;
(g) For Lot 6017-F to Ciriaco Bacatan, married to Fortunate Guba, Filipinos, of
legal ages, residents of 238-1-C V. Rama Avenue, Cebu City;
(h) For Lot No. 6017-G, to Trinidad Lim, single, Filipino, of legal age, and resident
of 238 V. Rama Avenue, Cebu City; and
(i) For Lot No. 6017-H to Filemon Sotto, married to Carmen Rallos, Filipinos, of
legal ages, and residents of F. Ramos St., Cebu City;
Claimants Paulin, et al., then pray that the court issue a order approving Psd-17733 and its
technical description as recommended by the Land Registration Commission and directing the
latter to issue the corresponding decree of registration for Lot No. 6017 pursuant to the
decision of 16 September 1916 a supplemented by the Order of 1 March 1932.
Subsequently, on 30 July 1979, Eugenia Llaban y Catalan, one of the heirs of the adjudicatees,
filed through Atty. Bienvenido P. Jaban 7 a petition for the issuance of a decree registration for
Lot No. 6017 on the basis of the 13 September 1916 decision as "affirmed and further enforced
by this Honorable Court in its order of March 3, 1925.8 The petition enumerates the legal heirs
of the adjudicatees of the lot who have no sold, relinquished or transferred their lights,
interests an participation therein to the parties. Attached thereto is th technical description of
the lot. This petition was granted by the court, per Judge Jose Ramolete, in its Order of 7 August
1979; the Commissioner of Land Registration was then directed to issue a decree of registration
on the basis of the Order of March 1925 and the decision of 13 September 1916 in favor of the
adjudicatees and/or their legal heirs. 9
On 5 May 1980, Jose G. Paulin filed another petition (supplementing his previous petition)
wherein he attached a certified micro-film copy of Plan Psd-17733; the technical descriptions of
the subdivision lots Nos. 6017-A to 6017-H, inclusive and certified true copy of a deed of
absolute sale executed in Paulin's favor by the spouses Marcos Nacua and Benita Seno over Lot
No. 6017-C. For and in behalf of his clients, Atty. Jaban filed a opposition to the
petition 10 alleging therein that the Order of the court of 7 August 1979 directing the issuance
of a decree based on the 16 September 1916 decision and the 3 March 1925 Order had already
become final and that the Paulin, et al. claims can be ventilated only upon the partition of the
lot by the heirs of the adjudicatees and the issuance of the certificate of title since Paulin, et al.,
are not themselves adjudicatees or heirs of the latter.
In his reply to the opposition, Paulin, et al., contend that the decision of 13 September 1916
was amended by the 1 March 1932 order, and hence prays that the Order of 7 August 1979
should be set aside. Atty. Jaban, in a rejoinder, insists that since the 13 September 1916
decision, as reinstated by the order of 3 March 1925, had long become final, the court has no
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jurisdiction to set it aside. No hearing was had on the aforesaid Paulin petitions and the
opposition thereto.
In its Order of 16 February 1981, the court, through Judge Jose Ramolete, finding the
opposition of Atty. Jaban to be devoid of merit, ruled:
... The order of March 1, 1932 which is (sic) never questioned up to the present,
superseded and/or amended the decision of September 13, 1916 as reinstated in
the order of March 3, 1925.
It is a rule that so long as a decree of registration has not been issued
registration proceedings is (sic) still pending for the purposes of pre-
Commonwealth Act 3110, and, when lost or destroyed, must be reconstituted in
conformity with said Act (Villegas vs. Fernando; Sampedro vs. Director of Lands,
27 SCRA 1119).
There being transfers of ownership by way of sales by the adjudicatees or their
heirs of their participations in Lot No. 6017 awarded to them in the decision
dated September 13, 1916 as reinstated in the order of March 3, 1925, the Court
acted well within its jurisdiction as a Cadastral Court to issue (sic) the order of
March 1, 1932 to the changes of ownership in the participations of the
adjudicatees in favor of the vendee-spouses pending the issuance of the decree
of registration. The petition of the claimants at bar who acquired their respective
interest in or portions of Lot No. 6017 subsequent to the order of March 1, 1932
while the issuance of the decree still pends must necessarily be also in order.
and then granted the Paulin petitions by approving the subdivision plan Psd-17733 and the
technical descriptions of Lots Nos. 6017-A to 6017-H, inclusive, ordering that the subdivided
lots be respectively awarded to the parties enumerated in the 14 May 1979 petition and
directing the Land Registration Commissioner to issue, upon the finality of the Order, a decree
of registration of the subdivision lots in favor of each of the claimants enumerated in said
petition. 11
Their motion for the reconsideration of the above order, based on the ground that the court
acted without or in excess of jurisdiction in issuing a second decree of registration in favor of
parties who are not the adjudicatees mentioned in the 13 September 1916 decision or the 3
March 1925 Order having been denied in the Order of 4 August 1981, oppositors filed with the
Court of Appeals a petition for certiorari alleging lack of jurisdiction and/or grave abuse of
discretion on the part of Judge Ramolete to issue the orders of 16 February 1981 and 4 August
1981.
In its decision promulgated on 29 September 1982, the Court of Appeals denied the petition on
the ground that:
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... the issues raised herein could not be resolved without passing upon the merits
of the case. Inasmuch as the function of certiorari is to determine only whether
or not the lower court abused its discretion or acted in excess of its jurisdiction
in its judgment without consideration of the actual merits of the case, We are
therefore, denying this petition without prejudice to the filing of the proper
remedy with the courts, if still possible. 12
Unable to accept said decision, petitioners filed with this Court on 15 February 1983 the instant
petition raising the following issues:
a) lack of jurisdiction of the lower court, sitting as a cadastral court, to rule and
decide on the controversy, or to pass upon the validity of the claim, sale or
transfer in favor of the private respondents, alleging that such matters could
only be ventilated in an ordinary civil action;
b) grave abuse of discretion on the part of Judge Ramolete in adjudicating and
issuing an order declaring private respondents as the new owners of Lot No.
6017 over the opposition of petitioners without trial, without the presentation of
evidence and without giving the contending parties the opportunity to prove
their claims, but solely on the basis of the allegations in the motion of private
respondents and the annexes attached thereto; and
c) the ruling of the Court of Appeals as above quoted is confusing, erroneous,
strange, ridiculous and absurd.
They likewise allege that the Order of 1 March 1932 was issued without any notice to them;
they were never given a chance to be heard and that they did not receive a copy of said order;
they came to know about it only in the middle part of 1980; and granting that it was in fact
issued, such was done in excess of and/or without jurisdiction.13
In their Comment filed on 21 June 1983 in compliance with the Resolution of 16 May 1983,
private respondents claim that the predecessors-in-interest of the petitioners had sold the lot
in question to the spouses Filemon Sotto and Carmen Rallos, now both deceased; petitionen
have nothing then to inherit; and that they cannot now re-open the cadastral proceeding
because the Order of 1 March 1932 constitutes res judicata. 14
We gave due course to the petition and required the parties to submit simultaneous
memoranda which petitioners complied with on 10 September 1983 and the private
respondents on 26 August 1983.
It plainly appears to this Court that while respondent Court of Appeals evaded the fundamental
issues raised before it by petitioners under the pretext that "the function of certiorari is to
determine only whether or not the lower court abused its discretion or acted in excess of its
jurisdiction in its judgment without consideration of the actual merits of the case," it says in the
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same breath that "the issues raised herein could not be resolved without passing upon the
merits of the case." 15 There is thus vagueness and patent self-contradiction. In any case, the
resolution of the issues raised does not require a determination of the "merits of the case" in
the sense of the legal rights of the parties in the case.
A careful scrutiny of the factual and procedural moorings of this case leads Us to agree with the
main thesis of petitioners that the lower court, sitting as a cadastral court, had no jurisdiction to
amend or modify the 13 September 1916 decision and that Judge Ramolete acted without
jurisdiction or with grave abuse of discretion in issuing the Order of 16 February 1981. We are,
however, unable to agree with their postulation that said Judge likewise committed grave
abuse of discretion in practically setting aside the Order of 7 August 1979 by promulgating the
16 February 1981 Order.
The 13 September 1916 decision, as amended by the Auto of 1 March 1932, had long become
final as there is no showing at all that any affected party appealed therefrom within the
reglementary period of thirty (30) days prescribed by the then governing law on procedure, Act
No. 190. 16 Section 11 of the Cadastral Act expressly provides that trials in cadastral cases shall
be conducted in the same manner as ordinary trial, and proceedings in the Court of First
Instance shall be governed by the same rules and that all provisions of the Land Registration
Act, 17 as amended, except as otherwise provided in the former, shall be applicable to
proceedings in cadastral cases. Sections 38 and 41 of the Land Registration Act tell us when
decisions become final. 18 Even if they are erroneous, but such errors are not jurisdictional,
correction could only be done by a regular appeal within the reglementary period, the failure of
which could lead to the decisions' becoming final. As this Court stated in Daquis vs. Bustos, et
al. 19
... Decisions, erroneous or not, become final after the period fixed by law;
litigations would be endless; no questions would be finally settled; and titles to
property would become precarious if the losing party were allowed to reopen
them at any time in the future.
The failure to issue a final decree does not, as seems to be the suggestion of the lower court
and the theory presented by the private respondents, prevent the decision from attaining
finality. Precisely, the final decree can only issue after the decision shall have become final. The
final decree must state the name of the party adjudged in the decision to be owner of a
cadastral lot. 20
It follows that in the instant case, in view of the finality of the decision of 13 September 1916,
as amended by theAuto of 1 March 1932, the final decree which can be validly issued is one
which must be in full conformity with said decision, as amended.
From the Paulin petition of 14 May 1979, it is quite clear that, except for the spouses Filemon
Sotto and Carmen Rallos, the alleged claimants in whose favor the subdivided lots are to be
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adjudicated are not the adjudicatees in the 13 September 1916 decision, as amended by the 1
March 1932 Auto. And, except in the case of Paulin himself, who claims to be a vendee, there is
no indication whatsoever of the relationships of the claimants with the original adjudicatees
that could serve as basis for their claims. In reality then, the petition is not just for the issuance
of a final decree, but for the amendment or modification of the final decision. In light of the
above disquisition, the lower court has no jurisdiction to grant such relief and Judge Ramolete
clearly acted without any jurisdiction or with grave abuse of discretion in giving due course to
the petition by approving the Subdivision Plan Psd-17733, the technical descriptions of Lots
Nos. 6017-A to 6017-H, inclusive, and directing the Land Registration Commissioner to issue the
final decree of registration of the subdivision lots in favor of each of the claimants named in the
14 May 1979 (Paulin) petition. Aggravating such action is his obvious disregard for due process.
There was no formal hearing on the Paulin petition. Paulin and his co-claimants presented no
witness, marked no exhibit and offered no evidence. It is true that certain documents were
attached as Annexes to the petition; but Paulin, et al., went no further. Until Identified, formally
offered in evidence and admitted by the court, the annexes were but mere scraps of paper.
Section 34, Rule 132 of the Rules of Court is quite explicit: "The court shall consider no evidence
which has not been formally offered." The offer is necessary because it is the duty of a judge to
rest his findings of facts and his judgment only and strictly upon the evidence offered by the
parties and the trial. 21 That such a hearing and offer of evidence are necessary is evident from
the fact that substitution of adjudicatees' approval of subdivision plan and technical
descriptions of subdivision lots were asked for. In view of the opposition of petitioners, the
matter became controverted and issues were thus joined necessitating a trial for its resolution.
But this is not to suggest that the lower court should have conducted a hearing on the petition,
for as already indicated above, the court had no jurisdiction to amend the decision.
This Court notices from the allegations in the questioned Paulin petition that Subdivision Plan
Psd-17733 was executed by a private land surveyor pursuant to the Auto of 1 March 1932, in
relation to the 13 September 1916 Order, and that the same was approved by the Director of
Lands. These suggest that there was an attempt to partition Lot No. 6017. Such partition was
allowed under the Cadastral Law, provided that there was compliance with Sections 6 and 19 to
24 thereof. 22 Unfortunately, Paulin, et al., failed to explore and raise this matter.
The lower court, however, correctly set aside the Order of 7 August 1979. The contention of
petitioners that the same had become final and therefore cannot be set aside is untenable.
There is nothing on record to support it. Indisputably, Atty. Jaban knew, or ought to have
known, at the time he filed on 30 July 1979 a petition for issuance of final decree, that other
parties have existing claims on Lot No. 6017; insofar as the records of Cadastral Case No. 12 are
concemed, two (2) prior petitions for the issuance of decree had been filed-that of 7 March
1974 and that of 14 May 1979. In a manner of speaking, the property has become a contested
lot. Petitioners failed to show that private respondents were furnished with copies of his
petition and of the 7 August 1979 Order. In the absence of proof that they received a copy of
the Order, no conclusion may be drawn that it has become final as against them. Besides, the
order has no valid basis. It failed to consider the Auto of 1 March 1932 which amended the
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original decision of 13 September 1916. Hence, no valid decree can be issued exclusively on the
basis of the latter.
WHEREFORE, the Petition is GRANTED. The decision of the Court of Appeals in C.A.-G.R. No.
13091-SP, promulgated on 29 September 1982 and the Orders of the lower court of 16
February 1981 and 4 August 1981 are hereby REVERSED and SET ASIDE.
No pronouncement as to costs.
IT IS SO ORDERED.
Gutierrez, Jr., Feliciano and Romero, JJ., concur.
Separate Opinions
BIDIN, J., concurring:
The decree of registration should conform with the disposition made in the September 13, 1916
decision.
# Separate Opinions
BIDIN, J., concurring:
The decree of registration should conform with the disposition made in the September 13, 1916
decision.
# Footnotes
1 Annex "l" of Respondent's Memorandum;
Rollo, 106-110.
2 Annex "B" of Petition; Id., 30-31.
3 Annex "2" of Private Respondents'
Memorandum; Rollo, 111-113.
4 Annex "G" of Petition; Id., 55.
5 Annex "J" of Petition; Id., 67-68.
6 Annex "F" of Petition; Id., 49,
7 Counsel for petitioners.
8 Annex "C" of Petition; Rollo, 32.
9 Annex "D" of Petition; Id., 45.
10 Annex "E" of Petition; Rollo, 46.
11 Annex "G" of Petition; Rollo, 35, et seq.
12 Annex "H" of Petition: Rollo, 61.
13 Rollo, 123, 133-134.
14 Id., 78.
15 Rollo, 64.
16 Director of Lands vs. Sanz, et al., 45 Phil.
117.
17 Act No. 496.
18 Likewise, Section 38 in relation to
Section 30 of P.D. No. 1529 (The Property
Registration Decree), which took effect on
11 June 1978, provides that the decision in
cadastral cases becomes final upon
expiration of thirty (30) days from notice
and appeal may be taken therefrom as in
ordinary civil cases.
19 94 Phil. 913.
20 See Sections 40 and 41, Act No. 496 and
Section 31, P.D. No. 1529.
21 MORAN, Comments on the Rules of
Court, vol. 6,1980 ed., 123, citing U.S. vs.
Solano, 33 Phil. 582; Dayrit vs.Gonzalez, 7
Phil. 182.
22 Government of the Philippine Islands vs.
Gabutan, et al., 68 Phil. 254.

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 84951 November 14, 1989
vs.
SUSANA NAPAT-A y MACABIO, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Jimmy R. Pablito for accused-appellant.

GRIO-AQUINO, J.:
The accused-appellant, Susana Napat-a, was convicted of drug-pushing by the Regional Trial
Court, Branch VI, Baguio City, and sentenced "to LIFE IMPRISONMENT and to pay a fine of
TWENTY THOUSAND (P20,000) PESOS without subsidiary imprisonment in case of insolvency
and to pay the costs."
On February 3, 1985, the Narcotics Regional Unit in Baguio City received information that a
certain Susana Napat-a was looking for a buyer of marijuana leaves. Acting on this report,
Captain Emmanuel Manzano formed a group composed of CIC Leo Quevedo, A2C Serafin
Artizona and Pat. Maximiano Peralta, to conduct a buy-bust operation. The group proceeded to
the public market on Magsaysay Avenue. There, the informer introduced to the appellant his
companion, CIC Leo Quevedo, as an interested buyer of marijuana. Pat. Peralta, who was then
posted at a strategic distance, heard Quevedo order three (3) kilos of dried marijuana leaves for
the price of P800 per kilo set by Napat-a.
Having closed the deal, the appellant, accompanied by Quevedo and the informer, rode on a
jeep to Brookside, Baguio City, Artizona and Peralta took a taxi and followed them. Upon
reaching Brookside, Peralta and Artizona posted themselves near a store. They observed
Quevedo and the informer standing at the junction of lower and upper Brookside waiting for
Susana Napat-a The latter soon reappeared carrying a brown carton box which she handed to
Quevedo who thereupon made the pre-arranged signal. On seeing Quevedo's signal, Peralta
and Artizona rushed to the scene. CIC Quevedo held Susana by the arm and placed her under
arrest. The three narcotics agents brought her to their office for investigation. Quevedo,
Artizona and Peralta, executed a joint affidavit (Exh. H) narrating the circumstances leading to
the arrest of the appellant.
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The contents of the brown carton box were referred to Lt. Carlos Figueroa, a forensic chemist of
the PC Crime Laboratory in Camp Bado Dangwa, for examination. In his Chemistry Report No.
D-019-85 (Exh. G), Lt. Figueroa affirmed that a qualitative examination of the specimens taken
from the brown carton box showed them to be marijuana.
In her defense, the appellant claimed that she was a vegetable vendor in the market; that on
February 3, 1985 at about 10:30 A.M. she went home to Brookside to cook food for her
children. On her way back to the city market, she met Naty Doguiwen, who was also a
vegetable vendor. Naty Doguiwen was holding a small box. While they were waiting for a ride, a
man approached Naty. The two talked (which appellant could not hear), then Naty handed to
the man the box she was holding. Suddenly two men approached Naty who speedily ran way.
The two men gave chase but were unable to catch her. To Susana's surprise, the two men came
back and arrested her. She was brought to headquarters where she was investigated. She
submitted her counter-affidavit to the City Fiscal (Exh. 1).
On cross-examination, appellant admitted she signed Exhibit "I" for the prosecution which
shows that her rights were read to her before the investigation. She was informed of her right
to remain silent and to have counsel. All this took place on February 3, 1985 in the presence of
her counsel, Atty. Ricardo Tangalin, of the IBP Legal Aid Office. During the investigation, she
signed a receipt for the property that was seized from her and marked as Exhibit "J". She
admitted that the brown carton box containing four bundles of dried marijuana leaves weighing
about three (3) kilos, were seized from her at M. Roxas, Brookside, Baguio City on February 3,
1985, at 2:30 P.M. During the custodial investigation, she waived her rights under Article 125 of
the Revised Penal Code, so the investigation could continue (Exh. K).
In this appeal, appellant impugns the receipt (Exh. J) she signed. She alleges that the receipt is
inadmissible as evidence against her because her constitutional right against self-incrimination
was violated when she was made to sign it without being informed of her rights to counsel and
to remain silent.
This contention has no merit. Appellant admitted at the trial that she was assisted by counsel
when she signed Exhibit "J" (t.s.n. March 7, 1988, p. 17). She also signed the Investigation
Report dated February 3, 1985 (Exh. I) which states that during the custodial investigation, she
was informed of her right to remain silent and to counsel, and that she was assisted by Atty.
Ricardo Tangalin of the IBP Legal Aid Office (t.s.n. March 7, 1988, p. 15).
Appellant questions the non-presentation of the poseur-buyer (Quevedo) who died before the
trial, and the informer, as witnesses at the trial. But, as the trial court pointed out, the death of
Quevedo did not destroy the case of the prosecution, for the sale and actual delivery of the
marijuana by appellant to Quevedo were witnessed by Pat. Peralta and A2C Artizona, who
testified at the trial (t.s.n. Nov. 7, 1986, pp. 3-4).
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In support of her denial, appellant cited the testimony of A2C Artizona that he did not see her
handing the brown carton box to Quevedo (t.s.n. August 27, 1987, p. 9). However, Peralta
testified that he saw her give the illegal package to the poseur-buyer (t.s.n. November 7, 1 986,
p. 5). The positive Identification of the accused as the seller of the marijuana prevails over her
denials.
Her defense that she was framed up by the NARCOM team is the usual story of drug pushers or
sellers, which does not impress us (People vs. Agapito, 154 SCRA 694). The law enforcers are
presumed to have performed their duties regularly in the absence of proof to the contrary
(People vs. Natipravat, 145 SCRA 483; People vs. Asio, G.R. No. 84960, September 1, 1989).
Appellant's contention that the trial court erred in convicting her in view of the prosecution's
failure to present to the Court the brown carton box (Exh. B) and its contents (dried marijuana
leaves) (Exhs. C, D, E and F) is not well taken. Carlos V. Figueroa, Forensic Chemist of the PC
Crime Laboratory, testified that the box and its contents were presented, Identified and marked
as exhibits in court (t.s.n. November 6, 1985, pp. 3-8). The subsequent loss of these exhibits did
not affect the case for the trial court had described the evidence in the records (t.s.n. April 13,
1988, p. 2). In People vs. Mate, 103 SCRA 484, we ruled that "(e)ven without the exhibits which
have been incorporated into the records of the case, the prosecution can still establish the case
because the witnesses properly Identified those exhibits and their testimonies are recorded."
Furthermore, in this case, appellant's counsel had cross- examined the prosecution witnesses
who testified on those exhibits (t.s.n. November 6, 1985, pp. 8-9).
WHEREFORE, we affirm the decision of the trial court finding appellant Susana Napta-a guilty
beyond reasonable doubt of having violated Section 21(b), Article IV, in relation to Section 4,
Article 11 of R.A. No. 6425, as amended, sentencing her to suffer the penalty of reclusion
perpetua, and to pay a fine of Twenty Thousand Pesos (P20,000) without subsidiary
imprisonment in case of insolvency. The effects of the crime are forfeited in favor of the State
and referred to the Dangerous Drugs Board for immediate destruction. Costs against the
appellant.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

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SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 85423 May 6, 1991
JOSE TABUENA, petitioner,
vs.
COURT OF APPEALS and EMILIANO TABERNILLA, JR., respondents.
Ramon Dimen for petitioner.
Dionisio A. Hernandez for private respondent.

CRUZ, J.:p
The petitioner faults the decision of the trial court, as affirmed by the respondent court, for lack
of basis. It is argued that the lower courts should not have taken into account evidence not
submitted by the private respondent in accordance with the Rules of Court.
The subject of the dispute is a parcel of residential land consisting of about 440 square meters
and situated in Poblacion, Makato, Aklan. In 1973, an action for recovery of ownership thereof
was filed in the Regional Trial Court of Aklan by the estate of Alfredo Tabernilla against Jose
Tabuena, the herein petitioner. After trial, judgment was rendered in favor of the plaintiff and
the defendant was required to vacate the disputed lot.
1

As the trial court found, the lot was sold by Juan Peralta, Jr. sometime in 1926 to Alfredo
Tabernilla while the two were in the United States. Tabernilla returned to the Philippines in
1934, and Damasa Timtiman, acting upon her son Juan's instruction, conveyed the subject land
to Tabernilla. At the same time, she requested that she be allowed to stay thereon as she had
been living there all her life. Tabernilla agreed provided she paid the realty taxes on the
property, which she promised to do, and did. She remained on the said land until her death,
following which the petitioner, her son and half-brother of Juan Peralta, Jr., took possession
thereof. The complaint was filed when demand was made upon Tabuena to surrender the
property and he refused, claiming it as his own.
The trial court rejected his defense that he was the absolute owner of the lot, which he
inherited from his parents, who acquired it even before World War II and had been living
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thereon since then and until they died. Also disbelieved was his contention that the subject of
the sale between Peralta and Tabernilla was a different piece of land planted to coconut trees
and bounded on three sides by the Makato River.
Tabuena appealed to the respondent court, complaining that, in arriving at its factual findings,
the trial court motu proprio took cognizance of Exhibits "A", "B" and "C", which had been
marked by the plaintiff but never formally submitted in evidence. The trial court also erred
when, to resolve the ownership of the subject lot, it considered the proceedings in another case
involving the same parties but a different parcel of land.
The said exhibits are referred to in the pre-trial order as follows:
Plaintiff proceeded to mark the following exhibits: Exh. "A", letter dated October
4, 1921 addressed in Makato, Capiz, Philippines; Exh. "A-1", paragraph 2 of the
letter indicating that the amount of P600.00the first P300.00 and then another
P300.00 as interest since October 4, 1921; Exh. "A-2", is paragraph 3 of the
letter; Exh. "B", a Spanish document; Exh. "C", deed of conveyance filed by
Tomasa Timtiman and Alfredo Tabernilla in 1923; and Exh. "C-1", paragraph 4 of
Exh. "C".
In sustaining the trial court, the respondent court held that, contrary to the allegations of the
appellant, the said exhibits were in fact formally submitted in evidence as disclosed by the
transcript of stenographic notes, which it quoted at length.
2
The challenged decision also
upheld the use by the trial court of testimony given in an earlier case, to bolster its findings in
the second case.
We have examined the record and find that the exhibits submitted were not the above-
described documents but Exhibits "X" and "T" and their sub-markings, which were the last will
and testament of Alfredo Tabernilla and the order of probate. It is not at all denied that the list
of exhibits does not include Exhibits "A", "B" and "C". In fact, the trial court categorically
declared that "Exhibits "A-1, "A-2", "B", "C" and "C-l," were not among those documents or
exhibits formally offered for admission by plaintiff-administratrix." This is a clear contradiction
of the finding of the appellate court, which seems to have confused Exhibits "A," "B" and "C"
with Exhibits "X" and "Y", the evidence mentioned in the quoted transcript.
Rule 132 of the Rules of Court provides in Section 35 thereof as follows:
Sec. 35. Offer of evidence.The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be
specified.
The mere fact that a particular document is marked as an exhibit does not mean it has thereby
already been offered as part of the evidence of a party. It is true that Exhibits "A," "B" and "C"
were marked at the pre-trial of the case below, but this was only for the purpose of identifying
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them at that time. They were not by such marking formally offered as exhibits. As we said
in Interpacific Transit, Inc. vs. Aviles,
3
"At the trial on the merits, the party may decide to
formally offer (the exhibits) if it believes they will advance its cause, and then again it may
decide not to do so at all. In the latter event, such documents cannot be considered evidence,
nor can they be given any evidentiary value."
Chief Justice Moran explained the rationale of the rule thus:
. . . The offer is necessary because it is the duty of a judge to rest his findings of
facts and his judgment only and strictly upon the evidence offered by the patties
at the trial.
4

We did say in People vs. Napat-a
5
that even if there be no formal offer of an exhibit, it may still
be admitted against the adverse party if, first, it has been duly identified by testimony duly
recorded and, second, it has itself been incorporated in the records of the case. But we do not
find that these requirements have been satisfied in the case before us. The trial court said the
said exhibits could be validly considered because, even if they had not been formally offered,
one of the plaintiffs witnesses, Cunegunda Hernandez, testified on them at the trial and was
even cross-examined by the defendant's counsel. We do not agree. Although she did testify, all
she did was identify the documents. Nowhere in her testimony can we find a recital of the
contents of the exhibits.
Thus, her interrogation on Exhibit "A" ran:
LEGASPI: That is this Exh. "A" about ?
A The translation of the letter.
Q What is the content of this Exh. "A", the letter of the sister of
Juan Peralta to Alfredo Tabernilla?
Court: The best evidence is the document. Proceed.
6

She also did not explain the contents of the other two exhibits.
The respondent court also held that the trial court committed no reversible error in taking
judicial notice of Tabuena's testimony in a case it had previously heard which was closely
connected with the case before it. It conceded that as a general rule "courts are not authorized
to take judicial notice, in the adjudication of cases pending before them, of the contents of the
records of other cases, even when such cases have been tried or are pending in the same court,
and notwithstanding the fact that both cases may have been heard or are actually pending b
before the same judge.
7
Nevertheless, it applied the exception that:
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. . . in the absence of objection, and as a matter of convenience to all parties, a
court may properly treat all or any part of the original record of a case filed in its
archives as read into the record of a case pending before it, when, with the
knowledge of the opposing party, reference is made to it for that purpose, by
name and number or in some other manner by which it is sufficiently
designated; or when the original record of the former case or any part of it, is
actually withdrawn from the archives by the court's direction, at the request or
with the consent of the parties, and admitted as a part of the record of the case
then pending.
8

It is clear, though, that this exception is applicable only when, "in the absence of objection,"
"with the knowledge of the opposing party," or "at the request or with the consent of the
parties," the case is clearly referred to or "the original or part of the records of the case are
actually withdrawn from the archives" and "admitted as part of the record of the case then
pending." These conditions have not been established here. On the contrary, the petitioner was
completely unaware that his testimony in Civil Case No. 1327 was being considered by the trial
court in the case then pending before it. As the petitioner puts it, the matter was never taken
up at the trial and was "unfairly sprung" upon him, leaving him no opportunity to counteract.
The respondent court said that even assuming that the trial court improperly took judicial
notice of the other case, striking off all reference thereto would not be fatal to the plaintiff's
cause because "the said testimony was merely corroborative of other evidences submitted by
the plaintiff." What "other evidences"? The trouble with this justification is that the exhibits it
intends to corroborate, to wit, Exhibits "A", "B" and "C", have themselves not been formally
submitted.
Considering the resultant paucity of the evidence for the private respondent, we feel that the
complaint should have been dismissed by the trial court for failure of the plaintiff to
substantiate its allegations. It has failed to prove that the subject lot was the same parcel of
land sold by Juan Peralta, Jr. to Alfredo Tabernilla and not another property, as the petitioner
contends. Even assuming it was the same lot, there is no explanation for the sale thereof by
Juan Peralta, Jr., who was only the son of Damasa Timtiman. According to the trial court, "there
is no question that before 1934 the land in question belonged to Damasa Timtiman." Juan
Peralta, Jr. could not have validly conveyed title to property that did not belong to him unless
he had appropriate authorization from the owner. No such authorization has been presented.
It is true that tax declarations are not conclusive evidence of ownership, as we have held in
many cases. However, that rule is also not absolute and yields to the accepted and well-known
exception. In the case at bar, it is not even disputed that the petitioner and his predecessors-in-
interest have possessed the disputed property since even before World War II. In light of this
uncontroverted fact, the tax declarations in their name become weighty and compelling
evidence of the petitioner's ownership. As this Court has held:
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While it is true that by themselves tax receipts and declarations of ownership for
taxation purposes are not incontrovertible evidence of ownership they become
strong evidence of ownership acquired by prescription when accompanied by
proof of actual possession of the property.
9

It is only where payment of taxes is accompanied by actual possession of the
land covered by the tax declaration that such circumstance may be material in
supporting a claim of ownership.
10

The tax receipts accompanied by actual and continuous possession of the subject
parcels of land by the respondents and their parents before them for more than
30 years qualify them to register title to the said subject parcels of land.
11

The Court can only wonder why, if Alfredo Tabernilla did purchase the property and
magnanimously allowed Damasa Timtiman to remain there, he did not at least require her to
pay the realty taxes in his name, not hers. The explanation given by the trial court is that he was
not much concerned with the property, being a bachelor and fond only of the three dogs he
had bought from America. That is specious reasoning. At best, it is pure conjecture. If he were
really that unconcerned, it is curious that he should have acquired the property in the first
place, even as dacion en pago. He would have demanded another form of payment if he did not
have the intention at all of living on the land. On the other hand, if he were really interested in
the property, we do not see why he did not have it declared in his name when the realty taxes
thereon were paid by Damasa Timtiman or why he did not object when the payments were
made in her own name.
In comparison, all the acts of Damasa Timtiman and Jose Tabuena indicate that they were the
owners of the disputed property. Damasa Timtiman and her forebears had been in possession
thereof for more than fifty years and, indeed, she herself stayed there until she died.
12
She
paid the realty taxes thereon in her own name.
13
Jose Tabuena built a house of strong materials
on the lot.
14
He even mortgaged the land to the Development Bank of the Philippines and to
two private persons who acknowledged him as the owner.
15
These acts denote ownership and
are not consistent with the private respondent's claim that the petitioner was only an overseer
with mere possessory rights tolerated by Tabernilla.
It is the policy of this Court to accord proper deference to the factual findings of the courts
below and even to regard them as conclusive where there is no showing that they have been
reached arbitrarily. The exception is where such findings do not conform to the evidence on
record and appear indeed to have no valid basis to sustain their correctness. As in this case.
The conclusions of the trial court were based mainly on Exhibits "A", "B" and "C", which had not
been formally offered as evidence and therefore should have been totally disregarded,
conformably to the Rules of Court. The trial court also erred when it relied on the evidence
submitted in Civil Case No. 1327 and took judicial notice thereof without the consent or
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knowledge of the petitioner, in violation of existing doctrine. Thus vitiated, the factual findings
here challenged are as an edifice built upon shifting sands and should not have been sustained
by the respondent court.
Our own finding is that the private respondent, as plaintiff in the lower court, failed to prove his
claim of ownership over the disputed property with evidence properly cognizable under our
adjudicative laws. By contrast, there is substantial evidence supporting the petitioner's contrary
contentions that should have persuaded the trial judge to rule in s favor and dismiss the
complaint.
WHEREFORE, the petition is GRANTED. The appealed decision is REVERSED and SET ASIDE, with
costs against the private respondent. It is so ordered.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Rollo, pp. 59-72; decided by Judge Gerardo M.S. Pepito.
2 Ibid., pp. 27-29; Gonzaga-Reyes, J., ponente, with Bellosillo and Marigomen, JJ., concurring.
3 186 SCRA 385.
4 Moran, Comments on the Rules of Court, Vol. 6, 1970 Ed., p. 21.
5 179 SCRA 403.
6 TSN, April 17, 1980, p. 32.
7 Rollo, p. 25.
8 U.S. vs. Claveria, 29 Phil. 527.
9 Republic vs. Court of Appeals, 131 SCRA 533.
10 Heirs of Celso Amarante vs. Court of Appeals, 185 SCRA 585.
11 Samson vs. Court of Appeals, 141 SCRA 194.
12 Rollo, p. 64.
13 Exh. "7".
14 Rollo, pp. 39-40.
15 Exhs. "12," "13" and "l4."

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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 96397 November 21, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MELENCIO "BAROC" MENDOZA, defendant-appellant.
Punzalan and Associates Law Office for defendant-appellant.

GUTIERREZ, JR., J.:p
On May 21, 1984, the accused-appellant Melencio Mendoza was charged before the Regional
Trial Court of Valenzuela, Metro Manila, Branch 172 with the crime of Robbery with Homicide
and Serious Physical Injuries in an Information which reads:
The undersigned Asst. Provincial Fiscal accuses Melencio "Baroc" Mendoza of the
crime of robbery with homicide and physical injuries, "penalized under the
provisions of Art. 294, paragraph 1, of the Revised Penal Code, committed as
follows:
That on or about the 9th day of June, 1981, in the municipality of Valenzuela,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the said accused Melencio "Baroc" Mendoza, with Romeo Esquillo y Cabacang,
Roberto Marquez y Dionisio, and Jose Ramos y Austria who are already charged
of the same crime in Crim. Case No. 4109-V-81 and another person who is still at
large, armed with unlicensed firearms, conspiring and confederating together
and mutually helping one another, did then and there wilfully, unlawfully and
feloniously, with intent of gain and by means of force, violence and intimidation
upon the spouses Felipe Alkuino and Eufrocina Trajano-Alkuino, take, rob and
carry away with them a lady's handbag containing cash amounting to P30,545.00
and checks with total face value of P18,167.85 or a grand total of P48,712.85,
belonging to the said spouses Felipe Alkuino and Eufrocina Trajano-Alkuino, to
the damage and prejudice of the said owners in the total amount of P48,712.85;
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That by reason or on the occasion of the said robbery and for the purposes of
enabling them to take, rob and carry away the said amount of P48,712.85 in cash
and in checks, the herein accused Melencio "Baroc" Mendoza, together with his
co-accused and another person still at large, in pursuance of their conspiracy, did
then and there wilfully, unlawfully and feloniously, with evident premeditation
and treachery and taking advantage of their superior strength, attack, assault
and shoot with firearms they were then provided the said spouses Felipe Alkuino
and Eufrocina Trajano-Alkuino, thereby inflicting fatal physical injuries on said
Felipe Alkuino which directly caused his death and serious physical injuries on
said Eufrocina Trajano-Alkuino which required medical attendance for a period
of one (1) to two (2) months and incapacitated her from performing her
customary labor for the same period of time.
Contrary to law. (Original Records, pp. 1-2)
Upon arraignment on March 9, 1985, the accused-appellant pleaded not guilty to the crime
charged. Trial proceeded and a decision convicting the accused was rendered by the trial court.
The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, the Court finds the accused Melencio
"Baroc" Mendoza guilty of the crime of robbery with homicide and physical
injuries and hereby sentences him to suffer the penalty of reclusion perpetua; to
suffer all the accessory penalties provided by law; to indemnify the heirs of
Felipe Alkuino in the sum of P30,000.00 without subsidiary imprisonment in case
of insolvency, and to pay the costs. (Rollo, p. 36)
The antecedent facts as stated in the Appellee's Brief are as follows:
In the morning of June 9, 1981, Romeo Esquillo, a painter, was in his house at
Barangay San Gabriel, Malolos, Bulacan when he decided to go to a store nearby.
At the store, he was approached by a certain Roberto Marquez, who convinced
him to go to latter's house. While in the house of Marquez, a person by the
name of Romeo Magtoto arrived and he was introduced to Esquillo (TSN, May
31, 1985, pp. 8-12)
Marquez, Esquillo and Magtoto on board a motorcycle driven by Marquez, went
to Malanday. When they reached Malanday, a person, who was riding in a car
approached them. Marquez told Esquillo that the man was Barok Mendoza
(TSN, Ibid., pp. 16-17).
The group thereafter wen to the house of a friend of Barok Mendoza where they
took some drinks. After the drinking session, they proceeded to Polo where they
just stood by the street purportedly waiting for a friend to pass by (TSN, Id., pp.
26-27)
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When a red jeep (Isuzu pick-up KB) suddenly appeared, the group scrambled,
boarded their vehicles and chased the vehicle which turned out to be that of the
Alkuinos. Appellant rode in the car together with Ramos and Magtoto while
Esquillo rode at the back of the motorcycle driven by Marquez (TSN,Id. pp. 33-
34)
When the motorcycle was already very close to the pick-up vehicle of the
Alkuinos, appellant gave Esquillo a gun and told him that the occupants of the
jeep have money and if he will not get the money he will kill him (Esquillo)
(TSN, Id., pp. 40-41)
Esquillo did what was commanded of him. When he jumped into the red jeep as
ordered by Marquez, Esquillo poked the gun at the occupants of the vehicle and
announced the holdup (TSN, Id., p. 40)
Esquillo grabbed the bag containing money and checks worth P48,712.85.
Eufrocina Alkuino and Esquillo grappled for possession of the bag when suddenly
the gun went off. Eufrocina Alkuino felt that her middle finger was injured. At
this point, Felipe Alkuino, the husband of Eufrocina, joined in the grapple until it
went off again hitting him in the chest (See RTC Decision, p. 4).
Esquillo ran with the bag but the contents thereof spilled out. Esquillo, Marquez
and Ramos helped each other pick up the money and placed them inside the bag
(Ibid.)
Eufrocina summoned for help and the people arrived immediately and brought
Felipe to the hospital where the later expired. The cause of death, as found by
Dr. Bienvenido Muoz, supervising medico-legal officer of the NBI, is
hemmorrhage, acute, severe secondary to gunshot wound. The victim suffered
only one gunshot wound. Eufrocina later identified the man who poked the gun
at them as Romeo Esquillo and the two others she saw in front of their vehicle
when it suddenly stopped as Roberto Marquez and Jose Ramos. (Id.)
In the meantime, Esquillo ran with the bag. He looked for his companions but
they already left him. He was chased by the barrio people and was later arrested
by a certain Sgt. Avelino Francisco (TSN, May 31, 1985, p. 48)
Esquillo was brought to the Valenzuela Municipal Building where he was
investigated. In the investigation conducted on him, after the regained
consciousness, he named his companions in the robbery holdup as Roberto
Marquez, Romeo Magtoto and Jose Ramos (TSN, July 7, 1986, p. 6). Esquillo then
accompanied the Valenzuela police headed by then Lt. Carlos Tiquia and
proceeded to Catmon, Malolos, Bulacan where Marquez and Ramos were
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arrested. Magtoto was able to elude the police and fled (TSN, September 15,
1986, p. 5)
An investigation was conducted on Marquez and Ramos. This time Marquez
mentioned Melencio Mendoza as the Mastermined of the robbery holdup
allegedly seconded by Esquillo. A team of Valenzuela police was formed and
headed for Catmon, Malolos, Bulacan to track down Mendoza. The team waited
for Mendoza as he was not home yet at that time. At around 10:00 p.m.,
Mendoza alighted from a passenger jeepney and he was informed about his
alleged involvement in the robbery holdup to which accusation he vehemently
denied. The police brought him to their headquarters for questioning.
On June 10, 1981, a day after that robbery incident, Eufrocina Alkuino arrived at
the Valenzuela Municipal Building as she was informed that the suspects in the
robbery holdup were already apprehended and arrested. In the police line-up,
Eufrocina Alkuino pointed to Mendoza because, according to her, she heard
Marquez and Esquillo telling the police that Mendoza was the mastermined of
the holdup (see Decision, p. 7)
In the preliminary investigation that was duly conducted by the Municipal Court
of Valenzuela presided by Judge Serapio, Mendoza was dropped from the charge
as no probable cause was found then to indict him to the crime of robbery with
homicide and physical injuries (See Exh. 5).
Three separate Informations were duly filed with the Regional Trial Court of
Valenzuela, Branch 171; the first one docketed as Criminal Case No. 4109-V-81
against Esquillo, Marquez and Ramos for Robbery with Homicide and Serious
Physical Injuries, and the second docketed as Criminal Case No. 4110-V-81 for
illegal possession firearm against Esquillo, and the third docketed as Criminal
Case No. 4111-V-81 for illegal possession of firearms against Marquez.
In the course of the trial of Criminal Case No. 4109-V-81 and Criminal Case No.
4110-V-81, Esquillo implicated Melencio Mendoza in the commission of the
crime of Robbery. All the accused in the three criminal cases were convicted of
the crimes charged against them.
Subsequently, the Provincial Fiscal of Bulacan filed a separate Information
charging Mendoza with the crime of Robbery with Homicide and Physical
Injuries, which was docketed as Criminal Case No. 6252-V-84.
In an order dated October 28, 1985 (TSN, October 28, 1985, pp. 3-4) in Criminal
Case No. 6252-V-84, the trial court, acting on the motion of the prosecution and
with the conformity of appellant and his counsel, allowed the testimonies of the
following witnesses in Criminal Case No. 4109-V-81 and in Criminal Case No.
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4110-V-81, to be adopted and made part of the evidence of the prosecution
subject to further cross-examination by counsel for the appellant: (1) Dr.
Bienvenido Muoz, Supervising Medico Legal Officer, NBI, Manila; (2) Marlene
Merdegia-Salangad, Forensic Chemist, PC Crime Laboratory, Camp Crame,
Quezon City; (3) Vicente de Vera, Ballistician, PC Crime Laboratory, Camp Crame,
Quezon City; (4) Technical Sgt. Flordelito S. Basul, Chief Clerk, Firearms Branch
and Explosives Unit, Camp Crame, Quezon City; (5) Eufrocina Trajano-Alkuino;
and (6) Jose Martin (see Decision, pp. 3-6) (Appellee's Brief, pp. 4-10)
The defense of the appellant is premised on his allegedly having been somewhere else when
the crime was committed. He claimed that he was working inside the bank on that day and
presented the logbook of the security guard which showed his entering the place at 8:33 a.m.
and leaving it at 5:32 p.m. The robbery happened at around 1:00 p.m. The appellant stated that
he took his lunch at his place of work.
The accused-appellant now interposes this appeal, assigning the following as errors allegedly
committed by the court a quo:
I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE
CRIME CHARGED ON THE BASIS OF MERE ASSUMPTIONS AND CONJECTURES.
II
THE TRIAL COURT ERRED IN HAVING TAKEN JUDICIAL NOTICE OF THE
TESTIMONIES IN CRIMINAL CASES NOS. 4109-V-81 AND 4110-V-81.
III
THE TRIAL COURT ERRED IN ENTERING A JUDGMENT OF CONVICTION WITHOUT
THE REQUIRED QUANTUM OF EVIDENCE BEYOND REASONABLE DOUBT; AND IN
NOT ENTERING A JUDGMENT OF ACQUITTAL. (Appellant's Brief, p. 80)

Melencio Mendoza contends that the trial court erred in basing its judgment of conviction on
mere assumptions and conjectures.
The contention of the appellant is bereft of merit.
The records show that the witness, Mrs. Alkuino and the accused-appellant knew each other
well. The latter was a bookkeper in the bank where the Alkuinos maintained an account.
Mendoza knew the details of their bank account so much so that he would make adjustments
like transferring of funds from the Alkuino's savings account to current account whenever
requested by said clients in order to properly fund checks issued by them.
As stated in the facts of the case, on the day prior to the incident (June 8, 1981), Mrs. Alkuino
inquired from the appellant if the checks she issued to Alaska in the amount of P20,000.00 and
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P30,000.00 were already presented for collection. When the accused answered in the negative,
Mrs. Alkuino informed Mendoza that she will deposit the necessary amount the following day.
From this, it can be concluded that Mendoza knew that the Alkuino couple would be depositing
a big amount the following in time before the checks are presented for collection.
As to Mendoza's relationship with Marquez, it was shown that the possibility of conspiracy is
not remote. They were townmates and both belong to be same barangay. Thus, it can be said
that they knew each other well.
We see no reason why Marquez implicate a good friend in a serious crime if there was no truth
to it.
The close relationship between the two and the access of Mendoza to bank record and his
relationship with regular bank clients like the Alkuinos logically establish the connection
between Mendoza and the crime.
The records do not show that Esquillo previously knew Mendoza. It was Marquez whom
Esquillo knew. Marquez in turn knew Mendoza. Pieced together, the facts brings out a logical
conclusion which is further established by the testimonies of other witnesses.
The accused-appellant further assails the court's having taken judicial notice of Esquillo's
testimony in another case despite its not having been offered nor admitted because Mendoza
was not an accused therein and he did not conform to the adoption of said testimonies in this
case. He further contends that granting it were admitted as part of the prosecution's evidence
in this case, it cannot be considered it was repudiated by Esquillo himself.
This contention must likewise fail.
It is noted that when a motion to adopt the said testimonies of witnesses was made by the
prosecution, the appellant and his counsel did not object but instead gave their consent.
Moreover, Esquillo was confronted with portions of his testimonies in the previous cases which
he merely denied or refused to explain. Said portions, thus, became part of his testimony which
were duly subjected to cross-examination by the defense counsel.
When confronted with statements given in his previous testimony, it became apparent that
Esquillo was trying to hide something but which he was not able to do when cornered by the
judge. Thus, the appellant admitted:
Q Are you telling this court that you never testified in the sala of
Judge Constantino or you testified but you were not asked those
questions, so you did not give those answer?
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A I testified, your Honor.
Q Since you have testified, are you trying to tell this Court that
you were not asked those questions and those were not your
answers, is that what you want this Court to believe?
A Those were the questions asked of me, your Honor.
Q How about the answers, were those your answers?
A Yes, your Honor. (TSN., May 31, 1985, p. 42)
Anent the third assigned error where the appellant claims he was convicted without the
required quantum of evidence because Mrs. Alkuino did not specify his role in the crime, we
find the same wanting of any basis.
Portions of Esquillo's testimony described in detail how appellant and his group hatched their
plan. The same was corroborated by the testimonies of Mrs. Alkuino and other prosecution
witnesses who had no known grudge against him. Thus, it has repeatedly been held that the
testimony of witnesses not actuated by improper motives is entitled to full faith and credit
(People v. Patog, 144 SCRA 429 [1986]; People v. Cruz, 191 SCRA 127 [1990]; People v. Rabang,
187 SCRA 682 [1990]).
The accused-appellant likewise contends that conspiracy was not proven.
Conspiracy has been established by the facts on record. The concerted action of each member
pieced together and taken as a whole conclusively shows the existence of conspiracy.
It need not be shown by direct evidence. It may be inferred from the acts of all the accused
(People v. Abueg, 145 SCRA 622 [1986]) and where each performs specific acts in the
commission of the crime with such closeness and coordination that would indicate a common
purpose or design, conspiracy is considered established beyond reasonable doubt. (People v.
Petenia, 143 SCRA 361 [1986]).
The accused-appellant assails the admission of the testimony of Esquillo.
As stated in the case of People v. Ponce, et al. G.R. No. 83694, May 31, 1991;
It is true that there are doctrines to the effect that the testimony of a co-
conspirator is not sufficient for conviction, unless supported by other evidence.
The reason is that it comes from a polluted source. It must be received with
caution because, as is usual with human nature, a culprit, confessing a crime, is
likely to put the blame as far as possible on others rather than himself. But the
aforesaid rule is not without exceptions. The testimony of a co-conspirator may,
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even if uncorroborated, be sufficient as when it is shown to be sincere in itself,
because it was given unhesitatingly and in a straightforward manner and full of
details which by their nature could not have been the result of deliberate
afterthought (People v. Cuya, Jr., 141 SCRA 351 [1986]).
In an effort to exculpate himself, Mendoza claims that he could not have been at the scene of
the crime since he was at his place of work from 8:30-11:45 and 11:55-5:30 on that day. He
presented as proof a xerox copy of his time records, the logbook as prepared by the security
guard on duty and a certification from a bank officer that he was present that day.
The defense of the accused is mainly based on alibi which this Court has consistently
considered the weakest of all defenses.
To established alibi, the accused must show that it was impossible for him to have been at the
place where the crime was committed at the time of its commission (People v. Abigan, 144
SCRA 130; People v. Coronado, 145 SCRA 250 [1986]).
The appellant has failed to establish the impossibility of his presence at the scene of the crime
considering that the distance between the bank and place of the crime was only a few
kilometers away. Also, the crime happened during lunch break where absence of the
employees is not noticeable.
In view of the foregoing, we find no reversible error in the trial court's finding of conviction.
However, as in People v. Nunag, G.R. No. 92570, April 22, 1991, we find the designation of the
crime erroneous.
Thus, the case states:
. . . there is no special complex crime as robbery with homicide and less serious
physical injuries. The offense is denominated as robbery with homicide
regardless of the number of homicides or injuries committed. These other
circumstances merely serve as generic aggravating circumstances which can be
offset by other mitigating circumstances (People v. Pedroso, 115 SCRA 599
[1982]).
WHEREFORE, the appealed decision is hereby AFFIRMED but MODIFIED. The appellant is found
guilty of the special complex crime of robbery with homicide but indemnity is increased from
THIRTY THOUSAND PESOS (P30,000.00) to FIFTY THOUSAND PESOS (P50,000.00) in accordance
with recent rulings.
SO ORDERED.
Fernan, C.J., Bidin, Davide, Jr. and Romero, JJ., concur.
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FIRST DIVISION
[G.R. No. 119288. August 18, 1997]
REPUBLIC OF THE PHILIPPINES, represented by THE DIRECTOR OF LANDS, petitioner, vs. HON.
COURT OF APPEALS and JOSEFA GACOT,respondents.
R E S O L U T I O N
VITUG, J.:
The Republic of the Philippines, represented by the Director of Lands, prays in the instant
petition for review on certiorari for the annulment of the decision, dated 22 February 1995, of
the Court of Appeals affirming the 12th August 1993 judgment of the Regional Trial Court of
Palawan (Branch 50-Puerto Princesa) which has adjudicated Lot No. 5367 in Cadastral Case No.
13, GLRO Cadastral Record No. 1133, to herein private respondent, now deceased Josefa Gacot,
the claimant in the cadastral case.
The antecedents are amply summarized in the appealed decision of the Court of
Appeals, viz:
"The entire lot 5367 is being claimed by Josefa Gacot as per answer she filed on June 7, 1971. It
appears from the record that the lot is located in Barangay Los Angeles, Magsaysay, Palawan
but the area was not indicated. It also appeared that Ceferino Sabenacio is her co-owner.
This case was set for hearing on August 9, 1990 and the petitioner was represented by
Assistant Provincial Prosecutor Reynaldo Guayco and Rogelio Paglinawan, Community
Environment and Natural Resources Officer (CENRO) of Puerto Princesa City while the claimant
appeared without counsel. In view thereof, the hearing was reset to August 13, 1990. Before
the scheduled hearing on August 13, 1990, the Court received a report from the Land
Registration Authority calling the Court's attention of the decision rendered by Judge Lorenzo
Garlitos on October 20, 1950 declaring this lot as property of the Republic of the
Philippines. Despite this declaration however, the petitioner nor the government did not bar
the claimant from filing her answer, possessing and occupying the lot and in fact accepted her
tax payments and issuing her tax declaration on the same.
The claimant presented herself as witness as well as her son, Vicente Dantic, Jr. The witnesses
testified that Josefa Gacot was married to Vicente Dantic, Sr. in 1940 and were in actual
possession of the property for more than 30 years, having bought the same from Cipriana
Dantic-Llanera as per deed of sale dated April 22, 1955 in Cuyono dialect (Exhibit `1 and 1-
A). Since she acquired the property from Cipriana Llanera, she continued her occupation and
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62 | P a g e
introduced improvements thereon as well as declared Lot 5367 for taxation purposes in her
name (Exhibit 2) and paid the corresponding taxes thereon up to the present time (Exhibit
3). That claimant is now a widow and has 5 children namely, Hernando Dantic, Antero Dantic,
Felipe Dantic, Fe Dantic and Vicente Dantic, Jr.
Cipriano Sabenacio, the alleged co-owner of claimant Josefa Gacot appeared in Court and
manifested that he is waiving his claim over Lot 5367 in favor of Josefa Gacot who is in actual
possession of the property as he is only a boundary owner.
After the presentation of claimant and her son, they offered their exhibits and rested their
case. Thereafter, the petitioner thru counsel manifested that it is not presenting controverting
evidence and is submitting the case for resolution.
[1]

On 05 September 1990, the trial court rendered judgment adjudicating Lot No. 5367 to
Josefa Gacot, thus -
"WHEREFORE, this Court finds the claim of Josefa Gacot Dantic to be in order. Accordingly, Lot
5367 is hereby adjudicated to Josefa Gacot-Dantic, widow and a resident of Barangay Los
Angeles, Magsaysay, Palawan with all the improvements thereon, subject to the estate tax as
provided by law."
"SO ORDERED."
[2]

The Republic, through the Solicitor General, elevated the case to the Court of Appeals.
During the pendency of the appeal, the Office of the Solicitor General was able to verify
that Lot 5367 was earlier declared to be the property of the Republic in a decision rendered by
Judge Lorenzo Garlitos on 20 October 1950 following an order of general default. The Solicitor
General thus filed a motion with the appellate court to have the case reopened and remanded
to the court a quo to allow the Republic of the Philippines to present the decision of Judge
Garlitos. In its resolution, dated 26 December 1991, the Court of Appeals granted the motion.
What transpired thereafter was narrated by the trial court in its 12th August 1993
decision; viz:
This case was set for hearing several times for the government to present its evidence and for
the parties to submit their respective memorandum in support of their respective stand on the
matter. The claimant submitted her memorandum while the government represented by the
Assistant Provincial Prosecutor assigned to this sala has not presented any witness to support
the governments claim, neither has he submitted any memorandum to support the
governments stand on this matter.
With the foregoing development, the Court is of the opinion that the subsequent application
or claim of Josefa Gacot-Dantic on Lot 5367 which became part of the public domain where her
occupation thereto having been open to the whole world, public and notorious in the concept
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of an owner since 38 years ago was well taken and therefore entitled to the lawful adjudication
of Lot 5367 in her name. Besides, the government represented by the Assistant Provincial
Prosecutor and the Community Environment and Natural Resources Officer (CENRO) for Puerto
Princesa City and Cuyo, Palawan have not made any protest nor interposed any objection on
the claim of Josefa Gacot during the hearings. Neither was there a manifestation of protest or
claim of government use coming from the municipal officials of Magsaysay, Palawan despite
notice sent to them of the cadastral hearing. And the sad part was that the government had
accepted without any protest all the taxes due the property paid by the claimant
religiously. This is not to say that this order has been considered in the previous decision of this
Court which is hereunder quoted as follows:
x x x x x x x x x
With this finding of the Court, it is its considered opinion and so holds, that there is no reason
to disturb its previous decision aforequoted."
[3]

An appeal was taken by the Republic from the decision of the trial court. In its now
assailed decision of 22 February 1995, the Court of Appeals affirmed in toto the judgment of
the trial court. The appellate court ratiocinated:
In its brief, the Office of the Solicitor General claims that `records of the re-hearing show that
on October 20, 1950, an order was, indeed, issued by Judge Lorenzo C. Garlitos of the Court of
First Instance of Palawan, 7th Judicial District, declaring that Lot No. 5367 was among lots
declared as property of the Republic of the Philippines. (p. 3, Appellants Brief; p. 19, Rec.) It
now invokes Republic Act No. 931, approved on June 30, 1953 and Republic Act No. 2061,
which took effect on June 30, 1958, both laws setting the time limits for the filing of
applications, among other things, for the reopening of judicial proceedings on certain lands
which were declared public land. Under R.A. 2061, the time for filing an application shall not
extend beyond December 31, 1968. Thus, petitioner-appellant argues that since claimant-
appellee Josefa Gacot filed her answer only on 07 June 1971, the court a quo did not acquire
jurisdiction over the instant claim since she did not file her answer within the period fixed by
R.A. No. 2061.
This would be true, if the Order dated 20 October 1950 of Judge Lorenzo Garlitos declaring Lot
No. 5367 as property of the Republic of the Philippines, was presented as evidence in the
rehearing of this case. Unfortunately, the Republic of the Philippines failed to offer as its
exhibit the said order. There is no basis for the appellant, therefore, to invoke R.A. 2061, to
support its claim that claimant-appellee Josefa Gacot filed her answer beyond the period fixed
by said law and therefore the court a quo did not acquire jurisdiction over the case.
Precisely, the purpose of the rehearing was to enable the Republic of the Philippines, thru the
Office of the Solicitor General, to present in evidence the said order. The Solicitor General, in
its Motion dated 21 May 1991, prayed that with regards to Lot No. 5367 `the proceedings
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64 | P a g e
therein be ordered reopened and the same be remanded to the court a quo to enable the
Republic of the Philippines to present the judgment dated October 20, 1950 of Judge Lorenzo
Garlitos declaring Lot No. 5367 as government property. (pp. 30-31, Rollo) [Underlines Ours]
This Court granted the motion and ordered the records of the case remanded to the court a
quo for further proceedings to enable the government to present in evidence the judgment
dated October 20, 1950, declaring Lot No. 5367 as government property x x x. (p. 42, Rollo)
[Underlines Ours]
During the rehearing, however, the Government failed to present the said order of Judge
Garlitos in evidence. Thus, the court a quo said in its appealed decision:
This case was set for hearing several times for the government to present its
evidence and for the parties to submit their respective memoranda in support of their
respective stand on the matter. The claimant submitted her memorandum while the
government represented by the Assistant Provincial Prosecutor has not presented any
witness to present the governments claim neither has he submitted any
memorandum to support the governments stand on this matter. (see p. 92, Rollo)
[Underlines Ours]
It is the rule that `The court shall consider no evidence which has not been formally
offered. (Rule 132, Sec. 34) It is true that the Order of 20 October 1950 has been appended to
the records of this case (see p. 19, Rec.). But it is misleading on the part of the Solicitor General
to state that `Records of the rehearing show that on October 20, 1950, an order was, indeed,
issued by Judge Lorenzo C. Garlitos x x x. For, during the rehearing, as reflected in the
appealed decision, the government did not present any evidence nor any memorandum despite
having been ordered by the court a quo.
Neither can We take judicial notice of the Order of Judge Garlitos. As a general rule, courts
are not authorized to take judicial knowledge of the contents of the record of other cases, in
the adjudication of cases pending before them, even though the trial judge in fact knows or
remembers the contents thereof, or even when said other cases have been heard or are
pending in the same court and notwithstanding the fact that both cases may have been heard
or are really pending before the same judge. (Municipal Council vs. Colegio de San Jose, et al.,
G.R. No. L-45460; 31 C.J.S. 623-624; cited in p. 25, Evidence, Second Ed.; R.J. Francisco) Indeed,
the Government missed its opportunity to have the claim of Josefa Gacot, the herein appellee,
declared as a nullity, considering that no evidence was presented by it in opposition thereto.
[4]

In the instant petition, the Republic, assigning a sole error, contends that -
THE HONORABLE COURT OF APPEALS (HAS) ERRED IN RULING THAT THERE IS NO BASIS FOR
PETITIONER TO INVOKE R.A. No. 2061 TO SUPPORT ITS CLAIM THAT JOSEFA GACOT FILED HER
ANSWER BEYOND THE PERIOD FIXED BY THE SAID LAW AND THEREFORE THE TRIAL COURT DID
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NOT ACQUIRE JURISDICTION OVER THE CASE, SINCE IT (HAS) FAILED TO OFFER AS ITS EXHIBIT
THE ORDER, DATED OCTOBER 20, 1950 OF JUDGE LORENZO GARLITOS.
[5]

The Solicitor General explains that the records of the reopened case would show that a
certified copy of the decision, dated 20 October 1950, of Judge Garlitos has been appended to
page 19 thereof. It is not evident, however, why the Assistant Provincial Prosecutor and the
Community Environment and Natural Resources Officer ("CENRO") for Puerto Princesa,
representing the government during the rehearing, did not present it. The Solicitor General,
nevertheless, invokes the rule that the Republic is not estopped by the mistake or error on the
part of its officials or agents.
In the meantime, Josefa Gacot passed away. The Solicitor General thereupon moved that
the heirs of Josefa Gacot be impleaded party respondents in substitution for the deceased. The
motion was granted, and the heirs were directed to comment on the governments petition.
To this day, private respondents have not submitted their comment. The Court, however,
cannot allow the case to remain pending and unresolved indefinitely. It must now dispense, as
it hereby dispenses, with such comment in order not to unduly delay the remand of the case to
the trial court for further proceedings.
Let it initially be said that, indeed, the Court realizes the points observed by the appellate
court over which there should be no quarrel. Firstly, that the rules of procedure
[6]
and
jurisprudence,
[7]
do not sanction the grant of evidentiary value,
[8]
in ordinary trials,
[9]
of
evidence which is not formally offered, and secondly, that adjective law is not to be taken
lightly for, without it, the enforcement of substantive law may not remain assured. The Court
must add, nevertheless, that technical rules of procedure are not ends in themselves but
primarily devised and designed to help in the proper and expedient dispensation of justice. In
appropriate cases, therefore, the rules may have to be so construed
[10]
liberally as to meet and
advance the cause of substantial justice.
Furthermore, Section 1, Rule 129, of the Rules of Court provides:
SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice, without the
introduction of evidence, of the existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of the Philippines,
the official acts of the legislative, executive and judicial departments of the Philippines, the laws
of nature, the measure of time, and the geographical divisions.
Mr. Justice Edgardo L. Paras
[11]
opined:
A court will take judicial notice of its own acts and records in the same case, of facts
established in prior proceedings in the same case, of the authenticity of its own records of
another case between the same parties, of the files of related cases in the same court, and of
public records on file in the same court. In addition judicial notice will be taken of the record,
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pleadings or judgment of a case in another court between the same parties or involving one of
the same parties, as well as of the record of another case between different parties in the same
court. Judicial notice will also be taken of court personnel.
[12]

The remand of the case would likewise seem to be unavoidable. The area of Lot No. 5367
claimed and awarded to the late Josefa Gacot had not been specified in the records. Indeed, on
the basis of the Certification of the Forest Management Services of the Department of
Environment and Natural Resources, Lot No. 5367, per Land Classification (LC) No. 1246 of 15
January 1936, would appear to contain an area of 394,043 square meters, 300,000 square
meters of which were classified as Alienable and Disposable land and 94,043 square meters as
Timberland, which under Proclamation No. 2152, dated 29 December 1981, had been included
to form part of the Mangrove Swamp Forest Reserve, closed for entry, exploitation and
settlement.
[13]

It behooves all concerned that the above matters be carefully looked into, albeit with
reasonable dispatch, for the final resolution of this case.
WHEREFORE, the case is REMANDED to the trial court for further proceedings for it to
ascertain and resolve the conflicting claims of the parties conformably with the foregoing
opinion of the Court. No costs.
SO ORDERED.
Padilla, Bellosillo, Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

[1]
Rollo, pp. 4-6.
[2]
Rollo, p. 34.
[3]
Rollo, pp. 36-38.
[4]
Rollo, pp. 30-32.
[5]
Rollo, p. 19.
[6]
Rule 132, Section 34.
[7]
Veran vs. Court of Appeals, 157 SCRA 438; De los Reyes vs. IAC, 176 SCRA 394; People vs. Carino, et al., 165 SCRA 664.
[8]
Vda. De Flores vs. WCC, 78 SCRA 17; Republic vs. Court of Appeals and People vs. Court of Appeals, 116 SCRA 505;
[9]
Delos Reyes vs. IAC, 176 SCRA 394.
[10]
Sec. 2. Construction. - These rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just,
speedy, and inexpensive determination of every action and proceeding. (Rules of Court)
[11]
Rules of Court Annotated, Vol. 4, 1991 Ed., p. 52.
[12]
Citing Graham on Evidence, 1986 ed.
[13]
See Director of Forestry vs. Munoz, 23 SCRA 1183.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-22793 May 16, 1967
CARMELITA TAN and RODOLFO TAN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO TAN (alias Tan Uh Bak and Tan Seng Ka), respondents.
Amando Asis for petitioners.
Taada, Teehankee and Carreon for respondents.
SANCHEZ, J.:
The present is a suit aimed at establishing a children-to-father, illegitimate relationship
between petitioners and the principal respondent Francisco Tan, and to compel the latter to
support petitioners.
The background facts follow:
On July 22, 1955, petitioners, thru their mother Celestina Daldo as guardian ad litem, sued
respondent Tan in the Court of First Instance of Manila for acknowledgment and support (Civil
Case 26909). 1wph1.t
On March 26, 1956, Celestina Daldo after petitioners had already presented oral and
documentary evidence and were about to rest their case moved to dismiss the foregoing civil
case upon the ground that the parties had come to an amicable settlement, and prayed that
the same be dismissed with prejudice and without recourse of appeal.
On the same day, March 26, 1956, Celestina Daldo subscribed before the clerk of the Court of
First Instance of Manila to an affidavit categorically stating that respondent Francisco Tan,
defendant in Civil Case 26909, "is not the father of my said minor children named Carmelita and
Rodolfo (herein petitioners) but another person whose name I cannot divulge"; and that she
prepared said affidavit precisely "to record what is true and to correct what misinterpretation
may arise in the future".
On March 26, 1956, the Court of First Instance of Manila issued the following order:
As prayed for by plaintiffs in their motion filed today for the dismissal of their complaint,
on the ground that the parties have already come to an amicable settlement, with the
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conformity of counsel for defendant, the Court hereby orders this case dismissed with
prejudice and without pronouncement as to costs.
On November 25, 1957 one year and eight months after Civil Case 26909 was dismissed
petitioners, this time thru their maternal grandfather Servillano Daldo as guardian ad litem,
commenced the present action before the Juvenile & Domestic Relations Court (Civil Case
00855) for acknowledgment and support, involving the same parties, cause of action and
subject matter.
On September 10, 1960, then Judge Juan P. Enriquez (Judge of the Court of First Instance of
Manila detailed to preside over the Juvenile & Domestic Relations Court in the absence of the
presiding Judge thereof who was on leave rendered judgment declaring that "the present case
is res judicata by reason of the dismissal with prejudice of Civil Case 26909 of the Court of First
Instance of Manila; and that, even on the merits, plaintiffs [the present petitioners] have not
made out their case with sufficient evidence," and dismissed the complaint, without costs.
On October 8, 1960, petitioners herein, plaintiffs below, moved to reconsider.
On January 31, 1961, then Judge Natividad Almeda Lopez reconsidered the decision of Judge
Enriquez of September 10, 1960, and rendered judgment, viz:
In view of the foregoing considerations, this Court reconsider its decision of September
10, 1960, and declares the minors Carmelita and Rodolfo Tan to be the illegitimate
children of the defendant Francisco Tan alias Tan Uh Bak and Tang Seng Ka; and hereby
orders the defendant to support said minors in the amount of P200.00 a month, said
amount to be paid within the first five (5) days of each month directly to Carmelita Tan,
for herself and for her younger brother Rodolfo; and to help them defray their
matriculation expenses, to pay semi-annually, on June and November of such year, an
additional sum of P300; to reimburse Servillano Daldo his expenses in supporting
plaintiff minors during the pendency of this case in the amount of P2,000, or at the rate
of P50 a month from November 25, 1957; to pay plaintiff minors' attorney's fees of
P500; and to pay the costs of this proceedings.
Respondent Francisco Tan appealed to the Court of Appeals.
On February 21, 1964, the Court of Appeals in turn reversed the last-named judgment of Judge
Natividad Almeda Lopez, and dismissed the complaint with costs against appellees in both
instances.
Petitioners now come to this Court in forma pauperis on appeal by way of certiorari.
1. Threshold question is the admissibility of Exhibits H and I, testimony of petitioners' witnesses
in the former case. Petitioners balk at the ruling denying admissibility.
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The controlling statute is Section 37, Rule 123 of the 1940 Rules of Court, now Section 41, Rule
130, viz:
SEC. 41. Testimony at a former trial. The testimony of a witness deceased or out of
the Philippines, or unable to testify, given in a former case between the same parties,
relating to the same matter, the adverse party having had an opportunity to cross-
examine him, may be given in evidence.
Concededly, the witnesses at the former trial were subpoenaed by the Juvenile & Domestic
Relations Court a number of times. These witnesses did not appear to testify.
But are their testimonies in the former trial within the coverage of the rule of admissibility set
forth in Section 41, Rule 130? These witnesses are not dead. They are not outside of the
Philippines. Can they be categorized as witnesses of the class unable to testify? The Court of
Appeals, construing this term, held that "subsequent failure or refusal to appear thereat
[second trial] or hostility since testifying at the first trial does not amount to inability to testify,
but such inability proceeding from a grave cause, almost amounting to death, as when the
witness is old and has lost the power of speech. (Griffith vs. Sauls, 77 Tex 630, 14 S.W. 230, 231;
section 37 of Rule 123, Rules of Court)."
Here, the witnesses in question were available. Only, they refused to testify. No other person
that prevented them from testifying, is cited. Certainly, they do not come within the legal
purview of those unable to testify.
Besides in the situation here presented, petitioners are not at all bereft of remedy. They could
have urged the court to have said witnesses arrested, punished for contempt.
1
After all, these
remedies are in the statute books to help litigants in the prosecution of their cases. Petitioners
failed to avail of these remedies, went ahead and submitted their case.
We note petitioners' argument that to follow strictly the law of admissibility of testimony in
former trials, is to permit party litigants to buy witnesses to dissuade them from testifying
again. Nothing extant in the record will as much as intimate that respondent was responsible
for the non-appearance of these witnesses. The danger of tampering with witnesses is a
problem that attends trials in many a time and in number of imaginable situations. And,
petitioners argument works both ways. Because, witnesses at the former trial can be bought
not to testify at the second trial, in just the same way that they could have been bought to give
their original testimony. Solution of this problem lies elsewhere, not in the non-enforcement of
Section 41, Rule 130 of the Rules of Court.
2. The procedural problem out of the way, we go direct to the merits.
Petitioners tried to prove that Celestina Daldo and respondent Francisco Tan lived together as
husband and wife for more than eight years commencing from 1936 to 1944. Petitioners
Carmelita Tan and Rodolfo Tan are allegedly the fruits of such cohabitation. Respondent stoutly
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denies this claim, avers that he is very much a married man with children. Celestina Daldo, by
her own admission, had been a nursemaid (yaya) in respondent's residence but for l short
period of not less than one year in 1939. Carmelita was born on May 8, 1942 and Rodolfo, on
September 11, 1944. The validity of the testimony of petitioners' witnesses in the present case
was considerably downgraded by the affidavit of Celestina Daldo, heretofore adverted to,
attached to the record of the former Case 26909. In that affidavit, Celestina deposed that
petitioners were not fathered by Francisco Tan, but, in Celestina's own words, by "another
person whose name I cannot divulge." Striking is the fact that this affidavit was executed after
petitioners in the former case had finished with their oral and documentary evidence and were
about to submit their case. By then, their counsel had a grasp of the situation. Petitioners and
their guardian ad litem could have known whether they had reasonably made out a case
against respondent.
Correctly then did the Court of Appeals rule out the probative value of petitioners' evidence
and found for respondent. On this point the Court of Appeals said:
... we now come to the resolution of the second point; i.e., whether or not the plaintiffs
have sufficiently proved their case. We have gone over and examined thoroughly the
arguments and evidence of the parties, and we find that the evidence for the plaintiffs-
appellees fall short of the requirement of clear strong and convincing evidence. Such
evidence is necessary whether to prove legitimate or illigitimate paternity and filiation,
considering the seriousness of the relationship and its far-reaching consequences. As
aptly expressed in the case of Serrano v. Aragon, (22 Phil. 10),
"Public policy, indeed public necessity, demands that before an illegitimate child be
admitted into a legitimate family, every requisite of the law be completely and fully
complied with. No one should ever be permitted upon doubtful evidence to take from
legitimate children the property which they and their parents have, by industry, fidelity,
and frugality, acquired. ..."
We agree with the findings of the trial court in its original correctly appreciating the
evidence of the plaintiffs as unsatisfactory and insufficient, in view of the following
considerations;
(1) That Exhibits H and I, former testimonies of witnesses in Civil Case No. 26909, are
inadmissible. ...
(2) That the baptismal certificates, Exhs. A and C are not admissible proofs of filiation
(Malonda vs. Malonda, 45 O.G. 5468; Pareja vs. Pareja, G.R. L-3824, prom. May 31,
1954; Capistrano vs. Gabino, 8 Phil. 135; Adriano vs. De Jesus, 23 Phil. 350; Madridejo
vs. Leon, 55 Phil. 1) The birth certificate Exhibit B is likewise inadmissible against the
defendant because it failed to comply with Section 5 of Act 3753. The alleged
illegitimate father did not sign under oath the said birth certificate (Roces vs. Local Civil
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71 | P a g e
Registrar of Manila, G.R. L-10598, prom. February 14, 1958; Crisolo vs. Macadaeg, G.R.
L-7017 prom. April 29, 1954).
It should be noted that said baptismal certificates are also useless to prove the dates of
birth of the appellees-minors, considering that the period of cohabitation or any
intimate relations at all between their mother and the appellant has been denied and
that same has not been satisfactorily proved. Stated in another way, the date of birth as
appearing in the birth certificate would be material only if it coincides with the period of
cohabitation as admitted or sufficiently proved. To reason otherwise would be to put
the cart before the horse, so to speak.
(3) The oral evidence for the plaintiffs, consisting principally of the testimonies of the
grandfather and of the mother of the minors, are unsatisfactory, being inconsistent and
contradictory on material points, and unbelievable. The loose character of the mother
of the minors who admittedly had lived and begotten children with several men of
different nationalities, cannot also be overlooked. Weighed against each other, the
evidence for the plaintiffs do not tip the scales in their favor as against the defendant-
appellant. We are not convinced, by preponderance of evidence, that appellant is the
father of the minor appellees. ...
Section 2, Rule 45 of the Rules of Court, formerly Section 2, Rule 46 of the 1940 Rules, employs
the commanding language that "[o]nly questions of law may be raised" in an appeal
by certiorari from a judgment of the Court of Appeals. That judgment, jurisprudence teaches, is
conclusive as to the facts. We are not to alter said facts they bind us, or to review the
questions of fact.
2

Having reached the conclusion that, on the merits, petitioners made no case, it is unnecessary
for us to pass upon the other questions raised on appeal.
For the reasons given, we vote to affirm the judgment of the Court of Appeals under review. No
costs in all instances. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P. Zaldivar and Sanchez, JJ.,
concur.
Castro, J., took no part.
Footnotes
1
Sections 11 and 12, Rule 29 of the 1940 Rules of Court; Sections 11 and 12, Rule 23 of the new Rule of Court.
2
Air France vs. Carrascoso, L-21438, September 28, 1966, citing Medel, et al. vs. Calasanz, et al., L-14835, August 31, 1960;
Astraquillo, et al. vs. Javier, et al., L-20034, January 30, 1965.

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SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 113779-80 February 23, 1995
ALVIN TUASON y OCHOA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:
The first duty of the prosecution is not to prove the crime but to prove the identity of the
criminal. For even if the commission of the crime can be established, without proof of identity
of the criminal beyond reasonable doubt there can be no conviction. In the case at bench, the
identification of the petitioner cannot rest on an assured conscience. We rule that petitioner is
entitled to a mandatory acquittal.
Petitioner Alvin Tuason y Ochoa, John Doe, Peter Doe, and Richard Doe were charged before
the Regional Trial Court of Quezon City
1
with Robbery
2
(Article 294, paragraph 5 of the Revised
penal Code) and Carnapping
3
(republic Act No. 6539).
Of the four (4) accused, only petitioner was apprehended. The other three (3) are still at-large.
Upon arraignment, petitioner pleaded not guilty to both charges and was tried.
We come to the facts.
Complainant CIPRIANA F. TORRES is a public school teacher of Kaligayahan Elementary School,
Novaliches. Her work requires her to leave her maid, JOVINA MADARAOG TORRES, alone in her
house at Block 45, Lot 28, Lagro Subdivision, Novaliches, Quezon City. Her husband is in
Australia while her children go to school.
The incident transpired at around 8:45 in the morning of July 19, 1988. Somebody knocked at
the gate of the Torres residence pretending to buy ice. As the maid Madaraog handed the ice to
the buyer, one of the robbers jumped over the fence, poked a gun at her, covered her mouth,
and opened the gate of their house.
4
The ice buyer and his companions barged in. Numbering
four (4), they pushed her inside Torres' house and demanded the keys to the car and the safety
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vault.
5
She told them she did not know where the keys were hidden.
6
They tied up her hands
and dragged her to the second floor of the house. Petitioner was allegedly left downstairs as
their lookout.
7

On order of the accused, Madaraog sat on Torres' bed, her body facing the bedroom door with
her back on the vault. They also gagged her mouth and ransacked Torres' room. One of the
accused stumbled upon a box containing keys. They used the keys to open drawers and in the
process found the car key. Petitioner was then summoned upstairs and given the car key. He
tried it on the car and succeeded in starting its engine.
In twenty (20) minutes, accused were able to loot the vault and other valuable items in the
house. They then tied Madaraog's hands and feet to the bed's headboard and escaped using
Torres' car.
Still gripped with fear, Madaraog loosened her ties with her fingers, hopped to the stairs and
cried for help.
8
Her neighbor Semia Quintal responded and untied her. They also sought the
help of Angelina Garcia, another neighbor. It was Garcia who informed Torres that her house
was burglarized.
Torres reported the robbery to the police authorities at Fairview, Quezon City and the National
Bureau of Investigation (NBI). On July 25, 1988, Madaraog and Quintal described the physical
features of the four (4) robbers before the NBI cartographer. One of those drawn by the artist
was a person with a large mole between his eyebrows.
9
On August 30, 1988, petitioner was
arrested by the NBI agents. The next day, at the NBI headquarters, he was pointed to by
Madaraog and the other prosecution witnesses as one of the perpetrators of the crimes at
bench.
SEMIA QUINTAL
10
averred that she saw petitioner allegedly among the three (3) men whiling
away their time in front of Alabang's store some time before the crimes were committed.
Quintal is a neighboring maid.
MARY BARBIETO
11
likewise declared that she saw petitioner allegedly with several companions
standing-by at Torres' house that morning of July 19, 1988. She is a teacher and lives within the
block where the crimes were committed.
Petitioner ALVIN TUASON,
12
on the other hand, anchored his defense on alibi and insufficient
identification by the prosecution. he has lived within the neighborhood of the Torres family
since 1978. He averred that on July 19, 1988, he was mixing dough and rushing cake orders
from 7:00 o'clock in the morning till 1:00 o'clock in the afternoon at his sisters' TipTop
bakeshop in Antipolo Street, Tondo, Manila. It takes him two (2) hours to commute daily from
Lagro, Novaliches to Tondo.
He was arrested more than one (1) month after the robbery. On August 30, 1988 at about 8:00
o'clock in the evening, he was in their house watching a basketball game on T.V. and went out
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to buy a cigarette. On his way back, a person accosted him and asked his name. After he
identified himself,
13
a gun was poked at his right side, a shot was fired upward, and five (5)
men swooped on him without any warrant of arrest. He asked them if he could wear t-shirt as
he was naked from waist up. They refused. They turned out to be NBI agents of one of whom a
certain Atty. Harwin who lived in Lagro, Novaliches. He was shoved into the car and brought to
the NBI headquarters.
14
He was surprised when an NBI agent, whose identity was unknown to
him, pointed to him as one of the suspects in the robbery in the presence of Madaraog and the
other prosecution witnesses.
Petitioner's sister ANGELI TUASON,
15
part-owner of TipTop Bakeshop corroborated his story.
She testified that on July 17, 1988 she asked her sister Mary Ann to remind petitioner to work
early on July 19, 1988 since Mondays, Tuesdays, and Wednesdays are busy days as she caters to
schools.
The trial court in a Joint Decision convicted petitioner of the crimes charged and sentenced him
as follows:
xxx xxx xxx
In Q-88-396 (carnapping) or an indeterminate term of SEVENTEEN (17) YEARS
and FOUR (4) MONTHS as minimum and TWENTY (20) YEARS as maximum; and
in Q-88-397 (robbery) for a term of ONE (1) YEAR, SEVEN (7) MONTHS and
ELEVEN (11) DAYS as minimum and TWO (2) YEARS, TEN (10) MONTHS and
TWENTY (20) DAYS as maximum.
On the civil aspect, the court hereby orders Alvin Tuason y Ochoa as follows:
1. In Q-88-396 (carnapping) to return to Mrs. Cipriana Torres and her husband
the carnapped Toyota Corona Sedan, Model 1980 with Plate No. NPZ 159 or to
pay its value of P180,000.00 which the court finds to be the reasonable value of
the said car; and
2. In Q-88-397 (robbery) to return to Mrs. Cipriana Torres and her husband the
stolen items mentioned in the information filed in said case and hereinabove
stated or pay the corresponding values thereon or a total of P280,550.00 which
the court finds to be the reasonable values.
The civil liability is joint and solidary with the co-conspirators of accused Alvin
Tuason.
In case of appeal, the bail bonds are fixed at TWO HUNDRED EIGHTY THOUSAND
PESOS (P280,000.00) fro criminal case No. Q-88-396 and ONE HUNDRED
THOUSAND PESOS (P100,000.00) for criminal case No. Q-88-397.
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Costs against the accused.
SO ORDERED.
16

Petitioner appealed to respondent Court of Appeals. On December 16, 1993, the Eleventh
Division of the appellate court gave no credence to
the exculpatory allegations of petitioner and affirmed in toto the assailed Decisions.
17
On
February 4, 1994, petitioner's Motion for Reconsideration was denied for lack of merit.
18

In this petition for certiorari, petitioner contends that respondent appellate court erred:
A.
[I]N WRONGLY APPLYING TO THE CASE AT BAR THE PRINCIPLE THAT FINDINGS
OF TRIAL COURTS ARE GENERALLY NOT DISTURBED ON APPEAL, PARTICULARLY
CONSIDERING THAT THE FINDINGS OF THE TRIAL COURT IN THIS CASE ARE
BASED ON CERTAIN REFUTABLE REASONS EXPRESSLY STATED IN ITS DECISION.
B.
[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE
CONCEPT AND ATTENDING INFIRMITY OF "SELF-SERVING EVIDENCE."
C.
[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE
CONCEPT AND ATTENDING INFIRMITY OF "NEGATIVE EVIDENCE."
D.
[F]OR IGNORING OR DISREGARDING THE GLARING AND FATAL INFIRMITIES OF
THE TESTIMONIES OF PROSECUTION WITNESSES, SPECIALLY AS IDENTIFICATION,
AS WELL AS TO THE PALPABLE IMPROBABILITY OF HEREIN PETITIONER HAVING
BEEN A SUPPOSED PARTICIPANT IN THE OFFENSES CHARGED, THE ERROR BEING
TANTAMOUNT TO GROSS MISAPPREHENSION OF THE RECORD.
E.
[I]N AFFIRMING THE CLEARLY REVERSIBLE DECISION OF THE TRIAL COURT.
We reverse.
Time and again, this Court has held that evidence to be believed, must proceed not only from
the mouth of a credible witness but the same must be credible in itself.
19
The trial court and
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76 | P a g e
respondent appellate court relied mainly on the testimony of prosecution witness Madaraog
that from her vantage position near the door of the bedroom she clearly saw how petitioner
allegedly participated in the robbery. After a careful review of the evidence, we find that the
identification of petitioner made by Madaraog and Quintal is open to doubt and cannot serve
as a basis for conviction of petitioner.
Firstly, it must be emphasized that of the four (4) prosecution witnesses, only the maid
Madaraog actually saw petitioner in the act of committing the crimes at bench. Witnesses
Quintal and Barbieto testified they only saw petitioner at the vicinity of the crimes before they
happened. There is, however, a serious doubt whether Madaraog and Quintal have correctly
identified petitioner. At the NBI headquarters, Madaraog described petitioner as 5'3" tall and
with a big mole between his eyebrows.
20
While Quintal also described petitioner as 5'3" and
with a black mole between his eyebrows.
21
On the basis of their description, the NBI
cartographer made a drawing of petitioner showing a dominant mole between his eyes.
22
As it
turned out, petitioner has no mole but only a scar between his eyes. Moreover, he is 5'8 1/2"
and not 5'3" tall. There is a big difference between a mole and a scar. A scar is a mark left in the
skin by a new connective tissue that replaces tissue injured.
23
On the other hand, a mole is a
small often pigmented spot or protuberance on the skin.
24
If indeed Madaraog and Quintal had
a good look at petitioner during the robbery, they could not have erroneously described
petitioner. Worthy to note, petitioner was not wearing any mask in the occasion. Madaraog's
attempt to explain her erroneous description does not at all convince, viz.:
xxx xxx xxx
Q We come now to the third person "iyong namang isa ay mga 28
o 29 ang edad, mga 5'2" o 5'3" ang taas, payat, medyo kulot ang
buhok at maiksi at mayroong malaking bilog na nunal sa pagitan
ng kilay sa noo. Mahaba at malantik ang pilikmata," who is that?
Interpreter: Witness referring to Exhibit "J-3."
Q Madam witness where is that round mole that appears in the
two eyebrows of the person?
A It is probably the cartographer that made a mistake.
Q I am referring to you now Exhibit "J". I call your attention to that
black rounded figure at the middle of the bridge of the nose
between the two eyebrows, what was that represent?
A A mole, sir.
25

xxx xxx xxx
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Q Among the four drawings prepared by the cartographer section
of the NBI, you will agree ith me Madam Witness that it is only
on Exhibit "J" when that rounded mole appear?
A No sir, it is the third one.
26

xxx xxx xxx
Q You did not call the attention of the NBI that the third one
whom you just identified asExhibit "J-3" did not bear that rounded
mole as mentioned by you, did you?
A I did not remember.
Q Why did you not remember having called the attention of the
NBI to that deficiency in the drawing?
A I was not able to call the attention of the NBI (sic) because there
were four of us who made the description.
27

Secondly, the trial court and the respondent appellate court unduly minimized the importance
of this glaring discrepancy in the identification of the petitioner. The trial court resorted to wild
guesswork. It ruled:
xxx xxx xxx
[T]he court has observed that Alvin has a prominent scar in between his two (2)
eyebrows. It is not within the realm of improbability that Alvin covered up that
scar with a black coloring to make it appear that he has a "nunal" which was
therefore the one described by Jovina and, which reinforces her testimony that
she had a good eye view of Alvin from the start of the robbery to its
conclusion.
28

This is a grave error. The trial court cannot convict petitioner on the basis of a deduction
that is irrational because it is not derived from an established fact. The records do not
show any fact from which the trial court can logically deduce the conclusion that
petitioner covered up his scar with black coloring to make it appear as a mole. Such an
illogical reasoning cannot constitute evidence of guilt beyond reasonable doubt. This
palpable error was perpetrated by respondent appellate court when it relied on the
theory that this "fact" should not be disturbed on appeal because the trial court had a
better opportunity to observe the behavior of the prosecution witnesses during the
hearing. This is a misapplication of the rule in calibrating the credibility of witnesses. The
subject finding of the trial court was not based on the demeanor of any witnesses which
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it had a better opportunity to observe. Rather, it was a mere surmise, an illogical one at
that. By no means can it be categorized as a fact properly established by evidence.
And thirdly, corroborating witness Barbieto has serious lapses in her testimony that diluted her
credibility, thus:
xxx xxx xxx
Q I am showing to you Exhibit "M" and please point to this
Honorable Court that portion where the accused (Alvin Tuason)
allegedly asked from you the price of that plastic pack of ice.
A I did not state it in my statement.
Q Why did you say a moment ago that you place it there
(Sinumpaang Salaysay)?
A But that is the truth, sir.
Q I am not asking you the truth or falsehood . . . I am only asking
you why you said a moment ago that the portion of your
testimony now is incorporated in Exhibit "M".
A [B]ecause they asked the price of the ice.
29

xxx xxx xxx
Q After reading Exhibit "M", did you or did you not call the
attention of the investigator that some of your narrations were
not incorporated therein?
A No, I did not because he did not ask me.
Q [Y]ou did not come forward to volunteer that some portions of
your narration were not incorporated therein?
A [T]he investigator knew it.
Q You mean to tell the Honorable Court that after reading Exhibit
"M", the NBI investigator knew that there were some lapses or
omissions in your statement?
A It's up to the investigator.
30

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Barbieto is a school teacher and the kind of excuses she proffered does not enhance her
credibility. However, she and Quintal merely testified they saw petitioner within the vicinity
where the crimes were committed. By itself, this circumstance cannot lead to the conclusion
that petitioner truly committed the crimes at bench. Petitioner, we note, lives in the same
vicinity as the victim. To use his words, he lives some six (6) posts from the house of Torres. His
presence in the said vicinity is thus not unnatural.
The doubtful identification of petitioner was not at all cured by the process followed by the NBI
agents when petitioner was pointed to by Madaraog and the other prosecution witnesses in
their headquarters. Madaraog's identification of petitioner from a line-up at the NBI was not
spontaneous and independent. An NBI agent improperly suggested to them petitioner's person.
Petitioner thus testified:
xxx xxx xxx
Q Mr. Witness (Alvin Tuason) do you know of any reason why
these two witnesses in the persons of Jovina Madaraog Torres
and Mary Barbieto would be testifying in the manner that they
did against you?
A At the NBI, I saw them with the NBI agent. After the agent
pointed at me, later on they also pointed at me.
31

On cross-examination, he declared:
xxx xxx xxx
Q Do you know the reason why they testified and pointed to you
as one of the robbers of July 19, 1988?
A Because when I was at the NBI, the NBI agent pointed at me.
Q Did you see them at the NBI when they pointed at you?
A They were outside a room where there was a glass window.
Q So you can see those persons outside the room?
A Yes, sir.
Q When they pointed you and identified you where there other
person with you when you were lined up during that time?
A In the second line I was in the line-up.
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Q When was the first time they pointed you as one of the
suspects?
A In the Office of the Chief Unit there, to the third floor of the NBI
building.
32

This damaging testimony of the petitioner was not rebutted by the prosecution. The NBI
agent present during the identification of petitioner was not presented to belie
petitioner's testimony. Consequently, the identification of the petitioner in the NBI
headquarters is seriously flawed. According to writer Wall, the mode of identification
other than an identification parade is a show-up, the presentation of a single suspect to
a witness for purposes of identification. Together with its aggravated forms, it
constitutes the most grossly suggestive identification procedure now or ever used by
the police.
33

The respondent appellate court, however, dismissed this claim of petitioner as self-serving.
Again, the ruling misconstrues the meaning of self-serving evidence. Self-serving evidence is not
to be literally taken as evidence that serves one's selfish interest. Under our law of
evidence, self-serving evidence is one made by a party out of court at one time; it does not
include a party's testimony as a witness in court. It is excluded on the same ground as any
hearsay evidence, that is the lack of opportunity for cross-examination by the adverse party,
and on the consideration that its admission would open the door to fraud and to fabrication of
testimony. On the other hand, a party's testimony in court is sworn and affords the other party
the opportunity for cross-examination.
34
Clearly, petitioner's testimony in court on how he was
identified by the prosecution witnesses in the NBI headquarters is not self-serving.
Petitioner's main defense is alibi. He professed that on July 19, 1988 he was mixing dough at
TipTop Bakeshop from 7:00 o'clock in the morning till 1:00 o'clock in the afternoon. With the
usual traffic jam, it takes him two (2) hours to commute from Lagro to Tondo. It was thus
physically impossible for him to be at the locus criminis. He said he learned about the robbery
thru his neighbor three (3) days thereafter. He did not flee. He was arrested by the NBI agents
more than one (1) month after the crimes were perpetrated.
Angeli Tuason's corroborative testimony established that her brother had an eye examination
on July 17, 1988
35
and she reminded him to work early on July 19, 1988 which he did.
Judges should not at once look with disfavor at the defense of alibi. Alibi should be considered
in light of all the evidence on record for it can tilt the scales of justice in favor of the
accused.
36
In People vs. Omega,
37
we held:
Although alibi is known to be the weakest of all defenses for it is easy to concoct
and difficult to disprove, nevertheless, where the evidence for the prosecution is
weak and betrays lack of concreteness on the question of whether or not the
accused committed the crime charged, the defense of alibi assumes importance.
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The case at bench reminds us of the warning that judges seem disposed more readily to credit
the veracity and reliability of eyewitnesses than any amount of contrary evidence by or on
behalf of the accused , whether by way of alibi, insufficient identification, or other
testimony.
38
They are unmindful that in some cases the emotional balance of the eyewitness is
disturbed by her experience that her powers of perception becomes distorted and her
identification is frequently more untrustworthy. Into the identification, enter other motives,
not necessarily stimulated originally by the accused
personally the desire to requite a crime, to find a scapegoat, or to support, consciously or
unconsciously, an identification already made by another.
39

IN VIEW THEREOF, the Decision of December 16, 1993 is REVERSED and SET ASIDE and
petitioner Alvin Tuason is ACQUITTED.
SO ORDERED.
Narvasa, C.J., Bidin, Regalado and Mendoza, JJ., concur.
Footnotes
1 Judge Jaime N. Salazar, Jr., Presiding,
NCJR, Branch 103.
2 Criminal Case No. Q-88-397, Original
Records, pp. 3-5.
3 Criminal Case No. Q-88-396, Original
Records, p. 1.
4 T.S.N. March 20, 1989.
5 Id., p. 9.
6 ibid.
7 Id., p. 10.
8 Id., pp. 13-14.
9 Exhibit "J."
10 T.S.N. July 5, 1989, p. 3.
11 T.S.N. September 29, 1989, p. 3, 6-7.
12 Flour-mixer, baker, messenger, thirty-
one (31) years old, married, and a resident
of Block 27, Lot 13, Lagro Subdivision,
Novaliches, Quezon City, T.S.N. January 29,
1990, p. 3.
13 Id., p. 11.
14 T.S.N. January 29, 1990, pp. 12-14.
15 T.S.N. March 12, 1990, pp. 3, 5.
16 Joint Decision of May 14, 1990, Rollo, p.
56.
17 Abad Santos, Quirino D. Jr., J. ponente,
Cui, Emeterio C., and Lagamon, Alfredo
J., JJ., concurring, Rollo, pp. 88-94.
18 Id., p. 105.
19 See People vs. Escalante, G.R. no.
106633, December 1, 1994.
20 Annex "G."
21 Annex "K."
22 Exhibit "J."
23 Webster's Third New International
Dictionary, 1970 ed., p. 2025.
24 The Merriam-Webster Dictionary, 1974
ed., p. 452.
25 T.S.N. May 24, 1989, p. 9.
26 Id., p. 10.
27 Id., p. 11.
28 Court of Appeals Decision, pp. 4-5; Rollo,
pp. 91-92.
29 T.S.N. September 29, 1989, pp. 19-20.
30 Id., pp. 21-22.
31 T. S. N. January 29, 1990, p. 19.
32 T. S. N. February 6, 1990, 12-14.
33 See Louisell, David W., Kaplan, John, and
Waltz, Jon R., Cases and Materials on
Evidence; Wall, Eye-witness Identification in
Criminal Cases, 1968 ed., p. 1263.
34 Moran, Manuel V., Comments on the
Rules of Court, Vol. 5, 1980 ed., p.
222 citing National Development Co., vs.
Workmen's Compensation Commission, L-
21724, April 27, 1967, 19 SCRA 861.
35 T.S.N. February 6, 1990, p. 6.
36 See People vs. Jalon, G. R. No. 93729,
November, 13, 1992, 215 SCRA 680.
37 No. L-29091, April 14, 1977, 76 SCRA
262.
38 Supra., Borchard, Convicting the
Innocent, p. 1230.
39 Id.

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SUPREME COURT
Manila
EN BANC
G.R. No. 79094 June 22, 1988
MANOLO P. FULE, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, respondent.
Balagtas P. Ilagan for petitioner.
The Solicitor General for respondent.

MELENCIO-HERRERA, J.:
This is a Petition for Review on certiorari of the Decision of respondent Appellate Court, which
affirmed the judgment of the Regional Trial Court, Lucena City, Branch LIV, convicting petitioner
(the accused-appellant) of Violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on
the basis of the Stipulation of Facts entered into between the prosecution and the defense
during the pre-trial conference in the Trial Court. The facts stipulated upon read:
a) That this Court has jurisdiction over the person and subject matter of this
case;
b) That the accused was an agent of the Towers Assurance Corporation on or
before January 21, 1981;
c) That on January 21, 1981, the accused issued and made out check No. 26741,
dated January 24, 1981 in the sum of P2,541.05;
d) That the said check was drawn in favor of the complaining witness, Roy
Nadera;
e) That the check was drawn in favor of the complaining witness in remittance of
collection;
f) That the said check was presented for payment on January 24, 1981 but the
same was dishonored for the reason that the said checking account was already
closed;
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g) That the accused Manolo Fule has been properly Identified as the accused
party in this case.
At the hearing of August 23, 1985, only the prosecution presented its evidence consisting of
Exhibits "A," "B" and "C." At the subsequent hearing on September 17, 1985, petitioner-
appellant waived the right to present evidence and, in lieu thereof, submitted a Memorandum
confirming the Stipulation of Facts. The Trial Court convicted petitioner-appellant.
On appeal, respondent Appellate Court upheld the Stipulation of Facts and affirmed the
judgment of conviction.
1

Hence, this recourse, with petitioner-appellant contending that:
The Honorable Respondent Court of Appeals erred in the decision of the
Regional Trial Court convicting the petitioner of the offense charged, despite the
cold fact that the basis of the conviction was based solely on the stipulation of
facts made during the pre-trial on August 8, 1985, which was not signed by the
petitioner, nor by his counsel.
Finding the petition meritorious, we resolved to give due course.
The 1985 Rules on Criminal Procedure, which became effective on January 1, 1985, applicable
to this case since the pre-trial was held on August 8, 1985, provides:
SEC. 4. Pre-trial agreements must be signed. No agreement or admission
made or entered during the pre-trial conference shall be used in evidence
against the accused unless reduced to writing and signed by him and his counsel.
(Rule 118) [Emphasis supplied]
By its very language, the Rule is mandatory. Under the rule of statutory construction, negative
words and phrases are to be regarded as mandatory while those in the affirmative are merely
directory (McGee vs. Republic, 94 Phil. 820 [1954]). The use of the term "shall" further
emphasizes its mandatory character and means that it is imperative, operating to impose a duty
which may be enforced (Bersabal vs. Salvador, No. L-35910, July 21, 1978, 84 SCRA 176). And
more importantly, penal statutes whether substantive and remedial or procedural are, by
consecrated rule, to be strictly applied against the government and liberally in favor of the
accused (People vs. Terrado No. L-23625, November 25, 1983, 125 SCRA 648).
The conclusion is inevitable, therefore, that the omission of the signature of the accused and
his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible
in evidence. The fact that the lawyer of the accused, in his memorandum, confirmed the
Stipulation of Facts does not cure the defect because Rule 118 requires both the accused and
his counsel to sign the Stipulation of Facts. What the prosecution should have done, upon
discovering that the accused did not sign the Stipulation of Facts, as required by Rule 118, was
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to submit evidence to establish the elements of the crime, instead of relying solely on the
supposed admission of the accused in the Stipulation of Facts. Without said evidence
independent of the admission, the guilt of the accused cannot be deemed established beyond
reasonable doubt.
Consequently, under the circumstances obtaining in this case, the ends of justice require that
evidence be presented to determine the culpability of the accused. When a judgment has been
entered by consent of an attorney without special authority, it will sometimes be set aside or
reopened (Natividad vs. Natividad, 51 Phil. 613 [1928]).
WHEREFORE, the judgment of respondent Appellate Court is REVERSED and this case is hereby
ordered RE-OPENED and REMANDED to the appropriate Branch of the Regional Trial Court of
Lucena City, for further reception of evidence.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-
Aquino and Medialdea, JJ., concur.
Paras, J., took no part.
Gutierrez, Jr., J., is on leave.

Footnotes
1 Per Justice Gloria C. Paras; Justices Jose C. Campos, Jr. and Conrado T.
Limcaoco, concurring.

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THIRD DIVISION
[G.R. No. 108028. July 30, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISTINA M. HERNANDEZ, accused-
appellant.
D E C I S I O N
FRANCISCO, J.:
Accused-appellant Cristina Hernandez was charged with the crime of illegal recruitment
committed in large scale in violation of Article 38 (a) and (b) in relation to Article 13 (b) and (c)
of the New Labor Code,
[1]
committed as follows:
"That in or about and during the period comprised between December 14, 1988 to December
24, 1988, inclusive in the City of Manila, Philippines, the said accused representing herself to
have the capacity to contract, enlist and transport Filipino workers for employment abroad, did
then and there willfully and unlawfully for a fee, recruit and promise employment/job
placement abroad to the following persons to wit: ROGELIO N. LEGASPI, ULDARICO P. LEGASPI,
SONNY P. BERNABE, ARNEL B. MENDOZA, BENITO L. BERNABE, ARNOLD P. VALENZUELA,
ARMANDO P. PAGULAYAN, GREGORIO P. MENDOZA, JR., RONALD T. CORREA, DANILO PALAD
and ROBERT P. VELASQUEZ (hereinafter known as private complainants) without first having
secured the required license or authority from the POEA."
[2]
(underscoring supplied.)
Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. Of the
fourteen (14) private complainants, four (4) were presented as witnesses for the prosecution,
namely: Benito L. Bernabe, Robert P. Velasquez, Gregorio P. Mendoza and Arnel
Mendoza. They testified to the following essential facts: Private complainants' first encounter
with the appellant was on December 12, 1988 when one Josefa Cinco accompanied them to the
office of the Philippine Thai Association, Inc. (Philippine-Thai) in Ermita, Manila to meet the
appellant. Introducing herself as the general manager of Philippine-Thai, appellant asserted
that her company recruited workers for placement abroad and asked private complainants if
they wanted to work as factory workers in Taipeh. Enticed by the assurance of immediate
employment and an $800 per month salary, private complainants applied. Appellant required
private complainants to pay placement and passport fees in the total amount of P22,500.00 per
applicant, to be paid in three installments, to wit: P1,500 on December 14, 1988, P10,000.00 on
December 16, 1988, and P11,000.00 on December 22, 1988. When the complainants-witnesses
paid the first two installments, they were issued receipts by Liza Mendoza, the alleged treasurer
of Philippine-Thai signed by the latter in the presence of the appellant. The receipts for the last
installment paid by them were signed by Liza Mendoza, and the appellant. After having
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received the entire amount
[3]
from the witnesses, appellant assured them that they would be
able to leave for Taipeh sometime before the end of December, 1988. But contrary to
appellant's promise, complainants-witnesses were unable to leave for abroad. They demanded
for the return of their money but to no avail. Appellant's unfulfilled promise of employment
and her refusal to return the money that had been paid by way of placement and passport fees,
triggered the filing of the complaint.
For its part, the defense presented as its lone witness, the appellant whose testimony
consisted mainly in denying the charges against her. Appellant claimed that she never met any
of the complainants nor did she ever recruit any of them. She likewise denied having received
money from anyone and asserted that she did not know any Liza Mendoza who is the alleged
treasurer of Philippine-Thai. Appellant maintained that although she had an office in Ermita
Building located at Arquiza Street, Ermita, Manila, the said office belonged to B.C. Island Wood
Products Corporation which was engaged in the logging business. However, when questioned
further, appellant admitted being the president of Philippine-Thai but only in a nominal
capacity, and claimed that as nominee-president, she did not participate in any of its
transactions. Appellant likewise insisted that Philippine-Thai was engaged solely in the barong
tagalog business.
After careful calibration of the evidence presented by the prosecution and the defense, the
court a quo rendered a decision holding that the defense of "denial" interposed by the accused
could not prevail over the positive and clear testimonies of the prosecution witnesses which
had established the guilt of the accused beyond reasonable doubt.
[4]
The dispositive portion of
the decision reads:
"WHEREFORE, premises considered, this Court hereby finds that the accused CRISTINA
HERNANDEZ, (sic) guilty beyond reasonable doubt of the crime of illegal recruitment,
committed in large scale, as defined in Article 38(a) & (b) of Presidential Decree No. 1412, x x x
in relation to Article 13 (b) and (c) x x x, accordingly, sentences the accused to suffer the
penalty of life imprisonment (RECLUSION PERPETUA) with the accessory penalties provided for
by law; to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary
imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of
TWENTY EIGHT THOUSAND AND FIVE HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ
the amount of TWENTY TWO THOUSAND AND FIVE HUNDRED (P22,500.00) PESOS; to
GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00)
PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED
(P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the
costs.
SO ORDERED.
Manila, Philippines, November 29, 1991."
[5]

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Appellant comes to this Court for the reversal of the judgment of conviction assigning the
following errors against the lower court:
I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED "LIABLE OF (sic) ILLEGAL RECRUITMENT
COMMITTED IN A LARGE SCALE AND BY A SYNDICATED (sic)" FOR HAVING "MAINTAINED
OFFICE WITHOUT LICENSE OR REGISTRATION FROM THE DEPARTMENT OF LABOR, THRU ITS
OFFICE, THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA)."
II
THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF THE "FACT THAT ACCUSED CRISTINA
M. HERNANDEZ HAD BEEN CHARGED x x x OF ANOTHER ILLEGAL RECRUITMENT x x x DOCKETED
AS CRIMINAL CASE NO. 88-62599" AND IN CONSIDERING THE PENDENCY THEREOF AS
EVIDENCE OF THE "SCHEME AND STRATEGY ADOPTED BY THE ACCUSED x x x AND PRACTICED
WITH THE HELP OF HER AGENTS AND OTHER PERSONS WORKING UNDER THE SHADE OF HER
PROTECTION."
III
THE TRIAL COURT ERRED IN NOT GIVING CREDENCE OR WEIGHT TO THE DEFENSE OF THE
ACCUSED.
[6]

The first assignment of error is anchored on the contention that the prosecution failed to
prove one of the essential elements of the crime of illegal recruitment -- that the offender is a
non-licensee or non-holder of authority to lawfully engage in the recruitment and placement of
workers.
[7]
The aforementioned element, specifically the fact that neither appellant nor
Philippine-Thai was licensed or authorized to recruit workers as shown by the records of the
POEA, was the subject of a stipulation proposed by the prosecution and admitted by the
defense during trial. Appellant assails as erroneous the reliance placed by the prosecution on
the said stipulation of facts in dispensing with the presentation of evidence to prove the said
element of the crime of illegal recruitment. Appellant argues that: (1) the stipulation of facts
was not tantamount to an admission by the appellant of the fact of non-possession of the
requisite authority or license from the POEA, but was merely an admission that the Chief
Licensing Officer of the POEA, if presented in court, would testify to this fact, and (2) the
stipulation of facts is null and void for being contrary to law and public policy. Appellant posits
the foregoing arguments to bolster her contention that the stipulation of facts did not relieve
the prosecution of its duty to present evidence to prove all the elements of the crime charged
to the end that the guilt of the accused may be proven beyond reasonable doubt.
At the outset, it should be said that the above contention and the arguments are
insignificant in view of the fact that records disclose that the prosecution had in fact presented
evidence to prove the said element of the crime of illegal recruitment. "EXHIBIT I", a
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certification issued by the Chief Licensing Branch of the POEA, attesting to the fact that neither
appellant nor Philippine-Thai is licensed/authorized to recruit workers for employment abroad,
was offered and admitted in evidence without the objection of the appellant.
[8]

Although appellant's arguments find no significant bearing in the face of the existence of
"EXHIBIT I", they nonetheless require deeper scrutiny and a clear response for future
application. Hence, the following discussion.
Appellant correctly distinguishes between an admission that a particular witness if
presented in court would testify to certain facts, and an admission of the facts themselves.
According to the appellant, what was stipulated on between the prosecution and defense
counsel at the hearing on June 6, 1990 was "merely that the testimony of the Chief Licensing
Officer of the POEA would be to the effect that appellant is not licensed nor authorized to
recruit workers",
[9]
Thus:
"Prosecutor
x x x Before we call on our first witness, we propose some stipulations regarding the
testimony of the Chief Licensing Branch of the POEA that Cristina Hernandez is not a
(sic) licensed nor authorized by the Department of Labor to recruit workers abroad.
Court
Would you agree?
Atty. Ulep (Counsel for the Accused): Agreed, Your Honor."
[10]

She claims that the foregoing clearly indicate that there was no judicial admission of the
fact of non-possession of a license/authority but rather a mere admission that the witness, if
presented, would testify to such fact. This being the case, it remained incumbent upon the
prosecution to present evidence of such fact. To buttress her position, the following was cited
to note the distinction:
"Suppose a case is set for trial and one of the parties moves for a continuance because of the
absence of W, an important witness. His opponent, who is anxious to go to trial; asks what are
the facts to which W would testify. The other attorney tells him, adding: 'If I consent to the
overruling of my motion, will you stipulate that those are the facts?' The attorney who is
pressing for trial says: 'No but I will stipulate that if W were called in this case as a witness, he
would so testify.' What is the difference between the two stipulations?
In the first stipulation proposed there is a judicial admission of the facts, and they cannot be
contradicted. But the second stipulation proposed will only have the same effect as if the
witness had testified to the facts. Such testimony the party is free to contradict."
[11]

The distinction, though cogent, is unfortunately inapplicable to the case at
bar. Conveniently omitted from the appellant's reply brief is the ensuing statement made by
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the court after counsel for the accused, Atty. Ulep agreed to the stipulation proposed by the
prosecution, to wit:
Atty. Ulep (counsel for the accused): Agreed, Your Honor.
Court
The prosecution and the defense agreed to stipulate/admit that from the record of the
POEA Licensing and Regulation Office, Dept. of Labor and Employment, accused
Cristina Hernandez/Phil. etc., Ass. x x x is neither licensed nor authorized by that office
to recruit workers overseas abroad and that if the duly authorized representative from
the POEA Administration is to take the witness stand, he will confirm to this fact as
borne by the records.
[12]
(Underscoring supplied .)
From the foregoing, it is evident that the prosecution and the defense counsel stipulated
on two things: that "x x x from the record of the POEA, x x x accused Cristina Hernandez, Phil.
etc. Ass. x x x is neither licensed nor authorized by that office to recruit workers for overseas
abroad and that if the duly authorized representative from the POEA Administratin (sic) is to
take the witness stand, he will confirm to this fact x x x."
[13]
The claim that the lower court
mistakenly interpreted defense counsel's acquiescence to the prosecution's proposed
stipulation as an admission of non-possession of the requisite POEA license or authority is
belied by the fact that after the above enunciation by the court, no objection was interposed by
defense counsel.
Appellant further contends that granting arguendo that defense counsel had in fact agreed
to the above stipulation of facts, the same is null and void for being contrary to the well-
established rule that a stipulation of facts is not allowed in criminal cases. To bolster this
contention, appellant cited the consistent ruling of this Court on the matter. Thus, as held in the
case of U.S. vs. Donato:
[14]

"Agreements between attorneys for the prosecution and for the defense in criminal cases, by
which it is stipulated that certain witnesses, if present, would testify to certain facts prevent a
review of the evidence by the Supreme Court and are in violation of the law."
[15]

The above ruling was reiterated in a subsequent case where the accused was convicted
solely on the basis of an agreement between the fiscal and the counsel for the accused that
certain witnesses would testify confirming the complaint in all its parts. In reversing the
judgment of conviction, this Court held that:
"It is neither proper nor permissible to consider a case closed, or to render judgment therein,
by virtue of an agreement entered into between the provincial fiscal and the counsel for the
accused with reference to facts, some of which are favorable to the defense, and others related
to the prosecution, without any evidence being adduced or testimony taken from the witnesses
mentioned in the agreement; such practice is not authorized and defeats the purposes of
criminal law; it is an open violation of the rules of criminal procedure x x x."
[16]

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The rule prohibiting the stipulation of facts in criminal cases is grounded on the
fundamental right of the accused to be presumed innocent until proven guilty, and the
corollary duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. It
is therefore advanced that the prosecution being duty-bound to prove all the elements of the
crime, may not be relieved of this obligation by the mere expedient of stipulating with defense
counsel on a matter constitutive of an essential element of the crime charged.
The rationale behind the proscription against this class of agreements between prosecution
and defense was enunciated in the case of U.S. vs. Manlimos:
[17]

"It is not supposed to be within the knowledge or competence of counsel to predict what a
proposed witness shall say under the sanction of his oath and the test of cross-examination. A
conviction for crime should not rest upon mere conjecture. Nor is it possible for a trial court to
weigh with exact nicety the contradictory declaration of witnesses not produced so as to be
subjected to its observation and its judgment as to their credibility."
[18]

However, in the light of recent changes in our rules on criminal procedure, particularly the
pre-trial provisions found in Rule 118, the prohibition against a stipulation of facts in criminal
cases no longer holds true. Rule 118 provides the following:
"Section 1. Pre-trial; when proper To expedite trial, where the accused and counsel agree,
the court shall conduct a pre-trial conference on the matters enunciated in Section 2 hereof,
without impairing the rights of the accused.
Sec. 2 Pre-trial conference; subjects x x x The pre-trial conference shall consider the following:
(a) Plea bargaining;
(b) Stipulation of facts;
x x x x x x x x x"(underscoring supplied)
By virtue of the foregoing rule, a stipulation of facts in criminal cases is now expressly
sanctioned by law. In further pursuit of the objective of expediting trial by dispensing with the
presentation of evidence on matters that the accused is willing to admit, a stipulation of facts
should be allowed not only during pre-trial but also and with more reason, during trial proper
itself. Parenthetically, although not expressly sanctioned under the old rules of court, a
stipulation of facts by the parties in criminal cases has long been allowed and recognized as
declarations constituting judicial admissions, hence, binding upon the parties. In the case
of People vs. Mapa
[19]
where the accused was charged with illegal possession of firearms, the
prosecution and the defense stipulated on the fact that the accused was found in possession of
a gun without the requisite permit or license. More at point is the case of People vs.
Bocar
[20]
wherein the fiscal proposed the admission by the accused of the affidavits and other
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exhibits already presented by the prosecution to dispense with oral testimonies on the matter.
Holding that the admissions made by the parties were binding, this Court stated that:
"x x x [T]here is nothing unlawful or irregular about the above procedure. The declarations
constitute judicial admissions, which are binding on the parties, by virtue of which the
prosecution dispensed with the introduction of additional evidence and the defense waived the
right to contest or dispute the veracity of the statements contained in the
exhibits."
[21]
(underscoring supplied .)
American jurisprudence has established the acceptability of the practice of stipulating
during the trial of criminal cases, and categorically stated in People vs. Hare
[22]
that:
"That record discloses that the defense counsel stipulated to what certain witnesses
would testify if they were present in court. x x x
x x x The defendant contends that it was error for his counsel to make these stipulations. This
court has held that an accused may by stipulation waive the necessity of proof of all or any part
of the case which the people have alleged against him and that having done so, he cannot
complain in this Court of evidence which he has stipulated into the record.
[23]

The corollary issue left for the determination of this Court is whether or not Section 4 of
Rule 118 -- requiring an agreement or admission made or entered during the pre-trial
conference to be reduced in writing and signed by the accused and his counsel before the same
may be used in evidence against the accused -- equally applies to a stipulation of facts made
during trial. We resolved this issue in the negative.
A stipulation of facts entered into by the prosecution and defense counsel during trial in
open court is automatically reduced into writing and contained in the official transcript of the
proceedings had in court. The conformity of the accused in the form of his signature affixed
thereto is unnecessary in view of the fact that: "x x x an attorney who is employed to manage a
party's conduct of a lawsuit x x x hasprima facie authority to make relevant admissions by
pleadings, by oral or written stipulation, x x x which unless allowed to be withdrawn are
conclusive."
[24]
(underscoring supplied.) In fact, "judicial admissions are frequently those of
counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his
client. When such admissions are made x x x for the purpose of dispensing with proof of some
fact, x x x they bind the client, whether made during, or even after, the trial."
[25]

The foregoing find basis in the general rule that a client is bound by the acts of his counsel
who represents him.
[26]
For all intents and purposes, the acts of a lawyer in the defense of a
case are the acts of his client. The rule extends even to the mistakes and negligence committed
by the lawyer except only when such mistakes would result in serious injustice to the
client.
[27]
No cogent reason exists to make such exception in this case. It is worth noting that
Atty. Ulep, appellant's counsel in the lower court, agreed to the stipulation of facts proposed by
the prosecution not out of mistake nor inadvertence, but obviously because the said stipulation
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of facts was also in conformity to defense's theory of the case. It may be recalled that
throughout the entire duration of the trial, appellant staunchly denied ever having engaged in
the recruitment business either in her personal capacity or through Philippine-Thai. Therefore,
it was but logical to admit that the POEA records show that neither she nor Philippine-Thai was
licensed or authorized to recruit workers.
It is true that the rights of an accused during trial are given paramount importance in our
laws on criminal procedure. Among the fundamental rights of the accused is the right to
confront and cross-examine the witnesses against him.
[28]
But the right of confrontation
guaranteed and secured to the accused is a personal privilege which may be waived.
[29]
Thus, in
the case of U.S. vs. Anastasio,
[30]
this Court deemed as a waiver of the right of confrontation, the
admission by the accused that witnesses if present would testify to certain facts stated in the
affidavit of the prosecution.
[31]

In the same vein, it may be said that such an admission is a waiver of the right of an
accused to present evidence on his behalf. Although the right to present evidence is guaranteed
by no less than the Constitution itself for the protection of the accused, this right may be
waived expressly or impliedly.
[32]
This is in consonance with the doctrine of waiver which
recognizes that "x x x everyone has a right to waive, and agree to waive, the advantage of a law
or rule made solely for the benefit and protection of the individual in his private capacity, if it
can be dispensed with and relinquished without infringing on any public right, and without
detriment to the community at large."
[33]

The abovementioned doctrine is squarely applicable to the case at bar. Appellant was
never prevented from presenting evidence contrary to the stipulation of facts. If appellant
believed that the testimony of the Chief Licensing Officer of the POEA would be beneficial to
her case, then it is the defense who should have presented him. Her continuous failure to do so
during trial was a waiver of her right to present the pertinent evidence to contradict the
stipulation of facts and establish her defense.
In view of the foregoing, the stipulation of facts proposed during trial by prosecution and
admitted by defense counsel is tantamount to a judicial admission by the appellant of the facts
stipulated on. Controlling, therefore, is Section 4, Rule 129 of the Rules of Court which provides
that:
"An admission, verbal or written, made by a party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made."
We now go to appellant's second and third assignment of errors. In her second assignment
of error, appellant makes much ado of the "judicial notice" taken by the lower court of the fact
that appellant had been charged with another illegal recruitment case,
[34]
and in considering
the pendency thereof as evidence of the scheme and strategy adopted by the
accused. Appellant cites a violation of Section 3 of Rule 129 of the Rules of Court which
provides that before the court may take judicial notice of any matter, the parties shall be heard
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thereon if such matter is decisive of a material issue in the case. It is claimed that the lower
court never announced its intention to take judicial notice of the pendency of the other illegal
recruitment case nor did it allow the accused to be heard thereon.
It is true that as a general rule, courts are not authorized to take judicial notice of the contents
of the records of other cases, even when such cases have been tried or are pending in the same
court, and notwithstanding the fact that both cases may have been tried or are actually pending
before the same judge.
[35]
However, this rule is subject to the exception that:
"x x x in the absence of objection and as a matter of convenience to all parties, a court may
properly treat all or any part of the original record of the case filed in its archives as read into
the records of a case pending before it, whenwith the knowledge of the opposing party,
reference is made to it, by name and number or in some other manner by which it is sufficiently
designated, x x x"
[36]
(underscoring supplied .)
The judicial notice taken by the lower court of the pendency of another illegal recruitment
case against the appellant falls squarely under the above exception in view of the fact that it
was the appellant herself who introduced evidence on the matter when she testified in open
court as follows:
"Q: You mean to say . . . by the way, where (sic) were you at the NBI when Mrs. Cinco
inquired from you about placement abroad?
A: I was just invited by the personnel of the NBI and I was not allowed to go home.
Q: Why were you invited by the NBI?
A: They told me that there was a complaint against me.
Q: Complaint about what?
A: The same case.
Q: You mean illegal recruitment also?
A: Yes, sir.
xxx xxx xxx
Q: You made mention than an illegal recruitment case which was supposed to be the
cause of your detention at the NBI. . . .
I am not referring to this case, Mrs. Hernandez -- what happened to that case, what is
the status of that case?
A: It is also in this sala.
COURT: It is already submitted for decision.
[37]

Even assuming, however, that the lower court improperly took judicial notice of the
pendency of another illegal recruitment case against the appellant, the error would not be fatal
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to the prosecution's cause. The judgment of conviction was not based on the existence of
another illegal recruitment case filed against appellant by a different group of complainants,
but on the overwhelming evidence against her in the instant case.
Anent the last assignment of error, suffice it to say that we do not find any compelling
reason to reverse the findings of the lower court that appellant's bare denials cannot overthrow
the positive testimonies of the prosecution witnesses against her.
Well established is the rule that denials if unsubstantiated by clear and convincing evidence
are negative, self-serving evidence which deserve no weight in law and cannot be given greater
evidentiary weight over the testimony of credible witnesses who testify on affirmative
matters.
[38]
That she did not merely deny, but likewise raised as an affirmative defense her
appointment as mere nominee-president of Philippine-Thai is a futile attempt at exculpating
herself and is of no consequence whatsoever when weighed against the positive declarations of
witnesses that it was the appellant who executed the acts of illegal recruitment as complained
of.
Finally, under Article 39 of the New Labor Code, the penalty for illegal recruitment
committed in large scale is life imprisonment and a fine of ONE HUNDRED THOUSAND PESOS
(P100,000.00). As previously held by this Court, life imprisonment is not synonymous
with reclusion perpetua.
[39]
The lower court erred in imposing "the penalty of life imprisonment
(reclusion perpetua) with the accessory penalties provided for by law; x x x"
[40]
(Underscoring
supplied)
WHEREFORE, appellant's conviction of the crime of illegal recruitment in large scale is
hereby AFFIRMED, and the penalty imposed MODIFIED as follows: the court sentences the
accused to suffer the penalty of life imprisonment and to pay a fine of ONE HUNDRED
THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to
return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND FIVE
HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO
THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of
TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the
amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without
subsidiary imprisonment in case of insolvency; and to pay the costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.

[1]
"Art. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be
undertaken by non-licenses or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of
Labor and Employment or any law enforcement officers may initiate complaints under this article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and
shall be penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme, defined under the first paragraph
hereof. Illegal recruitment is deemed committed against three (3) or more persons individually or as a group. x x x"
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[2]
Decision dated November 29, 1991, p. 1; Rollo, p. 14.
[3]
Witnesses paid a total of P22,500.00 each with the exception of BENITO BERNABE who paid P28,500.00.
[4]
Supra, note 2, pp. 5-6; Rollo, pp. 18-19.
[5]
Id. at pp. 7-8; Rollo, pp. 20-21.
[6]
Appellant's Brief, p. 9.
[7]
People vs. Bodozo, 215 SCRA 33, 40.
[8]
Records, pp. 77-B and 79.
[9]
Appellant's Reply Brief, March 30, 1995, p. 3.
[10]
TSN, Hearing on June 6, 1990, pp. 1-2.
[11]
Supra, note 9, p. 4. Francisco, The Revised Rules of Court in the Philippines (1990), Vol. VII, p. 101 citing Tracy, Handbook on Evidence, pp.
16-17.
[12]
TSN, supra note 10.
[13]
Id.
[14]
9 Phil. 701.
[15]
Id. at p. 101.
[16]
U.S. vs. Pobre, 11 Phil. 51, 51-52.
[17]
11 Phil. 547.
[18]
Id. at p. 548.
[19]
People vs. Mapa, 20 SCRA 1164, 1165.
[20]
People vs. Bocar, 27 SCRA 512.
[21]
Id., at p. 518.
[22]
People vs. Hare, 185 N.E. 2d 178.
[23]
Id., at p. 179. Also People vs. Hawkins, 189 N.E. 2d 252.
[24]
McCormick on Evidence, 2nd Ed. p. 641.
[25]
31 C.J.S. 537
[26]
People vs. Ravelo, 202 SCRA 655; Ayllon vs. Sevilla, 156 SCRA 257.
[27]
Villa Rhecar Bus vs. De la Cruz, 157 SCRA 13; De La Cruz vs. C.A., June 29, 1989.
[28]
Section 1(f) Rule 115 of the Rules of Court.
[29]
U.S. vs. Anastasio, 6 Phil. 413.
[30]
Id.
[31]
Id. citing United States vs. Sacramento, 2 Mont. 239; 25 Am. Rep. 742.
[32]
People vs. Dichoso, 96 SCRA 957; People vs. Angco, 103 Phil. 33.
[33]
People vs. Donato, 198 SCRA 130, 154.
[34]
Criminal Case No. 88-625 99 pending in the same court.
[35]
Tabuena vs. CA, 196 SCRA 650.
[36]
Id., at p. 656, citing U.S. vs. Claveria, 29 Phil. 527.
[37]
TSN, Hearing on August 22, 1990, p. 5.
[38]
People vs. Guibao, 217 SCRA 64; People vs. Marti, 193 SCRA 57; People vs. Song, et al., 204 SCRA 135.
[39]
People vs. Alvero, 224 SCRA 16; People vs. Avendana, 216 SCRA 187.
[40]
Supra, note 2, p. 8, Rollo, p. 21.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-42278 March 25, 1936
MENZI & COMPANY, INC., plaintiff-appellee,
vs.
FRANCISCO BASTIDA ET AL., defendants.
THE BANK OF THE PHILIPPINE ISLANDS, THE PHILIPPINE GUARANTY CO., INC.,
and MACONDRAY & CO., INC., appellants.
Feria and La O for appellant Bank of the Philippine Islands.
Araneta, Zaragoza, and Araneta for appellant the Philippine Guaranty Co., Inc.
Jose Agbulos for appellant Macondray & Co.
Harvey and O'Brien and Eugenio Angeles for appellee.
IMPERIAL, J.:
In civil case No. 31956 of the Court of First Instance of Manila, G. R. No. 35840
1
of this court,
entitled Francisco Bastida, plaintiff, vs. Menzi & Co., Inc., et al., defendants, final judgment was
rendered on appeal ordering Menzi & Co., Inc., to pay to Francisco Bastida the sum of
P21,633,20 with legal interest thereon from June 17, 1927, without costs. Said sum with
interest thereon amounted to P29,774.49 on September 25, 1933.
Prior to the issuance of a writ of execution of the final judgment so rendered, Menzi & Co., Inc.,
received written notices from Levy Hermanos, Inc., The Bank of Philippine Islands, Manuel
Bustamante, Filipinas Lumber Co., Inc., the Philippine Guaranty Co., Inc., Claro M. Recto, Jose
M. Casal, Alberto Barretto and Manuel Nieto alleging that they were Francisco Bastida's
creditors in the amounts specified by each of them and that, their respective claims, being
preferred claims, they asked to be paid with preference. In order that the courts might finally
determine the alleged preferences and the order in which they should be paid and to avoid
subsequent responsibilities, Menzi & Co., Inc., brought an action of interpleading against all the
said creditors and on said date, September 25, 1933, it deposited the sum of P29,774.49 with
the clerk of the Court of First Instance of Manila. The action so brought was docketed as No.
45209.
On April 18, 1934, judgment was rendered in said case ordering that the credits be paid in the
order and preference as follows: the sum of P23,041.69 to Levy Hermanos, Inc.; the sum of
P1,300 to Claro M. Recto; the sum of P4,000 to Jose M. Casal, or to his assignee Macondray &
Co.; the sum of P1,000 to Alberto Barretto; the sum of P100 as attorney's fees and P76.04 as
judicial expenses to Harvey and O'Brien, and the balance to the Bank of the Philippine Islands.
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The Bank of the Philippine Islands, Filipinas Lumber Co., Inc., Macondray & Co., Inc., and the
Philippine Guaranty Co., Inc., filed motions for a new trial which were denied; but only the Bank
of the Philippine Islands, Macondray & Co., Inc., and the Philippine Guaranty Co., Inc. filed a
joint bill of exceptions thus making them the only appellants.
Pending the appeal and before it was considered, the creditor and appellee Claro M. Recto filed
a motion withdrawing his claim on the ground that being now a member of this court he does
not desire to intervene as litigant in any case pending before it, preferring to collect his credit
for professional services directly from the then plaintiff Francisco Bastida. The motion was
favorably acted upon and therefore said creditor has ceased to be an appellee in this case.
Francisco Bastida owed Levy Hermanos, Inc., the sum of P18,531.42 representing the value of
autotrucks and an automobile bought by him on the installment plan, having constituted
mortgages on six (6) Dodge Brothers autotrucks and a seven-passenger Hudson Sedan, which
mortgages were duly registered. On May 11, 1931, after Bastida had obtained judgment in his
favor in civil case No. 31956, Levy Hermanos, Inc., was informed that the securities given to it
by Bastida had greatly depreciated in value due to the constant use thereof, for which reason it
required Bastida to transfer to it part of the judgment obtained by him sufficient to cover the
balance in question plus interest thereon on the date of the execution of the judgment. Bastida
agreed and on said date he executed Exhibit F-Levy Hnos., Inc. whereby he sold, ceded and
conveyed to said creditor an aliquot part of the judgment obtained by him sufficient to cover
the balance in question plus interest thereon until the date of the execution of the judgment.
The document so executed was legalized by a notary on the 26th of said month and year and on
the following day, the 27th, it served Menzi & Co., Inc., with a copy thereof, notifying the latter
of the existence of said assignment. On said date it attached a certified copy of said deed to the
record of civil case No. 31956. On October 25, 1933, the date on which Levy Hermanos, Inc.,
filed its answer, its credit amounted to P23,041.69 including the stipulated interest thereon up
to said date.
On March 30, 1932, Francisco Bastida and Jose M. Casal executed a promissory note for
P10,000 in favor of the Bank of the Philippine Islands, binding themselves to pay said amount
jointly and severally after ninety (90) days with interest thereon at 9 per cent per annum plus
the penal sum of P1,000 as judicial expenses and attorney's fees, in case the creditor should be
compelled to resort to the courts. To secure their promissory note which became due on June
28, 1932, Francisco Bastida, on the 9th of November of said year, executed Exhibit A-B. I. F.
whereby he mortgaged the judgment obtained by him in civil case No. 31956 to the Bank of the
Philippine Islands. This mortgage deed was registered in the registry of deeds of the City of
Manila on December 3, 1932, and on April 3, 1933, the Bank of the Philippine Islands notified
Menzi & Co., Inc., of the existence thereof and that its credit then amounted to P12,000, and
requested that it be paid preferentially.
Jose M. Casal was one of the attorneys for Francisco Bastida in civil case No. 31956 and on
September 9, 1933, he filed a notice of attorney's lien for the sum of P6,000 with the records
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and notified Menzi & Co., Inc., thereof; on the 12th of said month this court, in a resolution,
made said attorney's lien of record. Attorney Casal later transferred all his interest in said
attorney's lien to Macondray & Co., Inc., who substituted him in this appeal.
In civil case No. 44123 of the Court of First Instance of Manila, the Philippine Guaranty Co., Inc.,
obtained judgment against Francisco Bastida for the recovery of a certain sum of money. On
August 17, 1933, said company, through the sheriff, attached the judgment finally obtained by
Bastida in civil case No. 31956 to enforce the execution issued for the sum of P6,045.36,
notifying Menzi & Co., Inc., thereof.
Alberto Barretto is one of the attorneys who defended Francisco Bastida in civil case No. 31956.
On September 15, 1983, he filed a notice of attorney's lien in the case and notified Menzi & Co.,
Inc., thereof. This court, in a resolution of the 19th of said month ordered that the attorney's
lien be attached to the record. Said attorney claimed 10 per cent of the funds on deposit, or
P2,977.45. The court, however, reduced it to P1,000.
The Bank of the Philippine Islands claims that in the appealed judgment the court erred: (1) In
not holding that the transfer or assignment made by Francisco Bastida in favor of Levy
Hermanos, Inc., was fictitious; (2) in holding that the credit of Levy Hermanos, Inc., enjoys
priority over the other claims; (3) in holding that Alberto Barretto's credit enjoys preference
over its claims; (4) in also giving preference to Jose M. Casal's credit over its claim; (5) in also
giving preference to Claro M. Recto's credit over its claim; (6) in granting to the attorneys for
the herein plaintiff fees in the sum of P100 and in considering said fee as preference credit over
its claim; (7) in holding its claim inferior to those of Levy Hermanos, Inc., Recto, Barretto, Casal
and to the fees of the attorneys for the plaintiff; (8) in not holding its claim superior to those of
the other creditors; (9) in not rendering judgment in its favor ordering payment of its credit
with preference to the other claims; and (10) in rendering the appealed judgment.
In its brief the Bank of the Philippine Islands discusses its first two assignments of error jointly.
Following the same order we shall also pass upon said assignments at once. The Bank of the
Philippine Islands did not present any evidence to prove its allegation that the assignment
made by Bastida in favor of Levy Hermanos, Inc., was fictitious. The defect thus alleged is
equivalent to fraud. Fraud cannot be presumed but it must be proved with the same degree of
certainty with which the essential elements of a contract alleged to be false are proved (art.
1300 of the Civil Code; Compaia General de Tabacos vs. Obed, 13 Phil., 391;
Arroyo vs. Granada and Gentero, 18 Phil., 484; Antonio vs. Aloc, 25 Phil., 147). The record
shows that when Bastida assigned his judgment credit to Levy Hermanos Inc., he was indebted
to said company in the huge sum of P18,531.42 plus interest thereon at 10 per cent per annum
and that the trucks and automobile with which he secured the obligation had greatly
depreciated in value by reason of the regular and constant use thereof. To settle his debt
Bastida had a perfect right to assign the necessary part of his judgment credit in accordance
with the provisions of article 1175 of the Civil Code. The circumstance that the obligation was
then secured by two chattel mortgages did not prevent Bastida from making the assignment or
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Levy Hermanos, Inc., from accepting it. When Bastida assigned his judgment credit, he was the
absolute owner thereof and no writ of attachment of his property was issued against him.
Therefore the Bank of the Philippine Islands cannot invoke the provisions of article 1297 of the
Civil Code. It is superfluous to state that in the assignment there was valid cause or
consideration, consisting in the debt, and therefore neither can it be claimed that the transfer
was gratuitous. We shall discuss the credits of the other claimants as well as the priority or
preference thereof when we take into consideration the said appellant's other assignments of
error. It follows, therefore, that the first two assignments of error are not well founded.
In its third assignment of error the Bank of the Philippine Islands discusses Attorney Alberto
Barretto's credit for fees and contends that its credit has preference over the latter's. It will be
remembered that the court granted this attorney fees in the sum of P1,000 for services
rendered to Francisco Bastida in civil case No. 31956. The first time this attorney made his
attorney's lien appear of record and notified Menzi & Co. thereof was on September 15, 1933.
Francisco Bastida mortgaged his judgment credit to the Bank of the Philippine Islands on
November 9, 1932, and the deed executed to that effect was duly registered on December 3d
of said year. It follows, therefore, that the mortgage credit of the Bank of the Philippine Islands
is prior to Attorney Barretto's lien and, consequently, the former should be paid in preference
to the latter. According to section 37 of the Code of Civil Procedure on which Attorney Barretto
bases his claim, a lawyer's lien on judgments and decrees for the payment of money and the
preference thereof arise only from the date on which the right is caused to be entered upon the
records and the adverse party notified thereof. We therefore hold that the third assignment of
error is well founded and that the credit of the Bank of the Philippine Islands is superior and has
preference over that of Attorney Barretto.
In the fourth assignment of error the Bank of the Philippine Islands questions Attorney Jose M.
Casal's credit which, as stated, was assigned or transferred to the other appellant Macondray &
Co. Casal caused his lien to be entered upon the records and notified Menzi & Co., Inc., thereof
on September 9, 1933, after which he assigned all his right to Macondray & Co. The Bank of the
Philippine Islands contends that as the lien had been assigned the preference thereof has
ceased. The principle sought to be applied does not seem to us correct nor just. The generally
accepted doctrine is that an attorney's lien may be assigned or transferred without the
preference thereof being extinguished, with the exception that the doctrine does not extend to
cases where the assignment carries with it a breach of the attorney's duty to preserve his
client's confidence inviolate (6 C. J., 769, 770). "Although an attorney cannot assign a contract
for his services to be rendered, and substitute another attorney in his place, without the
consent of his client, he may assign a debt substantially due for services rendered; and where a
firm of attorneys was to receive a certain compensation for their services, provided they should
accomplish certain results, the surviving partner may, after the services which they promised to
render, and the ends which they agreed to accomplish, were all practically rendered and
accomplished, assign all the right and title of the firm in the contract for such services, and all
the moneys due or to become due thereunder, and the assignee may recover upon the
contract." (Taylor vs. Black Diamond Coal Mining Company, 86 Cal., 589.) "The assignment by
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an attorney of a specified sum to be paid out of the first money to be received by him upon a
percentage fee contracted to be paid on the value of the property realized by his client creates
an equitable lien on such percentage fee in favor of the assignee in the sum specified."
(Goad vs. Hart. 128 Cal., 197.) We hold, therefore, that the mere assignment of the attorney's
lien did not result in extinguishing the preference. However, it appears that Attorney Casal's
lien was caused to appear in the records and notice thereof to the adverse party was made only
on September 9, 1933, long after the mortgage executed by Bastida in favor of the Bank of the
Philippine Islands, which was registered on December 3, 1932. Resolving Attorney Barretto's
claim we stated that pursuant to the provisions of section 37 of the Code of Civil Procedure, an
attorney's lien enjoys preference only from the time it is entered upon the records and notice
thereof served on the adverse party. This provision is applicable to the case of Attorney Casal
and therefore his claim is inferior to the mortgage credit of the Bank of the Philippine Islands
and cannot be paid preferentially. We hold, therefore, that the fourth assignment of error is
likewise well founded.
In its fifth assignment of error, the Bank of the Philippine Islands questions Attorney Claro M.
Recto's credit and the preference thereof. In a resolution of March 18, 1936, said claimant was
eliminated as party to the case and in view thereof, and because he is no longer interested in
any judgment to be rendered therein, it is unnecessary to pass upon this fifth assignment of
error.
The Bank of the Philippine Islands contends in its sixth assignment of error that the court should
not have granted fees in the sum of P100 to the attorneys for the herein plaintiff, Menzi & Co.,
Inc. Counsel for the Bank of the Philippine Islands cites no authority in support of his theory.
Section 120 of the Code of Civil Procedure which authorizes the bringing of an action of
interpleading contains no provision relative to fees of the attorney for the plaintiff in such
actions. However, taking into consideration the purpose of an action of interpleading, it seems
just that the fees of an interpleader's attorney be defrayed with the funds sought to be
distributed, unless there be some reason justifying payment thereof by some of defendants in
the case." According to many authorities, complainant is entitled, as a part of his costs, to an
attorney's fee commensurate with the services of his counsel in the cause, eventually to fall on
the claimant who was in the wrong and made the litigation necessary, and this is expressly
provided by the statute in some jurisdictions. . . . In any case, the allowance for the attorney's
fees should be limited to a reasonable fee for necessary services." (33 C. J., 470, and the cases
therein cited.) It appears that the amount of the fees granted is not questioned nor is it claimed
that it is exorbitant or unreasonable. Truly, the sum fixed is very reasonable and proportionate
to the amount and quality of the professional services rendered. As to the order of payment of
these fees, the law is likewise silent; but being in the nature of costs, according to the American
doctrine referred to above, they should be paid in preference to all claims and at the same time
as judicial costs. In its brief the plaintiff-appellee likewise prays that it be granted the costs of
both instances, including the expenses incurred in the printing of its brief. We agree to the
recovery of costs but we cannot authorize the refund of the expenses incurred in the printing of
its brief because it is expressly prohibited by section 494 of the Code of Civil Procedure.
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The rest of the assignments of error of the Bank of the Philippine Islands do not require further
discussion because the questions raised therein have already been settled in the foregoing
considerations.
Macondray & Co., the other appellant and assignee of Attorney Jose Ma. Casal's lien, assigns
the following errors as committed in the judgment, to wit: (1) In holding that the credit of Levy
Hermanos, Inc., enjoys preference over Attorney Casal's lien, and consequently over its credit;
(2) in holding that Attorney Claro M. Recto's lien has priority over its credit, and (3) in reducing
Attorney Casal's fees to P4,000.
The first assignment of error does not require further discussion. It has already been settled
that Casal's credit, now Macondray & Co.'s, is inferior to that of Levy Hermanos, Inc., by virtue
of the provisions of section 37 of the Code of Civil Procedure that an attorney's lien enjoys
preference only from the date a statement thereof is caused to be entered upon the records
and notice thereof served to the adverse party. Casal's lien was caused to be entered upon
records and Menzi & Co., Inc., notified thereof long after Bastida had transferred his judgment
credit to Levy Hermanos and also after said Bastida had mortgaged it to the Bank of the
Philippine Islands. We, therefore, hold that the first assignment of error is unfounded.
The second assignment, referring to Attorney Recto who has already ceased to be a party to the
suit, does not require further consideration.
Neither is it necessary to dwell at length upon the last assignment of error in view of the fact
that the funds to be distributed will not be sufficient to pay Attorney Casal's claim, now
Macondray & Co.'s, and therefore the question relative to the amount of said attorney's fees is
immaterial.
The last appeal is that taken by the Philippine Guaranty Co., Inc. This appellant claims that the
judgment of the court erred: (1) In not declaring that the assignment made by Bastida to Levy
Hermanos, Inc., is fraudulent; (2) in not holding that the mortgage constituted by Bastida in
favor of the Bank of the Philippine Islands is null and void; (3) in holding that the claim of
Barretto and Recto for attorney's fees have preference over its credit; (4) in not holding that
the claim of Macondray & Co. has preference over its credit; (5) in granting fees in the sum of
P100 to the attorneys of Menzi & Co., Inc., and (6) in not holding that its credit is superior and
preferential to all the rest.
In its brief, the Philippine Guaranty Co., Inc., discusses jointly its first and second assignments of
error. In considering the first two assignments of error of the appellant Bank of the Philippine
Islands, we already stated that the assignment made by Bastida, in favor of Levy Hermanos,
Inc., was legal and valid and not vitiated by alleged fraud. We then stated length our reasons for
arriving at that conclusion. The Philippine Guaranty Co., Inc., offers no new arguments nor
citations of legal authorities in its brief. The same point having been sufficiently discussed, we
see no advantage in repeating herein the same considerations already made. With respect to
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the claim of the Bank of the Philippine Islands, it is, by reason of dates, superior and
preferential to that of the Philippine Guaranty Co., Inc. The mortgage credit of the framer was
legally registered prior to the latter's garnishment. There is not the slightest token that the
mortgage is fraudulent or that some defect invalidating it was present at the execution thereof.
We hold that these first and second assignments of error are unfounded.
In its third assignment of error, the Philippine Guaranty Co., Inc., impugns the claims of
Attorneys Barretto and Recto and the preference thereof. The questions now raised by it have
already been passed upon when the same claims were discussed in connections with those of
the Bank of the Philippine Islands and Macondray & Co. We have nothing to repeat as regards
Attorney Recto because he has already ceased to be a party to the case. As to the Philippine
Guaranty Co., Inc., Attorney Barretto's lien is inferior and enjoys no preference on the ground
that said right was caused to be entered upon the records after the former's attachment, by
way of garnishment, of the judgment obtained by Bastida, which took place on August 17,
1933.
In its fourth assignment of error, the Philippine Guaranty Co., Inc., contends that its claim has
preference over that of Macondray & Co. By reason of dates, the former's claim is superior to
that of the latter because Casal's lien and the transfer thereof to Macondray & Co. took place
after the attachment made by the Philippine Guaranty Co., Inc.
In its fifth assignment of error said appellant likewise questions the correctness of the fees of
the attorneys for the plaintiff Menzi & Co., Inc. This controversy has already been passed upon
in discussing the sixth assignment of error of the Bank of the Philippine Islands. It is
unnecessary to repeat here all that has been stated. We hold that the fifth assignment of error
is unfounded.
In its sixth and last assignment of error, the Philippine Guaranty Co., Inc., contends that its claim
is superior and preferential to the claims of all the rest. Under the considerations set forth in
the foregoing paragraphs we hold that its claim should occupy the fourth place and should be
paid in the order later to be established, in case the funds on deposit are sufficient.
As a corollary of all the foregoing, we hold that the claims involved in these appeals enjoy
preference in the order as follows: (1) The fees of the attorneys for the plaintiff Menzi & Co.,
Inc., and the costs of both instances to which it is entitled under sections 492 and 494 of the
Code of Civil Procedure; (2) the claim or credit of Levy Hermanos, Inc.; (3) the claim or credit of
the Bank of the Philippine Islands; (4) the claim or credit of the Philippine Guaranty Co., Inc.; (5)
the claim or credit of Macondray & Co.; and (6) the claim or credit of Alberto Barretto. These
claims will be payable in the order established if the funds on deposit are sufficient.
Wherefore, with modification of the appealed judgment it is ordered that of the sum of
P29,774.49 deposited by the plaintiff with the clerk of the Court of First Instance of Manila, the
following be paid: First, the costs of the both instances to said plaintiff and the sum of P100 to
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the attorneys thereof; second, the sum of P23,041.69 to Levy Hermanos, Inc., and third, the
entire balance of the amount of money on deposit to the Bank of the Philippine Islands, as
partial payment of its claim. That part of the appealed judgment releasing the plaintiff from all
further responsibility arising from the judgment rendered in civil case No. 31956, is affirmed. So
ordered.
Avancea, C. J., Villa-Real, Abad Santos, Diaz, and Laurel, JJ., concur.
Footnotes
1
58 Phil., 188.
R E S O L U T I O N
July 17, 1936
IMPERIAL, J.:
Macondray & Co., Inc., and Alberto Barretto filed a motion for reconsideration seeking to set
aside the decision rendered in the cause and praying that another be rendered declaring that
their credits have preference over those of Levy Hermanos, Inc., and the Bank of the Philippine
Islands, so that the latter's credits be paid after theirs.
The first ground of the motion alleges that "Levy Hermanos, Inc., in causing the assignment to it
of a part of the judgment rendered by the Court of First Instance of Manila in civil case No.
31956, to be entered upon the records, became a quasi party to the suit and cannot recover
any amount or part thereof without first paying the fees of the attorneys who intervened in
said litigation." The contention is untenable and finds no support in any law. In legal
technicality quasi parties are those who are already represented in the suit, or who come
within the compass of the proceedings pendente lite (Atlantic Refining Co. vs. Port Lobos
Petroleum Corporation, 280 Fed., 934, 939). Under section 114 of the Code of Civil Procedure, a
party to an action or proceeding is the person who has a material and direct interest in the
pending action, or who has an interest in the subject of the action and in obtaining the relief
demanded. Even after Levy Hermanos, Inc., had obtained the assignment and caused the
acquisition thereof to be entered upon the records, it had no interest in the subject matter of
the litigation between Bastida and Menzi & Co., Inc. It was not formerly represented in the suit.
It had neither direct nor indirect interest in Bastida's causes of action against Menzi & Co., Inc.
Its right to that part of the judgment acquired under the assignment was contingent and
inchoative inasmuch as it was enforceable only upon the affirmation of modification of the
judgment, as done by the appellate court.
The second ground offers the following proposition: "The assignee of a litigious credit does not
acquire, by virtue of the assignment, a personal or real property susceptible of identification
and immediate delivery; all that he acquires are the rights of the assignor and such acquisition
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is subject to the lien created by law, for the benefit of the attorneys who intervened in the
suit." The proposition is based upon the two incorrect premises. In the first place the case does
not exactly involve an assignment of a litigious credit. It should be noted that what the parties
litigated was not the judgment obtained by Bastida, part of which was the subject matter of the
assignment, but Bastida's allegations of claims or causes of action against Menzi & Co., Inc. The
judgment was the result of the suit, but not the suit itself. It was the court's adjudication of the
rights and remedies invoked by Bastida, but not the credits or claims which he intended to
enforce. In the second place, aside from section 37 of the Code of Civil Procedure which we
shall again discuss hereafter, no law has been cited, from which it, may be inferred that the fees
of Attorney Casal and Barretto enjoy preference over the claims of Levy Hermanos, Inc., and
the Bank of the Philippine Islands. On this point it is not amiss to state that when Bastida made
the assignment to Levy Hermanos, Inc., and executed the mortgage in favor of the Bank of the
Philippine Islands, there was no legal bar to prevent him from executing the deeds which he
signed. Neither can he be accused of fraud or deceit because he did not then know that the
judgment to be finally obtained by him would be insufficient to pay his attorney's fees. We
conclude that the second assignment of error is likewise untenable.
It is insisted in the third and last assignment of error that our interpretation of section 37 of the
Code of Civil Procedure is contrary to the spirit that pervades it, nullifies its provisions and
opens the doors to fraud. We have again examined this legal aspect of the case and arrived at
the conclusion that the ruling is in accordance with the law in this jurisdiction. There is no
question that under section 37 an attorney's lien in htis jurisdiction arises and exists only from
the time it is caused to be entered upon the records and notice thereof served to the adverse
party. Nothing else may be inferred from the language therein used which says "from and after,
but not before, the time when he shall have caused a statement of his claim of such lien to be
entered upon the records of the court rendering such judgment or decree, or issuing such
execution, and shall have caused written notice thereof to be delivered to the adverse party."
The decisions of some courts of the Union therein cited are inapplicable to and cannot be
invoked in favor of the motion for reconsideration because they are based on provisions
different from those of section 37 of our Code of Civil Procedure.
In the case of Boston & Colorado Smelting Co. vs. Pless (10 Pac., 652), the Supreme Court of
Colorado, interpreting section 85 of the General Statutes which acknowledges an attorneys' lien
without subjecting it to the necessity of causing a statement thereof to be entered upon the
records and notifying the adverse party thereof, held that the last requisite was necessary. The
pertinent part of the decision reads:
. . . Nor are Stuart Bros. aided by a reliance upon section 85 of the General Statutes,
giving attorneys a lien for fees upon judgments obtained by them. While this lien
attaches to the judgment at once upon its recovery, as between attorney and client, so
that nothing more is necessary prior to the enforcement thereof against the latter by
proper action, we are inclined to the opinion that, to hold the judgment debtor for the
creditor's attorney's fee, the former must be notified of the attorneys's intention to take
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advantage of the statute. If, without knowledge of this intention, either through a
formal notice, or through credible information derived in some other way, the debtor
make a bona fide settlement of the judgment with the creditor, by payment or
otherwise, the attorney cannot look to the former for his unpaid fee.
The statutory lien is a security of the benefit of which the attorney may or may not avail
himself. He is, of course, not entitled to it unless there remain due to him unpaid fees.
The judgment debtor is a stranger to the contract for fees between the judgment
creditor and his attorney; hence, in our opinion, the former is entitled to notice before
being charged with liability in the premises. He is not bound to presume, in the absence
of information on the subject, that the attorney's fee of the latter has not been paid; nor
is he, by virtue, required to take notice that the attorney will elect to claim the benefit
of the lien thereby provided for. It is more reasonable to suppose that the legislature
intended to leave in force the common-law rule requiring notice in such cases. Stating
this common-law rule, see Whart. Ag., secs. 628, 629; Weeks, Attys., secs. 379, 384.
We are aware that there is at least one state wherein, under a statute somewhat similar
to our section 85, it is held that the judgment debtor is charged without notice; but we
do not feel satisfied with the reasons stated in support of this view, and have therefore
declined to follow the opinions announcing it. The position taken in some decisions that
where a judgment is for costs only the record is itself notice to all parties of the
attorney's lien thereon for his costs need not be here considered, because, in the first
place, we are dealing with a statute which does not refer to costs, and, secondly, such
was not the judgment in the case at bar. There is no pretense that actual notice of the
reliance by Stuart Bros. upon the statute was given the company until after the
settlement; and simply placing the papers above mentioned upon the files was not
constructive notice to the company of their intention in the premises.
In the State of Nebraska, section 8, c. 7, of the Comp. Stat. provides that: "An attorney has a
lien for a general balance of compensation upon any papers of his client which have come into
his possession in the course of his professional employment, upon money in his hands
belonging to his client, and in the hands of the adverse party in an action or proceeding in
which the attorney was employed from the time of giving notice of the lien to that party." The
Supreme Court of said State, interpreting the provision in question, similar to our section 37, in
the case of Elliot vs. Atkins (42 N. W., 403-405), said:
. . . An attorney, therefore, who desires to enforce a claim for his services must file a lien
to that effect; otherwise he cannot enforce a claim against the adverse party. This claim
for a lien may be filed with the papers in the case, and the adverse party will be
chargeable with notice of its existence. The existence of a contract between a client and
his attorney, where there is no claim for a lien, would not be notice to the adverse party
that he intended to assert the claim against him, as it might be presumed that such
attorney intended to rely on the responsibility of his own client. In the case at bar there
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is no lien claimed or filed on behalf of the plaintiffs, and nothing to apprise the
defendants that a claim would be asserted against them. . . .
In the State of Oregon, section 1044 of Hill's Annotated Laws contains a provision relative to an
attorney's lien, similar to section 37 of our Code of Civil Procedure. The Supreme Court of said
State, interpreting said provision in Day vs. Larsen (47 Pac., 101, 102), said:
By section 1044 of Hill's Annotated Laws it is provided that an attorney has a lien for his
compensation to the extent the same may have been specially agreed on, "from the
giving notice thereof to the party against whom the judgment or decree is given, and
filing the original with the clerk where such judgment or decree is entered and
docketed." These words carry their meaning plain upon their face, and fix, as the time
when the lien shall attach as against the judgment debtor, the giving of notice to him,
and filing the same with the clerk. The right to acquire the lien is a privilege of which the
attorney may avail himself, by giving and filing the notice as required by the statute; but
he has no lien or claim upon the judgment, as against the judgment debtor, prior to that
time. As to him, the notice creates and originates the lien, and the statute specifically
fixes the time from which it shall exist. He is a stranger to the contractual relations
between the attorney and his client, and no right can be required against him under the
statute before the prescribed notice is given. If, before that time, he makes a bona
fide settlement of the judgment with the creditor, it is clear that there is nothing in
existence to which the lien can attach, and any subsequent notice is therefore
inoperative to create any liability against him. This is a harmony with the construction of
analogous statutes in other states. (Henry vs. Traynor, 42 Minn., 234; 44 N. W., 11;
Elliot vs. Atkins, 26 Neb., 409; 42 N. W., 403; Pirie vs. Harkness, 52 N. W., 581; Smelting
Co. vs. Pless, 9 Colo., 112; 10 Pac., 652.)
In the case of Pirie vs. Harkness (52 N. W., 581, 582), the Supreme Court of South Dakota,
interpreting the scope of section 470 of the Comp. Laws of said State, similar to section 37 of
our Code of Civil Procedure, said:
. . . Section 470, Comp. Laws, provides that an attorney has a lien upon "money due to
his client in the hands of the adverse party . . . in an action or a proceeding in which the
attorney claiming the lien was employed, from the time of giving notice in writing to
such adverse party", etc. Now, both of these rights exist under the statute, but each is a
dormant right until asserted. Neither judgment holder may ever ask the court for a set-
off, and the attorney may never take any steps to claim or perfect his lien. Both rights
are simply possible, abstract rights, until asserted, and thus made active and operative.
The attorney's lien attaches and becomes an active instead of a potential right, "from
the time of giving notice in writing to the adverse party;" . . .
The above cited decisions show that in those states where provisions similar to section 37 of
the Code of Civil Procedure exist it has invariably been held that an attorney's lien exists and is
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demandable only from the time it is caused to be entered upon the records or notice thereof
served to the adverse party, according as the law requires one of the two conditions or both.
Wherefore, the motion for reconsideration is denied.
Avancea, C. J., Villa-Real, Abad Santos, Diaz, and Laurel, JJ., concur.
[DIGESTED CASE]
Bastida vs Menzi58 Phil 188GR No. L-35840, March 31, 1933Facts:
This is an appeal by Menzi & Co., Inc., one of the defendants, from a decision of the Court ofFirst
Instance of Manila. Bastida offered to assign to Menzi & Co. his contract with Phil SugarCentrals Agency
and to supervise the mixing of the fertilizer and to obtain other orders for 50% of the net profit that
Menzi & Co., Inc., might derive therefrom. J. M. Menzi (gen. manager ofMenzi & Co.) accepted the
offer. The agreement between the parties was verbal and was confirmed by the letter of Menzi
to the plaintiff.Pursuant to the verbal agreement, the defendant corporation on April 27, 1922 entered
into a written contract with the plaintiff, marked Exhibit A, which is the basis of the present action.Still,
the fertilizer business as carried on in the same manner as it was prior to the
writtencontract, but the net profit that the plaintiff herein shall get would only be 35%.Prior to the
expiration of the contract (April 27, 1927), the manager of Menzi notified theplaintiff that
the contract for his services would not be renewed. Subsequently, when thecontract
expired, Menzi proceeded to liquidate the fertilizer business in question. The plaintiffrefused to agree to
this. It argued, among others, that the written contract entered into by theparties is a contract
of general regular commercial partnership, wherein Menzi was thecapitalist and the plaintiff
the industrial partner.Issue: Is the relationship between the petitioner and Menzi that of
partners?Held:The relationship established between the parties was not that of partners, but that of
employerand employee, whereby the plaintiff was to receive 35% of the net profits of the
fertilizerbusiness of Menzi in compensation for his services for supervising the mixing of the
fertilizers.Neither the provisions of the contract nor the conduct of the parties prior or subsequent to
itsexecution justified the finding that it was a contract of co-partnershipAccording to Art. 116 of the
Code of Commerce, articles of association by which two or morepersons obligate themselves to place in
a common fund any property, industry, or any of thesethings, in order to obtain profit, shall be
commercial, no matter what it class may be, provided ithas been established in accordance with
the provisions of the Code. However in this case, there was no common fund. The business
belonged to Menzi & Co. The plaintiff was workingfor Menzi, and instead of receiving a fixed salary, he
was to receive 35% of the net profits ascompensation for his services. The phrase in the written contract
en sociedad con, which isused as a basis of the plaintiff to prove partnership in this case, merely
means en reunion conor in association with.It is also important to note that although Menzi agreed to
furnish the necessary financial aid forthe fertilizer business, it did not obligate itself to contribute any
fixed sum as capital or to defrayat its own expense the cost of securing the necessary credit.

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SUPREME COURT
Manila
EN BANC

G.R. No. L-28297 March 30, 1970
ELPIDIO JAVELLANA, plaintiff-appellant,
vs.
D. O. PLAZA ENTERPRISES, INC., defendant-appellee.
Ramon A. Gonzales for plaintiff-appellant.
Hermosisima, Maramara and Sol for defendant-appellee.

REYES, J.B.L., J.:
Direct appeal, on points of law, from an order of the Court of First Instance of Manila, in its Civil
Case No. 46762, modifying an earlier decision for the plaintiff by reducing the rate of interest
on the sum adjudged, and also the attorney's fees; and by ordering the plaintiff to pay damages
to the defendant on account of a preliminary attachment obtained by the former upon the
latter's counterclaim.
The complaint in the aforesaid civil case was for collection of the sum of P43,017.32
representing balance due on purchases of wire ropes, tractors and diesel parts made by the
defendant-appellee, D. O. Plaza Enterprises, Inc., from the plaintiff-appellant, Elpidio Javellana.
The complaint prayed that the defendant be ordered to pay the said sum of P43,017.32, with
legal interest, plus attorney's fees in the sum of P5,000.00; it also prayed for a writ of
preliminary attachment.
Upon plaintiff's putting up a bond, the trial court, on 15 April 1961, issued a writ of attachment.
On 20 May 1961, the defendant moved to discharge the attachment on the ground that it was
improperly issued. The motion was denied.
On 7 November 1961, the defendant filed its answer and counter-claimed for damages arising
from the attachment. The plaintiff answered and interposed a counterclaim to the
counterclaim.
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After some years, or on 27 April 1966, the defendant moved for the dissolution of the
preliminary attachment. Upon its filing a counterbond, the court, on 7 May 1966, dissolved the
attachment.
On 3 November 1966, the plaintiff filed a motion to admit his amended complaint, which the
court granted on 12 November 1966. In this amended complaint, the plaintiff averred that of
the sum of P43,017.32 alleged in the original complaint, the defendant has paid P3,900.00,
thereby leaving a balance of P39,117.32 unpaid, but that, as indicated by invoices, defendant's
purchases were payable within thirty (30) days and were to bear interest of 12% per annum
plus 25% attorney's fees. The amended complaint accordingly prayed for the increased
amounts. Defendant did not answer this amended complaint.
After trial, the court, on 15 June 1967, rendered judgment. It found the following facts:
.... During the period from 23 July 1959 to 30 July 1960, defendant, in a series of
transactions, purchased from plaintiff wire ropes, tractors and diesel spare parts,
(in) payment for which he issued several checks amounting to P43,017.32,
which, when presented to the bank, were dishonored for lack of funds.
Defendant substituted these checks with another set of checks for the same
amount, but again, the same were dishonored for lack of funds, as evidenced by
Exhibits A to M, except for one check in the amount of P3,900.00 as evidenced
by Exhibit C. Thus, the principal obligation was reduced to P39,117.32. At the
time of the issuance of the said checks, the defendant never informed plaintiff
that it had funds to back them up. Plaintiff made demands to defendant for
payment, but defendant pleaded for time and liberalization of payment, which
was rejected by the plaintiff. The transactions in question were covered by
invoices listed in Exhibit P, a sample of which is evidenced by Exhibit C, wherein
said transactions were for 30-day term, 12% interest per annum to be charged
from date of invoice, and 25% attorney's fees in case of litigation.
The defendant claims that there were other transactions between plaintiff and
defendant involving the amount of P196,828.58; that it had no intention not to
pay the checks it issued upon presentment; and that it suffered damages in the
amount of P14,800.00 by reason of the attachment.
xxx xxx xxx
The counterclaim for damages arising from the attachment is without merit. The
defendant was manifestly in bad faith when it issued two sets of bouncing
checks. Hence, the attachment was not improper, contrary to defendant's claim.
The dispositive portion of the decision decreed:
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WHEREFORE, judgment is hereby rendered for the plaintiff and against the
defendant, ordering the latter to pay the former the sum of P39,117.32 with
interest at 12% per annum from 14 April 1961, the date of the filing of the
original complaint, until final payment, plus 25% of the principal indebtedness as
attorney's fees and costs of suit.
The counterclaim as well as the counterclaim to the counter claim are hereby
dismissed for lack of merit.
On 28 June 1967, the defendant moved to reconsider. Over the objection of the plaintiff, the
court issued an order dated 10 August 1967, now the subject of the present appeal, modifying
the previous decision, in the manner following:
WHEREFORE, the dispositive part of the decision rendered in this case is hereby
modified as follows:
(a) By ordering the defendant to pay plaintiff the sum of P39,117.20 plus the
legal interest therein from the filing of the complaint until the amount is fully
paid.
(b) Ordering the plaintiff to pay defendant the sum of P16,190.00, the amount of
damages suffered by the defendant on account of the preliminary attachment of
the defendant; and
(c) By ordering the defendant to pay P5,000.00 as attorney's fees.
Without pronouncement as to costs.
Plaintiff-appellant assigns the following errors: the reduction of the attorney's fees, the
reduction of the interest, and the grant to the defendant of damages arising from the
attachment.
The first two assigned errors are well taken. The court a quo reduced the interest stated in its
previous decision from 12% to mere legal interest and the attorney's fees from 25% to
P5,000.00 on the basis of estoppel, the ground therefor being that the reduced amounts were
those alleged, hence admitted, by the plaintiff in his original complaint. This was error. The
original complaint was not formally offered in evidence. Having been amended, the original
complaint lost its character as a judicial admission, which would have required no proof, and
became merely an extrajudicial admission, the admissibility of which, as evidence, requires its
formal offer.
Pleadings superseded or amended disappear from the record as judicial
admissions. However, any statement contained therein may be considered as an
extrajudicial admission, and as such, in order that the court may take it into
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consideration, it should be offered formality in evidence. (5 Moran 58, citing
Lucido v. Calupitan, 27 Phil. 148; Bastida v. Menzi, 58 Phil. 188.)
Where amended pleadings have been filed, allegations in the original pleadings
can have no effect, unless formally offered in evidence. (Jones on Evidence, Sec.
273.)
Since the record does not show that the complaint (marked as Exhibit 115) was admitted in
evidence, there is no proof of estoppel on the part of the plaintiff on his allegations in the
complaint. Not only this, but since the stipulation for 12% interest on balance due and the 25%
counsel fees appear on the invoices themselves, appellee Plaza Enterprises cannot fairly claim
that it was deceived or misled by the pleadings of appellant. Even more, the original plea for
P5,000.00 as attorney's fees is only contained in the prayer of the original complaint, and it is a
well established rule that the prayer for relief, although part of the complaint, is no part of the
cause of action and does not give character, the plaintiff being entitled to as much relief as the
facts warrant (Rosales vs. Reyes, 25 Phil. 495; Aguilar vs. Rubiato, 40 Phil. 470).
But the appellant's last assigned error is without merit. Although the defendant was found to
be in bad faith in issuing two (2) sets of bouncing checks in payment for its indebtedness, such
bad faith was not related to his having incurred the obligation in favor of the plaintiff but to
defendant's failure to perform said obligation. There was, therefore, no ground for the plaintiff
to attach the defendant's properties on the ground of fraud. That the plaintiff acted in good
faith in securing attachment does not relieve him from the damages that the defendant
sustained by reason of the attachment because he, the plaintiff, was, in the first place, not
entitled to attachments, the element of malice was unnecessary (3 Moran, Rules of Court, 19).
FOR THE FOREGOING REASONS, the appealed order is hereby reversed insofar as it reduced the
amount of attorney's fees and the interest on the principal sum adjudged in the original
decision dated 15 June 1967; but the order is affirmed in all other respects. No costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and
Villamor, JJ., concur.

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-37420 July 31, 1984
MACARIA A. TORRES, petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, TOMAS NARCISO, AMADO
NARCISO, SALUD NARCISO, DEMETRIA NARCISO and ADELINA NARCISO, respondents.
G.R. No. L-37421 July 31, 1984
MACARIA A. TORRES, petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, SALUD NARCISO, BALDOMERO
BUENAVENTURA, DEMETRIA NARCISO, LEONARDO QUINTO, ADELINA NARCISO, CESARIO
PUNZALAN, TOMAS NARCISO and AMADO NARCISO, respondents.
Juan R. Liwag for petitioner.
Cesar Nocon for respondents.

MELENCIO-HERRERA, J.:
This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment
rendered by the then Court of Appeals in the consolidated cases, CA-G.R. NO. 34998-R entitled
"Macaria A. Torres, plaintiff-appellee vs. Vicente Santillan, et al., defendants-appellants", and
CA-G.R. No. 34999-R entitled "Vicente Santillan, et al., plaintiffs-appellants vs. Macaria A.
Bautista, et al., defendants-appellees and the Resolution denying the Motion for
Reconsideration and Petition for New Trial, be set aside; and that, instead, The Order of the
Court of First Instance of August 7, 1963 be affirmed, or, in the alternative, that the case be
remanded to it for new trial.
Involved in this controversy are the respective claims of petitioner and private respondents
over Lot No. 551 of the Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite,
with an area of approximately 1,622 square meters. covered by Transfer Certificate of Title No.
T-6804 issued in the name of the legal heirs of Margarita Torres.
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The facts of the case cover three generations. The propositus, Margarita Torres, during the
Spanish regime, was married to Claro Santillan. Vicente and Antonina were begotten of this
union. Claro died leaving Margarita a widow. Antonina married and had six children, namely:
Alfredo, Salud (married to Baldomero Buenaventura), Demetria (married to Leonardo Quinto),
Adelina (married to Cesario Punzalan), Tomas and Amado all surnamed Narciso, who, together
with Vicente Santillan, are the private respondents. Antonina died before the institution of the
cases while Vicente died on June 4, 1957,
2
during the pendency of the cases in the Trial Courts,
without progeny .
After the death of her husband, Margarita Torres cohabited with Leon Arvisu Arbole, without
benefit of marriage. Out of their cohabitation, petitioner Macaria Torres (later married to
Francisco Bautista) was born on June 20, 1898, and baptized on June 26, 1898. In a Certificate
of Baptism issued by the Parish Priest of Tanza, Cavite, Leon Arvisu Arbole and Margarita Torres
were named as father and mother of petitioner whose name was listed as Macaria Arvisu",
(Exhibit "C" Another Baptismal Certificate, however, listed her name as Macaria Torres, while
her father's name was left blank (Exhibit "4"). Subsequently, or on June 7, 1909, Leon Arbole
and Margarita Torres were married (Exhibit "A"). Petitioner lived with and was reared by her
parents. Margarita, the mother, died on December 20, 1931 (Exhibit "D"), while Leon, the
father, passed away on September 14, 1933 (Exhibit " E ").
Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased
temporarily by the Government (Lease No. 17) to Margarita Torres who was the actual
occupant of the lot. The date of the lease cannot be determined with exactitude from the
records. On December 13, 1910, the Government, through the Director of Lands, issued to
Margarita Torres, Sale Certificate No. 222 (Exhibit "B") over the said lot at the price of P428.80,
payable in 20 annual installments of P20.00 each. The rental/s previously paid of P17.40 was
credited to the purchase price. Testimonial evidence is to the effect that Leon Arbole paid the
installments out of his earnings as a water tender at the Bureau of Lands, Tanza, Cavite. The last
installment, however, was paid on December 17, 1936, or three (3) years after his death.
On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a
notarial deed all his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of
petitioner, for the sum of P300.00.
3

On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and
asking for the issuance of title in his name, which he filed with the Bureau of Lands. Based
thereon, the Bureau of Lands issued the corresponding patent in the name of the legal heirs of
Margarita Torres. Transfer Certificate of Title No. T-6804 was eventually issued by the Register
of Deeds of Cavite on November 7, 1957, also in the name of said heirs.
On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry,
with the Justice of the Peace Court of Tanza, Cavite, alleging that petitioner had entered a
portion of Lot No. 551 without their consent, constructed a house. and refused to vacate upon
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demand. For her part, petitioner claimed that she is a co-owner of the lot in question, being
one of the daughters of Margarita Torres. The ejectment case was decided against petitioner
and the latter appealed to the then Court of First Instance of Cavite, where it was docketed as
Civil Case No. 5547 (Ejectment Case).
On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then
Court of First Instance of Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that
said lot was conjugal property of the spouses Margarita Torres and Leon Arbole, and that she is
their legitimated child. Private respondents filed an Answer alleging that the lot belonged
exclusively to Margarita Torres; that they are her only heirs, and that the complaint for
partition should be dismissed.
The Ejectment Case and the Partition Case were jointly tried and decided on November 20,
1958 with a finding that Lot No. 551 is the paraphernal property of Margarita Torres and
adjudicating to private respondents two-thirds (2/3) of the property in equal shares, and to
petitioner a one-third (1/3) portion.
4
Petitioner moved for reconsideration, which private
respondents opposed. Pending its resolution, the Provincial Capitol of Cavite was burned,
resulting in the complete destruction of the records of the two cases, which, however, were
later partially reconstituted.
On August 7, 1963, the then Court of First Instance of Cavite, Branch 1, issued an Order granting
reconsideration and amending the Decision of November 20, 1958. The positive portion thereof
reads as follows:
Wherefore, judgment is hereby rendered in Civil Case No. .5505:
(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon
Arbole and Margarita Torres;
(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal
partnership property of the spouses Leon Arbole and Margarita Torres;
(3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to
Macaria Torres, and two-sixths (2/6th) in equal shares to Alfredo, Tomas,
Amado, Salud, Demetria and Adelina, all surnamed Narciso, legitimate children
and heirs of the deceased Antonina Santillan, since Vicente Santillan is already
dead. The parties may make the partition among themselves by proper
instruments of conveyance, subject to confirmation by the Court. In fairness,
however, to the parties, each party should be alloted that portion of the lot
where his or her house has been constructed, as far as this is possible. In case
the parties are unable to agree upon the partition, the Court shall appoint three
commissioners to make the partition.
As to Civil Case No. 5547, the same is hereby dismissed.
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Without costs in both cases.
5

In concluding that petitioner is a legitimated child, the Trial Court opined:
It is undisputed that when Macaria A. Torres was born on June 20, 1898, her
parents, Leon Arbole and Margarita Torres, had the capacity to marry each
other. There was no legal impediment for them to marry It has also been
established that Macaria A. Torres had been taken care of, brought up and
reared by her parents until they died. The certificate of baptism (Exh. "G") also
shows that Macaria Torres was given the family name of Arvisu, which is also the
family name of her father, Leon Arbole, and that her father is Leon Arvisu and
her mother is Margarita Torres. Such being the case, Macaria A. Torres
possessed the status of an acknowledged natural child. And when her parents
were married on June 7, 1909, she became the legitimated daughter of on
Arbole and Margarita Torres.
6

Private respondents appealed. On April 2, 1973, the then Court of Appeals
7
rendered the
judgment sought to be set aside herein, the decretal part of which states:
Wherefore, judgment is hereby rendered in Civil Case No. 5505:
(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses
Leon Arbole and Margarita Torres;
(2) Declaring that Lot No. 551 of the Sta Cruz de Malabon Estate is a conjugal
partnership property of the spouses Leon Arbole and Margarita Torres; and
(3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to
Macaria Torres, and the other half (1/2) in equal shares to Alfredo, Tomas,
Amado, Salud, Demetria and Adelina, an surnamed Narciso, legitimate children
and heirs of Antonina Santillan, since Vicente Santillan is already dead. The
parties may make the partition among themselves by proper instruments of
conveyance, subject to confirmation by the Court. In fairness, however, to the
parties, each party should be alloted that portion of the lot where his or her
house has been constructed, as far as this is possible. In case the parties are
unable to agree upon the partition, the Court shall appoint three commissioners
to make the partition.
As to Civil Case No. 5547, the same is hereby dismissed.
Without costs in both cases.
8

The Appellate Court was of the opinion that:
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Macaria A. Torres is not a legitimated daughter of Leon Arvisu Arbole and
Margarita Torres, the former not having been legally acknowledged before or
after the marriage of her parents. As correctly pointed out by the appellants in
their brief, the fact that she was taken cared of, brought up and reared by her
parents until they died, and that the certificate of baptism (Exhibit "C") shows
that she was given the family name of Arvisu did not bestow upon her the status
of an acknowledged natural child.
Under Article 121 of the old Civil Code, the governing law on the matter, children
shall be considered legitimated by subsequent marriage only when they have
been acknowledged by the parents before or after the celebration thereof, and
Article 131 of the same code provides that the acknowledgement of a natural
child must be in the record of birth, in a will or in some public document. Article
131 then prescribed the form in which the acknowledgment of a natural child
should be made. The certificate of baptism of Macaria A. Torres (Exhibit "C") is
not the record of birth referred to in Article 131. This article of the old Civil Code
'requires that unless the acknowledgement is made in a will or other public
document, it must be made in the record of birth, or in other words, in the civil
register (Samson vs. Corrales Tan, 48 PhiL 406).
9

A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In
support thereof, petitioner submitted a typewritten Sworn Statement, dated March 5, 1930, of
spouses Leon Arvisu (Arbole) and Margarita Torres,
10
reading in full as follows:
SWORN STATEMENT
We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority
age, and residents of the Municipality of Tanza, Province of Cavite, P.I., after
being duly sworn to according to law depose and say
That Macaria de Torres is our legitimized daughter she being born out of
wedlock on the 26 th of June 1898 all Tanza, Cavite, but as stated she was
legitimized by our subsequent marriage.
That at the time of her birth or conception, we, her parents could have married
without dispensation had we desired.
That as natural child our aforesaid daughter was surnamed de Torres after that
of her mother's at the time she was baptized as per record on file in the Church.
That as a legitimized daughter she should now be surnamed Arvisu after her
father's family name.
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Wherefore, it is respectfully requested to anybody concerned that proper
remedy be made for the change of the surname of said Macaria de Torres as
desired.
In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day
of March 1930.

(Thumbmarked) (Thumbmarked)
LEON ARVISU MARGARITA TORRES
Signed in the prsence of:
(Sgd.) Illegible (Sgd.) Macaria Bautista
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
UNITED STATES OF AMERICA )
PHILIPPINE ISLANDS )
MUNICIPALITY OF TANZA ) ss
PROVINCE OF CAVITE )
Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon
Arvisu exhibited to me no cedula certificate being exempt on account of going
over 60 years of age and Margarita Torres having exhibited no cedula certificate
being exempt on account of her sex.
Witness my hand and seal of office on the date and place aforesaid.
CONSTANCIO T.
VELASCO
Notary Public, Cavite
Province
Until Dec. 31, 1930.
Not. Reg. No. 56
P. No. 2
Book No. III Series of 1930. 11
The reason given for the non-production of the notarial document during trial was that the
same was only found by petitioner's daughter, Nemensia A. Bautista, among the personal
belongings of private respondent, Vicente Santillan, an adverse party, after his death and who
may have attempted to suppress it. Private respondents, for their part, argued against new
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trial, and contended that it is not newly discovered evidence which could not have been
produced during the trial by the exercise of due diligence.
The Decision of the Appellate Court was rendered by a Division of three, composed of Justices
Jesus Y. Perez, Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for
Reconsideration and New Trial was considered, there was disagreement, possibly as to whether
or not new trial should be granted in respect of the sworn statement of March 5, 1930. A
Special Division of five was then formed, composed of Justices Antonio Lucero Magno S.
Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio and Luis B. Reyes (Justice Perez having
retired or having disqualified himself). In a minute resolution of August 24, 1973, the Division of
five, by a vote of three or two, denied both reconsideration and new trial.
To warrant review, petitioner, has summarized her submission based on two assignments of
error. The first was expressed as follows:
Although the Court of Appeals is correct in declaring that Macaria A. Torres is not
the legitimated child of the spouses Leon Arbole and Margarita Torres, it has
overlooked to include in its findings of facts the admission made by Vicente
Santillan and the heirs of Antonina Santillan (herein respondents) that Macaria
A. Torres and Vicente Santillan and Antonina Santillan are brother and sisters
with a common mother Margarita Torres and they are the legal heirs and
nearest of relatives of Margarita Torres, and as a consequence thereof, the Court
of Appeals had drawn an incorrect conclusion in adjudicating the entire share of
Margarita Torres in the conjugal property solely to Vicente Santillan and the
heirs of Antonina Santillan. (emphasis supplied)
As we understand it, petitioner has conceded, with which we concur, that, without taking
account of the sworn statement of March 5, 1930, she cannot be considered a legitimated child
of her parents. Continuous possession of the status of a natural child, fact of delivery by the
mother, etc. will not amount to automatic recognition, but an action for compulsory
recognition is still necessary, which action may be commenced only during the lifetime of the
putative parents, subject to certain exceptions. 12
The admission adverted to appears in paragraph 3 of private respondents' original complaint in
the Ejectment Case reading:
the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and
nearest of kins of Margarita Torres, who died in Tanza, Cavite on December 20,
1931. (Emphasis supplied).
The statement, according to petitioner, is an admission of her legitimation and is controlling in
the determination of her participation in the disputed property.
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We are not persuaded. In the Amended Complaint filed by private respondents in the same
Ejectment Case, the underlined portion was deleted so that the statement simply read:
That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who
died at Tanza, Cavite, on December 20, 1931.
In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded
as abandoned and ceases to perform any further function as a pleading. The original complaint
no longer forms part of the record. 13
If petitioner had desired to utilize the original complaint she should have offered it in evidence.
Having been amended, the original complaint lost its character as a judicial admission, which
would have required no proof, and became merely an extrajudicial admission, the admissibility
of which, as evidence, required its formal offer. Contrary to petitioner's submission, therefore
there can be no estoppel by extrajudicial admission made in the original complaint, for failure
to offer it in evidence. 14
It should be noted that in the Partition Case private respondents, in their Answer (parag. 4),
denied the legitimacy of petitioner.
The second error attributed to the Appellate Court has been pleaded as follows:
Also, the Court of Appeals has gravely abused its discretion when it denied the
petition for new trial, knowing as it does that the judgment is clearly erroneous
in view of the evidence which is offered and no amount of diligence on the part
of the petitioner could it be produced in court at any time before it was offered
as it was found from the personal belongings of Vicente Santillan, an adverse
party, after his death.
It is our considered opinion that new trial was warranted to prevent a possible miscarriage of
justice. Assuming that the genuineness and due execution of the Sworn Statement of March 5,
1930 is established in accordance with procedural due process, a new trial would resolve such
vital considerations as (1) whether or not said Sworn Statement qualifies as the public
document prescribed in Article 131 of the old Civil Code; 15 (2) whether or not it conforms to
an act of acknowledgment by the parents after the celebration of their marriage as required by
Article 121 of the same code; 16 and (3) whether or not petitioner's signature as a witness to
said document was the equivalent of the consent necessary for acknowledgment of an adult
person under Article 133 of that Code. 17Affirmative answers would confer upon petitioner the
status of a legitimated child of her parents, and would entitle her to enjoy hereditary rights to
her mother's estate.
Private respondents stress that since petitioner signed as a witness to the document she should
be chargeable with knowledge of its existence, and, therefore, the Sworn Statement was not
newly discovered evidence. In our view, the document can reasonably qualify as newly
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discovered evidence, which could not have been produced during the trial even with the
exercise of due diligence; specially if it really had been in the possession of Vicente Santillan, an
adverse party who, it was alleged, suppressed the document.
In the interest of judicial expediency, the new trial can be conducted by respondent Appellate
Court, now empowered to do so under Section 9 of Batas Pambansa Blg. 129.
WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new
trial, and depending on its outcome, said Court shall also resolve the respective participation of
the parties in the disputed property, inclusive of the estate of the deceased Vicente Santillan.
No costs.
SO ORDERED.
Plana, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring:
I concur with the judgment of the Court remanding the case to the Intermediate Appellate
Court for new trial, specifically for the admission of newly discovered evidence consisting of the
sworn statement of March 5, 1930, wherein petitioner Macaria A. Torres' parents, Leon Arbole
and Margarita Torres, expressly recognized Macaria as their "legitimized daughter" who was
born out of wedlock to them (although neither of them was under any impediment to marry at
the time of her conception), and was afterwards legitimated by their subsequent marriage. The
admission of such sworn statement, as stated in the Court's decision penned by Madame
Justice Herrera, would prevent a possible miscarriage of justice and upon the establishment of
vital considerations therein stated, would establish Macaria's status as a legitimated child,
which would entitle her to en joy hereditary rights to her mother's estate (one-half [1/2] of the
property in question, at 551 of the Sta. Cruz de Malabon estate), as awarded by the trial court,
but reversed by the appellate court's split 3 to 2 decision.
I write this brief concurrence just to underscore the following:
1. Both the trial and appellate courts are in agreement that the property in question is conjugal
partnership property of the spouses Leon Arbole and Margarita Torres. Both of them are
likewise in agreement that Macaria is entitled to one-half (1/2) of the said propel ty
corresponding to her father Leon Arbole by virtue of her being the sole child and heir of the
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said Leon Arbole (not to mention that he had during his lifetime transferred the same to her in
full ownership).
What is remanded to the appellate court for resolution is the claim of Macaria that as a
legitimated child, she is entitled to an additional one-third (1/3) share in the other half of the
disputed property corresponding to her mother Margarita Torres or an additional one-sixth
(1/6) of the entire property with the remaining two-sixths (2/6) share corresponding of the
heirs, namely, Vicente and Antonina, both surnamed Santillan, who were born of Margarita
Torres' first marriage with Claro Santillan. Thus, the trial court adjudicated four-sixths (4/6) of
the entire property to Macaria and she asks for the reinstatement of such verdict of the trial
court. On the other hand, the appellate court recognized only Macaria Torres' right to one-half
(1/2) or three-sixths (3/6) of the disputed property and gave her no shop. in the other one-half
1/2 or three-sixths (3/6) pertaining to the conjugal share of her mother Margarita.
2. I do not concur with the statement in the Court's main opinion that The admission by
respondents in their original complaint for ejectment against Macaria that they and Macaria are
the legal heirs of their deceased common mother Margarita Torres can no longer be invoked by
Macaria as a judicial admission against said respondents, simply because said respondents had
thereafter filed an amended complaint deleting the admission. Such admission did not cease to
be a judicial admission simply because respondents subsequently deleted the same in their
amended complaint. The original complaint, although replaced by an amended complaint, does
not cease to be a part of the judicial record, not having been expunged therefrom. The
precedents cited for not considering this admission against respondents, since Macaria did not
formally offer in evidence the original complaint, do not appear to be applicable and are based
on pure technicality.
As far as Macaria's mother Margarita Torres is concerned, there can be no denying their
maternity and filiation. Macaria's being a duly acknowledged natural child of Margarita is
established in the record of birth, as well as by the very undisputed fact of Margarita having
given birth to her. Macaria would, therefore, be entitled to the full enjoyment of the status of a
legitimated child of Margarita by virtue of Margarita's subsequent marriage with her father
Leon Arbole.
The question of admissibility of the original complaint for ejectment as a judicial admission
against respondents remains open, in my view, for proper determination and resolution by the
appellate court with the remand of this case to it for further proceedings.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment of the Court remanding the case to the Intermediate Appellate
Court for new trial, specifically for the admission of newly discovered evidence consisting of the
sworn statement of March 5, 1930, wherein petitioner Macaria A. Torres' parents, Leon Arbole
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and Margarita Torres, expressly recognized Macaria as their "legitimized daughter" who was
born out of wedlock to them (although neither of them was under any impediment to marry at
the time of her conception), and was afterwards legitimated by their subsequent marriage. The
admission of such sworn statement, as stated in the Court's decision penned by Madame
Justice Herrera, would prevent a possible miscarriage of justice and upon the establishment of
vital considerations therein stated, would establish Macaria's status as a legitimated child,
which would entitle her to en joy hereditary rights to her mother's estate (one-half [1/2] of the
property in question, at 551 of the Sta. Cruz de Malabon estate), as awarded by the trial court,
but reversed by the appellate court's split 3 to 2 decision.
I write this brief concurrence just to underscore the following:
1. Both the trial and appellate courts are in agreement that the property in question is conjugal
partnership property of the spouses Leon Arbole and Margarita Torres. Both of them are
likewise in agreement that Macaria is entitled to one-half (1/2) of the said propel ty
corresponding to her father Leon Arbole by virtue of her being the sole child and heir of the
said Leon Arbole (not to mention that he had during his lifetime transferred the same to her in
full ownership).
What is remanded to the appellate court for resolution is the claim of Macaria that as a
legitimated child, she is entitled to an additional one-third (1/3) share in the other half of the
disputed property corresponding to her mother Margarita Torres or an additional one-sixth
(1/6) of the entire property with the remaining two-sixths (2/6) share corresponding of the
heirs, namely, Vicente and Antonina, both surnamed Santillan, who were born of Margarita
Torres' first marriage with Claro Santillan. Thus, the trial court adjudicated four-sixths (4/6) of
the entire property to Macaria and she asks for the reinstatement of such verdict of the trial
court. On the other hand, the appellate court recognized only Macaria Torres' right to one-half
(1/2) or three-sixths (3/6) of the disputed property and gave her no shop. in the other one-half
1/2 or three-sixths (3/6) pertaining to the conjugal share of her mother Margarita.
2. I do not concur with the statement in the Court's main opinion that The admission by
respondents in their original complaint for ejectment against Macaria that they and Macaria are
the legal heirs of their deceased common mother Margarita Torres can no longer be invoked by
Macaria as a judicial admission against said respondents, simply because said respondents had
thereafter filed an amended complaint deleting the admission. Such admission did not cease to
be a judicial admission simply because respondents subsequently deleted the same in their
amended complaint. The original complaint, although replaced by an amended complaint, does
not cease to be a part of the judicial record, not having been expunged therefrom. The
precedents cited for not considering this admission against respondents, since Macaria did not
formally offer in evidence the original complaint, do not appear to be applicable and are based
on pure technicality.
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As far as Macaria's mother Margarita Torres is concerned, there can be no denying their
maternity and filiation. Macaria's being a duly acknowledged natural child of Margarita is
established in the record of birth, as well as by the very undisputed fact of Margarita having
given birth to her. Macaria would, therefore, be entitled to the full enjoyment of the status of a
legitimated child of Margarita by virtue of Margarita's subsequent marriage with her father
Leon Arbole.
The question of admissibility of the original complaint for ejectment as a judicial admission
against respondents remains open, in my view, for proper determination and resolution by the
appellate court with the remand of this case to it for further proceedings.
Footnotes
1 p. 79, Rollo.
2 p. 77, Ibid.
3 CA Decision, pp. 9 & 10, Rollo, pp. 33 & 34.
4 p. 68. Original Record.
5 pp. 123 & 124, Ibid.
6 pp. 115 & 116, Ibid.
7 Former Fifth Division composed of Justices Jesus Y. Perez, Jose N. Leuterio, and Luis B. Reyes (ponente).
8 p. 42, Rollo.
9 pp- 34 & 35, Ibid.
10 Annex "A", Petition for New Trial.
11 p. 50, Rollo.
12 Articles 135, 136, and 137, Spanish Civil Code; Gitt vs. Gitt, 68 Phil. 385, 390 (1939); Canales vs. Arrogante, 91 Phil. 6
(1952).
13 Reynes vs. Compania General de Tabacos, 21 Phil. 416 (1912).
14 Javellana vs. D.O. Plaza Enterprises, Inc., 32 SCRA 261 (1970).
15 ARTICLE 13l The acknowledgment of a natural child must be made in the record of birth, in a will or in some other
public document.
16 ARTICLE 121. Children shall be considered as legitimated by a subsequent marriage only when they have been
acknowledged by the parents before or after the celebration thereof.
17 ARTICLE 133. An adult person may not be acknowledged as a natural child without his consent. The approval of the
court, to be granted after hearing the prosecuting officer, shall be necessary to the acknowledgment of a minor, unless
such acknowledgment be made in a certificate of birth or in a will The minor may in any case contest the
acknowledgment within the four years next following the attainment of his or her majority.
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SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-31408 April 22, 1991
THE DIRECTOR OF LANDS, petitioner,
vs.
THE COURT OF APPEALS and BORROMEO BROS. ESTATE, INC., respondents.
Feliberto Leonardo and Benjamin S. Rallon for private respondent.

NARVASA, J.:p
Whether the land in dispute was formed by the action of the sea or by deposits of soil and
sedimentary matter carried by river currents is the main issue in this case, which was elevated
to the Court by petition for review of a decision of the Court of Appeals.
1

In October 1956 the corporation R. Borromeo Bros. Estate, Inc. instituted in the Court of First
Instance of Leyte original proceedings
2
for confirmation and registration of title in its favor of a
parcel of land fronting the sea in the coastal town of San Isidro, Leyte with an area of 130,537
square meters. The application
3
alleged that the land was bounded on the North, East and
South by property of the applicant and on the West by San Isidro Bay; that it had been formed
by accretion of sediments carried from the highlands by the natural action of the Si-ong and
Sinubdan Rivers when these overflowed their banks during the rainy season;
4
that it had been
publicly, openly, continuously and adversely possessed by the applicant for 20 years prior to the
filing of the application; and that to the applicant's knowledge there existed no mortgage, lien
or other adverse claim on the land.
5

Two oppositions to the application were filed. One, filed by the Director of Lands, asserted that
the land applied for was part of the public domain, and that the applicant or its predecessors-
in-interest had no sufficient title to the land, by way of either composition of possessory
information, or by virtue of open, public, adverse and continuous possession under claim of
ownership since July 26, 1894.
6

The other opposition, filed by the Municipality of San Isidro, echoed the contention of the
Director of Lands that the land formed part of the public domain, alleging that it was classified
as Timber Block-J, Leyte Project No. 40; denied the applicant's claim of open, adverse,
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continuous and exclusive possession and averred that the land was occupied by other parties
who had waived their claims in favor of said oppositor; and alleged, further, that it (oppositor)
needed the land for municipal expansion, having in fact adopted resolutions requesting the
Government to reserve the land for that purpose, and that the applicant had applied for, but
had been denied, a lease of the land after it had been released for private occupation by the
Bureau of Forestry.
7

The case was then heard. It would appear that after the applicant had presented its evidence, it
sought and was allowed to amend its application, which originally alleged that the land applied
for had been formed of alluvium deposited by the action of the sea,
8
in order to allege, as said
appellant's evidence had tended to establish, that said land had been formed instead from
accretions of soil and sediment carried from higher places by the currents of the Si-ong and
Sinubdan Creeks.
Thereafter, evidence for the oppositors also having been presented, the Trial Court rendered
judgment denying the application and declaring the land applied for public land formed by the
action of the sea and not of any river.
9
The applicant then appealed to the Court of Appeals,
which reversed the decision of the Trial Court, sustained the applicant's contention as to the
origin of the land, on that basis declared the land to be private land of said applicant and
decreed its registration in the applicant's name.
10

The Appellate Court's judgment was in turn appealed to this Court by the Director of Lands
who, in the main, argues that the Appellate Court erred in concluding that the evidence showed
the land to have been formed by the action of rivers and in not holding the applicant bound by
the averment in its original application that the land was formed by the natural action of the
sea.
11

The first assignment of error may be disposed of by the simple expedient of pointing out that
the assailed "conclusion" of the Court of Appeals is one of fact, not of law, and is, therefore,
beyond the province of this Court to review,
12
save in certain exceptional circumstances.
13

To dispel any doubts, however, and not to rely solely on what might appear to some to be a
fine distinction, particularly considering that the finding of the Court of Appeals on the crucial
factual question of how the land in dispute came into existence conflicts with that of the Trial
Court, this Court has reviewed the available record
14
and finds no sound basis for ascribing any
error to the Appellate Court in its appreciation of the evidence.
The petitioner's case is anchored on evidence tending to establish that the Sinubdan and Si-ong
Rivers whose currents, according to the private respondent, formed the land in question from
the sediments they carried were not natural streams, but mere canals dug as part of an
irrigation system; that they had no intrinsic water sources and in fact dried up during the
summer season; that a survey commissioned by the petitioner itself in 1949 did not indicate
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their existence on the plan; and that part of the land is swampy with mangrove trees growing
thereon.
15

More persuasive, however, is the countervailing evidence of the private respondent which
consists, principally, of the testimony of Felix Sablado, a bridge foreman of the Bureau of Public
Highways, and Teofilo Pacana, overseer of the petitioner's lands. According to the petitioner's
uncontradicted summary of Sablado's testimony, said witness had undertaken studies of the
Sinubdan and Si-ong Rivers, measuring their depth and width, the volume of water that they
carried, and the size of the bridges spanning them. He had declared the Si-ong was more than
seven meters deep, while the Sinubdan had a depth of more than three meters, that the
Filemon Bridge crossing the Si-ong was seven meters long and four meters wide and the
Sinubdan Bridge had the same dimensions. And under cross-examination, he had maintained
that there is a source of water under the Filemon Bridge.
16
Pacana, for his part, testified that
there is a continuous flow of water in both rivers throughout the year, and not merely during
the rainy season, as claimed by one of the oppositors' witnesses, and that while a few
mangrove trees grow in the salvage zone which is far from the land, none are found within the
boundaries of the land itself.
17
This is at least partly confirmed by photographs received in
evidence
18
showing rice, coconut trees and bamboo groves growing on the land, and which
apparently persuaded the Trial Court that at least a part of the land had been . . . transformed
(through cultivation by the private respondent) into a veritable first class rice land.
19

The petitioner's argument that accretion, by definition imperceptible, could hardly account for
such an area of land (more than thirteen hectares) being built up within a period of six years,
hinges upon an unwarrantedly literal advertence to the testimony of one of the private
respondent's witnesses who declared that the process took place from 1930 to
1936.
20
Assuming that the witness attested to what he sincerely believed to be the truth, the
possibility of his being mistaken cannot be discounted because, the age of the rivers in question
never having been established, the process of accretion through the action of their currents
could have started much earlier than 1930. It is also entirely possible and reasonably
presumable, lacking any proof to the contrary even granting that accretion started only in
1930, for the land to have grown to thirteen hectares in the twenty years that followed until
1956 when the application for registration was filed.
The Court therefore finds no error in the ruling of the Court of Appeals that the land was
formed by accretion through the action of river currents and belonged to the private
respondent as riparian owner pursuant to Art. 457 of the Civil Code.
The Court of Appeals also correctly overruled the petitioner's contention that the averment in
the original application for registration attributing the origin of the land to the action of the sea,
which averment, with leave of court, was later superseded by an amendment to the effect that
the land was formed by the action of rivers, was binding on the private respondent as a judicial
admission. Pleadings that have been amended disappear from the record, lose their status as
pleadings and cease to be judicial admissions. While they may nonetheless be utilized against
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the pleader as extra-judicial admissions, they must, in order to have such effect, be formally
offered in evidence.
21
It does not appear that the original application for registration
containing the averment in question, or that particular averment itself, was offered or received
in evidence for the petitioner in the Trial Court.
WHEREFORE, the Decision of the Court of Appeals subject of the petition for review is
AFFIRMED, without pronouncement as to costs.
SO ORDERED.
Cruz, Gancayo, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 in CA-G.R. No. 26867-R.
2 Case No. N-0-11, LRC Rec. No. N-7998.
3 as later amended.
4 The application originally averred that the land applied for had been formed through alluvium by action of the sea
(Record on Appeal, p. 20, rollo, p. 45).
5 Record on Appeal, pp. 1-7; Rollo, p. 45.
8 Trial Court's decision; record on appeal, p. 20; Rollo, p. 45.
9 Id., pp. 17-24.
10 Rollo, pp. 36-42.
11 Rollo, p. 26.
12 Rule 45, sec. 2 (second paragraph), Rules of Court.
13 See Tolentino vs. De Jesus, 56 SCRA 167; Cesar vs. Sandiganbayan, 134 SCRA 105,121-122; and People vs. Traya, 147
SCRA 381, 388, for enumeration of those circumstances and citation of supporting authorities.
14 See Rollo, pp. 122-123.
15 Rollo, pp. 30-33, 38-40.
16 See record on appeal, pp. 30-31, Rollo, p. 44, where private respondent summarizes Sablado's testimony in its motion
for reconsideration of the decision of the Trial Court.
17 Id., at pp. 32-33.
18 Referred to as Exhibits P and P-1 by the petitioner in the same motion for reconsideration, supra; record on appeal, p.
33, Rollo, p. 44.
19 Record on Appeal, p. 19; Rollo, p. 44.
20 Rollo, p. 28.
21 Bastida vs. Menzi & Co., 58 Phil. 188, 222, citing Jones on Evidence, sec. 273 and Lucido vs. Calupitan, 27 Phil.
148; see also Francisco's Revised Rules of Court, 1973 ed., Vol. VII, pp. 93-94.

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FIRST DIVISION
[G.R. No. 80505 : December 4, 1990.]
192 SCRA 28
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM,Defendant-
Appellant.

D E C I S I O N

CRUZ, J.:

The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987,
convicting Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known
as the Dangerous Drugs Act of 1972, is before us on appeal.
The information against the accused-appellant read as follows:
That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
without being authorized by law, did then and there willfully, unlawfully and feloniously sell
eight (8) pieces of dried marijuana flowering tops, two (2) pieces of dried marijuana flowering
tops and crushed dried marijuana flowering tops, which are prohibited drug, for and in
consideration of P20.00.
Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J.
Guerrero rendered a decision the dispositive portion of which declared:
WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of
violation of Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to
life imprisonment and to pay a fine of P20,000.00 and cost.: nad
The marijuana confiscated in this case is declared confiscated and forfeited and ordered
turned over to the Dangerous Drugs Board for proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of errors in this appeal:
1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime
charged despite lack of evidence to prove that he sold marijuana to the poseur-buyer.
2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which
is merely a xerox copy of the P10.00 bill allegedly used as buy-bust money.
The evidence of the prosecution may be summarized as follows:
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On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc.
Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz,
Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation
at Solchuaga St., Barangay Singkamas, Makati.
The target area was a store along the said street, and Singayan was to pose as the buyer. He
stood alone near the store waiting for any pusher to approach. The other members of the team
strategically positioned themselves. Soon, three men approached Singayan. One of them was
the accused-appellant, who said without preamble: "Pare, gusto mo bang umiskor?" Singayan
said yes. The exchange was made then and there two rolls/pieces of marijuana for one
P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit).
The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search
of the accused-appellant and took from him the marked money, as well as eight more rolls/foils
of marijuana and crushed leaves.: nad
The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police
Station, for investigation by Detective Marvin Pajilan. The accused-appellant chose to remain
silent after having been informed of his constitutional rights.
These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1 Microscopic,
chemical and chromotographic examination was performed on the confiscated marijuana by
Raquel P. Angeles, forensic chemist of the National Bureau of Investigation, who later testified
that the findings were positive. The marijuana was offered as an exhibit. 2
As might be expected, the accused-appellant had a different story. His testimony was that from
1:30 to 4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons
along Solchuaga St. when somebody suddenly said that policemen were making arrests. The
players grabbed the bet money and scampered. However, he and a certain Danny (another
"cara y cruz" player) were caught and taken to the Narcotics Command headquarters in Makati.
There they were mauled and warned that if they did not point to their fellow pushers, they
would rot in jail. The accused-appellant denied he had sold marijuana to Singayan and insisted
the bills taken from him were the bet money he had grabbed at the "cara y cruz" game. 3
The trial court, which had the opportunity to observe the demeanor of the witnesses and to
listen to their respective testimonies, gave more credence to the statements of the arresting
officers. Applying the presumption that they had performed their duties in a regular manner, it
rejected Tandoy's uncorroborated allegation that he had been manhandled and framed.
Tandoy had not submitted sufficient evidence of his charges, let alone his admission that he
had no quarrel with the peace officers whom he had met only on the day of his arrest.
In People v. Patog, 4 this Court held:
When there is no evidence and nothing to indicate the principal witness for the prosecution
was actuated by improper motives, the presumption is that he was not so actuated and his
testimony is entitled to full faith and credit.
Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger
until the seller is certain of the identity of the buyer."
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The conjecture must be rejected.: nad
In People v. Paco, 5 this Court observed:
Drug-pushing when done on a small level as in this case belongs to that class of crimes that may
be committed at anytime and at any place. After the offer to buy is accepted and the exchange
is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a
public place and in the presence of other people may not always discourage them from
pursuing their illegal trade as these factors may even serve to camouflage the same. Hence, the
Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall
(People v. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No.
72141, January 12, 1987, 147 SCRA 252), in front of a store (People vs. Khan, supra) along a
street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259), and
in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988).
As the Court has also held, "What matters is not an existing familiarity between the buyer and
the seller but their agreement and the acts constituting the sale and delivery of the marijuana
leaves." 6
Under the second assigned error, the accused-appellant invokes the best evidence rule and
questions the admission by the trial court of the xerox copy only of the marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted that contention thus:
This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh.
E-2-A) which, according to the appellant, is excluded under the best evidence rule for being a
mere xerox copy. Apparently, appellant erroneously thinks that said marked money is an
ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes
the introduction of secondary evidence except in the five (5) instances mentioned therein.:-
cralaw
The best evidence rule applies only when the contents of the document are the subject of
inquiry. Where the issue is only as to whether or not such document was actually executed, or
exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule
does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin,
op. cit., p. 78.)
Since the aforesaid marked money was presented by the prosecution solely for the purpose of
establishing its existence and not its contents, other substitutionary evidence, like a xerox copy
thereof, is therefore admissible without the need of accounting for the original.
Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the
conviction of the accused-appellant because the sale of the marijuana had been adequately
proved by the testimony of the police officers. So long as the marijuana actually sold by the
accused-appellant had been submitted as an exhibit, the failure to produce the marked money
itself would not constitute a fatal omission.
We are convinced from the evidence on record that the prosecution has overcome the
constitutional presumption of innocence in favor of the accused-appellant with proof beyond
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reasonable doubt of his guilt. He must therefore suffer the penalty prescribed by law for those
who would visit the scourge of drug addiction upon our people.
WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with
costs against the accused-appellant.: nad
SO ORDERED
Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Endnotes
1. TSN, October 1, 1986; TSN, November 19, 1986; TSN, January 7, 1987.
2. Exhibit "D."
3. TSN, February 16, 1987, p. 6; Exhibit "E."
4. 144 SCRA 429.
5. 170 SCRA 681.
6. People v. Rodriguez y Teves, 172 SCRA 742.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:
The Court of First Instance of Manila
1
sentenced petitioner to pay respondent Rafael
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20
representing the difference in fare between first class and tourist class for the portion of the
trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the
filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,
2
the Court of Appeals slightly reduced the amount of refund on Carrascoso's
plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other
respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record",
are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left
Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from
Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at
Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class"
seat that he was occupying because, in the words of the witness Ernesto G. Cuento,
there was a "white man", who, the Manager alleged, had a "better right" to the seat.
When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused,
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and told defendant's Manager that his seat would be taken over his dead body; a
commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino
passengers got nervous in the tourist class; when they found out that Mr. Carrascoso
was having a hot discussion with the white man [manager], they came all across to Mr.
Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p.
12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the
plane.
3

1. The trust of the relief petitioner now seeks is that we review "all the findings"
4
of
respondent Court of Appeals. Petitioner charges that respondent court failed to make complete
findings of fact on all the issues properly laid before it. We are asked to consider facts favorable
to petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by
any court of record without expressing therein clearly and distinctly the facts and the law on
which it is based".
5
This is echoed in the statutory demand that a judgment determining the
merits of the case shall state "clearly and distinctly the facts and the law on which it is
based";
6
and that "Every decision of the Court of Appeals shall contain complete findings of fact
on all issues properly raised before it".
7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack.
8
The
law, however, solely insists that a decision state the "essential ultimate facts" upon which the
court's conclusion is drawn.
9
A court of justice is not hidebound to write in its decision every bit
and piece of evidence
10
presented by one party and the other upon the issues raised. Neither is
it to be burdened with the obligation "to specify in the sentence the facts" which a party
"considered as proved".
11
This is but a part of the mental process from which the Court draws
the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if
not confusion, may result. So long as the decision of the Court of Appeals contains the
necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom
"any specific finding of facts with respect to the evidence for the defense". Because as this
Court well observed, "There is no law that so requires".
12
Indeed, "the mere failure to specify
(in the decision) the contentions of the appellant and the reasons for refusing to believe them is
not sufficient to hold the same contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was held that the mere fact that the
findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment.
13
If the court did not recite in the decision the
testimony of each witness for, or each item of evidence presented by, the defeated party, it
does not mean that the court has overlooked such testimony or such item of evidence.
14
At any
rate, the legal presumptions are that official duty has been regularly performed, and that all the
matters within an issue in a case were laid before the court and passed upon by it.
15

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134 | P a g e
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the
written statement of the ultimate facts as found by the court ... and essential to support the
decision and judgment rendered thereon".
16
They consist of the
court's "conclusions" with respect to the determinative facts in issue".
17
A question of law, upon
the other hand, has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties."
18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a
judgment of the Court of Appeals.
19
That judgment is conclusive as to the facts. It is not
appropriately the business of this Court to alter the facts or to review the questions of fact.
20

With these guideposts, we now face the problem of whether the findings of fact of the
Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from
petitioner a first class ticket. But petitioner asserts that said ticket did not represent the true
and complete intent and agreement of the parties; that said respondent knew that he did not
have confirmed reservations for first class on any specific flight, although he had tourist class
protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would
have a first class ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief
before the Court of Appeals under its third assignment of error, which reads: "The trial court
erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on
the "definite" segments of his journey, particularly that from Saigon to Beirut".
21

And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class
ticket was no guarantee that the passenger to whom the same had been issued, would
be accommodated in the first-class compartment, for as in the case of plaintiff he had
yet to make arrangements upon arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We cannot understand how a
reputable firm like defendant airplane company could have the indiscretion to give out
tickets it never meant to honor at all. It received the corresponding amount in payment
of first-class tickets and yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of business that the company
should know whether or riot the tickets it issues are to be honored or not.
22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
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135 | P a g e
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no
question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and
"C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and
testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK
mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
x x x x x x x x x
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael
Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket
was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said
witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l",
"B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified
that the reservation for a "first class" accommodation for the plaintiff was confirmed. The court
cannot believe that after such confirmation defendant had a verbal understanding with plaintiff
that the "first class" ticket issued to him by defendant would be subject to confirmation in
Hongkong.
23

We have heretofore adverted to the fact that except for a slight difference of a few pesos
in the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was
affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of
affirmance has merged the judgment of the lower court.
24
Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and "all questions raised by the assignments of error and all
questions that might have been raised are to be regarded as finally adjudicated against the
appellant". So also, the judgment affirmed "must be regarded as free from all error".
25
We
reached this policy construction because nothing in the decision of the Court of Appeals on this
point would suggest that its findings of fact are in any way at war with those of the trial court.
Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those
which were made the basis of the conclusions of the trial court.
26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
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136 | P a g e
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the
very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What
if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written
document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket
so issued is desirable. Such is the case here. The lower courts refused to believe the oral
evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts
upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first
class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to
Beirut leg of the flight.
27
We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner.
28
Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue".
29
And this because, as petitioner states, Carrascoso went to see the
Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again
to see the Manager".
30
Why, then, was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant
claim is that Carrascoso's action is planted upon breach of contract; that to authorize an award
for moral damages there must be an averment of fraud or bad faith;
31
and that the decision of
the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint
bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for
a valuable consideration, the latter acting as general agents for and in behalf of the
defendant, under which said contract, plaintiff was entitled to, as defendant agreed to
furnish plaintiff, First Class passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's
return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished
plaintiff only TouristClass accommodations from Bangkok to Teheran and/or
Casablanca, ... the plaintiff has been compelled by defendant's employees to leave the
First Class accommodation berths at Bangkok after he was already seated.
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137 | P a g e
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and
embarrassments brought by defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from Madrid to Manila.
32

x x x x x x x x x
2. That likewise, as a result of defendant's failure to furnish First Class accommodations
aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the
like injury, resulting in moral damages in the amount of P30,000.00.
33

x x x x x x x x x
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish
plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That
said contract was breached when petitioner failed to furnish first class transportation at
Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso
to leave his first class accommodation berth "after he was already, seated" and to take a seat in
the tourist class, by reason of which he suffered inconvenience, embarrassments and
humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there is no specific mention of the
term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from
the facts and circumstances set forth therein.
34
The contract was averred to establish the
relation between the parties. But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel
placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the
plane in Bangkok, Carrascoso wasousted by petitioner's manager who gave his seat to a white
man;
35
and (b) evidence of bad faith in the fulfillment of the contract was presented without
objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or
not there is sufficient averment in the complaint to justify an award for moral damages.
Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required.
36
On the question of bad faith, the Court of
Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the
plane belonging to the defendant Air France while at Bangkok, and was transferred to
the tourist class not only without his consent but against his will, has been sufficiently
established by plaintiff in his testimony before the court, corroborated by the
corresponding entry made by the purser of the plane in his notebook which notation
reads as follows:
"First-class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene",
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138 | P a g e
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-
passenger. The captain of the plane who was asked by the manager of defendant
company at Bangkok to intervene even refused to do so. It is noteworthy that no one on
behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could
have been easy for defendant to present its manager at Bangkok to testify at the trial of
the case, or yet to secure his disposition; but defendant did neither.
37

The Court of appeals further stated
Neither is there evidence as to whether or not a prior reservation was made by the
white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket
to him when all the seats had already been taken, surely the plaintiff should not have
been picked out as the one to suffer the consequences and to be subjected to the
humiliation and indignity of being ejected from his seat in the presence of others.
Instead of explaining to the white man the improvidence committed by defendant's
employees, the manager adopted the more drastic step of ousting the plaintiff who was
then safely ensconsced in his rightful seat. We are strengthened in our belief that this
probably was what happened there, by the testimony of defendant's witness Rafael
Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the
tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida
Faustino, another witness for defendant, who was the chief of the Reservation Office of
defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19,
1959)
In this connection, we quote with approval what the trial Judge has said on this
point:
Why did the, using the words of witness Ernesto G. Cuento, "white man"
have a "better right" to the seat occupied by Mr. Carrascoso? The record is
silent. The defendant airline did not prove "any better", nay, any right on the
part of the "white man" to the "First class" seat that the plaintiff was occupying
and for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so; the
presumption is that evidence willfully suppressed would be adverse if produced
[Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is
constrained to find, as it does find, that the Manager of the defendant airline in
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Bangkok not merely asked but threatened the plaintiff to throw him out of the
plane if he did not give up his "first class" seat because the said Manager wanted
to accommodate, using the words of the witness Ernesto G. Cuento, the "white
man".
38

It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the recital of
facts therein points to bad faith? The manager not only prevented Carrascoso from
enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly
ejected him from his seat, made him suffer the humiliation of having to go to the tourist
class compartment - just to give way to another passenger whose right thereto has not
been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a
meaning different from what is understood in law. For, "bad faith" contemplates a
"state of mind affirmatively operating with furtive design or with some motive of self-
interest or will or for ulterior purpose."
39

And if the foregoing were not yet sufficient, there is the express finding of bad
faith in the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating circumstances that
defendant's Manager in Bangkok went to the extent of threatening the plaintiff
in the presence of many passengers to have him thrown out of the airplane to
give the "first class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager)
wished to accommodate, and the defendant has not proven that this "white
man" had any "better right" to occupy the "first class" seat that the plaintiff was
occupying, duly paid for, and for which the corresponding "first class" ticket was
issued by the defendant to him.
40

5. The responsibility of an employer for the tortious act of its employees need not be
essayed. It is well settled in law.
41
For the willful malevolent act of petitioner's manager,
petitioner, his employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that
is contrary to morals, good customs or public policy shall compensate the latter for the
damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon
the provisions of Article 2219 (10), Civil Code, moral damages are recoverable.
42

6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation.
43
And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the comforts
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140 | P a g e
and advantages it offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by
the carrier's employees with kindness, respect, courtesy and due consideration. They are
entitled to be protected against personal misconduct, injurious language, indignities and abuses
from such employees. So it is, that any rule or discourteous conduct on the part of employees
towards a passenger gives the latter an action for damages against the carrier.
44

Thus, "Where a steamship company
45
had accepted a passenger's check, it was a breach
of contract and a tort, giving a right of action for its agent in the presence of third persons to
falsely notify her that the check was worthless and demand payment under threat of ejection,
though the language used was not insulting and she was not ejected."
46
And this, because,
although the relation of passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort".
47
And in another case,
"Where a passenger on a railroad train, when the conductor came to collect his fare tendered
him the cash fare to a point where the train was scheduled not to stop, and told him that as
soon as the train reached such point he would pay the cash fare from that point to destination,
there was nothing in the conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic,"
48
and the Supreme Court of South
Carolina there held the carrier liable for the mental suffering of said passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of
public duty by the petitioner air carrier a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already that was already in the trip I could not help it. So one of
the flight attendants approached me and requested from me my ticket and I said, What
for? and she said, "We will note that you transferred to the tourist class". I said,
"Nothing of that kind. That is tantamount to accepting my transfer." And I also said,
"You are not going to note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
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A Well, the seats there are so close that you feel uncomfortable and you don't have
enough leg room, I stood up and I went to the pantry that was next to me and the
purser was there. He told me, "I have recorded the incident in my notebook." He read it
and translated it to me because it was recorded in French "First class passenger
was forced to go to the tourist class against his will, and that the captain refused to
intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best
evidence would be the notes. Your Honor.
COURT
I will allow that as part of his testimony.
49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry
in his notebook reading "First class passenger was forced to go to the tourist class against his
will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's
testimony above] which is incompetent. We do not think so. The subject of inquiry is not the
entry, but the ouster incident. Testimony on the entry does not come within the proscription of
the best evidence rule. Such testimony is admissible.
49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the
impact of the startling occurrence was still fresh and continued to be felt. The excitement had
not as yet died down. Statements then, in this environment, are admissible as part of the res
gestae.
50
For, they grow "out of the nervous excitement and mental and physical condition of
the declarant".
51
The utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has
been guaranteed.
52
It thus escapes the operation of the hearsay rule. It forms part of the res
gestae.
At all events, the entry was made outside the Philippines. And, by an employee of
petitioner. It would have been an easy matter for petitioner to have contradicted Carrascoso's
testimony. If it were really true that no such entry was made, the deposition of the purser could
have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in
evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to
grant exemplary damages in contracts and quasi- contracts. The only condition is that
defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent
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manner."
53
The manner of ejectment of respondent Carrascoso from his first class seat fits into
this legal precept. And this, in addition to moral damages.
54

9. The right to attorney's fees is fully established. The grant of exemplary damages
justifies a similar judgment for attorneys' fees. The least that can be said is that the courts
below felt that it is but just and equitable that attorneys' fees be given.
55
We do not intend to
break faith with the tradition that discretion well exercised as it was here should not be
disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the
Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary
damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with
the trial court.
56
The Court of Appeals did not interfere with the same. The dictates of good
sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point
to the reasonableness thereof.
57

On balance, we say that the judgment of the Court of Appeals does not suffer from
reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ.,
concur.
Bengzon, J.P., J., took no part.
Footnotes
1
Civil Case No. 38810, "Rafael Carrascoso, plaintiff, vs. Air France, defendant," R.A., pp. 79-80.
2
C.A.-G.R. No. 26522-R, "Rafael Carrascoso, plaintiff-appellee, vs. Air France, defendant-appellant."
3
Appendix A, petitioner's brief, pp 146-147. See also R.A., pp. 66-67.
4
Petitioner's brief, p. 142.
5
Section 12, Article VIII, Constitution.
6
Section 1, Rule 36, Rules of Court. See also Section 2, Rule 120, in reference to judgments in criminal cases.
7
Sec. 4. Rule 51; Sec. 33(2), Judiciary Act of 1948, as amended.
8
Edwards vs. McCoy, 22 Phil. 598, 601; Yangco vs. Court of First Instance of Manila, et al., 29 Phil. 183, 191.
9
Braga vs. Millora, 3 Phil. 458, 465.
10
Id.
11
Aringo vs. Arena 14 Phil. 263, 266; emphasis supplied.
12
Reyes vs. People. 71 Phil. 598, 600.
13
People vs. Manigque 35 O.G., No. 94, pp. 1682, 1683, citing Section 133 of the Code of Civil Procedure and Section 12, Art. VIII,
Constitution, supra.
14
Badger et al. vs. Boyd, 65 S.W. (2d), pp. 601, 610.
15
Section 5, (m) and (o), Rule 131, Rules of Court.
16
In re Good's Estate, 266 P. (2d), pp. 719, 729.
17
Badger et al. vs. Boyd, supra.
18
Goduco vs. Court of Appeals, et al., L-17647, February 28, 1964.
19
Section 2, Rule 45, Rules of Court, formerly Section 2, Rule 46 of the Rules of Court.
20
Medel, et al. vs. Calasanz, et al. L-14835, August 31, 1960; Astraquillo, et al. vs. Javier, et al., L-20034, January 30, 1965.
21
Petitioner's brief in the Court of Appeals, pp. 82-98.
22
Decision of the Court of Appeals, Appendix A, petitioner's brief, pp. 148-149.
23
R.A., pp. 67, 73.
24
5 B C.J.S., p. 295; 3 Am. Jur. p. 678.
25
3 Am. Jur., pp. 677-678.
26
See Garcia Valdez vs. Seterana Tuason, 40 Phil, 943, 951.
27
Carrascoso's ticket, according to petitioner (brief, pp. 7-8), shows:
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Segment or leg Carrier Flight No. Date of Departure
1. Manila to Hongkong PAL 300A March 30
2. Hongkong to Saigon VN(Air Vietnam) 693 March 31
3. Saigon to Beirut AF(Air France) 245 March 31
28
Petitioner's brief, p. 50; see also id., pp. 37 and 46.
29
Id., p. 103.
30
Ibid., p. 102.
31
Article 2220, Civil Code reads: "Willful injury to property may be a legal ground for awarding moral damages if the court should find
that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant
acted fraudulently or in bad faith."
32
R.A., p. 2-4; emphasis supplied.
33
R.A., P. 5; second cause of action.
34
Copeland vs. Dunehoo et al., 138 S.E., 267, 270. See also 25 C.J.S., pp. 758-759; 15 Am. Jur., pp. 766-767.
35
Statement of Attorney Villegas for respondent Carrascoso in open court. Respondent's brief, p. 33.
36
Section 5, Rule 10, Rules of Court, in part reads: "SEC. 5. Amendment to conform to or authorize presentation of evidence.When
issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if
they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend
does not affect the result of the trial of these issues ..."; Co Tiamco vs. Diaz, etc., et al., 75 Phil. 672, 679; J.M. Tuason & Co., Inc., etc.
vs. Bolanos, 95 Phil. 106, 110.
37
Decision, Court of Appeals, Appendix A of petitioner's brief, pp. 147-148.
38
Decision of the Court of Appeals, Appendix A of petitioner's brief, pp. 147-151.
39
Words & Phrases, Perm. Ed., Vol. 5, p. 13, citing Warfield Natural Gas Co. vs. Allen, 59 S.W. (2d) 534, 538.
40
R.A., p.74; emphasis supplied.
41
Article 2180, Civil Code.
42
Philippine Refining Co. vs. Garcia, et al., L-21871 and L-21962, September 27, 1966.
43
See Section 4, Chapter 3, Title VIII, Civil Code.
44
4 R.C.L., pp. 1174-1175.
45
An air carrier is a common carrier; and air transportation is similar or analogous to land and water transportation. Mendoza vs.
Philippine Air Lines, Inc., 90 Phil. 836, 841-842.
46
Austro-American S.S. Co. vs. Thomas, 248 F. 231.
47
Id., p. 233.
48
Lipman vs. Atlantic Coast Line R. Co., 93 S.E. 714, 716.
49
Petitioner's brief, pp, 104-105.
49a
V Moran, Comments on the Rules of Court, 1963 ed., p. 76.
50
Section 36, Rule 130, Rules of Court.
51
IV Martin, Rules of Court in the Philippines, 1963 ed., p. 324.
52
Ibid.
53
54
55
Article 2208, (1) and (11), Civil Code.
56
Coleongco vs. Claparols, L-18616, March 31, 1964; Corpus vs. Cuaderno, et al., L-23721, March 31, 1965.
57
Cf. Yutuk vs. Manila Electric Company, L-13016, May 31, 1961; Lopez et al. vs. Pan American World Airways, L-22415, March 30,
1966.

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SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 83377 February 9, 1993
BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA
represented by GLICERIA PAPA-FRANCISCO, et al., petitioners,
vs.
SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, respondents.
Pablo M. Gancayaco for petitioners.
De Mesa, Villarica & Associates for respondents.

CAMPOS, JR., J.:
This is a petition for review on certiorari of the decision * of the Court of Appeals dated
November 27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de
Vera, Heirs of Eustaquia de Vera-Papa, represented by Gliceria Papa-Francisco, and Heirs of
Maria de Vera-Torres, represented by Luis V. Torres, plaintiffs-appellees versus Spouses
Mariano Aguilar and Leona V. Aguilar, defendants-appellants", which reversed the
decision ** of the Regional Trial Court of Bulacan, Third Judicial Region, Branch 14, for failure of
petitioners to prove the loss or destruction of the original deed of sale and of all its duplicate
original copies.
The undisputed facts are as follows:
Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent
Leona, married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa
Bernabe who died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed
parcel of land situated in Camalig, Meycauayan, Bulacan, with an area of 4,195 square meters,
designated as Cadastral Lot No. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre.
The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain
Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the
property from Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as
evidenced by a deed of absolute sale dated February 11, 1956.
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On February 13, 1956, the respondents registered the deed with the Registry of Deeds of
Bulacan resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and
the issuance of another in the name of the Aguilars. Since then and up to the present, the
Aguilars have been paying taxes on the land.
On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis
of which Original Certificate of Title No. P-1356(M) was issued in his name.
On September 1, 1980, the petitioners wrote to the respondents claiming that as children of
Marcosa Bernabe, they were co-owners of the property and demanded partition thereof on
threats that the respondents would be charged with perjury and/or falsification. The petitioners
also claimed that the respondents had resold the property to Marcosa Bernabe on April 28,
1959.
On September 27, 1980, the respondents wrote in reply to the petitioners that they were the
sole owners of the disputed parcel of land and denied that the land was resold to Marcosa
Bernabe.
True to petitioners' threat, they filed a falsification case against the respondents. However, on
March 31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended
dismissal of the charge of falsification of public document against the respondents for lack of
a prima facie case.
On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original
Certificate of Title No. P-1356(M).
On July 31, 1985, the trial court rendered its decision *** the dispositive portion of which reads
as follows:
WHEREFORE, judgment is hereby rendered ordering defendants:
1. To reconvey the property in question to the plaintiffs;
2. To pay plaintiffs P10,000.00 as litigation expenses;
3. To pay plaintiffs P5,000.00 as exemplary damages;
4. To pay P10,000.00 as attorney's fees.
SO ORDERED.
1

In ruling in favor of the petitioners, the trial court admitted, over the objection of the
respondents, Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on
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April 28, 1959 by the respondents selling, transferring and conveying unto Marcosa Bernabe
the disputed parcel of land for and in consideration of P1,500.00.
Not contented with the decision, respondents appealed to the Court of Appeals contending
that they never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore,
respondents contended that since the petitioners have failed to produce the original of the
alleged deed of sale dated April 28, 1959, the same was not the best evidence of the alleged
sale hence it should have been excluded and should not have been accorded any evidentiary
value. On the other hand, the petitioners claimed that the existence of the document of sale
dated April 28, 1959 had been duly established by the testimony of the notary public before
whom it was acknowledged and by Luis de Vera who was present during its execution and that
the loss of the original document had been proven by the testimony of the representatives of
the offices of the National Archives and the Provincial Assessor of Bulacan.
On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's
decision. It found that the loss or destruction of the original deed of sale has not been duly
proven by the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of
the alleged deed of sale is inadmissible.
Hence this petition.
The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the
original deed of sale so as to allow the presentation of the xeroxed copy of the same.
We rule in the negative.
Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence
states:
Sec. 4. Secondary evidence when original is lost or destroyed. When the
original writing has been lost or destroyed, or cannot be produced in court, upon
proof of its execution and loss or destruction, or unavailability, its contents may
be proved by a copy, or by a recital of its contents in some authentic document,
or by the recollection of witnesses.
Secondary evidence is admissible when the original documents were actually lost or destroyed.
But prior to the introduction of such secondary evidence, the proponent must establish the
former existence of the instrument. The correct order of proof is as
follows: Existence; execution; loss; contents although this order may be changed if necessary in
the discretion of the court. The sufficiency of proof offered as a predicate for the admission of
an alleged lost deed lies within the judicial discretion of the trial court under all the
circumstances of the particular case.
2

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A reading of the decision of the trial court shows that it merely ruled on the existence and due
execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and
circumstances surrounding the loss or destruction of the original copies of the alleged deed of
sale.
In the case at bar, the existence of an alleged sale of a parcel of land was proved by the
presentation of a xeroxed copy of the alleged deed of absolute sale.
In establishing the execution of a document the same may be established by the person or
persons who executed it, by the person before whom its execution was acknowledged, or by
any person who was present and saw it executed or who, after its execution, saw it and
recognized the signatures; or by a person to whom the parties to the instrument had previously
confessed the execution thereof.
3

We agree with the trial court's findings that petitioners have sufficiently established the due
execution of the alleged deed of sale through the testimony of the notary public to wit:
Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela
prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures
appearing therein to be that (sic) of the spouses and witnesses Luis de Vera and
Ismael Estela, in his capacity as Notary Public who ratified the document.
4

After the due execution of the document has been established, it must next be proved that said
document has been lost or destroyed. The destruction of the instrument may be proved by any
person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or
by any one who had made, in the judgment of the court, a sufficient examination in the place or
places where the document or papers of similar character are usually kept by the person in
whose custody the document lost was, and has been unable to find it; or who has made any
other investigation which is sufficient to satisfy the court that the instrument is indeed lost.
5

However, all duplicates or counterparts must be accounted for before using copies. For, since
all the duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-
production of the writing itself can be regarded as established until it appears that all of its
parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like).
6

In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified
that the alleged deed of sale has about four or five original copies.
7
Hence, all originals must be
accounted for before secondary evidence can be given of any one. This petitioners failed to do.
Records show that petitioners merely accounted for three out of four or five original copies.
In reversing the trial court, the respondent Court of Appeals considered the following points:
Asked on the witness stand where the original of the document (Exhibit A) was,
plaintiff-appellee Luis de Vera answered that it was with the Provincial Assessor
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in Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it
in evidence (p. 11, tsn., August 11, 1981, Steno, Tecson). The same question
propounded to the same witness at the next hearing, he replied that in the early
part of 1976 his sister Maria borrowed from him the original document and a
certified true copy thereof and brought them to the Office of the Register of
Deeds in Malolos "for the purpose of having it registered;" and that when she
returned she told him that the original copy of the document was submitted to
that office "and it (the property) was transferred in the name of Marcosa
Bernabe instead of Mariano Aguilar" (p. 8, tsn., December 10, 1981, Steno,
Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno, Vallarta).
Indeed, upon the appellees' own evidence the original of the deed of sale in
question, a purported xerox copy and certified true copy of which are marked as
Exhibits A and B, has not been lost or destroyed. It was submitted to the Office
of the Register of Deeds of Malolos for registration. The appellees, therefore,
should have asked the office to produce it in court and if it could not be
produced for one reason or another should have called the Register of Deeds or
his representative to explain why. That they failed to do. The loss or destruction
of the original of the document in question has not, therefore, been established.
Hence, secondary evidence of it is inadmissible . . . .
Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not
have a copy of the deed of sale in question because his files were burned when
his office at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4,
tsn., November 10, 1981, Steno, Crisostomo) establish the loss or destruction of
the original document in question. What was lost or destroyed in the custody of
Atty. Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor
did the testimony of Hipolito Timoteo, representative of the Assessor's Office of
Bulacan, to the effect that he failed to see the deed of absolute sale annotated
on the simple copy of tax declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno,
Vallarta) and of David Montenegro, Jr. of the National Archives to the effect that
his office had no copy of the document in question because the notary public
might not have submitted a copy thereof; or that it was lost or destroyed during
the transmittal; and that most of the record before 1960 were destroyed by
termites (pp. 8-12, tsn., Oct. 5, 1982, Steno, Tecson), prove loss or destruction of
the original and of all the duplicate original copies of the document in question.
8

We find no cogent reason to rule otherwise.
WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby
AFFIRMED.
SO ORDERED.
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Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

# Footnotes
* Penned by Associate Justice Pedro A. Ramirez and concurred in by Associate Justices Luis A. Javellana and Minerva P.
Gonzales-Reyes.
** Penned by Judge Felipe N. Villajuan, Jr.
*** Branch XIV, Regional Trial Court, Malolos, Bulacan.
1 Rollo, pp. 32-33.
2 Lazatin vs. Campos, 92 SCRA 250, 262 (1979)
3 Michael & Co. vs. Enriquez, 33 Phil. 87, 89-90 (1915).
4 Rollo, p. 32.
5 Supra, note 3.
6 WIGMORE ON EVIDENCE, Sec. 1233, pp. 443-444.
7 Rollo, p. 13.
8 Rollo, pp. 55-56.

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THIRD DIVISION
[G.R. No. 79962 : December 10, 1990.]
192 SCRA 209
LUCIO R. CRUZ, Petitioner, vs. COURT OF APPEALS AND CONRADO Q. SALONGA, Respondents.

D E C I S I O N

CRUZ, J.:

The private respondent Conrado Salonga filed a complaint for collection and damages against
petitioner Lucio Cruz ** in the Regional Trial Court of Lucena City alleging that in the course of
their business transactions of buying and selling fish, the petitioner borrowed from him an
amount of P35,000.00, evidenced by a receipt dated May 4, 1982, marked as Exhibit D, reading
as follows:
5/4/82
Received the amount of Thirty Five Thousand Cash from Rodrigo Quiambao and Conrado
Salonga on the day of May 4, 1982.
Sgd. Lucio Cruz
The plaintiff claimed that of this amount, only P20,000.00 had been paid, leaving a balance of
P10,000.00; that in August 1982, he and the defendant agreed that the latter would grant him
an exclusive right to purchase the harvest of certain fishponds leased by Cruz in exchange for
certain loan accommodations; that pursuant thereto, Salonga delivered to Cruz various loans
totaling P15,250.00, evidenced by four receipts and an additional P4,000.00, the receipt of
which had been lost; and that Cruz failed to comply with his part of the agreement by refusing
to deliver the alleged harvest of the fishpond and the amount of his indebtedness.
Cruz denied having contracted any loan from Salonga. By way of special defense, he alleged
that he was a lessee of several hectares of a fishpond owned by Nemesio Yabut and that
sometime in May 1982, he entered into an agreement with Salonga whereby the latter would
purchase (pakyaw) fish in certain areas of the fishpond from May 1982 to August 15, 1982.
They also agreed that immediately thereafter, Salonga would sublease (bubuwisan) the same
fishpond for a period of one year. Cruz admitted having received on May 4, 1982, the amount
of P35,000.00 and on several occasions from August 15, 1982, to September 30, 1982, an
aggregate amount of P15,250.00. He contended however, that these amounts were received by
him not as loans but as consideration for their "pakyaw" agreement and payment for the
sublease of the fishpond. He added that it was the private respondent who owed him money
since Salonga still had unpaid rentals for the 10-month period that he actually occupied the
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fishpond. Cruz also claimed that Salonga owed him an additional P4,000.00 arising from
another purchase of fish from other areas of his leased fishpond.
In a pre-trial conference held on August 24, 1984, petitioner and private respondent entered
into the following partial stipulation of facts.
COURT:
Plaintiff and defendant, through their respective counsel, during the pre-trial conference,
agreed on the following stipulation of facts:
1) That plaintiff Conrado Salonga entered into a contract of what is commonly called as
'pakyawan' with defendant Lucio Cruz on the fishes contained in a fishpond which
defendant Lucio Cruz was taking care of as lessee from the owner Mr. Nemesio Yabut,
with a verbal contract for the sum of P28,000.00 sometime in May 1982.
2) That because of the necessity, defendant Lucio Cruz at that time needed money, he
requested plaintiff Conrado Salonga to advance the money of not only P28,000.00 but
P35,000.00 in order that Lucio Cruz could meet his obligation with the owner of the
fishpond in question, Mr. Nemesio Yabut;
3) That the amount of P35,000.00 as requested by defendant Lucio Cruz was in fact
delivered by plaintiff Conrado Salonga duly received by the defendant Lucio Cruz, as
evidenced by a receipt dated May 4, 1982, duly signed by defendant Lucio Cruz
4) That pursuant to said contract of "pakyaw," plaintiff Conrado Salonga was able to
harvest the fishes contained in the fishpond administered by Lucio Cruz in August 1982.
5) Immediately thereafter the aforesaid harvest thereon, they entered again on a verbal
agreement whereby plaintiff Conrado Salonga and defendant Lucio Cruz had agreed that
defendant Lucio Cruz will sublease and had in fact subleased the fishpond of Nemesio
Yabut to the herein plaintiff for the amount of P28,000.00 for a period of one year
beginning August 15, 1982.
6) That sometime on June 15, 1983, Mayor Nemesio Yabut, who is the owner of the
fishpond, took back the subject matter of this case from the defendant Lucio Cruz.
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had
received from the plaintiff Conrado Salonga the following sums of money:
a) P8,000.00 on August 15, 1982 as evidenced by Annex "B" of the Complaint.
(Exh. E);
b) The sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the
complaint (Exh. F);
c) The sum of P3,000.00 on September 19, 1982 as evidenced by Annex "D" of
the complaint (Exh. G); and
d) The sum of P3,750.00 on September 30, 1982 as Annex "E" of the complaint
(Exh. H).
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At the trial, the private respondent claimed that aside from the amounts of P35,000.00 (Exh. D),
P8,000.00 (Exh. E), P500.00 (Exh. F), P3,000.00 (Exh. G) and P3,750.00 (Exh. H) mentioned in the
partial stipulation of facts, he also delivered to the petitioner P28,000.00, which constituted the
consideration for their "pakyaw" agreement. This was evidenced by a receipt dated May 14,
1982 marked as Exhibit I and reading as follows:
May 14, 1982
Tinatanggap ko ang halagang dalawampu't walong libong piso (P28,000.00) bilang
halaga sa pakyaw nila sa akin sa sangla sa kahong bilang #8 maliit at sa kaputol na sapa
sa gawing may bomba. Ito ay tatagal hanggang Agosto 1982.
SGD. LUCIO CRUZ
Salonga also claimed that he had paid Cruz the amount of P4,000 but the receipt of which had
been lost and denied being indebted to the petitioner for P4,000 for the lease of other portions
of the fishpond.
For his part, the petitioner testified that he entered into a "pakyaw" and sublease agreement
with the private respondent for a consideration of P28,000 for each transaction. Out of the
P35,000 he received from the private respondent on May 4, 1982, P28,000 covered full
payment of their "pakyaw" agreement while the remaining P7,000 constituted the advance
payment for their sublease agreement. The petitioner denied having received another amount
of P28,000 from Salonga on May 14, 1982. He contended that the instrument dated May 14,
1982 (Exh. I) was executed to evidence their "pakyaw" agreement and to fix its duration. He
was corroborated by Sonny Viray, who testified that it was he who prepared the May 4, 1982,
receipt of P35,000.00, P28,000 of which was payment for the "pakyaw" and the excess of
P7,000.00 as advance for the sublease.
The trial court ruled in favor of the petitioner and ordered the private respondent to pay the
former the sum of P3,054.00 plus P1,000.00 as litigation expenses and attorney's fees, and the
costs. Judge Eriberto U. Rosario, Jr. found that the transactions between the petitioner and the
private respondent were indeed "pakyaw" and sublease agreements, each having a
consideration of P28,000.00, for a total of P56,000.00. Pursuant to these agreements, Salonga
paid Cruz P35,000.00 on May 4, 1982 (Exh. D); P8,000.00 on August 15, 1982 (Exh. E); P500.00
on September 4, 1982 (Exh. F); P3,000 on September 19, 1982; P3,750 on September 30, 1982
(Exh. H) and P4,000.00 on an unspecified date. The trial court noted an earlier admission of the
private respondent that on an unspecified date he received the sum of P6,000.00 from the
petitioner. This amount was credited to the petitioner and deducted from the total amount
paid by the private respondent. As the one-year contract of sublease was pre-terminated two
months short of the stipulated period, the rentals were correspondingly reduced.
On appeal, the decision of the trial court was reversed. The respondent court instead ordered
the petitioner to pay the private respondent the sum of P24,916.00 plus P1,500.00 as litigation
expenses and attorney's fees, on the following justification:
Exhibit "I" is very clear in its non-reference to the transaction behind Exhibit "D." What only
gives the semblance that Exhibit "I" is an explanation of the transaction behind Exhibit "D" are
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the oral testimonies given by the defendant and his two witnesses. On the other hand, Exhibit
"I" is very clear in its language. Thus, its tenor must not be clouded by any parol evidence
introduced by the defendant. And with the tenor of Exhibit "I" remaining unembellished, the
conclusion that Exhibit "D" is a mere tentative receipt becomes untenable.
The trial court erred when it relied on the self-serving testimonies of the defendant and his
witness as against the receipts both parties presented and adopted as their own exhibits. As
said before, Exhibit "I" is very clear in its tenor. And if it is really the intention of Exhibit "I" to
explain the contents of Exhibit "D", such manifestation or intention is not found in the four
corners of the former document.
The respondent court also found that the amounts of P35,000.00, P8,000.00, P500.00,
P3,000.00, P3,750.00 and P4,000.00 were not payments for the "pakyaw" and sublease
agreement but for loans extended by Salonga to Cruz. It also accepted Salonga's claim that the
amount of P28,000.00 was delivered to the petitioner on May 14, 1982, as payment on the
"pakyaw" agreement apart from the P35,000.00 (Exh. D) that was paid on May 4, 1982.
However, it agreed that the amount of P6,000.00 received by the private respondent from the
petitioner should be credited in favor of the latter.
The petitioner is now before this Court, raising the following issues:
1. The public respondent Court of Appeals gravely erred in (1) disregarding parol
evidence to Exhibits "D" and "I" despite the fact that these documents fall under the
exceptions provided for in Sec. 7, Rule 130 of the Rules of Court and thereby in (2)
making a sweeping conclusion that the transaction effected between the private
respondent and petitioner is one of contract of loan and not a contract of lease.
2. Assuming for the sake of argument that exhibits "D" and "I" evidence separate
transactions, the latter document should be disregarded, the same not having been
pleaded as a cause of action.
3. Whether or not the Stipulation of Facts entered into by the parties herein relative to
their executed transactions during the hearing of their case a quo, are binding upon
them and as well as, upon the public respondent?
Our ruling follows:
Rule 130, Sec. 7, of the Revised Rules of Court provides: 1
Sec. 7. Evidence of Written Agreements. When the terms of an agreement have been
reduced to writing, it is to be considered as containing all such terms, and therefore, there can
be, between the parties and their successors in interest, no evidence of the terms of the
agreement other than the contents of the writing, except in the following cases:
a) When a mistake or imperfection of the writing or its failure to express the true intent and
agreement of the parties, or the validity of the agreement is put in issue by the pleadings;
b) When there is an intrinsic ambiguity in the writing. The term "agreement" includes wills.
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The reason for the rule is the presumption that when the parties have reduced their agreement
to writing they have made such writing the only repository and memorial of the truth, and
whatever is not found in the writing must be understood to have been waived or abandoned. 2
The rule, however, is not applicable in the case at bar, Section 7, Rule 130 is predicated on the
existence of a document embodying the terms of an agreement, but Exhibit D does not contain
such an agreement. It is only a receipt attesting to the fact that on May 4, 1982, the petitioner
received from the private respondent the amount of P35,000. It is not and could have not been
intended by the parties to be the sole memorial of their agreement. As a matter of fact, Exhibit
D does not even mention the transaction that gave rise to its issuance. At most, Exhibit D can
only be considered a casual memorandum of a transaction between the parties and an
acknowledgment of the receipt of money executed by the petitioner for the private
respondent's satisfaction. A writing of this nature, as Wigmore observed is not covered by the
parol evidence rule.
A receipt i.e. a written acknowledgment, handed by one party to the other, of the manual
custody of money or other personality will in general fall without the line of the rule; i.e. it is
not intended to be an exclusive memorial, and the facts may be shown irrespective of the terms
of the receipt. This is because usually a receipt is merely a written admission of a transaction
independently existing, and, like other admissions, is not conclusive. 3
The "pakyaw" was mentioned only in Exhibit I, which also declared the petitioner's receipt of
the amount of P28,000.00 as consideration for the agreement. The petitioner and his witnesses
testified to show when and under what circumstances the amount of P28,000.00 was received.
Their testimonies do not in any way vary or contradict the terms of Exhibit I. While Exhibit I is
dated May 14, 1982, it does not make any categorical declaration that the amount of
P28,000.00 stated therein was received by the petitioner on that same date. That date may not
therefore be considered conclusive as to when the amount of P28,000.00 was actually received.
A deed is not conclusive evidence of everything it may contain. For instance, it is not the only
evidence of the date of its execution, nor its omission of a consideration conclusive evidence
that none passed, nor is its acknowledgment of a particular consideration an objection to other
proof of other and consistent considerations; and, by analogy, the acknowledgment in a deed is
not conclusive of the fact. 4
A distinction should be made between a statement of fact expressed in the instrument and the
terms of the contractual act. The former may be varied by parol evidence but not the latter. 5
Section 7 of Rule 130 clearly refers to the terms of an agreement and provides that "there can
be, between the parties and their successors in interest, no evidence of the terms of the
agreement other than the contents of the writing."
The statement in Exhibit I of the petitioner's receipt of the P28,000.00 is just a statement of
fact. It is a mere acknowledgment of the distinct act of payment made by the private
respondent. Its reference to the amount of P28,000.00 as consideration of the "pakyaw"
contract does not make it part of the terms of their agreement. Parol evidence may therefore
be introduced to explain Exhibit I, particularly with respect to the petitioner's receipt of the
amount of P28,000.00 and of the date when the said amount was received.
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Even if it were assumed that Exhibits D and I are covered by the parol evidence rule, its
application by the Court of Appeals was improper. The record shows that no objection was
made by the private respondent when the petitioner introduced evidence to explain the
circumstances behind the execution and issuance of the said instruments. The rule is that
objections to evidence must be made as soon as the grounds therefor become reasonably
apparent. 6 In the case of testimonial evidence, the objection must be made when the
objectionable question is asked or after the answer is given if the objectionable features
become apparent only by reason of such answer. 7
For failure of the private respondent to object to the evidence introduced by the petitioner, he
is deemed to have waived the benefit of the parol evidence rule. Thus, in Abrenica v. Gonda, 8
this Court held:
. . . it has been repeatedly laid down as a rule of evidence that a protest or objection against the
admission of any evidence must be made at the proper time, and that if not so made it will be
understood to have been waived. The proper time to make a protest or objection is when, from
the question addressed to the witness, or from the answer thereto, or from the presentation of
proof, the inadmissibility of evidence is, or may be inferred.
It is also settled that the court cannot disregard evidence which would ordinarily be
incompetent under the rules but has been rendered admissible by the failure of a party to
object thereto. Thus:
. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the allowance
of improper questions that may be put to him while on the stand is a matter resting in the
discretion of the litigant. He may assert his right by timely objection or he may waive it,
expressly or by silence. In any case the option rests with him. Once admitted, the testimony is
in the case for what it is worth and the judge has no power to disregard it for the sole reason
that it could have been excluded, if it had been objected to, nor to strike it out on its own
motion. (Emphasis supplied.) 9
We find that it was error for the Court of Appeals to disregard the parol evidence introduced by
the petitioner and to conclude that the amount of P35,000.00 received on May 4, 1982 by the
petitioner was in the nature of a loan accommodation. The Court of Appeals should have
considered the partial stipulation of facts and the testimonies of the witnesses which sought to
explain the circumstances surrounding the execution of Exhibits D and I and their relation to
one another.
We are satisfied that the amount of P35,000.00 was received by the petitioner as full payment
of their "pakyaw" agreement for P28,000.00 and the remaining P7,000.00 as advance rentals
for their sublease agreement. The claim that the excess of P7,000.00 was advance payment of
the sublease agreement is bolstered by the testimony of the private respondent himself when
during the cross examination he testified that:
ATTY. CRUZ:
Q And during the time you were leasing the fishpond, is it not a fact that you pay lease rental to
the defendant?
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SALONGA:
A No sir, because I have already advanced him money.
Q What advance money are you referring to?
A Thirty-Five Thousand Pesos (P35,000.00), sir. 10
It was also error to treat the amounts received by the petitioner from August 15, 1982, to
September 30, 1982, from the private respondent as loan accommodations when the partial
stipulation of facts clearly stated that these were payments for the sublease agreement. The
pertinent portions read:
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had received
from the plaintiff Conrado Salonga the following sums of money: (Emphasis Supplied.)
(a) P8,000.00 on August 15, 1982, as evidenced by Annex "B" of the complaint;
(b) the sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the complaint;
(c) the sum of P3,000.00 on September 19, 1982, as evidenced by Annex "D" of the complaint;
(d) the sum of P3,750.00 on September 30, 1982, as Annex "E" of the complaint; 11
These admissions bind not only the parties but also the court, unless modified upon request
before the trial to prevent manifest injustice.
We find, however, that the Court of Appeals did not act in excess of its jurisdiction when it
appreciated Exhibit I despite the fact that it was not pleaded as a cause of action and was
objected to by the petitioner. According to Rule 10 of the Rules of Court:
Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not
raised by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects, as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after judgment; but failure to
amend does not affect the result of the trial of these issues. If evidence is objected to at the
trial on the ground that it is not within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so freely when the presentation of the merits of the
action will be subserved thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his action or defense upon the
merits. The court may grant a continuance to enable the objecting party to meet such evidence.
In Co Tiamco v. Diaz, 12 the Supreme Court held:
. . . When evidence is offered on a matter not alleged in the pleadings, the court may admit it
even against the objection of the adverse party, when the latter fails to satisfy the court that
the admission of the evidence would prejudice him in maintaining his defense upon the merits,
and the court may grant him continuance to enable him to meet the situation created by the
evidence . . .
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While it is true that the private respondent did not even file a motion to amend his complaint in
order that it could conform to the evidence presented, this did not prevent the court from
rendering a valid judgment on the issues proved. As we held in the Co Tiamco case:
. . . where the failure to order an amendment does not appear to have caused a surprise or
prejudice to the objecting party, it may be allowed as a harmless error. Well-known is the rule
that departures from procedure may be forgiven when they do not appear to have impaired
the substantial rights of the parties.
The following computation indicates the accountability of the private respondent to the
petitioner:
Exh. D, May 4, 1982 P35,000.00
Exh. E, Aug. 15, 1982 8,000.00
Exh. F, Sept. 4, 1982 500.00
Exh. G, Sept. 19, 1982 3,000.00
Exh. H, Sept. 30, 1982 3,750.00
Lost receipt 4,000.00

P54,250.00
Less: (amount received by the
private respondent from the
petitioner) (6,000.00)

Total amount paid by the
private respondent to
the petitioner 48,250.00
Amount to be paid by the private respondent to the petitioner:
1. Pakyaw P28,000.00
2. Sublease 28,000 per annum
Less: 2 months: 4,666 23,334.00

Total amount to be paid by
the private respondent to
the petitioner P51,334.00
Total amount to be paid
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by the private respondent P51,334.00
Total amount paid by
the private respondent 48,250.00

Deficiency in the amount
paid by the private respondent P3,084.00
ACCORDINGLY, the decision of the respondent Court of Appeals is REVERSED and that of the
Regional Trial Court of Laguna AFFIRMED, with the modification that the private respondent
shall pay the petitioner the sum of P3,084.00 instead of P3,054.00, plus costs. It is so ordered.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Endnotes
** The ponente is not related to the petitioner or his counsel.
1. Now Sec. 9, Rule 130, Revised Rules on Evidence, Effective July 1, 1989.
3. PAROL EVIDENCE RULE
Sec. 9. Evidence of written agreements. When the terms of an agreement have been reduced to writing, it is considered as containing
all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other
than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his
pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written
agreement.
The term "agreement" includes wills. (7a)
2. Van Sychkel v. Dalrymple, 32 N.J. Eq., 233 cited in Vol. 5, F. Moran, Comments on the Rules of Court 104 (1970 ed.)
3. IX J. Wigmore, Wigmore on Evidence, Sec. 2432 (1940).
4. Baum v. Lynn, 72 Miss. 932, 18 So. 428, cited in IX Wigmore Sec. 2433.
5. Ibid.
6. Section 36, Rule 132, Revised Rules of Court.
Now Sec. 36, Rule 132, as amended provides:
Sec. 36. Objection. Objection to evidence offered orally must be made immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor
shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by
the court.
In any case, the grounds for the objections must be specified.
7. II F. Regalado, Remedial Law Compendium, 435 (5th ed., 1988).
8. 34 Phil. 739.
9. Marella v. Reyes, 12 Phil. 1.
10. TSN, September 28, 1984, pp. 26-27.
11. TSN, August 24, 1984, pp. 14-15.
12. 75 Phil. 672.

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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-39972 & L-40300 August 6, 1986
VICTORIA LECHUGAS, petitioner,
vs.
HON. COURT OF APPEALS, MARINA LOZA, SALVADOR LOZA, ISIDRO LOZA, CARMELITA LOZA,
DAVID LOZA, AMPARO LOZA, ERLINDA LOZA and ALEJANDRA LOZA, respondents.
A.R. Montemayor for petitioner.
Arturo L. Limoso for private respondents.

GUTIERREZ, JR., J:
This petition for review invokes the parol evidence rule as it imputes grave abuse of discretion
on the part of the appellate court for admitting and giving credence to the testimony of the
vendor regarding the sale of the disputed lot. The testimony is contrary to the contents of the
deed of sale executed by the vendor in favor of the petitioner.
The petitioner filed a complaint for forcible entry with damages against the private
respondents, alleging that the latter by means of force, intimidation, strategy and stealth,
unlawfully entered lots A and B, corresponding to the middle and northern portion of the
property owned by the petitioner known as Lot No. 5456. She alleged that they appropriated
the produce thereof for themselves, and refused to surrender the possession of the same
despite demands made by the petitioner. The complaint was dismissed. Petitioner appealed to
the then Court of First Instance (CFI) of Iloilo where the case was docketed as Civil Case No.
5055.
While the above appeal was pending, the petitioner instituted another action before the CFI of
Iloilo for recovery and possession of the same property against the private respondents.
This case was docketed as Civil Case No. 5303. The two cases were tried jointly. After trial, the
court rendered judgment. The dispositive portion of the decision states:
Wherefore, premises considered, judgment is rendered, to wit:
a. dismissing the complaints in two cases;
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b. declaring defendants except Salvador Anona and Jose Lozada as owners and
lawful possessors of the land in question together with all the improvements
thereon;
c. dismissing the claim for damages of all defendants except that of Jose Lozada;
d. ordering plaintiff to pay defendant Jose Lozada the sum of P500.00 as
attorney's fees and the amount of P300.00 as litigation expenses; and
e. ordering plaintiff to pay the costs of both proceedings.
The petitioner appealed to the Court of Appeals but the latter sustained the dismissal of the
cases. Hence, this petition with the petitioner making the following assignments of errors:
I
THAT THE RESPONDENT COURT ERRED IN CONSIDERING PAROL EVIDENCE OVER
THE OBJECTION OF THE PETITIONER IN ORDER TO VARY THE SUBJECT MATTER
OF THE DEED OF DEFINITE SALE (EXHIBIT A) ALTHOUGH THE LAND THEREIN IS
DESCRIBED AND DELIMITED BY METES AND BOUNDS AND IdENTIFIED AS LOT
NO. 5456 OF LAMBUNAO CADASTRE.
II
THAT THE RESPONDENT COURT ERRED IN CONSIDERING THE THEORY OF THE
DEFENDANTS-APPELLEES FOR THE FIRST TIME ON APPEAL THAT THE LAND
DESCRIBED IN THE DEED OF SALE (EXHIBIT A) IS LOT NO. 5522 INSTEAD OF LOT
NO. 5456 OF THE LAMBUNAO CADASTRE, THEIR ORIGINAL THEORY BEING THAT
THE DEED OF SALE (EXHIBIT A) IS NULL AND VOID AB INITIO BECAUSE LEONCIA
LASANGUE CAN NOT SELL THE LAND IN QUESTION IN 1950 SINCE IT WAS
ALLEGEDLY SOLD IN 1941 BY HER FATHER EMETERIO LASANGUE.
III
THAT THE RESPONDENT COURT CANNOT REFORM THE DEED OF DEFINITE SALE
BY CHANGING ITS SUBJECT MATTER IN THE ABSENCE OF STRONG, CLEAR AND
CONVINCING EVIDENCE AND ON THE STRENGTH OF LONG TESTIMONY OF THE
VENDOR AND ALTHOUGH NO DIRECT ACTION FOR REFORMATION WAS FILED IN
THE COURT OF ORIGIN.
A summary of the facts which brought about the controversy is contained in the findings of the
appellate court:
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Plaintiff (petitioner) Victoria Lechugas testified that she bought the land now
subject of this litigation from Leoncia Lasangue as evidenced by a public "Deed of
Absolute Sale" which plaintiff had caused to be registered in the Office of the
Register of Deeds; preparatory to the execution of the deed Exhibit "A", plaintiff
had the land segregated from the bigger portion of 12 hectares owned by
Leoncia Lasangue by contracting a private land surveyor, the Sirilan Surveying
Office, to survey the land on December 3, 1950 and establish its boundaries,
shape, form and area in accordance with the said plan which was attached to
exhibit A as Annex A thereof. She also states that she caused the declaration of
the said portion of six hectares subject of Exhibit A in her name beginning the
year 1951 under tax declaration No. 7912, paid taxes on the same land, and has
taken possession of the land through her tenants Jesus Leoncio, Roberta Losarita
and Simeon Guinta, who shared one-half of the produce of the riceland with her,
while she shouldered some of the expenses in cultivation and seeds, and one-
third share in other crops, like coffee beans, bamboos, coconuts, corn and the
like.
xxx xxx xxx
Plaintiff's declaration is corroborated by her tenant Simeon Guinta who testifies
that the land subject of the complaint was worked on by him 1954 when its
former tenant, Roberto Lazarita, now deceased, left the land. As tenant thereof,
he planted rice, corn peanuts, coffee, and other minor products, sharing the
same with the owner, plaintiff Victoria Lechugas; that on June 14, 1958, while
witness was plowing Lot A preparatory to rice planting, defendants entered the
land and forced him to stop his work. Salvador Anona and Carmelita Losa,
particularly, told witness that if he (witness) would sign an affidavit recognizing
them as his landlords, they would allow him to continue plowing the land. On
that occasion, Salvador Anona, David Loza and Jose Loza were carrying
unsheathed bolos, which made this witness very afraid, so much so that he left
the land and reported the matter to Victoria Lechugas who reportedly went to
the Chief of Police of Lambunao to ask the latter to intervene. The advise
however of the chief of police, who responded to the call of plaintiff, was not
heeded by the defendants who stayed adamantly on Lot A and refused to
surrender the possession thereof to plaintiff appropriating the harvest to
themselves. This witness further declares that on June 24, 1958, defendants
entered Lot B of the land in question, situated on the northern portion, and cut
the bamboo poles growing thereof counted by plaintiff's brother and overseer in
the land, Bienvenido Laranja, to be 620 bamboo poles all in all. Despite the
warning of the overseer Laranja, defendants did not stop cutting the bamboos,
and they remained on the land, refusing to leave the same. To top it all, in June
of 1959, defendants, not contended with just occupying the middle and northern
portions of the land (Lots A and B), grabbed the whole parcel containing six
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hectares to the damage and prejudice of herein plaintiff, so that plaintiff was left
with no other recourse but to file Civil Case No. 5303 for ownership, recovery of
possession and damages.
Defendants, on the other hand, maintain that the land which plaintiff bought
from Leoncia Lasangue in 1950 as evidenced by the deed exhibit A, is different
from the land now subject of this action, and described in paragraph 2 of
plaintiff's complaint. To prove this point, defendants called as their first witness
plaintiff herself (pp. 6167, t.s.n., Tuble), to elicit from her the reason why it was
that although her vendor Leoncia Lasangue was also residing at the municipality
of Lambunao, Iloilo, plaintiff did not care to call her to the witness stand to
testify regarding the Identity of the land which she (plaintiff) bought from said
vendor Leoncia Lasangue; to which query witness Lechugas countered that she
had tried to call her vendor, but the latter refused, saying that she (Lasangue)
had already testified in plaintiff's favor in the forcible entry case in the Justice of
the Peace Court. In connection with her testimony regarding the true Identity of
the land plaintiff, as witness of defendants, stated that before the execution of
Exhibit "A" on December 8, 1950 the lot in question was surveyed (on December
3, 1950) by the Sirilan Surveyor Company after due notice to the boundary
owners including Leoncia Lasangue.
Defendant's evidence in chief, as testified to by Carmelita Lozada (pp. 100-130,
t.s.n., Trespeces; pp. 131-192, t.s.n., Tuble) shows that on April 6, 1931 Hugo
Loza father of Carmelita Loza and predecessor-in-interest of the rest of the heirs
of herein defendants, (with the exception of Jose Loza and Salvador Anona)
purchased a parcel of land from one Victorina Limor as evidenced by the deed
"Venta Definitiva" (exhibit 3, pp. 49-50, folder of exhibits). This land, containing
53,327 square meters is bounded on the north by Ramon Lasangue, on the south
by Emeterio Lasangue and covered by tax declaration No. 7346 (exhibit 3-9, p.
67, Id.) in vendor's name; that immediately after the sale, Hugo Loza took
possession of the said parcel of land and declared the same in his name (exhibit
3-10, p. 67, folder of exhibits) starting the year 1935. On March 17, 1941, Hugo
Loza bought from Emeterio Lasangue a parcel of land with an area of four
hectares more or less, adjoining the land he (Loza) had earlier bought from
Victoria Limor, and which sale was duly evidenced by a public instrument (exhibit
2, pp. 35-36, folder of exhibits). This property had the following boundaries, to
wit: on the north by Eladio Luno, on the south, by Simeon Lasangue, on the west,
by Gregorio Militar and Emeterio Lasangue and on the east, by Maximo
Lasangue and Hipolito Lastica (exhibit 2, exhibit 2-B, p. 37, Id). After the
execution of the deed of sale, Exhibit 2, Hugo Loza cause the transfer of the
declaration in his own name (tax declaration No. 8832, exh. 2-C, p. 38, Id.)
beginning 1945, and started paying the taxes on the land (exhibits 2-d to 2-i, pp.
39-44, Id.). These two parcels of land (that purchased by Hugo Loza in 1941 from
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Emeterio Lasangue, and a portion of that bought by him from Victoria Limor
sometime in 1931) were consolidated and designated, during the cadastral
survey of Lambunao, Iloilo in 1959 as Lot No. 5456; while the remaining portion
of the lot bought from Victorina Limor, adjoining Lot 5456 on the east, was
designated as Lot No. 5515 in the name of the Heirs of Hugo Loza. Defendants
claim that the lot bought by plaintiff from Leoncia Lasangue as evidenced by
exhibit A, is situated south of the land now subject of this action and designated
during cadastral survey of Lambunao as Lot No. 5522, in the name of Victoria
Lechugas.
xxx xxx xxx
Leoncia Lasangue, plaintiff's vendor in exhibit A, testifying for defendants (pp.
182-115, t.s.n., Tambagan; pp. 69-88, t.s.n., Tuble) declared that during his
lifetime her father, Emeterio Lasangue, owned a parcel of land in Lambunao,
Iloilo, containing an area of 36 hectares; that said Emeterio Lasangue sold a slice
of 4 hectares of this property to Hugo Loza evidenced by a deed of sale (Exh. 2)
dated March 17, 1941; that other sales were made to other persons, leaving only
some twelve hectares out of the original 36; that these 12 hectares were
transferred by her parents in her (witness) name, being the only child and heir;
that on December 8, 1950, she (Leoncia Lasangue) sold six hectares of her
inherited property to Victoria Lechugas under a public instrument (exhibit A)
which was prepared at the instance of Victoria Lechugas and thumbmarked by
herself (the vendor).
Refuting plaintiff's contention that the land sold to her is the very land under
question, vendor Leoncia Lasangue testifies that:
Q. But Victoria Lechugas declared here that, by means of this
document, exhibit 'A', you sold to her this very land in litigation;
while you declared here now that this land in litigation was not
included in the sale you made of another parcel of land in her
favor. What do you say about that?
A. I only sold six (6) hectares to her.
Q. And that was included in this land in litigation?
A. No.
xxx xxx xxx
Q. Did you tell her where that land you were selling to her was
situated?
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xxx xxx xxx
A. On the South.
Q. South side of what land, of the land in litigation?
A. The land I sold to her is south of the land in litigation.
xxx xxx xxx
Q. What portion of these thirty-six (36) hectares of land did you
sell actually, according to your agreement with Victoria Lechugas,
and was it inside the thirty-six (36) hectares of land or a portion
on one of the sides of thirty-six (36) hectares?
A. It is on the edge of the whole land.
Q. Where is that edge? on the north, east, west or south?
A . This edge. (witness indicating the lower edge of the piece of
paper shown into her)
Q. Do you know what is east, that is, the direction where the sun
rises?
A. I know what is east.
Q. Do you know where the sun sets ?
A. The sun sets on the west.
Q. If you are standing in the middle of your land containing thirty-
six (36) hectares and facing the east, that is, the direction where
the sun rises, where is that portion of land sold to Victoria
Lechugas, on your left, on your right, front of you or behind you?
A. On my right side. (Witness indicating south). (Testimony of
Leoncia Lasangue, pp. 209-211, rollo) (emphasis supplied).
On the basis of the above findings and the testimony of vendor Leoncia Lasangue herself, who
although illiterate was able to specifically point out the land which she sold to the petitioner,
the appellate court upheld the trial court's decision except that the deed of sale (Exhibit A) was
declared as not null and void ab initio insofar as Leoncia Lasangue was concerned because it
could pass ownership of the lot in the south known as Lot No. 5522 of the Lambunao Cadastre
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which Leoncia Lasangue intended to sell and actually sold to her vendee, petitioner Victoria
Lechugas.
In her first assignment of error, the petitioner contends that the respondent Court had no legal
justification when it subjected the true intent and agreement to parol evidence over the
objection of petitioner and that to impugn a written agreement, the evidence must be
conclusive. Petitioner maintains, moreover, that the respondent Court relied so much on the
testimony of the vendor who did not even file a case for the reformation of Exhibit A.
The contentions are without merit.
The appellate court acted correctly in upholding the trial court's action in admitting the
testimony of Leoncia Lasangue. The petitioner claims that Leoncia Lasangue was the vendor of
the disputed land. The petitioner denies that Leoncia Lasangue sold Lot No. 5522 to her. She
alleges that this lot was sold to her by one Leonora Lasangue, who, however, was never
presented as witness in any of the proceedings below by herein petitioner.
As explained by a leading commentator on our Rules of Court, the parol evidence rule does not
apply, and may not properly be invoked by either party to the litigation against the other,
where at least one of the parties to the suit is not party or a privy of a party to the written
instrument in question and does not base a claim on the instrument or assert a right originating
in the instrument or the relation established thereby. (Francisco on Evidence, Vol. VII, part I of
the Rules of Court, p. 155 citing 32 C.J.S. 79.)
In Horn v. Hansen (57 N.W. 315), the court ruled:
...and the rule therefore applies, that as between parties to a written agreement,
or their privies, parol evidence cannot be received to contradict or vary its terms.
Strangers to a contract are, of course, not bound by it, and the rule excluding
extrinsic evidence in the construction of writings is inapplicable in such cases;
and it is relaxed where either one of the parties between whom the question
arises is a stranger to the written agreement, and does not claim under or
through one who is party to it. In such case the rule is binding upon neither. ...
In the case of Camacho v. Municipality of Baliuag, 28 Phil. 466, this Court held that parol
evidence which was introduced by the municipality was competent to defeat the terms of the
plaintiff's deed which the latter executed with the Insular Government. In his concurring
opinion, Justice Moreland stated:
It should be noted in the first place, that there is no written instrument between
the plaintiff and the municipality, that is, between the parties to the action; and
there is, therefore, no possibility of the question arising as to the admissibility of
parol evidence to vary or contradict the terms of an instrument. The written
instrument that is, the conveyance on which plaintiff bases his action was
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between the Insular Government and the plaintiff, and not between the
municipality and the plaintiff; and therefore, there can arise, as between the
plaintiff and defendant no question relative to the varying or contradicting the
terms of a written instrument between them ...
The petitioner's reliance on the parol evidence rule is misplaced. The rule is not applicable
where the controversy is between one of the parties to the document and third persons. The
deed of sale was executed by Leoncia Lasangue in favor of Victoria Lechugas. The dispute over
what was actually sold is between petitioner and the private respondents. In the case at bar,
through the testimony of Leoncia Lasangue, it was shown that what she really intended to sell
and to be the subject of Exhibit A was Lot No. 5522 but not being able to read and write and
fully relying on the good faith of her first cousin, the petitioner, she just placed her thumbmark
on a piece of paper which petitioner told her was the document evidencing the sale of land. The
deed of sale described the disputed lot instead.
This fact was clearly shown in Lasangue's testimony:
Q. And how did you know that that was the description of the
land that you wanted to sell to Victoria Lechugas?
R. I know that because that land came from me.
S. But how were you able to read the description or do you know
the description?
A. Because, since I do not know how to read and write and after
the document was prepared, she made me sign it. So I just signed
because I do not know how to read.
xxx xxx xxx
Q. What explanation did she make to you?
A. She said to me, 'Manang, let us have a document prepared for
you to sign on the land you sold to me.' So, after the document
was prepared, I signed.
Q. Did you tell her where that land you were selling to her was
situated?
xxx xxx xxx
A. On the South.
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Q. South side of what land, of the land in litigation?
A. The land I sold to her is south of the land in litigation.
Q. Did you tell her that before preparing the document you
signed?
A. Yes, I told her so because I had confidence in her because she is
my first cousin. (pp. 198-207, rollo)
From the foregoing, there can be no other conclusion but that Lasangue did not intend to sell as
she could not have sold, a piece of land already sold by her father to the predecessor-in-
interest of the respondents.
The fact that vendor Lasangue did not bring an action for the reformation of Exhibit "A" is of no
moment. The undisputed fact is that the respondents have timely questioned the validity of the
instrument and have proven that, indeed Exhibit "A" does not reflect the true intention of the
vendor.
There is likewise no merit in the contention of the petitioner that the respondents changed
their theory on appeal.
Respondents, from the very start, had questioned and denied Leoncia Lasangue's capacity to
sell the disputed lot to petitioner. It was their contention that the lot was sold by Leoncia's
father Emeterio Lasangue to their father, Hugo Loza wayback in 1941 while the alleged sale by
Leoncia to the petitioner took place only in 1950. In essence, therefore, the respondents were
already attacking the validity of Exhibit "A". Moreover, although the prior sale of the lot to their
father may have been emphasized in their defenses in the civil cases filed against them by the
petitioner in the lower court, nevertheless in their affirmative defense, the respondents already
raised doubt on the true intention of Leoncia Lasangue in signing Exhibit "A" when they alleged
that..." Leoncia Lasangue, publicly, and in writing repudiated said allegation and pretension of
the plaintiff, to the effect that the parcel of land now in litigation in the present case "WAS NOT
INCLUDED in the sale she executed in favor of the plaintiff ... .
Consequently, petitioner cannot impute grave abuse on the part of the appellate court and
state that it allowed a change of theory by the respondents for the first time on appeal for in
reality, there was no such change.
The third issue raised by the petitioner has no merit. There is strong, clear, and convincing
evidence as to which lot was actually sold to her. We see no reason to reverse the factual
findings of both the Court of First Instance and the Court of Appeals on this point. The
"reformation" which the petitioner questions was, in fact, intended to favor her. Instead of
declaring the deed of sale null and void for all purposes, the Court upheld its having passed
ownership of Lot No. 5522 to the petitioner.
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WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED for lack of merit
with costs against the petitioner.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

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EN BANC

ASSOCIATE JUSTICE DELILAH A.M. No. CA-05-20-P
VIDALLON-MAGTOLIS, COURT (Formerly OCA IPI No. 05-
OF APPEALS, 81-CA-P)
Complainant,
Present:

DAVIDE, JR., C.J.,
*

PUNO,
*

PANGANIBAN,
**

QUISUMBING,
*

YNARES-SANTIAGO,
*

SANDOVAL-GUTIERREZ,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
*

CALLEJO, SR.,
AZCUNA,
*

TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
CIELITO M. SALUD,
CLERK IV, COURT OF APPEALS, Promulgated:
Respondent.
September 9, 2005
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CALLEJO, SR., J.:

Cielito Salud, Clerk IV, Mailing Section of the Judicial Records Division, Court of Appeals
(CA) stands charged with the following offenses:

1. Inefficiency and incompetence in the performance of official duties;
2. Conduct grossly prejudicial to the best interest of the service; and
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3. Directly or indirectly having financial and material interest in an official
transaction, under Section 22, paragraphs (p), (t) and (u), Rule XIV of the
Omnibus Rules Implementing the Civil Service Law.
[1]

The Facts

Melchor Lagua was found guilty of homicide in Criminal Case Nos. 118032-H and
118033-H before the Regional Trial Court of Pasig City, Branch 163.
[2]
On appeal, the case was
assigned to the Sixth Division of the Court of Appeals, docketed as CA-G.R. CR No. 27423. Lagua,
who was then detained at the Bureau of Prisons National Penitentiary in Muntinlupa City, filed
a Very Urgent Petition for Bail. Finding the petition well-taken, the appellate court issued a
Resolution on October 9, 2003, directing him to post a P200,000.00 bond.

Laguas bond was approved in a Resolution
[3]
dated November 6, 2003, where the
appellate court also directed the issuance of an order of release in favor of Lagua. The
resolution was then brought to the Office of the Division Clerk of Court, Atty. Maria Isabel M.
Pattugalan-Madarang, for promulgation.

Irma Del Rosario, Utility Worker, noticed the respondents unusual interest in the Lagua
case. The respondent had apparently been making inquiries whether the appellate court had
already directed the issuance of an order of release in the said case and was initially told there
was none yet. Due to his persistence, the records of the case were eventually found.
[4]
Atty.
Madarang then directed the typing of the Order of Release Upon Bond,
[5]
and to notify the
mailing section that there were orders requiring personal service.
[6]
At around 4:00 p.m., the
respondent then went to Atty. Madarangs office and assisted in arranging and stapling the
papers for release. He brought the said resolutions and other papers himself to the Mailing
Section.
[7]

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On November 7, 2003, the respondent went to the National Penitentiary to serve the
resolution and order of release in the Lagua case. The respondent left the prison compound at
around 2:30 p.m.
[8]

In the meantime, Atty. Madarang received a telephone call from a certain Melissa
Melchor, who introduced herself as Laguas relative. It was about 2:00 p.m. The caller asked her
how much more they had to give to facilitate Laguas provisional liberty. The caller also told
Atty. Madarang that they had sought the help of a certain Rhodora Valdez of the Regional Trial
Court (RTC) of Pasig, where the criminal case originated, but were told that they still had a
balance to be given to Justice Magtolis and Atty. Madarang through the respondent. Atty.
Madarang then called the said court and asked to speak to Ms. Valdez, pretending to be Laguas
relative.

What transpired thereafter is contained in Atty. Madarangs Affidavit dated December
8, 2003, as follows:

4. That upon telephone queries made with the office of the Clerk of Court of
RTC Pasig, I learned that Rhodora Valdez is the incumbent Process Server of
RTC, [Branch] 163, Pasig City, from which the original case against accused-
appellant Lagua originated. Disguising myself as accused-appellant Laguas
relative, I dialed [Branch] 163, RTC, Pasig (6314273) but Rhodora Valdez did
not report for work that day, according to Baby (also known as Ester), her
officemate (who) answered my call. She added that Rhodora Valdez has been
waiting for us (Laguas relatives) to call. Her exact words were these: Wala si
Rhodora. Meron lang siyang nilakad. Pero kahapon pa nya hinihintay ang
tawag nyo. May kulang pa kayo eh. Kailangan kasing i-en banc sa Court of
Appeals ang kaso ni Lagua.

5. That I coordinated with Ms. Cecil Secarro, the Acting Chief of the Mailing
Section, to inquire if it was usual/normal for her to text her process servers
on the field for an update of their deliveries, to which she answered in the
affirmative. While she was in the office, she texted Salud for his whereabouts
and he replied, that he was on his way back to Quezon City. That was before
4 p.m., adding that his deliveries were ok.

6. That I got Saluds mobile phone number from Ms. Secarro and started
texting him at about the same time Ms. Secarro did. I represented myself as
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Arlyn, Laguas relative. Most of his text messages are still stored in my mobile
phone. In fact, I received one text message from him while I was at the office
of Justice Magtolis, (the Chairman of the 6
th
Division and the ponente of C.R.
No. 27423) in the late afternoon of November 7, 2003 while reporting to her
this incident. Those stored in my phone are the following:

1. bkit, C rhodora to. 639204439082. Nov. 2003, 15:36:15

2. CNO KAMAGANAK AT ANONG PANGALAN MO
639204439082, 7 Nov 2003 16:14:47

3. SINO K KC NAGHIWALAY N KAMI 639204439082, 7 Nov 2003
16:40:21

4. TAWAG K S AKIN 639204439082 7 Nov 2003 17:18:47

5. NARELEASE N C MR. LAGUA. NAGKITA N B KAYO
639204439082-7 Nov 2003 19:44:52

6. Magkano b and binigay nyo sa middle nyo. Puede bang
malaman 639184470111-7 Nov 2003 20:32:05

7. Gud evening. May gusto lng akong malaman. Sana alang
makaalam kahit cino. Lito 6391844701117 Nov. 2003 19:54:20

8. Cno ang kausap n Rhodora. Pwede bang malaman
639184470111-7 Nov 2003 20:37:57

9. May landline ka. Tawagan kta bukas nang umaga
639184470111-7 Nov 2003 20:56:31

10. Wag s Court of Appeal. Txt na lang kta kung saan.
639184470111-7 Nov 2003 20:52:58

11. Gusto mo bukas nang umaga magkita tyo. 639184470111 7
Nov 2003 20:57:10

12. D ba pwede bukas tyo kita. May gusto lang ako malaman
639184470111 7 Nov 2003 21:02:41

13. D 2ngkol kay rhodora duon sa kasama ko kaninang lalakeng
pinsan 639184470111 7 Nov 2003, 21:04:28

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14. Ala po ako sa Lunes sa opis. Sa hapon po puede kyo
639184470111, 7 Nov 2003 21:07:23

15. Kay Melchor Lagua 639184470111 7 Nov 2003 21:08:19

16. Kasama ko cya kanina nang lumabas 639184470111 7 Nov.
2003 21:13:05

17. Ano m ba Melchor Lagua 639184470111 7 Nov 2003
21:15:52

18. Between 5 and 5:30 ng hapon. Bkit. 639184470111 7 Nov.
2003 21:54:24

19. 3 PM PUWEDE KB 639004039082 10 Nov 2003 12:09:32

20. Kilala mo b c rhodora. Nagkita na b kayo. Ala naman problema
sa kanya. Ok naman 639184470111 7 Nov 2003, 21:57:13

21. MAGKITA N LANG TAYO 639204439082 10 Nov. 2003,
12:20:16

22. A, OK, NAGKITA N B KAYO NG KAMAGANAK MO
639204439082 10 Nov 2003 15:12:14

23. D TALAGA AKO DARATING DAHIL WALA AKONG KAILANGAN S
IYO. 639204439082 10 Nov 2003 18:36:03

7. That Salud called me up in the morning of November 8, 2003 at around
7:33 but I purposely did not answer him. Why did he need to call me up?

8. That I personally called up the Bureau of Prisons for the exact time the
Order of Release was delivered and when accused appellant Lagua was
released. I learned that the Order of Release was received at 9:15 A.M. and
that Lagua was released between 5-5:30 P.M. of November 7, 2003.

9. That I was able to talk to Rhodora Valdez the following Monday, November
10, 2003. Again, I introduced myself as Laguas relative, Arlyn and told her I
only wanted to know how much more we had to pay for Laguas release. She
refused to entertain me because according to her, Hindi ikaw ang kausap
ko. Duda ako sa yo. Kung gusto mo, puntahan mo ako dito bukas, para
magkita tayo. Pero lumabas na si Lagua. Itinawag sa akin ni Lito Salud. Then,
she [hung] up.
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10. That on Tuesday, November 11, 2003, I brought Salud, accompanied by Ms.
Secarro to Justice Magtolis. Out of the confrontation, we discovered that
Salud did not properly serve the copies of the Resolution and Order of
Release upon the accused-appellant and his counsel, Atty. Salvador C.
Quimpo of the Quimpo Dingayan-Quimpo and Associates. He gave them to a
certain Art, allegedly Laguas relative who he claimed approached him at the
Bureau of Prisons in the morning of November 7, 2003. He told Justice
Magtolis that he gave these documents to Art, who promised to take care of
them, even before he could deliver the copy addressed to the Director of
Prisons. He never mentioned that this Art was connected with the office of
accused-appellants counsel. Because of this information from Salud himself,
I did not sign the Certificate of Service, Annex C.

11. That several days later, Salud accompanied by Ms. Secarro, came to my
office to apologize. But before he could even say a word, he broke down in
[wails]. In between his loud cries, he uttered, Boss, patawad po, alang-alang
sa aking mga anak.
[9]

On November 11, 2003, Justice Magtolis called the respondent to her office. When
confronted, the respondent denied extorting or receiving money for Laguas release, or in any
other case. He, however, admitted serving the copies of resolution and order of release
intended for Lagua and his counsel to Art Baluran.
[10]
Justice Magtolis then called the
respondent to a meeting with Clerk of Court Atty. Tessie L. Gatmaitan, who stated that she
would transfer the respondent to another office which has nothing to do with cases.

Justice Magtolis lodged the complaint against the respondent in a Letter dated
November 14, 2003, containing, among others, the following allegations:
The delivery of resolutions/orders to unauthorized persons and
complete strangers who promised to take care thereof (siya na raw ang
bahala) constitutes not only neglect of duty but also conduct prejudicial to the
best interest of the service. Staying for the whole day within the vicinity of the
National Bilibid Prisons to the point of failing to fulfill his other duties for the day
constitutes inefficiency and incompetence in the performance of official duties.
On the other hand, the use of my name and that of our Division Clerk of Court to
illegally solicit financial or material benefit from parties with pending cases
before this Court is illegalper se.

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In view of the foregoing, it is respectfully requested that Cielito Salud be
subjected to an administrative investigation and disciplinary action.
[11]

Attached to the complaint were the following documents to support the charges:

ANNEX A - Record of the cases received by Salud on November 6, 2003 for
delivery/service the following day, November 7, 2003. Please note that in each
of the 3 cases assigned to him, there are several parties/counsels to be served.

ANNEX B - Certificate of Service signed by Salud, attested by the Acting Chief
of the Mailing Section and Division Clerk of Court Ma. Ramona L. Ledesma,
showing that the parties/counsel in SP-67586 were served only on November 10,
2003 (not on November 7, 2003).

ANNEX C - Certificate of Service for CR-27423, and corresponding Delivery
Receipts.

C-1 - Delivery Receipts for Defense Counsel Salvador Quimpo signed
by someone whose signature was identified by Salud *as+ Art a cousin of
appellant Melchor Lagua.

C-2 - Delivery Receipt for the accused-appellant, received by the same
Art and not served thru the Director of Prisons.

C-3 - Delivery Receipt for the OSG, showing that it was
delivered/received by the said office on November 10, 2003, not on November 7,
2003.

C-4 - Delivery Receipt for the Director of Prisons showing receipt on
November 7, 2003.

ANNEX D - Record of Resolutions in 3 other cases (SP-80241, SP-65404 and
SP-77957) received for service by Salud on November 10, 2003. The
resolutions/processes in these 3 cases were delivered/served to the
parties/counsel on November 10, 2003 together with undelivered resolutions
left unserved/undelivered on November 7, 2003.

ANNEX E - Certification signed by Salud showing service to parties/counsel in
SP-65404 (received by Salud on November 10, 2003) on November 10, 2003
(same date)

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ANNEX F, F-1 & F-2 - Delivery Receipts for parties/counsel in SP-65404,
showing service/delivery on November 10, 2003 in contrast to his minimal
delivery/services on November 7, 2003 only in Muntinlupa.

ANNEX G - Copy of the resolution dated November 6, 2003 of the 6
th
Division
approving the appellants bond and directing the issuance of an order of release.

ANNEX H - Copy of the Order of Release upon Bond, which Salud was
supposed to deliver, among others on November 7, 2003 to the defense counsel,
the appellant and the OSG.
[12]

In his counter-affidavit,
[13]
the respondent vehemently denied the charges. He never
demanded money from Laguas relative; his name had been used by someone and was, thus, a
mere victim of the circumstances. Moreover, the fact that he immediately released the CA
order in question was clear proof that he had no financial interest in the transaction. His
version of the events that occurred that day is as follows:

4.1 That on November 6, 2003 at around 1:38 p.m. the Acting Chief of the
Mailing Section gave me an assignment to deliver the Writ of Habeas
Corpus (hearing on November 26, 2003 at RTC, Zamboanga) for CA-G.R.
SP No. 80238 for delivery to NBI, PAO, Quezon City, Muntinlupa;

4.2 That I delivered a copy of the Writ of Habeas Corpus to [the National]
Bureau of Investigation (NBI);

4.3 That while I was at the NBI, I received a text message from my boss,
requesting me to return to the office immediately because there is
another notice of resolution coming from Atty. Ledesma which I have to
serve to Quezon City and Las Pias;

4.4 In compliance with the request, I returned to the Office and arrived at
around 3:15 p.m.;

4.5 That when I received the resolution, I read the same and found out
that the hearing is still scheduled on December 10, 2003 at 10:30 a.m.;

4.6 That when I was about to leave to deliver the Writ of Habeas Corpus
and the Notice of Hearing to the PAO, Quezon City, my officemate Jun
Vicencio told me to wait because Irma, the staff of Atty. Madarang
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requested me to standby because I need to deliver the Order of Release
to the New Bilibid Prison, Muntinlupa;

4.7 That because of the request I waited until 4:00 p.m.;

4.8 That because its already late, I decided to go to Atty. Madarangs
office to inquire about the Order of Release which I need to deliver to the
New Bilibid Prison, Muntinlupa;

4.9 That Atty. Madarang told me to wait a little while because the order is
about to be finished. So I waited.

4.10 That Atty. Madarang gave to me the Order of Release at 4:15 p.m.

4.11 That because I am aware that I may not reach [the] New Bilibid Prison
on time, I told Atty. Madarang that I can deliver it on November 7, 2003,
early in the morning. She agreed and told me THANK YOU Ikaw na ang
bahala;

4.12 That I informed my boss about the Order of Release that was assigned
to me and she had it listed in our logbook. I asked my boss [Cecil Secarro]
if I can deliver the Notice of Hearing for SP 67586 and the others on
Monday if I cannot finish delivering them on November 7, 2003. She
agreed but told me to be sure that the Order of Release will be served
first and the others be served not later than Monday, November 10,
2003. Thereafter, I went home.

4.13 That on November 7, 2003, I went straight to [the] New Bilibid Prison
and arrived there before 8:00 [a.m.] Unfortunately, all the staff wearing
white uniforms and the security guards were falling in line in front of the
building of the New Bilibid Prison. So I could not enter the administration
office.

4.14 That while I was standing in front of the building where the
administrative office is located, a certain ART approached me and asked
me if I am the personnel of the Court of Appeals who will deliver the
Order of Release.

4.15 That I said yes, and he told me his name and said that he is a relative of
MELCHOR LAGUA (prisoner) and is connected with the office of Atty.
[Quimpo].

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4.16 That at around 9:30 [a.m.] I was able to enter the administrative
offices but because there was no staff inside I went to the
documentation office. The staff in the documentation office told me to
submit the Order of Release to the administrative office. He said that
they will prepare the documents of MELCHOR LAGUA (prisoner) but also
told me that the prisoner might be released on Monday yet because the
signatories are busy attending the ongoing 98 anniversary celebration;

4.17 That I returned to the administrative office and was able to find Mr.
JUANITO TORRES, Administrative Officer III, who received the copy for
the Director but refused to receive the copy of Mr. LAGUA. He told me to
wait for his staff to receive the copy of Mr. LAGUA;

4.18 That because the staff were not around, I went to the canteen to buy
softdrinks to quench my thirst;

4.19 That Mr. ART followed me in the canteen and told me to assist in the
release of Mr. LAGUA because there were no personnel attending to the
Order of Release;

4.20 That since my boss told me to insure the release of the prisoner, I
waited for my staff to arrive who will attend to the matter;

4.21 That I delivered the copy of Mr. LAGUA to the staff. But ART told them
he can receive the copy of Mr. LAGUA because he is his relative so, the
staff told me to give the copy to ART.

4.22 That I gave the copy of the Order of Release for the accused to ART.
ART also told me that he is authorized to receive the copy for Atty.
Quimpo because he is also the representative of the law office. Hence, I
also gave the copy for Atty. Quimpo to ART;

4.23 That I was able to finish my duty at the New Bilibid Prison at around
2:30 [p.m.] and I proceeded to Purok I, 6A Bayanan, Muntinlupa to serve
the Writ of Habeas Corpus in CA-G.R. SP No. 80238;

4.24 That because of [sic] the address of the addressee was incomplete, I
found a hard time locating the address of the addressee and when I
found Purok I, 6A, the persons thereat do not know JOEL DE LA PAZ. I
asked for their help but nobody in the place knew JOEL DE LA PAZ;

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4.25 That I left Muntinlupa late in the afternoon and due to the lack of time
I decided to deliver the other documents on the next working day which
is Monday, November 10, 2003;

4.26 That I delivered the other documents on Monday, November 10, 2003,
without any problem;

4.27 That I was surprised when Atty. Madarang later on accused me that I
used her name and the name of Justice Magtolis to demand money from
Mr. LAGUAS relative.
[14]

Considering the gravity of the charges, then Acting Presiding Justice Cancio C.
Garcia
[15]
referred the matter to Atty. Elisa B. Pilar-Longalong, Assistant Clerk of Court, for
investigation, report, and recommendation.

The Investigation

The requisite hearings were held from December 12, 2003 to August 4, 2004.

Atty. Madarang affirmed the contents of her Affidavit
[16]
dated December 8, 2003. She
testified that the respondent later came to her office along with Ms. Secarro. Amidst his cries,
he pleaded, Boss, patawad po, alang-alang sa aking mga anak. She replied, Wait, wala ka
namang kasalanan sa akin. Ikaw ang nagpasimuno ng lahat ng ito. The respondent repeated,
Boss, patawad po alang alang sa aking mga anak, and Atty. Madarang answered, Okey lang,
pinatawad na kita. Hindi naman ako galit sa iyo.
[17]

Justice Magtolis testified that Atty. Madarang reported having received a telephone call
from the alleged relative of Lagua. She narrated that she gave the name Arlyn to the caller,
and, thereafter, exchanged text messages with the respondent. Justice Magtolis instructed
Atty. Madarang to continue communicating with the respondent and, if possible, to see it
through a possible pay-off where a National Bureau of Investigation (NBI) agent would be asked
to assist them. However, the entrapment did not materialize. The respondent thereafter came
to her office, where he was asked why he was unable to serve all the other papers and
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documents that day.
[18]
He also admitted that he served a copy of the resolution to the wrong
person (Baluran). Justice Magtolis also stated that she threatened to transfer the respondent,
and that the latter vehemently objected, pleaded, and cried saying, Huwag naman pong pa-
transfer. When asked why, the respondent said that he has children in school and something
like, Dyan po ako kumikita.
[19]

Another witness was Cristy Flores, convicted of three counts of estafa who served time
at the Correctional Institute for Women in Batangas City. She testified that the respondent was
introduced to her in December 1998 by a certain Crisanta Gamil.
[20]
Gamil was also detained at
the correctional facility; the respondent had worked on her appeal bond papers and asked
for P20,000.00 to facilitate the issuance of the appeal bond.
[21]
The payment was made right in
front of her, and the respondent issued a receipt.
[22]
The witness also testified that Gamil told
her, O, at least dyan mo ipalakad ang papel mo. Okay yan, sigurado.
[23]
The respondent
visited her in May 1999, as she had asked him to fix her appeal bond. During the visit, the
respondent took the pertinent documents from her.
[24]
The witness also stated that she gave
the respondent a partial payment of P7,000.00
[25]
on May 16, 1999 and he issued a
receipt.
[26]
They then proceeded to the Documents Section where they secured copies of the
court decision, certificate of manifestation and her picture. She made the last payment
of P13,000.00 in June 13, 1999, and also issued a receipt. The respondent was also asking for an
additional payment of P15,000.00, which she was unable to give.
Flores narrated that she introduced another detainee to the respondent,
Dalawangbayan, whom the latter was also able to help. She stated that according to
Dalawangbayan, the respondent asked for P200,000.00. She further testified that she knew the
respondent as Joselito M. Salud, and not Cielito Salud.
[27]
After the incident, she wrote a letter
to Associate Justice Conrado Vasquez, Jr. to ask for assistance regarding her appeal bond.

Atty. Salvador Quimpo, Laguas counsel, testified that it was Engineer Art Baluran who
hired him as counsel of the said accused. He stated that he gave an oral authorization to
Baluran to get the CA resolutions or orders; Baluran was the one who furnished him a copy of
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the resolution.
[28]
He called Mr. Baluran to say that an order for Laguas release had already
been issued by the appellate court. The witness stated, however, that he had never seen the
respondent before.
[29]

The respondent testified that he has been a CA employee since 1991. He admitted that
he knew Flores, and met her in January 1999 when he brought Gamils order of release in the
Batangas City Jail. He claimed that he was waiting for the relatives of Gamil as they were the
ones who would pay for his fare home, and while waiting, he talked to the jailguard/warden.
Flores then approached him and asked him if he was from the CA. When the respondent
answered in the affirmative, Flores replied that Justice Vasquez was her neighbor in Bian,
Laguna.

The respondent admitted that he was in the Correctional Institute for Women in
Mandaluyong City on May 16, 1999, as he was then visiting Vilma Dalawangbayan. He also saw
Flores.
[30]
When asked why he visited Dalawangbayan, the respondent replied that Flores had
written a letter to him (which he dubbed as maintrigang sulat)
[31]
addressed Lito Salud,
Mailing Section, Court of Appeals. In the said letter, Flores asked him to help Dalawangbayan,
just like he had helped Gamil. The respondent then showed the letter to then Chief of Office
Prudencio B. Aguilar, who told him, Puntahan mo yan, Lito at maintriga yang sulat na yan,
baka tayo mapahamak dyan.
[32]
Thus, he went to the Correctional Institute in Mandaluyong
City to sort things out with Dalawangbayan and Gamil. The respondent, however, stated that
he could not find the letter anywhere and had already been lost.
[33]

During his May 16, 1999 visit to the correctional facility, Flores approached him in the
visiting hall, and said suddenly, Sandali lang, Kuya, then left. He then talked to
Dalawangbayan about the controversial letter, explaining that his job in the Court of Appeals
was only to remand the records and deliver the Orders for release, just like what he did in
Gamils case.
[34]
He again visited Dalawangbayan on June 13, 1999
[35]
as evidenced by the
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entries in the visitors logbook. He was no longer able to speak to Flores, but made five other
such visits to Dalawangbayan in the correctional facility.

The Findings of the Investigating Officer

In her Report dated January 21, 2005, Atty. Longalong found that the respondent was
guilty as charged, and made the following recommendation:

In view of all the foregoing, there is substantial evidence to hold
respondent liable for the offenses charged. He is liable for inefficiency and
incompetence in the performance of his official duties and for conduct
prejudicial to the best interest of the service when he admittedly served the
copies of the resolution and order of release in the Lagua case intended for
detained appellant and his counsel on Mr. Baluran whom he admitted to have
met only on that day, against the rules and normal office procedure on personal
service. His long stay in the Bureau of Prisons also caused the delay in the service
of other court processes assigned to him for service on that day. He is also liable
for having financial or material interest in an official transaction considering his
undue interest in the service of the order of release and actual release of Lagua
to the point of staying almost the whole day in the Bureau of Prisons and the
aborted deal as can be concluded from the phone call of Melissa Melchor to
Atty. Madarang and subsequent exchange of text messages with Atty. Madarang
disguising as Laguas relative.

RECOMMENDATION:

1. Rule IV, Section 52 of Civil Service Commission Memorandum Circular
No. 19, S. 1999, issued pursuant to Book V of the Administrative Code of 1987,
provides that the penalty for the first offense of inefficiency and incompetence
in the performance of official duties, for conduct prejudicial to the best interest
of the service and for directly or indirectly having financial and material interest
in any official transaction is suspension for a period of 6 months, 1 day to 1 year.
Pursuant to Section 55 of the same Memorandum Circular, if the respondent is
found guilty of 2 or more charges, the penalty to be imposed should be that
corresponding to the most serious charge and the rest shall be considered as
aggravating circumstances. Section 54-c of the same Memorandum Circular
provides that the maximum of the penalty shall be imposed where only
aggravating and no mitigating circumstances are present. Since in this case, the
penalty is the same for all 3 offenses, the maximum of the penalty for the first
offense which is suspension for 1 year [may be] imposed on the respondent.

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2. Considering that the prescribed penalty for the offense exceeds one
month suspension, the case may now be referred to the Supreme Court for
appropriate action, pursuant to Circular No. 30-91 of the Office of the Court
Administrator.
[36]

The Ruling of the Court

On the charge of inefficiency, the respondent is clearly administratively liable. After
serving Laguas copy of the resolution and order of release to the prison Director, he
should have immediately returned to his station or served the other resolutions and
documents for personal service. As an officer of the court, the respondent plays an
essential part in the administration of justice. He is required to live up to the stringent
standards of his office, and his conduct must, at all times, be above reproach and
suspicion. He must steer clear of any act which would tend to undermine his integrity,
or erode somehow the peoples faith and trust in the courts.
[37]
As the respondent
himself admitted, he stayed on until 2:30 p.m. without any valid reason, despite the fact
that he knew he still had to serve several orders and resolutions. As pointed out by the
Investigating Officer, inefficiency and incompetence in the performance of official
duties is classified as a grave offense, and is punishable by suspension for six months
and one day to one year.
[38]

Indeed, the complainant in administrative proceedings has the burden of proving the
allegations in the complaint by substantial evidence. If a court employee is to be disciplined for
a grave offense, the evidence against him must be competent and derived from direct
knowledge; as such, charges based on mere suspicion and speculation cannot be given
credence. Thus, if the complainant fails to substantiate a claim of corruption and bribery,
relying on mere conjectures and suppositions, the administrative complaint must be dismissed
for lack of merit.
[39]
However, in administrative proceedings, the quantum of proof required to
establish malfeasance is not proof beyond reasonable doubt but substantial evidence, i.e., that
amount of relevant evidence that a reasonable mind might accept as adequate to support a
conclusion, is required.
[40]
The findings of investigating magistrates on the credibility of
witnesses are given great weight by reason of their unmatched opportunity to see the
deportment of the witnesses as they testified.
[41]

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To determine the credibility and probative weight of the testimony of a witness, such
testimony must be considered in its entirety and not in truncated parts. To determine which
contradicting statements of a witness is to prevail as to the truth, the other evidence received
must be considered.
[42]
Thus, while it is true that there is no direct evidence that the
respondent received any money to facilitate the release of detained Lagua, the following
circumstances must be taken as contrary to the respondents plea of innocence:

First. The respondent admitted that he was the sender of the first three text messages
in Atty. Madarangs cellphone: bkit, C rhodora to; CNO KAMAGANAK AT ANONG PANGALAN
MO; and SINO K KC NAGHIWALAY N KAMI. The respondents testimony on the matter is as
follows:

Q: In the hearing of December 2, 2003, in the TSN on page 32 onwards

ATTY. ROSERO:

Is that the testimony of Atty. Madarang, Justice?

JUSTICE MAGTOLIS:

Oo. I will just refer to your admission through your counsel that
Cellphone No. 6392044390[8]2 is yours. You admitted that?

ATTY. ROSERO:

I think we made an admission as to that matter, Justice. Well just check
the affidavit of Atty. Madarang.

JUSTICE MAGTOLIS:

Here, admitted. Basahin mo.

ATTY. ROSERO:

Yes, Justice, admitted but not the cellphone number

JUSTICE MAGTOLIS:

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185 | P a g e
Sige, ulitin natin, 6392044390[9]2.

ATTY. ROSERO:

Yes, admitted. That is his cellphone.

JUSTICE MAGTOLIS:

This cellphone is yours.

Q: Do you also admit that you called Atty. Madarang several times on
November 7, 2003?

ATTY. ROSERO:

November 7 is a Friday. Tumawag ka daw several times kay Atty.
Madarang, November 7?

JUSTICE MAGTOLIS:

Texted, Im sorry I will correct that, texted.

A: Nauna po siyang magtext sa akin, Justice, hindi po ako nagtext sa kanya.
Nagtext po siya sa akin sumagot po ako sa kanya.

Q: There was an exchange several times?
A: Nuong pong text niya sa akin hindi po several times dahil kung makita
nyo po dyan.

JUSTICE MAGTOLIS:

Let me see the affidavit of Atty. Madarang. After this question, may I ask
for a continuance?

ATTY. ROSERO:

No objection, Your Honor.

JUSTICE MAGTOLIS:

All these text messages were checked by us with your counsel in the
cellphone of Atty. Madarang which were preserved until we allowed her
to erase these. There are exchanges here: 6392044390[8]2, November 7.
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186 | P a g e
When she texted she answered, Bkit c Rhodora 2 and then second was,
Cnong kamaganak anong pangalan mo? This is addressed to you, this is
your telephone?
A: Opo.

Q: But the one who answered is Rhodora?
A: Ako po yun.

Q: Ikaw ang sumasagot. Why did you say that you are Rhodora?
A: Justice, nung ma-receive ko po yong text niya apat na beses ko pong na-
receive ang text ni Arlene.

INVESTIGATOR:

Who is Arlene?

A: Atty. Madarang. Arlene, sa text po niya sa akin, Sir Lito, kamaganak po
ito ni Mr. Lagua. Magkano pa po ba ang kakulangang pera para ibigay ko
sa inyo. Si Rhodora ba kasama? Hindi ko po sinagot yon. Pangalawa, yun
din po ang message nya. Ano ito? Sa akin pong kuan, sa pag-iisip ko lang
po, bakit dahil si Mr. Art Baluran kamag-anak na, ano ito? Text pa ulit pa
sya ng pangatlo. Nang-iintriga na to. Pang-apat, intriga to. Text ko nga
rin to, lokohan lang tayo. Bkit si Rhodora to yun po ang sagot ko sa
kanya.

Q: So at that time you already knew about Rhodora?
A: Hindi po, dun, duon po sa text niya nakalagay po dun eh, Si Rhodora
kasama ba? So ikinuan ko po na si Rhodora to, dun po sa text nya.

Q: Nakipaglokohan ka?
A: Sa text niya nakalagay dun na Si Rhodora ba kasama kaya po ako
nakipaglokohan dun.
[43]

As pointed out by the Investigating Officer, the respondents claim of joking around
(nakipaglokohan) with an unknown sender of a text message by replying thereto is contrary
to a normal persons reaction. This is made even more apparent by the fact that the respondent
even admitted that he called Atty. Madarang twice, and when asked why, gave a vague answer,
and, when further questioned, even broke down in tears.
[44]

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The respondents claim that the admission of the text messages as evidence against him
constitutes a violation of his right to privacy is unavailing. Text messages have been classified as
ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic
Evidence,
[45]
and shall be proven by the testimony of a person who was a party to the same or
has personal knowledge thereof. Any question as to the admissibility of such messages is now
moot and academic, as the respondent himself, as well as his counsel, already admitted that he
was the sender of the first three messages on Atty. Madarangs cell phone.

This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-
Apao.
[46]
In that case, the Court, in finding the respondent therein guilty of dishonesty and
grave misconduct, considered text messages addressed to the complainant asking for a million
pesos in exchange for a favorable decision in a case pending before the CA. The Court had the
occasion to state:

The text messages were properly admitted by the Committee since the
same are now covered by Section 1(k), Rule 2 of the Rules on Electronic
Evidence, which provides:

Ephemeral electronic communication refers to telephone
conversations, text messages and other electronic forms of
communication the evidence of which is not recorded or retained.

Under Section 2, Rule 11 of the *said rules+, Ephemeral electronic
communications shall be proven by the testimony of a person who was a party
to the same or who has personal knowledge thereof . In this case,
complainant who was the recipient of the said messages and therefore had
personal knowledge thereof testified on their contents and import. Respondent
herself admitted that the cellphone number reflected in complainants cellphone
from which the messages originated was hers. Moreover, any doubt respondent
may have had as to the admissibility of the text messages had been laid to rest
when she and her counsel signed and attested to the veracity of the text
messages between her and complainant. It is also well to remember that in
administrative cases, technical rules of procedure and evidence are not strictly
applied. We have no doubt as to the probative value of the text messages as
evidence in determining the guilt or lack thereof of respondent in this case.

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Second. The respondents testimony during the hearings held before Investigating
Officer Atty. Longalong is replete with inconsistencies and loopholes. He claimed that he
made inquiries from other CA staff and learned that there was indeed a deal between someone
in the criminal section and a certain Rhodora of the RTC, Pasig. He further claimed that the said
parties wanted to get back at him for immediately serving the release order which prevented
them from demanding the balance of the deal from Laguas relative. However, this bare claim
was not corroborated by any witness. Moreover, the respondent alleged that two anonymous
callers claimed to know something about the case against him; when asked about it, he stated
that he no longer exerted efforts to find out who they were as they did not give out their names:

JUSTICE MAGTOLIS:

Q: On page 5 of your affidavit, you said in paragraph 8 That I made some
inquiry and some personnel of the Court of Appeals told me that there is
indeed a deal between a staff in the Criminal Section and Rhodora of RTC,
Pasig. Can you tell us who is this staff?
A: Ah dito po Justice, hindi po siya nagpakilala, sa telephono po.

INVESTIGATOR:

Sino siya?

A: Hindi po siya yong tawag po niya sa akin sa telepono nang malaman
po dito sa CA na ako ay kinasuhan ninyo tumawag po siya sa Personnel.

JUSTICE MAGTOLIS:

Q: Who is siya?
A: Ay hindi po siya nagpakilala.

INVESTIGATOR:

Lalaki o babae?

A: Una po babae tapos yong pangalawa po lalaki.

INVESTIGATOR:

Sinong kinakausap?
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189 | P a g e

A: Ako po.

INVESTIGATOR:

Hinahanap ka?

A: Hinahanap po nila ako.

JUSTICE MAGTOLIS:

Q: What did he tell you? He, lalaki, ano?
A: Sa babae muna po?

Q: Oo, babaet lalake ba?
A: Opo.

Q: Who was the first caller, the lady or the gentleman?
A: Babae po.

Q: Were you the one who answered the phone?
A: Hindi po.

INVESTIGATOR:

Hinahanap daw siya.

JUSTICE MAGTOLIS:

Q: Hinahanap ka, okay, when you answered the phone, what did you say?
A: Ang sabi ko po sa kanya, pupuwede mo ba akong matulungan sa
paggawa ng affidavit dahil kinasuhan nga ako ni Justice Magtolis.

Q: But you do not know who you were talking to?
A: Tinanong ko nga po kung sino siya eh tumutulong lang daw siya sa akin
dahil ang naririnig niyang tsismis din dyan eh baka po si Rhodora ang may
ka-kuan sa Criminal.

Q: Saan yong ka-kuan?
A: Ang may kausap sa Criminal.

Q: Who said na baka si Rhodora ang may kausap sa Criminal?
A: Yon pong kausap ko sa kabilang linya.
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190 | P a g e

Q: The name you do not know?
A: Eh tinanong ko naman po kung sino siya ayaw naman po niyang
magpakilala. Matutulungan mo ba ako, ibinaba na po ang telepono.

INVESTIGATOR:

Anonymous caller.

JUSTICE MAGTOLIS:

You are very fond of answering calls. You dont even know the name.

Q: That anonymous caller told you that there must be some deals between
Rhodora and someone from the Criminal Section?
A: Yun din daw po ang naririnig niyang tsismis dyan sa labas.

Q: Tsismis, that was that the caller told you?
A: Opo.

Q: And she wanted to help you?
A: Kaya po sinabi din sa akin na tsismis eh hindi pa po pwedeng

Q: What did you answer her?

INVESTIGATOR:

Anong sagot mo raw?

JUSTICE MAGTOLIS:

Q: Anong sagot niya sa tulungan kasi nakakarinig siyang tsismis?

INVESTIGATOR:

Q Ano ang sagot mo?
A: Eh iyon nga ang gusto kong malaman, ang katotohanan. Baka naman
pupuwede mo akong matulungan. Sino ba to?

JUSTICE MAGTOLIS:

Q: Di ba she was the one who offered to help?
A: Ay ayaw daw po naman niyang masabit po ang pangalan niya.
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191 | P a g e

Q: But she was the one who called you?
A: Opo.
Q: Okay. How did your talk end with this girl or lady?
A: Nung pagsalita ko nga pong baka pupuwede akong tulungan, wala na.

Q: How about the man, the gentleman or the boy who called?
A: Same kuan din po ang kanilang kuan e.

JUSTICE MAGTOLIS:

Dont use kuan.

ATTY. ROSERO:

Sige, Lito, ipaliwanag mo.

A: Same kuento rin po, sinabi niya na ganuon din po na narinig din po niya sa
labas.

JUSTICE MAGTOLIS:

Q: Alright, you were not the one who answered the call?
A: Hindi po.

Q: Somebody called you that theres a phone call?
A: Opo.

Q: When you answered, what was your first word?
A: Hello!

Q: What was the answer at the other end of the line?
A: Hello rin po.

Q: What next?
A: Alam mo, ang sabi po niya sa akin ganito po

Q: Who was the first one who said something other than hello?
A: Siya po ang nauna.

Q: What did she say, the exact words?
A: Exact words, sa naalala kong sinabi niya Alam mo, Mr. Salud, Salud po
ang kuan niya sa akin, narinig ko sa labas, istoryahan dyan sa labas na
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baka si Rhodora ang may ka-kuan dito sa Criminal. Ang sabi ko po sa
kanya Iyan din ang itinawag sa akin kahapon. Eh dalawa na kayo eh baka
naman pupuwede nyo akong matulungan. Puede ko bang malaman ang
pangalan mo? Ganun din po, ayaw na pong magsalita ibinaba na *ang+
telepono.

Q: Do you know Rhodora?
A: Hindi po.

Q: You never met her?
A: Hindi po.

Q: You never talked to her?
A: Nung pong ipinakiusap nyo sa akin sa telepono po nung tayo poy

Q: After the conversation with the lady and that gentleman who called you
to offer some help and afterwards did not help at all, what happened?
A: Wala na po.

Q: Did you not check with Rhodora, What is this they are talking about that
it might be between you and someone in the Criminal Section? You
never asked her that?
A: Hindi ko na rin po

Q: You did not. But I thought you wanted help from those people who can
help you?
A: Eh hindi na nga po sila nagbanggit po ng pangalan dahil po sabi ng unang
babae ayaw nga rin po niyang sumabit sa kaso.
[47]

This respondents actuation on this matter, if at all true, is again contrary to the normal
reaction of one who has been administratively charged, and wants to clear his name of any
wrongdoing.

The respondent also admitted visiting an inmate (Vilma Dalawangbayan) at the
correctional facility eight times for no apparent reason. This admission lends some credence to
the testimony of Flores, that she was the one who introduced him to Dalawangbayan, the
person he was visiting. When asked why he frequently visited, he stated that he found her
beautiful (Maganda po siya, Justice), and was on the verge of courting her (Para na nga po
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193 | P a g e
akong nanliligaw). The Court believes that this allegation was concocted by the respondent as
a mere afterthought, to cover up for his misdeeds.

The Investigating Officer also found that the respondent was high-strung during his
testimony, and this finding must be accorded respect. Indeed, when the issue is the credibility
of witnesses, the function of evaluating it is primarily lodged in the investigating judge. The rule
which concedes due respect, and even finality, to the assessment of the credibility of witnesses
by trial judges in civil and criminal cases where preponderance of evidence and proof beyond
reasonable doubt, respectively, are required, applies a fortiori in administrative cases where
the quantum of proof required is only substantial evidence. The investigating judge is in a
better position to pass judgment on the credibility of witnesses, having personally heard them
when they testified, and observed their deportment and manner of testifying.
[48]
Thus, the
following findings of Atty. Longalong are well taken:
However, respondent denied receiving P20,000 from Gamil and P15,000
from Flores and signing LM Salud on Flores notebooks (Exhibits E-1 and F-1)
but admitted visiting Vilma at the Correctional Institute for Women 8 times from
May to August 1999. Respondents denial here appears self-serving and
incredible considering his admission of going to the Correctional Institute for
Women several times for no valid official reason. Moreover, although Flores is a
convict for estafa, her
testimony on the matter was more consistent and credible. Likewise, respondent
admitted seeing Flores at the Correctional Institute for Women and that Flores
mailed her letter to him on May 16, 1999 which he called maintriga. He also
admitted that he told Flores to seek the help of Justice Vasquez on her case. The
foregoing, plus the fact that Flores eventually wrote Justice Vasquez, confirms
the truth of Flores testimony on the matter.

With the aforecited admissions by respondent, the substantial evidence
presented by the complainant and her witnesses with their positive and
forthright testimonies deserve more credence than respondents self-serving
denial and inconsistent and vague testimony. Even the demeanor of complainant
and her witnesses give credence to their testimonies than the nervous and [high-
strung] demeanor of respondent during his testimony. Moreover, complainant
and her witnesses, including the superiors of respondent, have no reason or
motive whatsoever to testify falsely against him. Respondents defense of denial
is inherently a weak defense. It is well settled that denial, to be believed, must
be buttressed by strong evidence of non-culpability, otherwise the denial is
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194 | P a g e
purely self-serving and with nil evidentiary value (People of the Philippines v.
Arlee, 323 SCRA 201). Like the defense of alibi, denial crumbles in the light of
positive declarations (People of the Philippines vs. Ricafranca, 323 SCRA 652).

Indeed, the Court is looked upon by people with high respect, a sacred place where
litigants are heard, rights and conflicts settled and justice solemnly dispensed with. Misbehavior
within or around the vicinity diminishes its sanctity and dignity. The conduct and behavior
required of every court personnel, from the presiding judge to the lowliest clerk, must always
be beyond reproach and circumscribed with the heavy burden of responsibility. Their conduct
must, at all times, be characterized by, among other things, propriety and decorum so as to
earn and keep the publics respect and confidence in the judicial service.
[49]
Public service
requires the utmost integrity and strictest discipline. Thus, a public servant must exhibit at all
times the highest sense of honesty and integrity not only in the performance of his official
duties but in his personal and private dealings with other people.
[50]

While there is no direct evidence to suggest that he actually extorted money to
facilitate the issuance of the appeal bond and release order which he himself served, the
surrounding circumstances, as well as the inconsistencies in his testimony, point towards
administrative culpability. The respondents actuations fall short of the standard required of a
public servant. He is guilty of gross or grave misconduct. Misconduct is a transgression of some
established and definite rule of action, a forbidden act, a dereliction from duty, unlawful
behavior, willful in character, improper or wrong behavior,
[51]
while gross, has been defined
as out of all measure; beyond allowance; flagrant; shameful; such conduct as is not to be
excused.
[52]
Under the Omnibus Civil Service Rules and Regulations, grave misconduct is
punishable by dismissal from the service even for the first offense, as it is classified as a grave
offense. However, considering that the respondent has not been previously charged nor
administratively sanctioned, the Court finds that a penalty of suspension for one year and six
months will serve the purpose of disciplining the respondent.

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Court personnel, from the lowliest employee to the clerk of court or any position lower
than that of a judge or justice, are involved in the dispensation of justice, and parties seeking
redress from the courts for grievances look upon them as part of the Judiciary. They serve as
sentinels of justice, and any act of impropriety on their part immeasurably affect the honor and
dignity of the Judiciary and the peoples confidence in it.
[53]
Thus, any conduct which tends to
diminish the image of the Judiciary cannot be countenanced.

IN LIGHT OF ALL THE FOREGOING, respondent Cielito M. Salud is found GUILTY of
inefficiency and gross misconduct. He is SUSPENDED for a period of One (1) Year and Six (6)
Months, effective immediately. He is further DIRECTED to inform the Court as to the date of his
receipt of this Decision to determine when his suspension shall have taken effect.

The Office of the Court Administrator is also DIRECTED to conduct a discreet
investigation on the possible involvement of Rhodora Valdez (Utility Worker), and other
personnel of the Regional Trial Court of Pasig City, Branch 163.

SO ORDERED.

ROMEO J. CALLEJO, SR.
Associate Justice

WE CONCUR:

On official leave
HILARIO G. DAVIDE, JR.
Chief Justice

On official leave
REYNATO S. PUNO ARTEMIO V. PANGANIBAN
Associate Justice Associate Justice
Acting Chief Justice

On official leave On official leave
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

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ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

MA. ALICIA AUSTRIA- MARTINEZ RENATO C. CORONA

On official leave On official leave
CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

DANTE O. TINGA MINITA V. CHICO-NAZARIO

CANCIO C. GARCIA
Associate Justice

*
On official leave.
**
Acting Chief Justice.
[1]
Rollo, p. 2.
[2]
Id. at 14.
[3]
Id. at 13.
[4]
Exhibit C, Rollo, pp. 34-35.
[5]
Rollo, p. 14.
[6]
Exhibit B, Rollo, pp. 26-29.
[7]
Exhibit C, Id. at 34-35.
[8]
Exhibit 7.
[9]
Rollo, pp. 27-29.
[10]
Exhibits B and 7.
[11]
Rollo, p. 3.
[12]
Rollo, pp. 3-4.
[13]
Id. at 19-24.
[14]
Rollo, pp. 20-23.
[15]
Now an Associate Justice of the Supreme Court.
[16]
Exhibit B, Rollo, pp. 26-29.
[17]
TSN, 12 December 2003, p. 12.
[18]
TSN, 13 January 2004, p. 19.
[19]
TSN, 13 January 2004, pp. 19-20.
[20]
TSN, 22 January 2004, pp. 13-14.
[21]
Id. at 15.
[22]
Id. at 18.
[23]
Id. at 16.
[24]
Id. at 21-22.
[25]
Id. at 24.
[26]
TSN, 4 March 2004, p. 13.
[27]
TSN, 22 January 2004, p. 38.
[28]
Id. at 40-45.
[29]
Id. at 47.
[30]
TSN, 25 May 2004, p. 7.
[31]
Ibid.
[32]
Id. at 9.
[33]
Id.
[34]
Id. at 11-12.
[35]
Id. at 12.
[36]
Report dated 1 January 2005, pp. 6-7.
[37]
Albello v. Galvez, A.M. No. P-01-1476, 16 January 2003, 395
SCRA 251.
[38]
Section 23(p), Rule XIV, Omnibus Civil Service Rules and
Regulations.
[39]
Fernandez v. Versola, A.M. No. CA-04-40, 13 August 2004, 436
SCRA 369.
[40]
Avancena v. Judge Liwanag, 446 Phil. 710 (2003).
[41]
Magarang v. Judge Jardin, Sr., 386 Phil. 273 (2000).
[42]
Office of the Court Administrator v. Morante, A.M. No. P-02-
1555, 16 April 2004, 428 SCRA 1, 20.
[43]
TSN, 15 June 2004, pp. 58-61.
[44]
TSN, 29 June 2004, p. 4.
[45]
A.M. No. 01-7-01-SC, 17 July 2001. The Rules took effect on
August 1, 2001.
[46]
A.M. No. CA-05-18-P, 12 April 2005.
[47]
TSN, 15 June 2004, pp. 53-58.
[48]
Meneses v. Zaragosa, A.M. No. P-04-1768, 11 February 2004,
422 SCRA 434.
[49]
Policarpio v. Fortus, A.M. No. P-95-1114, 18 September 1995,
248 SCRA 272.
[50]
Concerned Citizens of Laoag City v. Arzaga, A.M. No. P-94-
1067, 30 January 1997, 267 SCRA 176.
[51]
BLACKS LAW DICTIONARY, 5
th
ed. (1979), p. 901.
[52]
Id. at 632, citing State Board of Dental Examiners v. Savelle, 90
Colo. 177, 8 P. 2d 693, 697.
[53]
A.M. No. 03-06-13-SC, CODE OF CONDUCT FOR COURT
PERSONNEL which took effect on June 1, 2004.

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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-40677 May 31, 1976
vs.
NICANOR JIMENEZ and TEOFILO HERNANDO, accused. NICANOR JIMENEZ, accused-appellant.
Jorge C. Paderanga (Counsel de Oficio) for accused-appellant.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V. Sempio-Diy and
Solicitor Amado D. Aquino for appellee.

ANTONIO, J.:
Appeal from the judgment of the Court of First Instance of Misamis Occidental in Criminal Case
No. OZ-542, finding appellant Nicanor Jimenez guilty beyond reasonable doubt of the crime of
murder, and imposing upon him the penalty of reclusion perpetua, with the accessories of the
law, and ordering him to indemnify the heirs of the deceased Fabiano Fuentes in the sum of
P12,000.00, without subsidiary imprisonment in case of insolvency.
Due to rampant trawl fishing in the area, Staff Sergeant Albino Panelo of the Constabulary, who
was in charge of the Integrated Civilian Home Defense (IC-HDF) in Tangub City, together with
Barrio Councilors Gaudioso Dungon, Fabiano Fuentes, Pascual Taylaran and Angel Enriquez of
Barrio Bocator, constituted themselves into two or more teams to patrol Pangil Bay, for the
purpose of apprehending persons engaged in trawl fishing. At about 11:00 o'clock in the
evening of July 17, 1973, they sighted two pumpboats which they suspected to be engaged in
trawl fishing. Fabiano Fuentes, Angel Enriquez, Gaudioso Dungon and Sgt. Panelo succeeded in
overtaking the two pumpboats and in apprehending their occupants, namely: Engracio
Sabandal and Juan Temporada in the First boat, and Camilo Bayonas and Wilfredo Chasol in the
other boat. Having succeeded in their initial efforts, Sgt. Panelo and his companions proceeded
to a fish corral owned by one Doring to rest. While thus resting, at about 2:00 o'clock in the
early dawn, they sighted another pumpboat in the vicinity of Barrio Sumirap. They gave chase
and finally overtook this third pumpboat. According to Sgt. Panelo and Barrio Councilor
Dungon, this particular pumpboat was manned by appellant Nicanor Jimenez and one Teofilo
Hernando. Moments later, another pumpboat passed by, whereupon, Sgt. Panelo instructed
Fabiano Fuentes to transfer to the third pumpboat, have it tied to the latter's pumpboat, and to
follow them. After giving such instructions to Fabiano Fuentes, Sgt. Panelo and his remaining
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companions gave chase to the fourth pumpboat. Having apprehended the fourth pumpboat,
they noticed that the third pumpboat was not following them. After conducting an intensive
search of the area, they found no trace of either the third pumpboat or of Councilor Fuentes.
They then returned to Tangub City to report the incident to the Chief of Police and later to the
Constabulary Headquarters at Ozamis City. Two days later, or on July 19, 1973, they found the
cadaver of Fabiano Fuentes floating in the vicinity of Lusno, within the Municipality of
Tambulig, Zamboanga del Sur. Postmortem examination of the body of said deceased
conducted on July 19, 1973 at 2:20 p.m. by Dr. Sinforiana del Castillo, Rural Health Officer of
Lorenzo Tan, Tangub City, revealed the following:
EXTERNAL EXAMINATION:
Body at the early state of decomposition.
Head extended upward.
Erosion of both eyes and soft tissue around it leaving eyeball
intact. Erosion of forehead most extensive on left side. Lips with
small erosion. Ears with mark erosion: Absence of left pinnae.
Mouth open with bloody water coming out from the nostril.
Neck-swollen, dark in color with small erosion depressed linear marked across
the neck 1 cm. below left ear. Neck extended upward.
Left hand swollen with rope loosely tied around the waist. No cadaveric
spasm.
Right hand no cadaveric spasm, skin bleached and corrugated.
Forearms slightly flex towards the trunk.
Lower extremities extended. Skin bleached and corrugated.
Three dark spots at anterior aspect of right foot.
CAUSE OF DEATH ASPHYXIA.
Nicanor Jimenez was arrested on August 2, 1973, while Teofilo Hernando was arrested on
August 3, 1973. Both arrests were effected at the places of residence of said persons at
Taguitic, Kapatagan, Lanao del Norte. On August 6, 1973, the City Fiscal filed the Information for
Murder against Jimenez and Hernando before the City Court of Tangub City, supported by the
sworn statements of Melquiades Daing, Irineo Badyao, Pedrito de Guzman, Alexander
Mondragon, Banny Bayonas, and Eliser Bayonas. On the same date, the City Judge issued the
warrant for their arrest, and after said accused waived their rights to present evidence at the
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preliminary investigation, the case was remanded on August 29, 1973 to the Court of First
Instance of Ozamis City for trial.
On September 10, 1973, the City Fiscal filed the Information against the two accused with said
court. On January 3, 1974, the court dismissed the case provisionally due to the repeated non-
appearance of prosecution witnesses. It was only on January 17, 1974 when the case was
refiled by the City Fiscal and on that occasion only appellant Nicanor Jimenez was arrested,
while the other accused, Teofilo Hernando, remained at large. After trial, appellant Nicanor
Jimenez was found guilty as charged and sentenced to suffer the afore-mentioned penalty.
The issue determinative of the appeal is the sufficiency of the evidence of the prosecution to
establish the Identity of appellant as one of the assailants of the deceased.
There being no eyewitnesses to the commission of the crime, the resolution of the question
depends upon (a) the credibility of the testimony of Sgt. Albino Panelo and Gaudioso Dungon;
and (b) the admissibility of the purported extra-judicial confession of appellant (Exhibit "A")
before the City Judge on August 4, 1973.
The Identification of a person allegedly seen at the scene of the crime should be reasonably
clear and unequivocal.
1
It must be noted that neither Panelo nor Dungon knew appellant
Nicanor Jimenez prior to the said incident. The problem is whether Panelo and Dungon could
have, under the attendant circumstances, recognized and remembered the Identities of the
occupants of the third pumpboat on the early dawn of July 18, 1973. Panelo admitted that
while there was a moon, it was not so bright. They both claim, however, that Panelo directed
the beam of his flashlight at the occupants of the pumpboat. Gaudioso Dungon even went
further to claim that Sgt. Panelo not only talked with the occupants of the pumpboat but also
wrote down in his diary their names and addresses. This is, however, inferentially contradicted
by Sgt. Panelo in his sworn statement of August 9, 1973 (Exhibit "D") when he stated that he
did not know the names of the two occupants of the boat but he could recognize their faces.
Neither the claim of Panelo nor of Dungon that they recognized appellant as one of the
occupants of the afore-mentioned pumpboat and that the next day they reported the incident
to the Chief of Police could be believed because if that were true, the Chief of Police of Tangub
City, Andres Enguito, would not have testified that not a single constabulary reported to him
the incident in question, much less bothered to investigate the death of Fabiano Fuentes, thus,
he was constrained to take over the investigation on August 3, 1973. It was in such
investigation that he interrogated one Pedrito de Guzman, who revealed the involvement of
appellant Nicanor Jimenez and Teofilo Hernando in the case. There are also circumstances
which cast serious doubts on the sincerity of the said declarants. Thus, Sgt. Panelo only
executed his sworn statement on August 9, 1973 Identifying appellant Nicanor Jimenez and
Teofilo Hernando, a week after said persons had purportedly executed their extra-judicial
confessions before Pfc. Juanito C. Quico and Police Chief Andres Enguito admitting their
complicity in the commission of the crime. Gaudioso Dungon was not even listed as a witness
for the prosecution when the City Fiscal filed the complaint and as a matter of fact it was only
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on January 11, 1974 that Dungon executed a sworn statement on the alleged involvement of
appellant. On the various occasions that the case was set for hearing, Sgt. Panelo and Dungon
were not presented as witnesses by the prosecution, thus resulting in the dismissal of the case
on January 3, 1974, because according to the trial court, the case had been postponed several
times due to the non-appearance of prosecution witnesses. The dismissal of the case was
predicated on the failure of Melquiades Daing, Wilfredo Alcazaren, Pedrito de Guzman, Ireneo
Badyao, Alexander Mondragon and Danny Bayonas to appear and testify for the prosecution on
the various dates of hearing, thus compelling the court to issue a warrant for their arrest.
The courts should exercise caution in weighing evidence of Identity. As Wharton observed,
under conditions that generally surround the commission of a crime, there is sometimes a
predisposition to connect an accused with a crime on the basis at times of fancied
resemblances, depending upon the prejudgment or bias of the declarant.
2

But even assuming for the nonce the verity of the testimony of Panelo and Dungon, the
aforesaid testimony by itself would still be insufficient to support the judgment of conviction.
Hence, the vital question iswhether or not the affidavit of appellant (Exhibit "A") is admissible
as evidence in view of the provisions of Section 20, Article IV, of the Constitution. Under the
afore-mentioned section, "No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation,
or any other means which vitiates the free will shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in evidence."
The history of this constitutional right against compulsory self- incrimination stems from the
revulsion of mankind against the abuses committed by the ecclesiastical inquisitions and by the
Star Chamber several centuries ago. The privilege against self-incrimination "was aimed at a
more far-reaching evila recurrence of the Inquisition and the Star Chamber, even if not in
their stark brutality."
3
Involuntary confessions had been rejected by all courts not only on the
ground of its unreliability but also more important, on humanitarian principles which abhor all
forms of torture or unfairness towards the accused in criminal proceedings.
4
Although the
constitutional language in which the privilege is cast might be construed to apply only to
situations in which the prosecution seeks to call a defendant to testify against himself at the
criminal trial, its application has been held to apply to civil proceedings,
5
to congressional
investigations,
6
to juvenile proceedings,
7
and other statutory inquiries.
8
In the application of
this right, the natural concern is the obvious realization that an inability to protect the right at
one stage of a proceeding may make its invocation useless at a later stage. Thus, testimony
"obtained in civil suits, or before administrative or legislative committees, could also prove so
incriminatory that a person compelled to give such testimony might readily be convicted on the
basis of those disclosures in a subsequent criminal proceeding."
9

In 1966, the Supreme Court of the United States, in the precedent- setting case of Miranda v.
Arizona,
10
established rules to protect a criminal defendant's privilege against self-incrimination
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201 | P a g e
from the pressures arising during custodial investigation by the police. Thus, to provide
practical safeguards for the practical reinforcement for the right against compulsory self-
incrimination, the Court held that "the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-
incrimination." It was suggested therein that "Prior to any questioning, the persons must be
warned that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either retained or
appointed." As explained in Miranda, "The need for counsel in order to protect the privilege
(against self-incrimination) exists for the indigent as well as the affluent * * * . While authorities
are not required to relieve the accused of his poverty, they have the obligation not to take
advantage of indigence in the administration of justice * * * . In order to fully apprise a person
interrogated of the extent of his rights under this system then, it is necessary to warn him not
only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will
be appointed to represent him."
11

It was, therefore, because of the greater concern of the framers of the new Constitution for the
right against self-incrimination that this provision of Section 20, of Article IV was incorporated
in the new Constitution. In Magtoto v. Manguerra,
12
We ruled that the proscription against the
admissibility of confession obtained from an accused during the period of custodial
interrogation, in violation of the aforementioned procedural safeguards, applies to confessions
obtained after the effectivity of the new charter on January 17, 1973.
In the case at bar, the Chief of Police admitted that prior to the police interrogation of appellant
on August 4, 1973, the latter was not warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the
presence of an attorney-either retained or appointed. It is a matter of record that appellant not
only repudiated the alleged extra judicial confession (Exhibit "A") as one procured thru coercion
but also claimed that he was threatened by the police that if he would not affirm his signature
in Exhibit "A" before the City Judge, they will further maltreat him. To show the unreliability of
Exhibit "A", appellant's counsel de oficio also demonstrated that the purported statements of
appellant in said declaration as to the manner in which the deceased was allegedly injured by
the accused is inconsistent with the nature and character of the injuries found on the body of
the deceased by Dr. del Castillo in her postmortem examination.
As observed in Miranda,
13
"without proper safeguards the process of in custody interrogation
of persons suspected or accused of crime contains inherently compelling pressures which work
to undermine the individual's will to resist and to compel him to speak where he would not
otherwise do so freely. In order to combat these pressures and to permit a full opportunity to
exercise the privilege against self-incrimination, the accused must be adequately and effectively
apprised of his rights and the exercise of those rights must be fully honored." For an individual
in police custody is swept from familiar surroundings. He is surrounded by antagonistic forces,
and subjected to the techniques of persuasion. The presence of counsel, in such a situation,
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would be the adequate protective device necessary to make the process of police interrogation
conform to the dictates of the privilege against self-incrimination. Without the aforesaid
warnings, We hold that the purported extra- judicial confession of appellant (Exhibits "A" and
"A-1") which was obtained during custodial interrogation by the police is inadmissible as
evidence to prove the guilt of appellant.
WHEREFORE, in accordance with the foregoing, the judgment of the Court of First Instance of
Misamis Occidental in Criminal Case No. OZ- 542 is reversed, and appellant ACQUITTED of the
crime charged, with costs de oficio.
Fernando Barredo, Aquino and Martin, JJ., concur.
Concepcion Jr., J, is on leave.

Separate Opinions

FERNANDO, J., concurring:
The opinion of Justice Antonio is to be commended both for its scholarship and its fealty to the
constitutional command that the guarantee against self-incrimination be afforded the most
hospitable scope as evidence by the adoption of the Miranda doctrine.
1
Therefore,
concurrence cannot be withheld. I give it. The reference in the opinion, however, to a recent
American Supreme Court decision, Michigan v. Tucker
2
in a rather extensive footnote
3
has
persuaded me to add a few words. It may only be ex abundanti cautela, but nonetheless, I
entertain a slight misgiving that as to persons not as well-posted in what Professor Thomas
Reed Powell called the vagaries of constitutional interpretation or not as sensitive to nuances in
judicial opinions as the ponente, there could arise the erroneous impression that the adoption
of Miranda in the present Constitution
4
may still be affected by later American cases that do
not adhere to its strict norm. Hence this brief concurrence.
1. It does not admit of doubt that the right against self-incrimination arose from the belief that
thereby the recurrence of the evils associated with the Star Chamber and the Inquisition could
be avoided. It can be said that as originally phrased, what is sought to be prevented is
compulsion. Confessions voluntarily entered into are by no means excluded.
5
The moment,
however, there is, in the language of People v. Bagasala,
6
"any form of coercion, whether
physical, mental or emotional," it becomes inadmissible.
7
The opinion continues: "What is
essential for its validity is that it proceeds from the free will of the person
confessing.
8
Miranda, to my way of thinking, further vitalized the constitutional guarantee. The
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203 | P a g e
element of compulsion need not be shown in cases of custodial interrogation. For a confession
to be inadmissible, it suffices if at that stage, the person under investigation is not informed of
his right to remain silent and to counsel. As admitted in the able opinion of Justice Antonio,
there is the assumption that the circumstances of a police interrogation are so inherently
coercive that unless the atmosphere be neutralized in some manner, no individual's decision to
speak could be considered as falling within the exception to the privilege against self-
incrimination once its voluntariness is shown. That is as it should be. I do not think that the
opinion of the Court rightfully viewed is susceptible to any contrary interpretation.
2. It is true of course that the approach of the Burger Court differs from that of the Warren
Court as far as civil liberties cases are concerned. It was the late Chief Justice Warren who
penned the epochal Miranda opinion. That was in 1966. On May 14, 1969, shortly before he
became Chief Justice, the then Circuit Court of Appeals Judge Warren Burger, in Frazier v.
United States,
9
made clear that he was not sympathetic to the broad scope given the privilege
of self- incrimination. As he pointed out in his concurring and dissenting opinion: "Of more
concern is the majority's expansion of Miranda into a per se exclusionary rule, thereby
transcending the Fifth Amendment requirement that only those statements elicited
through compulsion be excluded from evidence. Indeed, Miranda itself cannot be read as going
beyond the language of the Fifth Amendment. Any lingering doubts on this score were resolved
by a recent exposition on the subject by the Supreme."
10
Nonetheless, it is only fair to add that
two prominent commentators on the Warren Court, the late Professor Harry Kalven and
Professor Gerald Gunther, are on record as denying radical departure from the libertarian
doctrines of the court. Thus, in his foreword to the 1970 Term of the Warren Supreme Court,
the late Professor Kalven noted: "Perhaps because I had taken the political advertisements of
change too seriously, I had expected dislocations in the work of the Court. But as I read through
the work of the Term I was relieved to find, with uncertain exceptions of criminal procedure
and reapportionment, less change than I had anticipated. I found, too, measuring change of this
sort, given the complexities of the of the work of the Court, was an exceedingly difficult task. In
any event the continuities impressed me more than the discontinuities."
11
The next year, in
discussing the 1971 Term, Professor Gunther in effect echoed the same sentiment: "When
Harry Kalven examined the Court's work in these pages a year ago, he was surprised to find that
the 1970 Term had produced less change than expected, that continuities were more
impressive than discontinuities. The 1971 Term leaves me with a similar impression. That
assessment may be more surprising this year than last; a sharper break was expected by many
and has already been proclaimed by some. To me portrayals of a dramatic turnabout do not
ring true. Rather, I see a Court divided, uncertain and adrift. The Burger Court continues more
confident about stopping further extensions of the Warren Court paths than about charting
roads of its own. The changes were marginal, not cataclysmic."
12

3. More specifically, as far as the Miranda doctrine is concerned, there is only one other case,
the earlier decision of Harris v. New York,"
13
that may be considered as not adhering to
Miranda. Chief Justice Burger stated: "Some comments in the Miranda opinion can indeed be
read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of
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204 | P a g e
that issue was not at all necessary to the Court's holding and cannot be regarded as controlling.
Miranda barred the prosecution from making its case with statements of an accused made
while in custody prior to having or effectively waiving counsel. It does not follow from Miranda
that evidence inadmissible against an accused in the prosecution's case in chief is barred for all
purposes, provided of course that the trustworthiness of the evidence satisfies legal
standards."
14
Thus, a defendant's statement procured without following the Miranda
procedure, while inadmissible as a confession, is admissible to impeach his testimony at the
trial. Chief Justice Burger used rather strong language in explaining why it should be thus: "The
shield provided by Miranda cannot be perverted into a license to use perjury by way of a
defense, free from the risk of confrontation with prior inconsistent utterances. We hold,
therefore, that petitioner's credibility was appropriately impeached by use of his earlier
conflicting statements."
15
Even the cited case of Michigan v. Tucker, as pointed out in the
editorial note relied upon in the opinion of Justice Antonio, "may be read to hold narrowly that
under the circumstances of the case, retroactive application of Miranda's full scope would have
been inappropriate. In view of this uncertainty, police forces would seem better advised to
continue treating Miranda as the controlling statement of the rules governing interrogations
rather than to risk exclusion of potentially valuable evidence by failing to comply with Miranda.
Out of respect for the Supreme Court, lower courts also should treat Tucker as a case whose
impact is primarily restricted to its facts; had the Court meant to overrule Miranda, it would
have been candid enough to say so."
16

4. It may be said, and correctly too, that any discussion of American Supreme Court decisions is,
for the Philippines, merely of academic interest. Nonetheless, nothing would be lost if it be
made clear beyond per-adventure that as far as this jurisdiction is concerned, in view of the
language found in Article IV, Section 20, the Miranda doctrine may be characterized as having
been frozen. It would follow then, from this basic assumption, that any subsequent American
case, which in any wise deviates from or does not comply with the strict and rigid test therein
set forth, is for us devoid of any persuasive force. It is, in legal contemplation, as inoperative as
though it had never been.
Hence, to repeat, this brief concurrence.

Separate Opinions
FERNANDO, J., concurring:
The opinion of Justice Antonio is to be commended both for its scholarship and its fealty to the
constitutional command that the guarantee against self-incrimination be afforded the most
hospitable scope as evidence by the adoption of the Miranda doctrine.
1
Therefore,
concurrence cannot be withheld. I give it. The reference in the opinion, however, to a recent
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205 | P a g e
American Supreme Court decision, Michigan v. Tucker
2
in a rather extensive footnote
3
has
persuaded me to add a few words. It may only be ex abundanti cautela, but nonetheless, I
entertain a slight misgiving that as to persons not as well-posted in what Professor Thomas
Reed Powell called the vagaries of constitutional interpretation or not as sensitive to nuances in
judicial opinions as the ponente, there could arise the erroneous impression that the adoption
of Miranda in the present Constitution
4
may still be affected by later American cases that do
not adhere to its strict norm. Hence this brief concurrence.
1. It does not admit of doubt that the right against self-incrimination arose from the belief that
thereby the recurrence of the evils associated with the Star Chamber and the Inquisition could
be avoided. It can be said that as originally phrased, what is sought to be prevented is
compulsion. Confessions voluntarily entered into are by no means excluded.
5
The moment,
however, there is, in the language of People v. Bagasala,
6
"any form of coercion, whether
physical, mental or emotional," it becomes inadmissible.
7
The opinion continues: "What is
essential for its validity is that it proceeds from the free will of the person
confessing.
8
Miranda, to my way of thinking, further vitalized the constitutional guarantee. The
element of compulsion need not be shown in cases of custodial interrogation. For a confession
to be inadmissible, it suffices if at that stage, the person under investigation is not informed of
his right to remain silent and to counsel. As admitted in the able opinion of Justice Antonio,
there is the assumption that the circumstances of a police interrogation are so inherently
coercive that unless the atmosphere be neutralized in some manner, no individual's decision to
speak could be considered as falling within the exception to the privilege against self-
incrimination once its voluntariness is shown. That is as it should be. I do not think that the
opinion of the Court rightfully viewed is susceptible to any contrary interpretation.
2. It is true of course that the approach of the Burger Court differs from that of the Warren
Court as far as civil liberties cases are concerned. It was the late Chief Justice Warren who
penned the epochal Miranda opinion. That was in 1966. On May 14, 1969, shortly before he
became Chief Justice, the then Circuit Court of Appeals Judge Warren Burger, in Frazier v.
United States,
9
made clear that he was not sympathetic to the broad scope given the privilege
of self- incrimination. As he pointed out in his concurring and dissenting opinion: "Of more
concern is the majority's expansion of Miranda into a per se exclusionary rule, thereby
transcending the Fifth Amendment requirement that only those statements elicited
through compulsion be excluded from evidence. Indeed, Miranda itself cannot be read as going
beyond the language of the Fifth Amendment. Any lingering doubts on this score were resolved
by a recent exposition on the subject by the Supreme."
10
Nonetheless, it is only fair to add that
two prominent commentators on the Warren Court, the late Professor Harry Kalven and
Professor Gerald Gunther, are on record as denying radical departure from the libertarian
doctrines of the court. Thus, in his foreword to the 1970 Term of the Warren Supreme Court,
the late Professor Kalven noted: "Perhaps because I had taken the political advertisements of
change too seriously, I had expected dislocations in the work of the Court. But as I read through
the work of the Term I was relieved to find, with uncertain exceptions of criminal procedure
and reapportionment, less change than I had anticipated. I found, too, measuring change of this
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206 | P a g e
sort, given the complexities of the of the work of the Court, was an exceedingly difficult task. In
any event the continuities impressed me more than the discontinuities."
11
The next year, in
discussing the 1971 Term, Professor Gunther in effect echoed the same sentiment: "When
Harry Kalven examined the Court's work in these pages a year ago, he was surprised to find that
the 1970 Term had produced less change than expected, that continuities were more
impressive than discontinuities. The 1971 Term leaves me with a similar impression. That
assessment may be more surprising this year than last; a sharper break was expected by many
and has already been proclaimed by some. To me portrayals of a dramatic turnabout do not
ring true. Rather, I see a Court divided, uncertain and adrift. The Burger Court continues more
confident about stopping further extensions of the Warren Court paths than about charting
roads of its own. The changes were marginal, not cataclysmic."
12

3. More specifically, as far as the Miranda doctrine is concerned, there is only one other case,
the earlier decision of Harris v. New York,"
13
that may be considered as not adhering to
Miranda. Chief Justice Burger stated: "Some comments in the Miranda opinion can indeed be
read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of
that issue was not at all necessary to the Court's holding and cannot be regarded as controlling.
Miranda barred the prosecution from making its case with statements of an accused made
while in custody prior to having or effectively waiving counsel. It does not follow from Miranda
that evidence inadmissible against an accused in the prosecution's case in chief is barred for all
purposes, provided of course that the trustworthiness of the evidence satisfies legal
standards."
14
Thus, a defendant's statement procured without following the Miranda
procedure, while inadmissible as a confession, is admissible to impeach his testimony at the
trial. Chief Justice Burger used rather strong language in explaining why it should be thus: "The
shield provided by Miranda cannot be perverted into a license to use perjury by way of a
defense, free from the risk of confrontation with prior inconsistent utterances. We hold,
therefore, that petitioner's credibility was appropriately impeached by use of his earlier
conflicting statements."
15
Even the cited case of Michigan v. Tucker, as pointed out in the
editorial note relied upon in the opinion of Justice Antonio, "may be read to hold narrowly that
under the circumstances of the case, retroactive application of Miranda's full scope would have
been inappropriate. In view of this uncertainty, police forces would seem better advised to
continue treating Miranda as the controlling statement of the rules governing interrogations
rather than to risk exclusion of potentially valuable evidence by failing to comply with Miranda.
Out of respect for the Supreme Court, lower courts also should treat Tucker as a case whose
impact is primarily restricted to its facts; had the Court meant to overrule Miranda, it would
have been candid enough to say so."
16

4. It may be said, and correctly too, that any discussion of American Supreme Court decisions is,
for the Philippines, merely of academic interest. Nonetheless, nothing would be lost if it be
made clear beyond per- adventure that as far as this jurisdiction is concerned, in view of the
language found in Article IV, Section 20, the Miranda doctrine may be characterized as having
been frozen. It would follow then, from this basic assumption, that any subsequent American
case, which in any wise deviates from or does not comply with the strict and rigid test therein
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207 | P a g e
set forth, is for us devoid of any persuasive force. It is, in legal contemplation, as inoperative as
though it had never been.
Hence, to repeat, this brief concurrence.
Footnotes
1 2 Wharton's Criminal Evidence, p. 1627, Sec. 932.
2 "Under normal conditions, the difference between persons is so marked by the laws of nature that no one individual, of
whatever race or nation, can be wholly and permanently mistaken for another. But under conditions that generally
surround crime, where concealment is often attempted, and effacement is frequent, and where testimony is often
destroyed or simulated, Identification is not only difficult, but sometimes impossible. Again, a predisposition to connect
an accused with a crime often leads to fancied resemblances, and witnesses give color to their testimony according to the
force of such prejudgment. The clearest impressions of the senses are often deluding and deceptive to a degree that
renders them worthless when tested by the actual facts. Often, grievous and irreparable wrongs are inflicted by reliance
upon impressions that are frequently so valueless as to demand their complete rejection as a basis of scientific accuracy."
(2 Wharton's Criminal Evidence, p. 1637, citing Glover v. State, 114 G. 828, 40 S.E. 998.)
3 Ulmann v. U.S., 350 U.S. 422, 426, 100 L. ed. 511, 53 A.L.R. 2d.
4 People v. Bagasala, 39 SCRA 236 (1971).
5 McCarthy v. Arndstein, 266 U.S. 34, 69 L. ed. 158.
6 Watkins v. United States, 354 U.S. 178, 1 L. ed. 2d. 1273.
7 In re Gault, 387 U.S. 1, 18 L. ed. 2d. 527.
8 Malloy v. Hogan, 3-18 U.S. 1, 12 L. ed. 2d. 653.
9 Michigan v.. Tucker, 41 L. ed. 2d. 182, 190 (1974).
10 384 U.S., at 444 16 L. ed. 2d. 694, 10 A.L.R. 3d. 974.
11 "Miranda, which was perhaps the most controversial of the criminal procedure decisions of the 1960's, held that
unless the procedures suggested by the Court or "other fully effective means were utilized by the police, "the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation.* * *" Five years
later, the Court began moving away from this position by holding in Harris v. New York (401 U.S. 222) [1971] that
statements taken without compliance with the Miranda rules or equivalent safeguards could nevertheless be used to
impeach the defendant's trial testimony. Last Term, in Michigan v. Tucker (94 S. Ct. 2357 [1974]), the Court appeared to
continue its retreat from Miranda by ruling that evidence obtained as a result of a pre-Miranda interrogation conducted
without the Miranda safeguards could be used by the prosecution in a post-Miranda trial.
"Following his arrest for rape and assault, Thomas Tucker received from police all but one of the warnings which Miranda
subsequently required: he was not informed that he would be furnished counsel free of charge if he could not afford his
own attorney. During the ensuing interrogation, Tucker stated that he had been with a friend named Henderson when
the rape was committed, but Henderson failed to corroborate the alibi and instead provided the police with information
harmful to the defendant. At trial, Tucker's own statements to the police were excluded from evidence in with Miranda,
but Henderson's testimony was admitted despite counsel's motion to exclude. After his conviction was upheld by the
Michigan court's, Tucker applied for and received habeas corpus relief from federal district court. The Court of Appeals
for the Sixth Circuit affirmed the district court's grant of the writ."
"In an 8-1 decision, the Supreme Court reversed. Justice writing for the Court, divided the inquiry into two parts. He
considered first whether the police conduct violated defendant's fifth amendment rights and second whether
Henderson's testimony should be excluded. In concluding that Tucker had not been deprived of his fifth amendment
privilege against self-incrimination the Court distinguished the Miranda warnings from the privilege, finding the former
merely prophylactic standards designed to safeguard the latter and not constitutional rights in themselves. Since failure
to notify Tucker of his right to appointed counsel did not constitute an independent constitutional violation and since the
statement was not cases used that term. Tucker's fifth amendment privilege was not violated. Based on this holding,
Justice Rehnquist found inapposite the principle of Wong Sun v. United States (371 U.S. 471 [1963] [illegal search] which
held that "fruits" obtained in violation of a defendant's fourth amendment rights must be suppressed. Thus freed from
precedent, Justice Rehnquist believed the Court could approach the admissibility of fruits of a pre-Miranda violation of
Miranda's prophylactic rules as a question of principle."
"Since the police in Tucker had acted in good faith in giving all the warnings then required, Justice Rehnquist contended
that the deterrence rationale of Miranda had little force here; Tucker did not involve wrongful or negligent police conduct
which needed to be prevented by judicial sanction. The Court also found that the interest in assuring the reliability of
evidence did not justify excluding the testimony, since Henderson was unaffected by the failure to advise Tucker of his
rights. Finally, the Court rejected the claim that the government may never build its case by resorting to the defendant
for evidence and found the prosecution's use of Tucker's statement consistent with the principles of the adversary
system. Thus, the Court found that the unpersuasive arguments defendant advanced for excluding evidence did not
outweigh 'the strong interest under any system of justice of making available to the trier of fact all concededly relevant
and trustworthy evidence (88 Hary L. Rev. No. 1, PP. 197-199).
12 63 SCRA 4.
13 Miranda v. Arizona, 384 U.S. 467, 16 L. Ed. 2d. 719.
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Fernando, J., concurring:
1 384 US 436 (1966).
2 94 S. Ct. 2357 (1974).
3 FN 11.
4 Article IV, Section 20 of the present Constitution provides: "No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to
counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which initiates the
free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence."
5 Cf. People v. Carillo, 77 Phil. 572 (1946).
6 L-26182, May 31, 1971, 39 SCRA 236.
7 Ibid, 242.
8 Ibid.
9 419 F. 2d. 1161.
10 Ibid, 1171-1172.
11 Kalven, The Supreme Court 1970 Term: Foreword, 85 Hary
12 Gunther, Foreword: The Supreme Court 1971 Term, 86 Harv Law Rev. 1(1972).
13 401 US 222 (1971).
14 Ibid. 224.
15 Ibid, 226.
16 88 Harv. Law Rev. 201-202 (1974).

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 77116 January 31, 1989
vs.
FERDINAND CAMALOG and NOVELITO SOTTO, defendants-appellants.
Coronel Law Office for defendant-appellants.

GANCAYCO, J.:
When is a confession legally sufficient in accordance with the system of criminal justice in this
country? The present case brought before this Court on appeal from a decision of the Regional
Trial Court of Cavite in Criminal Case No. TM-140 entitled People vs. Armando de los Reyes, et
al., projects this issue.
In an Information that was filed by the Provincial Fiscal of Cavite, Armando de los Reyes,
Ferdinand Camalog and Novelito Sotto were charged with the crime of Robbery with Homicide
before the Regional Trial Court of Cavite. It reads as follows:
That on or about June 12, 1985, In the municipality of Tanza, Cavite, Philippines,
and within the jurisdiction of this Honorable Court, the above named accused,
conspiring together, acting jointly and assisting one another, with violence
against persons and with intent of gain and without the consent of the owner
did, then and there wilfully and feloniously rob, take and carry away cash money
amounting to P600.00 and assorted jewelry valued at P30,600.00 Philippine
Currency and owned by Jose M. Malabanan, and by reason and on the occasion
of the robbery, the said accused with intent to kill, did, then and there wilfully
and feloniously strike and stab Jose M. Malabanan, with a pickax and a three-
bladed and pointed weapon commonly known as tres cantos on the different
parts of his body causing the death of Jose M. Malabanan, to the damage and
prejudice of his heirs.
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The aggravating circumstances of dwelling, nighttime, treachery and abuse of
superior strength, were present at the time of the commission of the aforesaid
offense.
CONTRARY TO LAW.
1

The accused pleaded not guilty when arraigned. The three accused were earlier arrested and
detained without bail.
The facts of the case as presented by the prosecution are as follows:
In the morning of June 12, 1985, the Integrated National Police (INP) stationed at Tanza, Cavite
received a report that a killing was perpetrated inside a house at Barrio Amaya, Tanza, Cavite.
Two INP police officers, Patrolmen Ruben Bolante and Augusta de la Cruz responded to the
report and conducted an investigation at the scene of the crime. They came upon the lifeless
body of Jose M. Malabanan. The deceased was found lying on the floor of the room. They noted
that the furniture was in disarray and that the cabinet in the room was forcibly opened with its
contents scattered around the victim. The investigators took note of the presence of several
bloodstains in many parts of the room. They then found a pick hammer lying near the victim's
body. They also came upon a triple bladed knife, popularly called as tres cantos. Upon going
outside the house, they discovered human blood spilled near an artesian well. A third police
officer, Sgt. Esmeraldo Romero, interrogated some of the residents of the Barrio. He eventually
came upon a barrio resident, Bayani Bocalan, who told them that he saw Armando de los
Reyes, a resident of Tanza, strolling near the house of the victim in the early morning of June
12, 1985 and was in the company of two other men, all of them acting suspiciously in the
vicinity of the house of the victim.
Acting on the information given by Bayani Bocalan, the police authorities invited Armando de
los Reyes to their office for questioning. Sgt. Romero informed de los Reyes about his
constitutional rights and then began interrogating him. De los Reyes admitted his participation
in the commission of the crime and identified his two companions as a certain Mario from
Ilocos and one Ben from Manila, both of whom, according to him, could be found in the Luneta
Park of Manila. The extra-judicial confession was reduced in writing and was signed by him
before Judge Aurelio Icasiano, Municipal Trial Court Judge of Tanza, Cavite.
A team of Tanza policemen accompanied De los Reyes to the Luneta on the evening of June 13,
1985 to look for the said Mario and Ben. At the Luneta, De los Reyes pointed out to the
policemen the accused Ferdinand Camalog and Novelito Sotto whom he identified as his fellow
conspirators.
Ferdinand Camalog and Novelito Sotto were interrogated and made to sign extra-judicial
confessions wherein they admitted their alleged participation in the commission of the crime
charged. These statements were subscribed and sworn to also before Judge Icasiano.
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On the basis of these extra-judicial confessions, the three were charged with the crime of
Robbery with Homicide.
The appellants pleaded not guilty to the charge.
Both oral and documentary evidence were presented in court by the prosecution. They
established the death of Jose Malabanan, the damage caused to his heirs, and the loss of
P30,600.00 worth of cash and jewelries. The extra-judicial statements of the accused were
presented, identified and admitted in court as part of the testimony of the police investigators.
The defense presented witnesses who testified on the good moral character of Camalog and
Sotto and their whereabouts in the early morning of June 12, 1985.
On the witness stand, De los Reyes admitted his participation in the commission of the crime
charged but retracted his statement made in the extra-judicial confession regarding the
participation of his co-accused Camalog and Sotto. He testified that he had been mauled by the
police investigators during the interrogation. He also testified that he was threatened with
bodily harm if he refused to admit having committed the crime charged. He likewise testified
that be was forced to pinpoint the two other accused as his co-conspirators on account of a
threat against his life made by the police authorities. He asserted that Camalog and Sotto were
not involved in the commission of the robberry and homicide, that two men named Ben and
Mario were his companions then, and that both Ben and Mario are still at large.
The other two accused, Camalog and Sotto, testified that they were never near the scene of the
crime on the date and time it was committed, and that they were in their residences in Manila
and Quezon City, respectively. Two witnesses, Concepcion Villasis and Robert Cabanban,
employer and brother-in-law, respectively, of Sotto and Camalog, were presented to
corroborate the alibi they gave.
The accused further stressed the fact that they were forced to sign the extra-judicial
confessions presented in court. They also testified that the police investigators heat, maltreated
and threatened them with death if they refused to sign the confessions. They likewise stated
that they were never informed about their constitutional rights and that the police
investigators never conducted an investigation as regards their alleged participation in the
crime. The two accused further testified that during the period covering their custodial
interrogation, they never had the chance to confer with a lawyer.
On September 30, 1986, the trial court rendered a decision finding all the three accused guilty
of the crime charged, the dispositive portion of which reads:
WHEREFORE, the Court finds accused ARMANDO DE LOS REYES, FERDINAND
CAMALOG, and NOVELITO SOTTO guilty beyond reasonable doubt of the crime
of Robbery with Homicide punishable under Article 294 par. (1) of the Revised
Penal Code and there being no mitigating or aggravating circumstances present
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in the commission of the crime hereby sentences said accused to suffer the
penalty of reclusion perpetua, to indemnify the heirs of the victim jointly and
severally (1) in the amount of P30,000.00 for the death of Jose Malabanan; (2)
P30,600.00 for the items taken from the victim's house; and (3) actual damages
of P70,000.00; (4) moral damages of P5,000.00 and to pay the proportionate
costs.
SO ORDERED.
2

Taking exception to the finding that their guilt has been proved beyond reasonable doubt, the
accused Ferdinand Camalog and Novelito Sotto appealed their case to this Court on the ground
that the trial court erred as follows:
I. THE TRIAL COURT ERRED IN ADMITTING THE EXTRA-JUDICIAL CONFESSIONS OF
THE APPELLATE BECAUSE THEY WERE OBTAINED THROUGH FORCE, THREAT AND
INTIMIDATION AND THAT THEY WERE OBTAINED IN VIOLATION OF SECTION 20,
ARTICLE IV OF THE (1973) PHILIPPINE CONSTITUTION.
II. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF JOHN
LEO ALABADO.
III. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF ALIBI.
IV. THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF ACCUSED
ARMANDO DE LOS REYES.
V. THE TRIAL COURT ERRED IN FINDING THE APPELLATE APPELLANT'S GUILTY
BEYOND REASONABLE DOUBT.
In considering these interrelated errors assigned by appellants, We find merit in their
contention that there is no moral certainty to find them guilty beyond reasonable doubt of the
crime charged.
The records show that their confessions were not regularly obtained. There were enough
indications that the statements were not given voluntarily.
The trial court gave credence to the claim of the prosecution that the subject confessions were
signed voluntarily on the basis of the failure of appellants to complain to the Municipal Trial
Judge that they were forced to sign the same. The trial court failed to take note of the fact that
when said confessions were presented to Judge Icasiano, their tormentors were present to hear
and know what the appellants would say and do. They remained in the custody of their
tormentors and not with Judge Icasiano. Appellants must have been reasonably apprehensive
of further maltreatment if they manifested to Judge Icasiano that they were forced to sign the
said confessions.
3

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An observation was also made by the court a quo that it was not shown that the police
investigators had ill motive in order to implicate the accused to such a heinous crime. The
police investigators were from Tanza, Cavite, just like the victim and his heirs. Appellant
Ferdinand Camalog is from Ilocos Sur while appellant Novelito Sotto hails from Oriental
Mindoro and both resided in Metro Manila. De los Reyes pointed them out to the police
investigators to be the "Ben" and "Mario" who were his confederates. None of said nicknames
jibed with the true names of appellants. The police investigators did not care. They brought the
two to their headquarters in Tanza. They investigated them under circumstances that place into
serious doubt their impartiality and motive.
The presence of details in the confessions of appellants were considered by the trial court as
evidence that the confessions were voluntarily made. An examination of the confession earlier
executed by De los Reyes shows that the details in the questioned confessions of appellants
were culled from the said confession of De los Reyes.
The high point in deciding this case is the respect which must be accorded the constitutional
rights of custodial prisoners at the time they are subjected to interrogation and their
subsequent execution of an extra-judicial confession, was there really a confession or admission
during the custodial investigation? Were they informed of their rights? We find no affirmative
answers to these questions. It appears that the appellants were not informed of their
constitutional rights and, even assuming that they were so informed, there is no indication that
they understood those rights.
We gave emphasis to these points in recent cases, to wit:
When the Constitution requires a person under investigation to be informed of
his rights to remain silent and to counsel, it must be presumed to contemplate
the transmission of meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle. As a rule, therefore,
it would not be sufficient for a police officer just to repeat to the person under
investigation the provisions of Section 20, Article IV of the Constitution. He is not
only duty-bound to tell the person the rights to which the latter is entitled: he
must also explain their effects in practical terms, e.g., what the person under
interrogation may or may not do, and in a language the subject fairly
understands.
4

In Reyes vs. Quizo
5
We took time to elucidate on this viz.
In other words, the right of a person under interrogation "to be informed'
implies a correlative obligation on the part of the police investigator to explain,
and contemplates an effective communication that results in understanding
what is conveyed. Short of this, there is a denial of the right, as it cannot truly be
said that the person has been 'informed' of his rights. Now, since the right to be
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informed' implies comprehension, the degree of explanation required will
necessarily vary, depending upon the education, intelligence and other relevant
personal circumstances of the person under investigation. Suffice it to say that a
simpler and more lucid explanation is needed where the subject is unlettered.
The trial court relied on the testimony of the police investigators that the appellants have been
informed of their fundamental rights but failed to take note of the conspicuous absence of any
lawyer to assist the accused during the custodial investigation. Even assuming that the accused
waived their constitutional right to counsel, there is no indication that they did so with the
assistance of counsel. The testimony of the accused during the trial of this case supports Our
observation, to wit:
Atty. Abaya:
Q. Do you know who conducted the investigation?
A. The police.
Q. When you were investigated by the police were you assisted by
counsel of your choice?
A. No, sir.
Q. Did they inform you that you have the right to counsel?
A. No, sir.
Q. And did they manifest to you that they will give you a lawyer to
assist you in your investigation?
A. No, sir.
Q. Despite the absence of a lawyer, did you give a statement to
the police investigator?
A. No, sir. I did not give (a) statement.
6

Atty. Abaya:
Q. You did not give a statement to the police investigator?
A. I was just asked to sign the document.
Q. Why did you sign the document?
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A. I signed it because I was being threatened by the police.
Q. What kind of threat did the police exert on your person?
A. They told me that if I will not sign the document, they are going
to salvage me.
7

The prosecution witness, Sgt. Esmeraldo G. Romero, testified:
Atty. Bince:
Q. In short, when you told him of his right to counsel, there was no lawyer present, is that
correct?
A. Yes, sir.
Q. When you told him that the statement that he will give might be used against him, you told
that without the presence of the lawyer, is that correct?
A. Yes, sir.
Q. When he refused allegedly the assistance of counsel there was no counsel around, is that
also correct?
A. Yes, sir.
8

Atty. Bince:
Q. You said you investigated also Novelito Sotto. During your investigation of him there was no
lawyer present. Is that correct?
A. Yes, sir.
Q. When you told him he can avail (of) the services of a lawyer, there was no lawyer present. Is
that correct?
A. Yes, sir.
Q. In short in both the custodial investigation of Armando de los Reyes and Novelito Sotto there
was no lawyer present to assist them?
A. Yes, sir.
9

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Very relevant to this case is the pronouncement of this Court in Morales vs.
Ponce Enrile,
10
reiterated in People vs. Galit
11
and People vs. Lumayok,
12
where this Court
categorically stated that the waiver by the accused of his right to counsel must be made in the
presence and with the assistance of counsel.
We stressed the inadmissibility of extra-judicial confessions obtained in violation of this
principle:
At the time a person is arrested, it shall be the duty of the arresting officer to
inform him of the reason for the arrest and he must be shown the warrant of
arrest, if any, He shall be informed of his constitutional rights to remain silent
and to counsel, and that any statement he might make could be used against
him. The person arrested shall have the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means by telephone if
possible or by letter or messenger. It shall be the responsibilityof the arresting
officer to see to it that this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the court upon petition
either of the detainee himself of by anyone on his behalf. The right to counsel
may be waived but the waiver shall not be valid unless made with the assistance
of counsel. Any statement obtained in violation of the procedure herein laid,
whether exculpatory or inculpatory in whole or in part, shall be inadmissible in
evidence. (Emphasis supplied.)
13

In People vs. Lumayok,
14
this Court made the following observation
No custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested by any person on his behalf or
appointed by the court upon petition either of the detainee himself or by anyone
on his behalf. The right to counsel may be waived but the waiver shall not be
valid unless made with the assistance ofcounsel. Any statement obtained in
violation of the procedure herein laid down whether exculpatory or inculpatory
in whole or in part shall be inadmissible in evidence. (Emphasis supplied).
The second error submitted by the appellants is that the extra-judicial confessions offered in
evidence were obtained in violation of Section 20, Article IV of the 1973 Constitution, the
fundamental law in force and effect at the time of their arrest. Even assuming that the accused
were informed of their right to remain silent, there is no showing that the appellants fully
understood the same.
The assertion made by the police investigators to the effect that the appellants were informed
of their fundamental rights will not overthrow the fact that appellants were not assisted by
counsel during the custodial investigation even if they had waived the right. The fact that the
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appellants were never assisted by counsel during the custodial investigation is confirmed in the
testimony of prosecution witness Sgt. Esmeraldo Romero.
From the foregoing, it clearly appears that the Tanza, Cavite police investigators informed the
accused-appellants Ferdinand Camalog and Novelito Sotto about their constitutional rights in a
rather sloopy manner. The type of questions and answers recited in their extra-judicial
confessions is Identical to that of their co-accused Armando de los Reyes. There was not even a
semblance of conformity with the fundamental law.
Of course, the trial court put emphasis on the testimony of prosecution rebuttal witness John
Leo Alabado that at about 5:00 o'clock in the morning of June 17, 1985 on his way to the
residence of Bayani Bocalan, he saw the three (3) persons coming out of the victim's house. He
identified the appellants to be among the three.
15

This witness was presented by the prosecution when its witness Bayani Bocalan failed to
appear and accused De los Reyes denied the participation of the appellants in the commission
of the offense. It took this witness over a year to report what he saw. And instead of reporting
the same to the police authorities he conveniently allegedly reported what he supposedly saw
to the victim's father who was then looking for witnesses. He appeared in court without a
subpoena. The sudden emergence of this witness at the closing stages of the case is, to say the
least, suspicious. A reading of the transcript of his testimony, shows how incredible it can be.
He remembers the exact day he saw appellants. He did not notice any startling occurrence to
remember said date and the identities of appellants so vividly. He met Francisco Malabanan,
the father of the victim, for the first time in April 1986 when he revealed what he knew
allegedly because his conscience bothered him. It was Malabanan who brought him to court to
testify.
Bayani Bocalan, who was the witness who identified De lo Reyes and saw his two companions,
was never presented by the prosecution. Such wilful suppression of evidence gives rise to the
presumption that if presented the same would prove to be adverse to the prosecution.
16

Moreover as argued by appellants, the testimony of Alabado was improper for rebuttal. It
should have been presented at the time the prosecution was presenting its evidence on direct
examination.
The Solicitor General does not share the enthusiasm of the trial court in accepting the
testimony of this witness. He argues, however that the extra-judicial confessions of appellants
are sufficient to establish their guilt beyond reasonable doubt. The Court finds otherwise. With
the inadmissibility of the extra-judicial confessions of appellants, their conviction becomes
baseless. They are entitled to an acquittal.
WHEREFORE, the decision of the Regional Trial Court of Cavite in Criminal Case No. TM-140
dated September 30, 1986 is hereby REVERSED and SET ASIDE as to the defendants-appellants
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and another judgment is hereby rendered ACQUITTING defendants-appellants FERDINAND
CAMALOG and NOVELITO SOTTO with costs de oficio. This Decision is immediately executory.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Page 17, Rollo.
2 Page 58, Rollo.
3 People vs. Gande, 31 SCRA 347 (1970); People vs. Etrina, 23 SCRA 40 (1968).
4 People vs. Ramos, 122 SCRA 312 (1983) and People vs. Caguioa, 95 SCRA 2 (1980).
5 142 SCRA 362 (1986).
6 TSN., May 24, 1986, pages 10 and 11.
7 Ibid, at 11.
8 TSN., December 4, 19 85, pages 85 and 86.
9 TSN., November 4, 1985, pages 87 and 89.
10 121 SCRA 538 (1883).
11 135 SCRA 465 (1985).
12 139 SCRA 1 (1985).
13 See Morales vs. Ponce Enrile, supra.
14 Supra.
15 TSN, May 24, 1986, pages 471 to 493.
16 Section 5 (e), Rule 131, Rules of Court.

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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-38930 June 28, 1988
vs.
ISABELO TRINIDAD, alias "Pedro Diplat," and ROMEO CONDAYA, alias "Romy," accused-
appellants.
Domingo V. Pascua for accused-appellant Isabelo Trinidad.
Emiliano S. Micu for accused-appellant Romeo Condaya.

CORTES, J.:
Appellants were accused of the crime of murder on the basis of the following information:
That on or about the 16th day of April, 1973, at night, in Barrio San Vicente,
municipality of Umingan, province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Isabelo Trinidad,
alias "Pedro Diplat and Romeo Condaya, alias "Romy," and Bonifacio Palding,
alias "Pacio," and Wilfredo Mitrado, alias "Edo," who were discharged in the
municipal court for insufficiency of evidence, conspiring together and mutually
helping one another, armed with a shotgun and with intent to kill, with evident
premeditation and treachery, did, then and there, wilfully, unlawfully and
feloniously attack, assault and shoot Cristita Balancio Vda. de Angel inflicting
upon her fatal gunshot wounds which caused her death as a consequence.
Contrary to Art. 248 of the Revised Penal Code. [Rollo, p. 4].
Upon arraignment, both accused-appellants, with the assistance of counsel, pleaded "Not
Guilty."
In a decision dated May 27, 1974, the Court of First Instance rendered judgment convicting
accused-appellants of murder and sentencing them to suffer the penalty of reclusion perpetua,
to jointly and severally indemnify the heirs of the deceased Cristita Balancio Vda. de Angel in
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the amount of P12,000.00 and to pay the costs. The shotgun and the cartridges used in the
commission of the crime were ordered confiscated and forfeited in favor of the government.
Not agreeing with the decision of the trial court accused-appellants appealed to this Court.
In his brief, accused-appellant Trinidad assigned the following errors:
I. THAT THE LOWER COURT ERRED SERIOUSLY WHEN IT REFUSED TO CONSIDER THE EVIDENCE
FOR THE DEFENSE
II. THAT THE LOWER COURT ERRED GRAVELY AND SERIOUSLY WHEN IT CONCLUDED WITHOUT
GROUNDS THAT:
1. It is undeniable that the initial holder of the gun was Isabelo
Trinidad.
2. Isabelo Trinidad made sufficient steps in trying to escape
suspicion by giving the gun for safekeeping to Romeo Condaya.
3. It is inconceivable for the police authorities to exactly know
where the gun and the cartridges were hidden if not for the
information furnished them by Romeo Condaya.
4. Isabelo Trinidad's presence at the scene of the crime was
established by even the evidence in his behalf [as) his house is a
few meters away from the victim's house.
5. Such startling occurrence could have roused Isabelo Trinidad
from his sleep. In fine, when Isabelo Trinidad, after the burst of
gunfire returned to the victim's house it was only to shield himself
from responsibility for the crime which he concocted.
6. that the evidence clearly establish that Isabelo Trinidad
conveniently evaded direct confrontation with the police
authorities at the initial stage of the police investigation.
III. THAT THE LOWER COURT ERRED SO GRAVELY WHEN IT CONVICTED THE ACCUSED (YOUR
APPELLANT) OF THE CRIME CHARGED CONTRARY TO LAW AND THE EVIDENCE.
On his part, accused-appellant Condaya assigned the following errors:

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I
THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE PRESENTED BY THE DEFENSE TO
PROVE THE IRREGULARITY RESORTED TO BY THE POLICE AUTHORITIES TO EXACT ADMISSION BY
MEANS OF VIOLENCE, INTIMIDATION AND DECEIT FROM THE ACCUSED WAS IRRELEVANT
DESPITE THAT ITS MATERIALITY AND RELEVANCE TO THE CASE IS VERY CLEAR.
II
THE LOWER COURT ERRED IN HOLDING THAT THE INITIAL INVESTIGATION REVEALED THAT
ISABELO TRINIDAD, ROMEO CONDAYA, BONIFACIO PALDING AND WILFREDO MITRADO
IMMEDIATELY AFTER THE, BURST OF GUNFIRE WAS HEARD, WERE SEEN A FEW METERS FROM
THE HOUSE OF THE VICTIM CRISTITA BALANCIO VDA. DE ANGEL HURRIEDLY WALKING
TOWARDS THE NORTH AND THAT ROMEO CONDAYA WAS HOLDING A GUN, DESPITE THE
CLEARLY IMPROBABLE AND INCONSISTENT TESTIMONIES OF THE WITNESSES WHO TESTIFIED
ON THIS (SIC) POINTS.
III
THE LOWER COURT ERRED IN HOLDING THAT ROMEO CONDAYA LED THE AUTHORITIES TO THE
COLIBANGBANG" TREE AND THE BAMBOO GROVES WHERE THE SHOTGUN (EXH. C) AND THE
CARTRIDGES (EXHS. D, D-1, D-2 AND D-3) WERE ALLEGEDLY RESPECTIVELY RETRIEVED DESPITE
THE UNRELIABLE AND THE INADMISSIBILITY OF THE EVIDENCE UPON WHICH IT WAS BASED.
IV
THE LOWER COURT ERRED IN CONCLUDING THAT ROMEO CONDAYA WAS THE GUN WIELDER
AND THAT HE DID SO UPON THE ACTIVE INDUCEMENT OF HIS CO-ACCUSED ISABELO TRINIDAD,
DESPITE THE TOTAL LACK OF EVIDENCE TO SUPPORT IT.
V
AND, FINALLY, THE LOWER COURT ERRED IN CONCLUDING THAT THE CRIME CHARGED IN THE
INFORMATION WAS PROVED AND THAT BOTH THE ACCUSED ARE GUILTY THEREOF DESPITE
THE TOTAL LACK OF SUFFICIENT EVIDENCE TO PROVE THEIR GUILT BEYOND REASONABLE
DOUBT.
Ultimately, however, as pointed out by accused-appellant Condaya, the issue boils down to
whether or not the prosecution has proven beyond reasonable doubt that accused-appellants
Trinidad and Condaya were the persons responsible for the death of the victim.
To support its judgment of conviction, the trial court relied on the following findings:
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The evidence for the prosecution tends to establish that in the evening of April
16, 1973, one Cristita Balancio Vda. de Angel was asleep by the balcony of her
house situated at Barrio San Vicente, Umingan, Pangasinan. With her at that
time were her son, Juan Angel, her daughter-in- law and two (2) grandchildren.
Suddenly, there was a burst of gunfire, rousing Juan Angel and his wife from
their sleep. Juan Angel then peeped out from the window to find out what
happened as his carabao was tied just below the said window. As Juan Angel
peeped, he saw Isabelo Trinidad, Romeo Condaya, Wilfredo Mitrado and
Bonifacio Palding, about five (5) to six (6) meters away hurriedly walking towards
the North.
Shortly, as Juan Angel's wife shouted. Romeo Condaya who was then holding a
gun, Isabelo Trinidad, Bonifacio Palding, and Wilfredo Mitrado ran farther
towards the North.
It turned out that Cristita Balancio Vda. de Angel was hit by her neck which
caused her death. (Exhibits "A" and "A-1"). So, Juan Angel proceeded to call for
help. He asked somebody to fetch Ignacio Dopale, the Barrio Captain of San
Vicente, Umingan, Pangasinan, who immediately responded to Juan Angel's call
for help. Initial inquiries from Juan Angel, revealed the information that
Immediately after the burst of gunfire, Romeo Condaya, Wilfredo Mitrado,
Isabelo Trinidad and Bonifacio Palding, were seen hurriedly walking towards the
North. So that, Barrio Captain Ignacio Dopale proceeded to the Umingan
Municipal Building in Order to report the matter.
Corporal Dominador Barwel of the Umingan Police Force to whom the case was
referred first fetched Sergeant Casio of the Philippine Constabulary at Umingan,
Pangasinan. Then, they proceeded to the scene of the incident in order to
investigate.
Arriving at the premises, they saw Cristita Balancio Vda. de Angel, already dead
as a result of gunshot wounds suffered at the back of her neck. This investigation
again revealed the information that Isabelo Trinidad, Romeo Condaya, Bonifacio
Palding, and Wilfredo Mitrado, were seen within the vicinity immediately after
the gunfire. As Isabelo Trinidad was then on the premises, he was apprehended
and brought to the Municipal Building of Umingan, Pangasinan. On the way,
Isabelo Trinidad revealed that he had caused the death of Cristita Balancio Vda.
de Angel, as in fact he offered to pay Romeo Condaya the amount of Five
Hundred Pesos (P500.00) to do the job. However, the intended victim was Juan
Angel, because of Isabelo Trinidad's carabao.
Accordingly, Sgt. Casio and Cpl. Dominador Barwel on April 17, 1973 took steps
to apprehend Romeo Condaya, Wilfredo Mitrado and Bonifacio Palding, at Sta.
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Rosa, Umingan, Pangasinan. Wilfredo Mitrado was apprehended on April
18,1973 while Romeo Condaya was apprehended sometime on April 20, 1973 at
Sto. Tomas, Pangasinan, after being turned over by the Sto. Tomas police
authorities. On the way to Umingan, Pangasinan, Romeo Condaya was verbally
interrogated inside the jeep. Here, Condaya was asked if he had anything to do
with the killing of Cristita Balancio Vda. de Angel. Readily, Romeo Condaya
admitted the shooting as Isabelo Trinidad promised to pay him (Condaya) the
amount of Five Hundred Pesos (P500.00). However, this amount remained
unpaid. On the same occasion, Romeo Condaya informed Sgt. Casio and Cpl.
Barwel that the gun used in the killing was hidden somewhere atop a
"Colibangbang" tree at Sta. Rosa, Umingan, Pangasinan.
At Sta. Rosa, Umingan, Pangasinan, and upon Condaya's instructions, the 12
gauge locally made buck-shot was recovered. (Exhibit "C"). Thereafter, Romeo
Condaya pointed to the bamboo grove where he hid the cartridges. (Exhibits "D",
"D-1', "D-2" and "D-3").
After their apprehension, Romeo Condaya, Isabelo Trinidad, Bonifacio Palding,
and Wilfredo Mitrado were made to execute sworn statements which, however,
they refused to affirm before the Municipal Judge of Umingan, Pangasinan. [CFI
Decision, pp. 2-4; Rollo, pp. 21-23].
In their testimonies, accused-appellants Trinidad and Condaya denied their participation in the
crime and asserted that after their apprehension they were tortured and maltreated until they
signed documents which they later found out to be their extrajudicial confessions. Hence, their
refusal to affirm their written confessions before the municipal judge.
To prove his innocence, Trinidad emphasized the undisputed facts that he was even among
those who went to Umingan to fetch Sgt. Casio and Cpl. Barwel and that he even remained at
the scene of the crime while, they were conducting their investigation and provided
refreshments for the investigators.
The trial court dismissed accused-appellants defense with the following observation:
Before anything else, this Court notes with muffled amusement the manner at
which the accused presented their side of the case. For aware as they were that
the alleged statements taken from them by the authorities of Umingan,
Pangasinan when offered by the prosecution was denied admission, they
persisted at presenting evidence along this line. There really was no need for the
accused to do what they did. As far as this Court is concerned, the supposed
irregularity at securing these admissions was irrelevant. For so it is that these
statements were not even subscribed and sworn to before any competent
authority. So that, when the accused persistently harped at this alleged violence
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upon their persons, this Court was furnished a sufficient basis at attributing a
semblance of meaning to these statements. But conformably with our settled
constitutional demands of due process, this Court considers these averments of
violence extraneous to this case, although the Municipal Health Officer, Dr.
Eddie Soriano's medical certificates had shown a contrary finding. (Exhibits "H",
"H-1", "H-2", "I", "I-1", "I-2" and "I- 3"). [Rollo, pp. 31-32].
At the outset, it must be stated that the trial court correctly denied the admissibility as
evidence of the written extrajudicial confessions of the accused-appellants. Such denial,
however, should not have been for the reason given, namely, that they were not subscribed
and sworn to before the proper authorities, but, rather, because the requirements of the
Constitution were disregarded.
The 1973 Constitution, then in force and effect when the confessions were taken, provided in
words that left no room for doubt:
Sec. 20. No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall have the right
to remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence. [Article IV].
The rule is that when an accused testifies that he signed his confession because he was
maltreated, the prosecution must present evidence to rebut this claim, otherwise the
confession will be considered illegally procured [People v. Inguito, L-53497, October 18, 1982,
117 SCRA 641.] The presumption of regularity of performance of official duty does not apply to
incustody confessions. The prosecution must prove compliance with the constitutional
requirements [People v. Tolentino, G.R. No. L-50103, November 24, 1986, 145 SCRA 597.]In the
instant case, accused-appellants' allegations of torture and maltreatment were refuted by Dr.
Soriano's testimony and medical certificate.
However, since there is no proof that when they made their confessions they were informed of
their right to remain silent and to counsel and that they knowingly and intelligently waived
these rights, such confessions are inadmissible in evidence [People v. Duero, G.R. No. L-52016,
May 13, 1981, 104 SCRA 379.] Likewise, the absence of counsel at the time of custodial
investigation when the extrajudicial confession was taken renders it inadmissible [People v.
Burgos, G.R. No. L-68955, September 4, 1986, 144 SCRA 1.] It is not enough that the suspect is
asked if he needs a lawyer, he must be informed that if he is an indigent a lawyer will be
appointed to represent him during custodial interrogation [People v. Tolentino, supra].
It is not only the oral confessions made to the apprehending officers, Sgt. Casio and Cpl. Barwel,
that are tainted but also the written confessions made and signed a few days after their arrest.
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Thus, the testimonies of the police officers on the matters allegedly confessed to them by
accused-appellants and the written extrajudicial confessions are inadmissible in evidence.
2. As the extrajudicial confessions are inadmissible, the Court is tasked with determining
whether there remains sufficient evidence to sustain a finding of guilt beyond reasonable
doubt.
It must be emphasized that no direct evidence was adduced to prove accused-appellants'
commission of the crime charged.
To sustain a finding of guilt beyond reasonable doubt, the trial court wove together several
pieces of circumstantial evidence.
The Rules of Court provides that circumstantial evidence is sufficient for a conviction if:
(1) there is more than one circumstance;
(2) the facts from which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to produce a conviction beyond a
reasonable doubt. [Sec. 5, Rule 133].
Although no general rule has been formulated as to the quantity of circumstantial evidence
sufficient for a conviction, the established requirement is that the circumstances proved must
be consistent with each other, consistent with the hypothesis that the accused is guilty, and at
the same time inconsistent with any other hypothesis except that of guilty [People v. Ludday,
61 Phil. 216; People v. Contante, G.R. No. L-14639, December 28,1964,12 SCRA 653.]
Thus, using the requirements of the Rules of Court and established jurisprudence as yardsticks,
this Court is called upon, in this appeal, to ultimately determine whether the circumstantial
evidence adduced during the trial are sufficient for a conviction.
The Solicitor General, in his brief [pp. 13-15], enumerated several circumstances in support of a
finding that accused-appellants were guilty beyond reasonable doubt of the murder of Cristita
Balancio Vda. de Angel, which may be summarize as follows:
1. Before April 16, 1973, accused-appellant, Isabelo Trinidad, bore a grudge
against Juan Angel. Trinidad suspected Juan Angel of having burned the rope of
his (Trinidad's) carabao.
2. Trinidad had warned Juan Angel on April 15, 1973, that he (Trinidad) could
have Juan Angel killed at anytime, even inside the latter's house.
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3. In the evening of April 16, 1973, Bonifacio Palding, saw Trinidad and Condaya
(in the course of a drinking session with Palding, and Wilfredo Mitrado) converse
secretly some six (6) meters away from Palding and Mitrado. After this
conversation, Trinidad gave Condaya a home made shotgun and then Trinidad
and Condaya, followed by Palding, and Mitrado, proceeded to the house of Juan
Angel.
4. While Palding, was some four (4) meters behind Trinidad and Condaya he
(Palding) heard a gunshot and saw a flash of light near the door of Juan Angel's
house.
5. A few seconds later, Palding, saw Trinidad and Condaya running away from
the house. Palding and Mitrado also ran away in the direction taken by Trinidad
and Condaya.
6. Juan Angel saw Trinidad, Condaya, Palding, and Mitrado running away from
the house as he peeped through a window after he heard the gunshot.
7. When Palding, and Mitrado caught up with Trinidad and Condaya in a certain
field, Palding heard Trinidad instruct Condaya to take the shotgun to Sta. Rosa,
Umingan, Pangasinan and hide it.
8. After the apprehension of Condaya on April 20 or 21, 1973, the home-made
shotgun was recovered on top of a "colibangbang" tree behind the house of
Condaya's parents, together with three (3) live cartridges hidden in a bamboo
grove nearby.
To this enumeration may be added three (3) more circumstances: (1) that the victim was found
dead near the door inside her son Juan Angel's house; (2) that the victim died of hemorrhage
caused by gunshot wounds; and (3) that two pellets were recovered from her body.
All of these circumstances, eleven (11) in all, have been proven by direct evidence. Together,
these circumstances lead to the conclusion that accused-appellants Trinidad and Condaya were
guilty beyond reasonable doubt for the shooting of Cristita Balancio Vda. de Angel.
Even if the eighth circumstance cited by the Solicitor General that the shotgun and the
ammunition were recovered in the vicinity of the house of Condaya's parents is disregarded
on the ground that the recovery was the fruit of the tainted confession, the result would be the
same because of the overwhelming circumstantial evidence.
Two (2) of the circumstances also manifest a community of purpose indicative of a conspiracy
between Trinidad and Condaya, which would make both of them equally guilty of the crime
[People v. Garcia, G.R. Nos. L-26105, February 18, 1986, 141 SCRA 336], although only one of
them may have pulled the trigger and actually fired the fatal shot. Where a conspiracy has been
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proven, a showing as to who inflicted the fatal wound is not required. [People v. Tala, G.R. Nos.
L-69153-54, January 30, 1986,141 SCRA 240].
The rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as
clearly and convincingly as the commission of the crime itself [People v. Vicente, G.R. No. L-
26241, May 21, 1969, 28 SCRA 247]. In the instant case, the third circumstance cited by the
Solicitor General (that Trinidad pulled Condaya away from Palding and Mitrado to converse
secretly and then gave him the shotgun before they all went to Juan Angel's house), coupled
with the seventh (that Trinidad told Condaya to hide the shotgun as they were running away
from Juan Angel's house), sufficiently proves the conspiracy between Trinidad and Condaya.
The conduct of accused-appellants before, during and after the commission of the crime are
circumstances showing the presence of conspiracy [People v. Cabiltes, G.R. No. L-18010,
September 25, 1968, 25 SCRA 112].
The crime committed was murder with the qualifying circumstance of treachery, as
characterized by the fact that the victim was shot at close range while she was asleep, thus
ensuring the commission of the crime without risk to the assailants [People v. Dequina, 60 Phil.
279 (1934)]. That Juan Angel, and not his mother, was apparently the intended victim is not
incompatible with the existence of treachery. Treachery may be taken into account even if the
victim of the attack was not the person whom the accused intended to kill. However, evident
premeditation may not be considered as a qualifying circumstance as it cannot be said that the
assailants premeditated on the killing of the actual victim [People v. Mabug-at, 51 Phil. 967
(1926); People v. Guillen, 85 Phil. 307 (1950)]. Thus, evident premeditation, although alleged in
the information, may not be considered as a qualifying circumstance.
With the abolition of the death penalty in the 1987 Constitution, murder is now penalized
by reclusion temporal in its maximum period to reclusion perpetua. Absent any modifying
circumstances, the penalty is imposable in its medium period, or from eighteen (18) years, eight
(8) months and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the
range of the penalty is lowered by one degree to prision mayor in its maximum period
to reclusion temporal in its medium period, or from ten (10) years and one (1) day to seventeen
(17) years and four (4) months.
WHEREFORE, the decision of the court a quo is MODIFIED and the Court, in the exercise of its
discretion, sentences accused-appellants to suffer the indeterminate penalty of from fourteen
(14) years and one (1) day ofreclusion temporal, as minimum, to twenty (20) years of reclusion
temporal, as maximum, and to indemnify the heirs of the victim in the amount of P30,000.00.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-51770 March 20, 1985
vs.
FRANCISCO GALIT, defendant-appellant.

CONCEPCION, JR., J:
1. The prisoner was arrested for killing the victim oil the occasion of a robbery. He had been
detained and interrogated almost continuously for five days, to no avail. He consistently
maintained his innocence. There was no evidence to link him to the crime. Obviously,
something drastic had to be done. A confession was absolutely necessary. So the investigating
officers began to maul him and to torture him physically. Still the prisoner insisted on his
innocence. His will had to be broken. A confession must be obtained. So they continued to
maltreat and beat him. 'They covered his face with a rag and pushed his face into a toilet bowl
full of human waste. The prisoner could not take any more. His body could no longer endure
the pain inflicted on him and the indignities he had to suffer. His will had been broken. He
admitted what the investigating officers wanted him to admit and he signed the confession
they prepared. Later, against his will, he posed for pictures as directed by his investigators,
purporting it to be a reenactment.
2. This incident could have happened in a Russian gulag or in Hitler's Germany. But no it did not.
It happened in the Philippines. In this case before Us.
3. The Revised Penal Code punishes the maltreatment of prisoners as follows:
ART. 235. Maltreatment of prisoners. The penalty of arresto mayor in its
medium period to prision correccional in its minimum period, in addition to his
liability for the physical injuries or damage caused, shall be imposed upon any
public officer or employee who shall over do himself in the correction or
handling of a prisoner or detention prisoner under his charge, by the imposition
of punishments in a cruel and humiliating manner.
If the purpose of the maltreatment is to extort a confession, or to obtain some
information from the prisoner, the offender shall be punished by prision
correccional in its minimum period, temporary special disqualification and a fine
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not exceeding 500 pesos, in addition to his liability for the physical injuries or
damage caused.
4. This Court in a long line of decisions over the years, the latest being the case of People vs.
Cabrera,
1
has consistently and strongly condemned the practice of maltreating prisoners to
extort confessions from them as a grave and unforgivable violation of human rights. But the
practice persists. Fortunately, such instances constitute the exception rather than the general
rule.
5. Before Us for mandatory review is the death sentence imposed upon the accused Francisco
Galit by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case No. CCC-VII-2589 of said court.
6. The record shows that in the morning of August 23, 1977, Mrs. Natividad Fernando, a widow,
was found dead in the bedroom of her house located at Barrio Geronimo, Montalban, Rizal, as
a result of seven (7) wounds inflicted upon different parts of her body by a blunt
instrument.
2
More than two weeks thereafter, police authorities of Montalban picked up the
herein accused, Francisco Galit, an ordinary construction worker (pion) living in Marikina, Rizal,
on suspicion of the murder. On the following day, however, September 8, 1977, the case was
referred to the National Bureau of Investigation (NBI) for further investigation in view of the
alleged limited facilities of the Montalban police station. Accordingly, the herein accused was
brought to the NBI where he was investigated by a team headed by NBI Agent Carlos
Flores.
3
NBI Agent Flores conducted a preliminary interview of the suspect who allegedly gave
evasive answers to his questions.
4
But the following day, September 9, 1977, Francisco Galit
voluntarily executed a Salaysay admitting participation in the commission of the crime. He
implicated Juling Dulay and Pabling Dulay as his companions in the crime.
5
As a result, he was
charged with the crime of Robbery with Homicide, in an information filed before the Circuit
Criminal Court of Pasig, Rizal, committed as follows:
That on or about the 23rd day of August 1977 in the municipality of Montalban,
province of Rizal, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together with Juling
Doe and Pabling Doe, whose true Identities and present whereabouts are still
unknown and three of them mutually helping and aiding one another, with
intent of gain and by means of force, intimidation and violence upon the person
of one Natividad Fernando while in her dwelling, did, then and there wilfully,
unlawfully, and feloniously take, steal and carry away from the person of said
Natividad Fernando, cash money of an undetermined amount, belonging to said
Natividad Fernando, thereby causing damage and prejudice to the latter in an
undetermined amount; that by reason or on the occasion of said robbery, and
for purpose of enabling them (accused) to take, steal and carry away the said
cash money in pursuance of their conspiracy and for the purpose of insuring the
success of their criminal act, with intent to kill, did, then and there wilfully,
unlawfully, and feloniously attack, assault and stab with a dagger said Natividad
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Fernando on the different parts of her body, thereby inflicting multiple injuries
on the head and extremities, which directly caused her death, and the total
amount of the loss is P10,000.00 including valuables and cash.
Trial was held, and on August 11, 1978, immediately after the accused had terminated the
presentation of his evidence, the trial judge dictated his decision on the case in open court,
finding the accused guilty as charged and sentencing him to suffer the death penalty; to
indemnify the heirs of the victim in the sum of P110,000.00, and to pay the costs. Hence, the
present recourse.
7. The incriminatory facts of the case, as found by the trial court, are as follows:
From the evidence adduced in this case, it was gathered that in the early
morning of August 23, 1977, a 70-year old woman named Natividad Fernando,
widow, in the twilight of her life, was robbed and then hacked to death by the
accused and two others in her (victim's) own residence at Montalban, Rizal.
Prosecution witness Florentino Valentino testified that he heard accused
Francisco Galit and his wife having an argument in connection with the robbery
and killing of the victim, Natividad Fernando. It appears that on August 18, 1977,
accused Galit and two others, namely, Juling Dulay and a certain "Pabling"
accidentally met each other at Marikina, Rizal, and in their conversation, the
three agreed to rob Natividad Fernando; that it was further agreed among them
to enter the premises of the victim's house at the back yard by climbing over the
fence; that once inside the premises, they will search every room, especially the
aparador and filing cabinets, with the sole aim of looking for cash money and
other valuables.
Witness Valentino further testified that on August 22, 1977, at around 6:00
o'clock in the afternoon, accused Francisco Galit and his two companions, Juling
Dulay and Pabling, as per their previous agreement, met at the place where they
formerly saw each other in Mariquina, Rizal; that the three conspirators took a
jeepney for Montalban and upon passing the Montalban Municipal Building,
they stopped and they waited at the side of the road until the hour of midnight;
that at about 12:00 o'clock that night, the three repaired to the premises of the
victim, Natividad Fernando; that they entered the said premises through the
back wall of the house; that while entering the premises of said house, Juling
Dulay saw a bolo, lying near the piggery compound, which he picked up and used
it to destroy the back portion of the wall of the house; that it was Juling Dulay
who first entered the house through the hole that they made, followed by the
accused Galit and next to him was "Pabling", that it was already early dawn of
August 23, 1977 when the three were able to gain entrance into the house of the
victim; as the three could not find anything valuable inside the first room that
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they entered, Juling Dulay destroyed the screen of the door of the victim,
Natividad Fernando; that upon entering the room of the victim, the three
accused decided to kill first the victim, Natividad Fernando, before searching the
room for valuables; that Juling Dulay, who was then holding the bolo, began
hacking the victim, who was then sleeping, and accused Galit heard a moaning
sound from the victim; that after the victim was killed, the three accused began
searching the room for valuables; that they helped each other in opening the
iron cabinet inside the room of the victim, where they found some money; that
when the three accused left the room of the victim, they brought with them
some papers and pictures which they threw outside; that after killing and
robbing the victim, the three accused went out of the premises of the house,
using the same way by which they gained entrance, which was through the back
portion of the wall; that the three accused walked towards the river bank where
they divided the loot that they got from the room of the victim; that their
respective shares amount to P70.00 for each of them; and that after receiving
their shares of the loot, the three accused left and went home.
When witness Florentino Valentino was in his room, which was adjoining that of
accused Francisco Galit, he overheard accused Galit and his wife quarreling
about the intention of accused Galit to leave their residence immediately; that
he further stated that he overheard accused Galit saying that he and his other
two companions robbed and killed Natividad Fernando.
As a result of the killing, the victim, Natividad Fernando, suffered no less than
seven stab wounds. There was massive cerebral hemorrhage and the cause of
death was due to shock and hemorrhage, as evidenced by the Medico-Legal
Necropsy Report (Exhs. 'C' and 'C-2'), and the pictures taken of the deceased
victim (Exhs. 'E', 'E-1' and 'E-2').
8. The accused, upon the other hand, denied participation in the commission of the crime. He
claimed that he was in his house in Marikina, Rizal, when the crime was committed in
Montalban, Rizal. He also assailed the admissibility of the extra-judicial confession extracted
from him through torture, force and intimidation as described earlier, and without the benefit
of counsel.
9. After a review of the records, We find that the evidence presented by the prosecution does
not support a conviction. In fact, the findings of the trial court relative to the acts attributed to
the accused are not supported by competent evidence. The principal prosecution witness,
Florentino Valentino merely testified that he and the accused were living together in one house
in Marikina, Rizal, on August 23, 1977, because the mother of his wife is the wife of the
accused; that when he returned home at about 4:00 o'clock in the morning from the police
station of Marikina, Rizal, the accused and his wife were quarreling (nagtatalo); that he heard
that the accused was leaving the house because he and his companions had robbed "Aling
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Nene", the owner of a poultry farm and piggery in Montalban, Rizal; that the wife of the
accused was imploring him not to leave, but the latter was insistent; that he saw the accused
carrying a bag containing about two handfuls (dakot) of coins which he had taken from Aling
Nene; that upon learning of what the accused had done, he went to the Montalban police the
next day and reported to the police chief about what he had heard; and that a week later,
Montalban policemen went to their house and arrested the accused.
6

10. This Court, in the case of Morales vs. Ponce Enrile,
7
laid down the correct procedure for
peace officers to follow when making an arrest and in conducting a custodial investigation, and
which We reiterate:
7. At the time a person is arrested, it shall be the duty of the arresting officer to
inform him of the reason for the arrest and he must be shown the warrant of
arrest, if any. He shall be informed of his constitutional rights to remain silent
and to counsel, and that any statement he might make could be used against
him. The person arrested shall have the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means by telephone if
possible or by letter or messenger. It shall be the responsibility of the
arresting officer to see to it that this is accomplished. No custodial investigation
shall be conducted unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf. The right to counsel
may be waived but the waiver shall not be valid unless made with the assistance
of counsel. Any statement obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.
11. There were no eyewitnesses, no property recovered from the accused, no state witnesses,
and not even fingerprints of the accused at the scene of the crime. The only evidence against
the accused is his alleged confession. It behooves Us therefore to give it a close scrutiny. The
statement begins as follows:
I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga
karapatan sa ilalim ng Saligang-Batas ng Pilipinas na kung
inyong nanaisin ay maaaring hindi kayo magbigay ng isang
salaysay, na hindi rin kayo maaaring pilitin o saktan at
pangakuan upang magbigay ng naturang salaysay, na anuman
ang inyong sasabihin sa pagsisiyasat na ito ay maaaring laban
sa inyo sa anumang usapin na maaaring ilahad sa anumang
hukuman o tribunal dito sa Pilipinas, na sa pagsisiyasat na ito
ay maaaring katulungin mo ang isang manananggol at kung
sakaling hindi mo kayang bayaran ang isang manananggol ay
maaaring bigyan ka ng isa ng NBI. Ngayon at alam mo na ang
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mga ito nakahanda ka bang magbigay ng isang kusang-loob na
salaysay sa pagtatanong na ito?
SAGOT: Opo.
12. Such a long question followed by a monosyllabic answer does not satisfy the requirements
of the law that the accused be informed of his rights under the Constitution and our laws.
Instead there should be several short and clear questions and every right explained in simple
words in a dialect or language known to the person under investigation. Accused is from Samar
and there is no showing that he understands Tagalog. Moreover, at the time of his arrest,
accused was not permitted to communicate with his lawyer, a relative, or a friend. In fact, his
sisters and other relatives did not know that he had been brought to the NBI for investigation
and it was only about two weeks after he had executed the salaysay that his relatives were
allowed to visit him. His statement does not even contain any waiver of right to counsel and yet
during the investigation he was not assisted by one. At the supposed reenactment, again
accused was not assisted by counsel of his choice. These constitute gross violations of his rights.
13. The alleged confession and the pictures of the supposed re-enactment are inadmissible as
evidence because they were obtained in a manner contrary to law.
14. Trial courts are cautioned to look carefully into the circumstances surrounding the taking of
any confession, especially where the prisoner claims having been maltreated into giving one.
Where there is any doubt as to its voluntariness, the same must be rejected in toto.
15. Let a copy of this decision be furnished the Minister of Justice for whatever action he may
deem proper to take against the investigating officers.
16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET ASIDE, and
another one entered ACQUITTING the accused Francisco Galit of the crime charged. Let him be
released from custody immediately unless held on other charges. With costs de oficio.
17. SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova,
Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.
Aquino, J., took no part.
Footnotes
1 G.R. No. 51858, promulgated January 31,
1985.
2 Exhs. "C", "D", "E", "E-1", "E-2"; t.s.n. of
August 3, 1978, p. 7.
3 T.S.N. of August 3, 1978, p. 10.
4 Id., p. 26.
5 Exh. "F".
6 T.S.N. of August 9, 1978, pp. 3-11.
7 G.R. Nos. 61016 and 61107, April 26,
1983, 121 SCRA 538.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-61016 April 26, 1983
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF HORACIO R. MORALES,
JR., petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN. FABIAN C. VER and COL. GALILEO KINTANAR, respondents.
G.R. No. L-61107 April 26, 1983
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTONIO C. MONCUPA, JR.
ANTONIO C. MONCUPA, JR., petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN. FABIAN C. VER and COL. GALILEO KINTANAR, respondents.
Lorenzo M. Taada, Augusto Sanchez, Jejomar Binay and Antonio Quintos for petitioners.
The Solicitor General for respondents.

CONCEPCION, JR., J.:
1. The petitions are without merit and are hereby DISMISSED.
2. Petitioners were arrested on April 21, 1982 at about 9:45 a.m. while they were riding
together in a motor vehicle on Laong-Laan Street, Quezon City, by elements of Task Force
Makabansa of the Armed Forces of the Philippines. Since their arrest, they have been under
detention. Petitioner Morales filed his petition for habeas corpus with this Court on July 9,
1982, while petitioner Moncupa filed his on July 19, 1982. On July 20, 1982 petitioners,
together with several others, were charged with rebellion (Art. 134, Revised Penal Code) before
the Court of First Instance of Rizal in Criminal Case No. Q-21091 filed by the City Fiscal of
Quezon City. The trial of the case has yet to be terminated. The continued detention of
petitioners to answer for the offense charged is therefore legal.
3. Petitioners allege that they were arrested without any warrant of arrest; that their
constitutional rights were violated, among them the right to counsel, the right to remain silent,
the right to a speedy and public trial, and the right to bail. They also air the charge that they
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were subjected to maltreatment and torture; that they did not have the opportunity to present
their defense before the inquest fiscal and therefore asked this Court to order the
reinvestigation of the charges against them. Acting on such plea, this Court in a resolution en
banc dated July 22, 1982 ordered the City Fiscal of Quezon City to conduct such reinvestigation
and at the same time appointed him "to act as commissioner of this Court and receive evidence
of the charges made by petitioners before this Court of alleged torture and violation of their
constitutional rights, particularly the right to counsel." On September 28, 1982, the City Fiscal
submitted his report on the reinvestigation affirming the existence of a prima facie case for
rebellion against petitioners and several others. And on February 8, 1983 he submitted to this
Court the transcript of the notes taken at the reception of the evidence on the charges of
petitioners.
4. If petitioners had been arrested in a communist country, they would have no rights to speak
of. However, the Philippines is a republican state. Sovereignty resides in the people and all
government authority emanates from them.
1
We have a Constitution framed by a
constitutional convention and duly ratified by the people. We subscribe to the rule of law. We
believe in human rights and we protect and defend them. Petitioners are entitled to the full
enjoyment of all the rights granted to them by law. And this Court stands as the guarantor of
those rights.
5. Our Constitution provides:
SEC. 20. No person shall be compelled to be a witness against himself. Any
shall be inadmissible in evidence.
2

6. After a person is arrested and his custodial investigation begins a confrontation arises which
at best may be termed unequal. The detainee is brought to an army camp or police
headquarters and there questioned and cross-examined not only by one but as many
investigators as may be necessary to break down his morale. He finds himself in a strange and
un familiar surrounding, and every person he meets he considers hostile to him. The
investigators are well-trained and seasoned in their work. They employ all the methods and
means that experience and study has taught them to extract the truth, or what may pass for it,
out of the detainee. Most detainees are unlettered and are not aware of their constitutional
rights. And even if they were, the intimidating and coercive presence of the officers of the law
in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to
remedy this imbalance.
7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of
the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be
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informed of his constitutional rights to remain silent and to counsel, and that any statement he
might make could be used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most expedient means-
by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting
officer to see to it that this is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the person arrested, by any person on his
behalf, or appointed by the court upon petition either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived but the waiver shall not be valid unless made
with the assistance of counsel. Any statement obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in
evidence.
8. During the period of his detention, he shall have the right to confer with his counsel at any
hour of the day or, in urgent cases, of the night, alone and privately, in the jail or any other
place of custody.
3

Arrest.
9. Arrest is the taking of a person into custody in order that he may be forthcoming to answer
for the commission of an offense.
4

10. An arrest may be made with or without a warrant.
SEC. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall not be violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized.
5

11. Our Constitution clearly defines the persons who may issue a warrant of arrest and limits
them to a "judge, or such other responsible officer as may be authorized by law." It also lays
down in unmistakable terms the procedure required before a search warrant or warrant of
arrest may issue.
12. A Presidential Arrest and Commitment Order is a warrant of arrest issued by the President
of the Philippines.
6
Its issuance must therefore comply with the requirements of the
Constitution, in the same manner and to the same extent, as a warrant of arrest issued by a
judge issuance must therefore comply with the requirements of the Constitution, in the same
manner and to the same extent, as a warrant of arrest by a judge.
13. An arrest may also be made without a warrant.
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SEC. 6. Arrest without warrant When lawful. A peace officer or a private
person may, without a warrant, arrest a person:
(a) When the person to be arrested has committed, is actually committing, or is
about to commit an offense in his presence;
(b) When an offense has in fact been committed, and he has reasonable ground
to believe that the person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.
7

14. Care should be exercised in making an arrest without a warrant. Where there is no
justification for the arrest, the public officer could be criminally liable for arbitrary
detention
8
or unlawful arrest
9
or for some other offense.
15. The petitioners claim they were arrested without a warrant. The Memorandum to the
President dated April 21, 1982 from Gen. Fabian C. Ver, Chief of Staff of the Armed Forces of
the Philippines, wherein he reported the arrest of petitioners, the subversive documents seized
from them and the results of the ensuing tactical interrogation, with a recommendation for the
issuance of a Presidential Arrest and Commitment Order, was approved by the President only
on April 23, 1982. Indeed, therefore, petitioners were arrested without a warrant. However,
months before their arrest, petitioners were already under surveillance on suspicion of
committing rebellion. From the results of the said surveillance, the evidence then at hand, and
the documents seized from them at the time of their arrest, it would appear that they had
committed or were actually committing the offense of rebellion. Their arrest without a warrant
for the said offense is therefore clearly justified.
Procedure after Arrest.
16. After a person is arrested either without a warrant or by virtue of a warrant of arrest issued
by a judge or by virtue of a Presidential Arrest and Commitment Order, the proper complaint or
information against him must be filed with the courts of justice within the time prescribed by
law, to wit:
FURTHER AMENDING ARTICLE 125 OF THE REVISED PENAL CODE, AS AMENDED
(PRESIDENTIAL DECREE NO. 1404)
WHEREAS, the periods within which arrested persons shall be delivered to the
judicial authorities as provided in Article 125 of the Revised Penal Code, as
amended, are on occasions inadequate to enable the government to file within
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the said periods the criminal information against persons arrested for certain
crimes against national security and public order.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by the Constitution, and in the
interest of national security as well as public safety and order, do hereby decree
and order as part of the law of the land the following amendment to Article 125
of the Revised Penal Code, as amended:
SECTION 1. Article 125 of the Revised Penal Code, as amended, is hereby further
amended to read as follows:
ART. 125. Delay in the delivery of detained persons. -The penalties
provided in the next preceding article shall be imposed upon the
public officer or employee who shall detain any person for some
legal ground and shall fail to deliver such person to the proper
judicial authorities within the period of: six hours, for crimes or
offenses punishable by light penalties, or their equivalent; nine
hours, for crimes or offenses punishable by correctional penalties,
or their equivalent; and eighteen hours, for crimes or offenses
punishable by afflictive or capital penalties, or their equivalent;
Provided, however, That the President may, in the interest of
national security and public order, authorize by Executive Order
longer periods, which in no case shall exceed 30 days, or for as
long as the conspiracy to commit the crime against national
security and public order continues or is being implemented, for
the delivery of persons arrested for crimes or offenses against
public order as defined in Title III, Book 11 of this Code, namely:
Articles 134, 136, 138, 139, 141, 142, 143, 144, 146 and 147, and
for acts in violation of Republic Act No. 1700 as amended by
Presidential Decree No. 885, taking into consideration the gravity
of the offense or offenses, the number of persons arrested, the
threat to national security or to public safety and order, and/or
the occurrence of a public calamity or other emergency situation
preventing the early investigation of the cases and the filing of the
corresponding information before the civil courts.
In every case, the person detained shall be informed of the cause
of his detention and shall be allowed, upon his request, to
communicate and confer at any time with his attorney or counsel,
and to be visited by his immediate relatives.
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SEC. 2. All acts, executive order, proclamations, Presidential Decrees, General
Orders, Letters of Instruction, rules and regulations, or parts thereof,
inconsistent with the provisions of this decree are hereby repealed or modified
accordingly.
SEC. 3. Transitory provision.-Pending the preparation and promulgation by the
President of the Executive Order referred to in Section 1 hereof, the detention of
persons arrested for any of the abovementioned offenses against public order
shall continue to be governed by the provisions of General Orders No. 2, dated
September 22, 1972 as amended by General Order Nos. 60 and 62, dated
September 24, 1977 and October 22, 1977, respectively.
SEC 4. This decree shall take effect immediately.
Done in the City of Manila this 9th day of June, in the year of Our Lord, nineteen
hundred and seventy-eight."
17. Failure of the public officer to do so without any valid reason would constitute a violation of
Art. 125, Revised Penal Code, as amended. And the person detained would be entitled to be
released on a writ of habeas corpus, unless he is detained under subsisting process issued by a
competent court.
10

Power of the Courts.
18. The writ of habeas corpus has often been referred to as the great writ of liberty. It is the
most expeditious way of securing the release of one who has been illegally detained. The
privilege of the writ of habeas corpus may be suspended, but not the writ itself.
19. The Bill of Rights provides:
SECTION 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
20. In Lansang vs.Garcia, 42 SCRA 448,473,We said:
In our resolution of October 5, 1972, We stated that 'a majority of the court 'had
'tentativelyarrived at a consensus that it may inquire in order to satisfy itself of
the existence of the factual bases for the issuance of Presidential Proclamations
Nos. 889 and 889A ... and thusdetermine the constitutional sufficiency of such
bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII,
sec. 10, par. 2, of the Philippine Constitution ...' Upon further deliberation, the
members of the Court are now unanimous in the conviction that it has the
authority to inquire into the existence of said factual bases in order to determine
the constitutional sufficiency thereof.
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21. We reiterate this doctrine.
22. Furthermore, We hold that under the judicial power of review and by constitutional
mandate, in all petitions for habeas corpus the court must inquire into every phase and aspect
of petitioner's detention from the moment petitioner was taken into custody up to the moment
the court passes upon the merits of the petition. Only after such a scrutiny can the court satisfy
itself that the due process clause of our Constitution has in fact been satisfied.
23. The submission that a person may be detained indefinitely without any charges and the
courts cannot inquire into the legality of the restraint goes against the spirit and letter of the
Constitution and does violence to the basic precepts of human rights and a democratic society.
The Right to Bail.
24. Next to life a man loves his freedom. Some men love their freedom even more than their
life.
25. In all criminal prosecutions the accused is presumed innocent. Because of this presumption
and inasmuch as every man has a natural desire to be free, our Constitution laid down the right
to bail in these words:
SEC. 18. All persons, except those charged with capital offenses when evidence
of guilt is strong, shall, before conviction, be bailable by sufficient sureties.
Excessive bail shall not be required.
11

26. Although martial law was terminated on January 17, 1981, by virtue of Proclamation No.
2045 of the President of the Philippines, the privilege of the writ of habeas corpus continues to
be suspended in the two autonomous regions in Mindanao and in all other places with respect
to certain offenses, thus:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister of the
Philippines, by virtue of the powers vested in me by the Constitution, do hereby
revoke Proclamation No. 1081 (Proclaiming a State of Martial Law in the
Philippines) and Proclamation No. 1104 (Declaring the Continuation of Martial
Law) and proclaim the termination of the state of martial law throughout the
Philippines; Provided, that the call to the Armed Forces of the Philippines to
prevent or suppress lawless violence, insurrection, rebellion and subversion shall
continue to be in force and effect; and Provided that in the two autonomous
regions in Mindanao, upon the request of the residents therein, the suspension
of the privilege of the writ of habeas corpus shall continue; and in all other
places the suspension of the privilege of the writ shall also continue with respect
to persons at present detained as well as others who may hereafter be similarly
detained for the crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and for all other crimes and offenses
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committed by them in furtherance of or on the occasion therefore, or incident
thereto, or in connection therewith. ... (Presidential Proclamation No. 2045).
27. Normally, rebellion being a non-capital offense is bailable. But because the privilege of the
writ ofhabeas corpus remains suspended "with respect to persons at present detained as well
as other who may hereafter be similarly detained for the crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses
committed by them in furtherance of or on the occasion thereof, or incident thereto, or in
connection therewith," the natural consequence is that the right to bail for the commission of
anyone of the said offenses is also suspended. To hold otherwise would defeat the very
purpose of the suspension. Therefore, where the offense for which the detainee was arrested is
anyone of the said offenses he has no right to bail even after the charges are filed in court.
28. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and
crimes or offenses committed in furtherance thereof or in connection therewith constitute
direct attacks on the life of the State.
29. Just as an individual has right to self-defense when his life is endangered, so does the State.
The suspension of the privilege of the writ is to enable the State to hold in preventive
imprisonment pending investigation and trial those persons who plot against it and commit acts
that endanger the State's very existence. For this measure of self-defense to be effective, the
right to bail must also be deemed suspended with respect to these offenses.
30. However, there is a difference between preventive and punitive imprisonment. Where the
filing of charges in court or the trial of such charges already filed becomes protracted without
any justifiable reason, the detention becomes punitive in character and the detainee regains his
right to freedom.
The Charges of Torture.
31. When petitioners charged in their petitions that they had been tortured and maltreated,
the Court decided to appoint the City Fiscal of Quezon City to hear the charges and to receive
the evidence. Not because We are an investigating body. Nor are We a trier of facts. But
because petitioners' charges are material and relevant to the petitions before Us.
32. As mentioned earlier, the Court Commissioner submitted the transcript of the proceedings
held before him. We will not pass upon the merits of the torture charges. However, they should
be filed before the body which has jurisdiction over them as provided for in Presidential
Decrees Nos. 1822, 1822-A and 1850.
33. The present form of our government, to all intents and purposes, merged the executive and
legislative branches into one. Members of parliament are at the same time cabinet ministers.
Under the system of checks and balances ordained by the Constitution, the judiciary serves as
the check and balance to the merged executive and legislative branches. The judiciary is
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therefore called upon to express its thoughts on areas outside the traditional and narrow
confines of decision making, with the end in view that together we may explore the free market
of Ideas and arrive at what is best for our country and our people.
34. Our people cry out for a better life. They want more food in their stomachs, roofs over their
heads, health services for themselves and their families, education for their children, and other
necessities that make life worth living. They cannot be denied. They want it and they want it
now. Timely indeed are the thrusts of the KKK and the BLISS programs.
35. However, we cannot lead them to a truly better life, unless we achieve complete peace in
our land; and we cannot have complete peace unless we improve the administration of justice.
36. It was a wise man who once said: "Tell me how a country's poor receive their justice and I
will tell you how stable its government is."
12

37. Whenever we speak of the administration of justice we refer to four principal areas: the
preservation of peace and order which is the primary task of the Armed Forces of the
Philippines and the National Integrated Police, both under the Ministry of Defense; the
investigation and prosecution of offenses and the administration of our penal system which are
under the Ministry of Justice; the application and interpretation of laws and the trial and
adjudication of cases which fall under the jurisdiction of the courts; and appearance as counsel
for the government particularly in appealed criminal cases and as counsel for the Commission
on Elections, Securities and Exchange Commission, and others, which is the responsibility of the
Office of the Solicitor General. In everyone of these areas much can be done to achieve our
ultimate goal-that in this fair land of ours, no man, no matter how humble, no matter how poor
shall thirst for justice.
38. Our machinery of justice should be geared towards helping and protecting the poor among
us. Not knowing their rights, not having the means to pay for the services of a lawyer,
possessing no influence whatsoever, they are invariably the victims of injustice. The affluent
can take care of themselves. They are better aware of their rights, they have influence, and
they can engage the services of the best counsel. But the poor can only pray to God and hope
to find relief in the system of justice established by their government.
39. We must open all avenues for complaints and keep them open so that the grievance
procedure may be made more readily available to the masses of our people. Only by knowing
their needs can we give them what they rightfully deserve.
40. It is undeniable that throughout the length and breadth of our land, lawlessness and
disorder have increased and continue to increase to undesirable proportions. It is wishful
thinking to believe otherwise. An efforts must be exerted now to reverse the trend. We cannot
afford any delay. And we should begin by bringing to the bar of justice the culprits in particular
who burned and destroyed public property, and attacked, kidnapped and killed public
functionaries. For the questions may validly be asked: If the government cannot protect public
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property, how can it protect private property? If the government cannot guarantee the safety
and lives of its officials, how can it guarantee the safety and lives of private individuals?
41. The investigation and prosecution of cases should be further improved so that only
meritorious cases shall reach the courts, thus contributing to the unclogging of court dockets.
Many criminal cases initiated by complainants are just harassment suits and should never have
been filed in court. In the process, it is required that all fiscals be appointed in a permanent
capacity. Their security of tenure is the foundation stone of their independence. Our penal
system should be further updated to make more effective the rehabilitation of criminals. Let us
do away with instances of first offenders who serve sentence in order to be reformed but who
come out instead as hardened criminals.
42. And with the judicial revamp just effected under B.P. 129, the trial and decision making
process has been modified and vastly improved to achieve better results. But it must be
remembered that courts which are not filled are as good as no courts at all. Therefore, more
appointments to the existing vacancies should be made.
43. One lesson our people have learned-painfully but well-is that politics and a good
administration of justice-like oil and water-do not mix; that when politics infiltrates the
administration of justice, injustice is often the outcome. In some jurisdictions of the United
States, there are sheriffs (peace officers) and district attorneys (prosecutors) who are elected
by the voters and who run for office as the candidates of a political party. In the Philippines
such a system would never work because in our culture we have values peculiarly our own-
value like "utang na loob", "compadre", "pakikisama", "tayu-tayo", "bigayan", "bata ko", "amo
ko", and the "god- father mentality". Values like these have derailed and may derail the
administration of justice. Political followers commit abuses in the belief that come what may
their political bosses would shield them from punishment. Can you imagine how criminal cases
would be investigated and prosecuted if fiscals (prosecutors) were chosen by election? How
would our laws be enforced if policemen and members of the Armed Forces were elected by
the people? And yet the heads of the Ministries of Justice and Defense and the Office of the
Solicitor General are all active politicians.
44. The burdens of office fall heavily on their shoulders. Perhaps it is time we relieve them of
the additional burdens that being politicians entail. Our Constitution foresaw the need for
heads of ministries who are not active politicians in providing that ". . . . At least a majority of
the Members of the Cabinet who are heads of ministries shall come from the Regional
Representations of the Batasang Pambansa. . . ."
13

45. The campaign against venality in office-malfeasance, misfeasance and nonfesance should be
pursued with renewed vigor. For graft and corruption are like termites gnawing away the
foundation of government. The harm done is sometimes not realized; or even if realized, under-
estimated. In the process let us remember to stress preventive measures to save public
property from loss.
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46. The communist threat remains a nagging problem of government. Whether Marxist,
Maoist, Leninist, aided by the New People's Army, rebels, radicals, and lawless elements, they
all have but one aim-one single purpose-one defined objective: to bring down by violence the
Government of the Republic of the Philippines and to forcibly seize political power in order that
they may replace our existing political, social, economic, and legal order with an entirely new
one based on communism.
47. Once before, in the early fifties, communists threatened the established order. They were
driven back by the Armed Forces, mainly because of the support of our people. We must keep,
strengthen and solidify the sympathy, faith, loyalty, and trust in the government of our brothers
in the rural areas. Guns and bullets alone will not do it. We can accomplish this only by giving
them better government. It is a condition sine qua non to achieve success in the fight against
subversion.
48. By and large, the Armed Forces are composed of good and disciplined men. However, there
are those who are not worthy of the uniforms they wear. Not a few have enriched themselves
by abusing the powers of their position. Some are involved in extortion, smuggling, and
kidnapping for ransom. There are others who maintain gambling, drug rings, and prostitution
dens. And still others have committed robbery, rape, murder, and other offenses. The campaign
to rid the organization of such misfits should be carried out with missionary zeal. For indeed
victims of abuse are often alienated from the government.
49. The Filipinos are a God-loving and a God-fearing people. We believe in peace and freedom.
We believe in the family and its strong ties. We can never willingly accept communism and
what it stands for.
50. While the government should continue to repel the communists, the subversives, the
rebels, and the lawless with all the means at its command, it should always be remembered
that whatever action is taken must always be within the framework of our Constitution and our
laws.
51. When the judgment of history is written, as leaders of our people, we shall be asked to
account not only for what we did, not only for what we did not do, but also for what visions we
have today of our tomorrow.
52. What will be our answer?
53. WHEREFORE, as aforestated, the petitions should be, as they are hereby, DISMISSED. With
costs against the petitioners.
54. SO ORDERED.
Aquino, J., concurs in the result.
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Guerrero, J., I concur in the dismissal of the petitions.
Plana, J., Escolin J., Vasquez, J., concurs in the result.
Relova, J., I concur and will also add my own views in a separate opinion.

Separate Opinions

FERNANDO, C.J., concurring:
concurring in the dismissed of the petitions, expressing conformity with the reiteration of the
doctrine announced in Lansang v. Garcia, and dissenting on the question of the right to bail
which for him may be invoked whenever allowable under the Constitution:
Let me make clear at the outset that I limit myself to a concurrence in the dismissal of the
petitions, expressing conformity with the reiteration of the doctrine in Lansang v. Garcia,
1
and a
dissent on the question of the right to bail during a period of suspension of the privilege of the
writ of habeas corpus, which for me may be invoked whenever allowable under the
Constitution, a stand I took both as counsel in Hernandez v. Montesa
2
and thereafter as a
member of the Court in Lansang v. Garcia,
3
Buscayno v. Enrile,
4
and Garcia-Padilla v. Ponce
Enrile.
5
This is by no means to indicate lack of due recognition of the intensity of conviction and
lucidity of expression so evident in the exhaustive opinion of Justice Concepcion Jr. It is merely
to adhere to the norm of limiting myself to an appraisal of the constitutional rights invoked
insofar as they have a bearing on these petitions.
6
Hence this separate expression of my views.
1. The first paragraph of the decisions of this Court is worded as follows: "The petitions are
without merit and are hereby DISMISSED."
7
I am in full agreement. The authoritative doctrine
followed by this Court in accordance with well-settled jurisprudence is that the moment it can
be shown that the persons detained are being held in lawful custody by virtue of a judicial
process, then an application of the privilege of the writ of habeas corpus cannot succeed.
8

2. There is equally to my mind no question about the validity as a legal proposition of paragraph
4 of the opinion, which speaks of the Philippines being "a republican state. Sovereignty resides
in the people and all government authority emanates from them. We have a Constitution
framed by a constitutional convention and duly ratified by the people. We subscribe to the rule
of law. We believe in human rights and we protect and defend them. Petitioners are entitled to
the full enjoyment of all the rights granted to them by law. And this Court stands as the
guarantor of those rights."
9
This Court in normal times as well as under emergency conditions
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has displayed fealty to human rights, as protected and safeguarded by the Constitution. It is a
matter of legitimate pride that even under the 1935 Charter, the Philippines has accorded full
recognition not only to the traditional civil and political rights but to social and economic rights.
The autonomy of the human personality and the assurance of his dignity are a matter of deep
public concern. It is equally a matter of legitimate pride that during the period of martial law,
with fun recognition of the power of the government to maintain peace and order and preserve
its authority, the judiciary, was not recreant to such a trust.
10
For the entire judiciary, not only
this Court, stands as a guarantor of those rights. It does so when it has to act in a proper case
submitted to it. The political branches are equally, to my mind, guarantors of human rights; the
Batasan Pambansa in the enactment of laws and the President in their enforcement whether
through executive orders implementing them or the issuance of decrees having the force and
effect of law. In the sense, however, that decisions coming from this Court have not merely
an inter-partes but an erga omneseffect, binding not only the litigants but also others finding
themselves similarly situated, it is quite accurate to state that "this Court stands as a guarantor
of those rights."
3. It is by virtue of the respect for constitutional rights that in the resolutions of this Court in
both applications for the writ, it was made clear that counsel of petitioners can visit them and
confer with them in an atmosphere of confidentiality consistent with reasonable security
measures to be imposed by respondents.
11
Again, it is by virtue of deference to the
Constitution that in succeeding resolutions, their allegations as to other instances of violation of
their rights were referred for investigation to the City Fiscal of Quezon City.
12

4. Paragraphs 5 to 19 of the opinion of the Court elaborate further on the matter. They are
notable for the concern shown for constitutional rights, with full recognition of the power of
the state to deal effectively with rebellion or subversion. I view the matter similarly. The same
thought was given expression in Lansang v. Garcia.
13
In the memorable language of Chief
Justice Concepcion: "Manifestly, however, the liberty guaranteed and protected by our Basic
Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and,
hence, within the framework of the social order established by the Constitution and the context
of the Rules of Law. Accordingly, when individual freedom is used to destroy that social order,
by means of force and violence, in defiance of the Rule of Law-such as rising publicly and taking
arms against the government to overthrow the same, thereby committing the crime of
rebellion there emerges a circumstance that may warrant a limited withdrawal of the
aforementioned guarantee or protection, by suspending the privilege of the writ of habeas
corpus, when public safety requires it. Although we must be forewarned against mistaking
mere dissent-no matter how emphatic or intemperate it may be-for dissidence amounting to
rebellion or insurrection, the Court cannot hesitate, much less refuse-when the existence of
such rebellion or insurrection has been fairly established or cannot reasonably be denied-to
uphold the finding of the Executive thereon, without, in effect, encroaching upon a power
vested in him by the Supreme Law of the land and depriving him, to this extent, of such power,
and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the
Court is called upon to epitomize."
14

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5. In the opinion of Justice Concepcion Jr., paragraph 21 explicitly states: "We reiterate this
doctrine." There is thus a reaffirmance of the ruling in Lansang cited in paragraph 20 to the
effect that the suspension of the privilege of the writ raises a judicial rather than a political
question. I am in complete agreement. That was the point of my dissent in the recently decided
case of Garcia-Padilla v. Enrile.
6. There is also on my part conformity with the view set forth in paragraph 22 that "in all
petitions forhabeas corpus the court must inquire into every phase and aspect of petitioner's
detention-from the moment petitioner was taken into custody up to the moment the court
passes upon the merits of the petition."
15

7. I am in agreement with the view expressed in paragraph 23 that there can be no indefinite
detention without charges being filed. It must be recognized, however, that in cases of invasion,
rebellion and insurrection, or imminent danger thereof, the power of preventive detention is
recognized by the Constitution, considering that when public safety requires, the privilege of
the writ of habeas corpus may be suspended or martial law, as a last resort, declared. I had
occasion to speak on the matter in my separate opinion in Garcia-Padilla v. Enrile, where I
stated that when the stage of punitive detention is reached, there can be reliance on the writ of
habeas corpus.
16

8. The next five paragraphs deal with the right to bail. Paragraph 24 correctly noted: "Next to
life, man loves his freedom." In the next paragraph reference is made of the presumption of
innocence and then of the constitutional right to bail, after which it was noted in paragraph 26
that under Presidential Proclamation No. 2045 lifting martial law, the privilege of the writ of
habeas corpus "continues to be suspended in the two autonomous regions in Mindanao and in
all other places with respect to certain offenses," namely "the crimes of insurrection or
rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes
and offenses committed by them in furtherance of or on the occasion thereof, or incident
thereto, or in connection therewith." Paragraph 27 reaches the heart of the matter, the main
opinion laying down the principle that due to the privilege of the writ of habeas corpus remain
suspended, "the natural consequence is that the right to bail for the commission of anyone of
the said offenses is also suspended. To hold otherwise would defeat the very purpose of the
suspension. Therefore, where the offense for which the detainee was arrested is anyone of the
said offenses he has no right to bail even after the charges are filed in court." Paragraph 28 sets
forth the ratio decidendi: "The crimes of rebellion, subversion, conspiracy or proposal to
commit such crimes, and crimes or offenses committed in furtherance thereof or in connection
therewith constitute direct attacks on the life of the State." Then an analogy is made in the next
paragraph in this wise: "Just as an individual has a right to self-defense when his life is
endangered, so does the State. The suspension of the privilege of the writ is to enable the State
to hold in preventive imprisonment pending investigation and trial those persons who plot
against it and commit acts that endanger the State's very existence. For this measure of self-
defense to be effective, the right to bail must also be deemed suspended with respect to these
offenses." With respect, I dissent. It is not necessary to repeat what I said right at the beginning
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of this opinion why I am unable to agree to the proposition that the suspension of the privilege
of the writ carries with it the suspension of the right to bail. Nor is there need to quote from my
concurring and dissenting opinions both in the Lansang and the Garcia-Padilla cases. Briefly put,
my perception of the matter traces itself to what was said in the landmark Milligan decision
where the American Supreme Court said that only one great right may be suspended "leaving
all the rest forever inviolable."
17
This is not to ignore the practical consideration set forth in the
opinion of retired Chief Justice Concepcion in Lansang that militates against my approach. First
he aptly summarized it in the words of Justice Tuason in Henandez, "if and when formal
complaint is presented, the court steps in and the executive steps out."
18
After which came this
portion of the opinion of the then Chief Justice: "From a long-range viewpoint, this
interpretation-of the act of the President in having said formal charges filed is, We believe,
more beneficial to the detainees than that favored by Mr. Justice Fernando. His view-
particularly the theory that the detainees should be released immediately, without bail, even
before the completion of said preliminary examination and/or investigation-would tend to
induce the Executive to refrain from firing formal charges as long as it may be possible.
Manifestly, We should encourage the early filing of said charges, so that courts of justice could
assume jurisdiction over the detainees and extend to them effective protection."
19

9. That brings us to paragraph 33 of the main opinion. The characterization of a "merged
executive and legislative branches" does not suffer from the taint of in accuracy, if viewed from
the practical standpoint. Viewed as a matter of legal theory, I am not prepared to go that far.
This Court, in a unanimous opinion, expressly held: "The adoption of certain aspects of a
parliamentary system in the amended Constitution does not alter its essentially presidential
character."
20
There is therefore no repudiation of the theory of separation of powers. Through
the exercise of vigorous presidential leadership, however, made manifest in party caucuses,
there is attained both unity of purpose and action. In that sense, it could be asserted with truth
that there is to all intents and purposes fusion of the executive and legislative branches. Hence
the need for the maintenance of the concept of an independent judiciary. So it was pointed out
in Fortun v. Labang.
21

10. One last word. Doctrines have to be assessed in terms of its effect on the governmental
process. The rationale cannot be dissociated from the texture of the times. They cannot ignore
the forces at work which may either solidify or rent asunder the political community. A crisis
situation has a compulsion all its own. There may then be a conflict between the traditional
formulations and the coercion of events. That may render even more unavoidable the intrusion
of the demands of the hour into the domain of law. Adherence to what has been all along the
accepted basic approach to human rights calls for fealty. There must be also, however,
recognition of a more fluid standard in the assessment of governmental action to protect the
security of the state. It is my submission, however, that only when there may be grave public
danger should reliance on the high estate accorded constitutional rights be stigmatized as being
in the grip of the suffocating orthodoxies of the law.
GUTIERREZ, JR., J., concurring opinion:
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I concur in the sharply perceptive and heartfelt main opinion penned by Mr. Justice
Hermogenes Concepcion, Jr. especially in the reminders about rights of the accused, the cry of
our people for material necessities to give them a better life, and the proper administration of
justice. However, I would like to add some qualifying observations to a few points discussed by
the ponente.
I agree, that the issuance of a presidential arrest and commitment order (PCO) must comply
with the requirements of the Constitution. However, until the issue is placed squarely before us
in a more appropriate case, I hesitate to concur in a categorical statement that a PCO may be
equated with a warrant of arrest issued by a judge under Section 3, Article IV of the
Constitution. An examination of Letters of Instructions Nos. 1125-A and 1211 indicates that the
PCO is issued by the President, not as "such other responsible officers as may be authorized by
law" under Section 3 of the Bill of Rights but as Commander-in-Chief exercising exclusively
executive powers under the Constitution to meet problems of invasion, insurrection, or
rebellion or imminent danger thereof, when the public safety requires it. Precisely, the letters
of instructions call for preliminary examination or investigation by a judge as the regular
procedure. Only when resort to judicial process is not possible or expedient without
endangering public order and safety and when the release on bail of the person or persons
already under arrest by virtue of a judicial warrant would endanger said public order and safety
may the military commander or the head of the law enforcement agency apply to the
President, through the Minister of National Defense, for a presidential commitment order. The
fact that the stated procedure in the issuance of a PCO is an exception to and differs from the
regular procedure before a judge for the issuance of a warrant of arrest shows that a PCO may
not be equated completely with a warrant of arrest.
In Qua Chee Gan v. Deportation Board, (9 SCRA 27), the issue was raised that the President,
having been given the power to deport undesirable aliens, may not be denied power which is
essential to carry into effect the deportation. This Court did not categorically rule that the
President himself may order the arrest of an alien for deportation purposes, but neither did it
rule that he may not do so. The fact is the President has on various occasions, such as those
involving among others, Mr. Harry Stonehill and some associates and perhaps and Yuyiteng
brothers, ordered the arrest of aliens without having to secure a warrant of arrest from a judge
at a time when under the Constitution only a judge could issue such a warrant. The
commander-in-chief's power in a situation where the writ of habeas corpus has been
suspended or martial law has been proclaimed is certainly broader and less subject to
constitutional restrictions than the power of deportation. I may also add that the President
does not personally examine the complainant and the witnesses the latter may produce as the
multifarious affairs of state prevent him from doing so. But as in the case of judges relying on
investigations conducted by the fiscal, the President may rely on his Minister of National
Defense or the recommending military commander or the head of the law enforcement agency
to conduct what would be the equivalent of the judicial examination for probable cause. Of
course, the rules in Amarga v. Abbas, (98 Phil. 739) which impose on the judge issuing the
warrant of arrest the legal duty to first satisfy himself that there is probable cause without
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relying completely or ministerially upon the findings of the fiscal, should also apply and I believe
are in fact applied to PCO's.
It also hesitate to give concurrence to an unqualified reiteration of the Lansang v. Garcia (42
SCRA 448) doctrine on the Court's inquiring into the existence of factual bases for the
suspension of the privilege of the writ of habeas corpus or the proclamation of martial law to
determine their constitutional sufficiency. While the Court has not been very receptive lately to
the invocation of the political question doctrine by State lawyers, I believe that the doctrine
does apply in cases where a political department- either the President or the Batasang
Pambansa-exercises powers expressly granted in an exclusive manner by the Constitution and
which are of a clearly political nature not proper for judicial determination. If the proclamation
of martial law or the suspension of the privilege of the writ is so patently arbitrary and as
Justice Abad Santos says, lacking in popular support, there will always be constitutional
foundation for Supreme Court action to rule against arbitrariness. However, as a general
principle, whenever the President exercises his powers under the Constitution to meet the
supreme dangers of invasion, insurrection, or rebellion or imminent danger thereof when the
public safety requires it, we should not assume a power, upon the mere filing of a petition, to
render a judicial interpretation of an exclusively constitutionally granted power of the
President. Paraphrasing Coleman v. Miller (307 US 433, 83 L. Ed. 1385), the question of the
sufficiency of factual bases for the suspension of the privilege of the writ or the proclamation of
martial law would involve an appraisal of a great variety of relevant conditions involving
national security which can hardly be said to be within the appropriate range of evidence
receivable in a court of justice and as to which it would be an extravagant extension of judicial
authority to assert judicial notice, which after all is what we would be asserting in most cases
involving the exercise of this extraordinary presidential power.
Relova, J., I vote with Mr. Justice Hugo E. Gutierrez, Jr.
MELENCIO-HERRERA, J., concurring in the result:
I concur with paragraph 1 of the Decision, dismissing the petitions filed in these cases. The term
petitioner as used herein shall refer not only to Horacio R. Morales, Jr,, but will also include
Antonio C. Moncupa, Jr. insofar as legal statements may be applicable to the latter.
Petitioner was detained on April 21, 1982 by the Armed Forces of the Philippines under a
Presidential Commitment Order approved on April 23, 1982. On July 9, 1982, he filed the
petition for habeas corpusalleging that he was being illegally detained by respondents Minister
of National Defense, Chief of Staff of the Armed Forces of the Philippines, and, specifically, by
Colonel Galileo Kintanar, Commanding Officer of the 15th Military Intelligence Group.
Petitioner's prayer was for the issuance of the Writ directing respondents "to show the cause of
his imprisonment or restraint, and after hearing, to order his release forthwith." The Court
issued the Writ on July 13,1982.
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In a Supplemental Return to the Writ, respondents informed the Court that petitioner, on July
20, 1982, had been charged with Rebellion in Criminal Case No. Q-21091 of the Court of First
Instance of Rizal, and they asked that the petition for habeas corpus be denied for the reason
that "with the pendency of the case against petitioner before the Court below for trial and
before the City Fiscal for reinvestigation, there is all the more reason to dismiss the petition.
Under the foregoing facts, it is my opinion that these cases have become moot. There is no
longer any cause of action against respondents who must be deemed to have lost custody of
petitioner (In re Lasam vs. Enrile, 67 SCRA 43 [1975]). I do not agree with the view that
petitioner is still not within the jurisdiction of the Court below. If that were a correct
proposition, the Court below would be without jurisdiction to try the rebellion case. In criminal
law, "the Court must also have jurisdiction over the subject matter, that is, jurisdiction of the
offense, and must have jurisdiction of the person of the accused" (U.S.-U.S. v. Simon, D.C. Pa.,
248, cited in 22 C.J.S. 300). Even if there has been no warrant of arrest issued by the Court
below, the person of petitioner, who is now being tried, must be deemed as already within its
jurisdiction (Carrington vs. Peterson, 4 Phil. 134 [1905]).
As petitioner is now within the jurisdiction of the Court below, the question in regards to the
suspension of the Writ of habeas corpus has become irrelevant. Considering that the Writ is
never issuable to a Court (Nava v. Gatmaitan, 90 Phil. 172 [1951]), there should be no
justification in these cases to assail whatever has been said or resolved in Lansang v. Garcia, 42
SCRA 448 (1971). That particular matter could have been raised, procedurally, if petitioner had
not been charged with Rebellion before the Court below. Of course, it would then be for this
Court to give or not to give due course to the question. After all, habeas corpus is a
discretionary Writ (Engels vs. Amrine 155 Kan. 385, 125 P2d 379, cited in 39 Am. Jur. 2d, 269).
Or, that would be the occasion for the Court to express its present views in regards to Lansang-
Garcia. The Constitution is a living institution, and its interpretation and construction lives with
changing times and circumstances.
On the other hand, in reference to whether or not petitioner is entitled to bail in the rebellion
case, I believe that the proper procedure should be for petitioners to apply for bail before the
Court below, and after his motion is granted or denied, the matter can thereafter be elevated
to appellate consideration.
Once prosecuted in Court the position should not be taken that petitioner cannot be bailed, the
right to bail being a fundamental right except for those charged with capital offenses when
evidence of guilt is strong. The Constitution limited the suspension of the privilege of the writ
of habeas corpus to only one great right leaving the rest to remain forever inviolable (Ex parte
Milligan, 18 U.S. Law ed., 281, 297). The power of the Courts to grant bail cannot be curtailed if
the supremacy of the Judiciary within its own sphere is to be preserved. (Angara vs. Electoral
Commission 63 Phil. 139 [1936]; Fernandez Subido vs. Lacson, 2 SCRA 1054 [1961]).
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The reason for the objection to bail poses the same risk should the Court acquit petitioner. The
risk need not be taken by continuing the detention under the Presidential Commitment Order,
for a reasonable period, in the exercise of executive discretion by way of precaution essential
for the public safety. "Public danger warrants the substitution of executive process for judicial
process" (Moyer vs. Peabody, 53 Law, Ed., US 211-214, p.411).
MAKASIAR, J., concurring and dissenting:
I
I join Justices De Castro and Abad Santos in their opinion to abandon the Lansang doctrine and
to adhere to the doctrine in the Montenegro and Barcelon cases that determination by the
Chief Executive of the existence of invasion, rebellion, insurrection or imminent danger thereof
and that public safety requires it, for the suspension of the privilege of writ of habeas corpus
and for the proclamation of martial law, is a political question and therefore beyond the sphere
of judicial inquiry. In addition to the reasons advanced by Justices De Castro and Abad Santos, it
should be stressed that the prime responsibility for the preservation of the territorial integrity
and sovereignty of the Republic as well as its security, rests on the commander- in-chief and not
on the Judiciary. It is a classical truism that there is no power under the sun that is not
susceptible of abuse. Any abuse or any arbitrary exercise by the President as commander-in-
chief of his constitutional power to proclaim martial law or to suspend the privilege of the writ
of habeas corpus, can be repudiated or overruled by the people in the exercise of their
sovereign right of suffrage at the next election, and, pending the holding of the next election,
through their constitutional right of free expression to sway public opinion against such abuse
of power.
To repeat, only the Chief Executive is well-equipped with the intelligence services as
commander-in-chief to secure the desired information as to the existence of the requirements
for the proclamation of martial law or for the suspension of the privilege of the writ of habeas
corpus. The Supreme Court is bereft of such aids. This was clearly demonstrated at the
executive session during one of the hearings in the Lansang case where the lawyers for the
petitioners were present. Counsel for the petitioners had no means of rebutting the evidence
and information gathered by the military organization presented in said Lansang case before
this Court, which had to rely on such evidence and information submitted by the Armed Forces.
It was clearly an exercise in futility.
II
Corollary to the doctrine in the case of Aquino vs. Enrile (59 SCRA 183), which was re-affirmed
inGumaua vs. Espino (96 SCRA 402, 412), that the proclamation of martial law automatically
suspends the privilege of the writ of habeas corpus, the suspension of the privilege of the writ
of habeas corpus must necessarily include the suspension of the right to bail for crimes which
are grounds for the suspension of the privilege. This should be the ruling principle because, as
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well-stated by Mr. Justice De Castro, to release on bail persons indicted for rebellion or
insurrection would be to nullify the very purpose of the suspension of the privilege, which is
precisely to prevent them from continuing with the rebellion or insurrection or abetting the
same. The suspension of the privilege is precisely to restore tranquility and prevent the
shedding of blood by our own people, more than just insuring the safety of public and private
properties.
Executive process is as valid as judicial process. In the epigramatic language of Mr. Justice
Holmes:
... when it comes to a decision involving its (state) life, the ordinary rights of
individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for
judicial process. (See Kelly vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This
was admitted with regard to killing men in the actual clash of arms. And we think
it is obvious, although it was disputed, that the same is true to temporary
detention to prevent apprehended harm. (Moyer vs, Peabody, 212 U.S. 77.85. 53
L ed., 411, 417).
ABAD SANTOS, J., concurring and dissenting:
I concur in the result, i.e. in the dismissal of the petitions. This is as far as I can go because I
cannot give my assent to some of the statements made in the main opinion. My list is not
exhaustive but among them are the following:
1. I reject the doctrine laid down in Lansang vs. Garcia, 42 SCRA 448 [1971] that this Court "has
the authority to inquire into the existence of said factual bases [for the issuance of
Proclamations Nos. 889 and 889-A which suspended the privilege of the writ of habeas corpus]
in order to determine the constitutional sufficiency thereof." (At p. 473.) In other words, this
Court, on the urging of the petitioners, declared that it has the power to determine whether or
not the President acted arbitrarily in suspending the writ. In so doing, this Court did a complete
turnabout from Barcelon vs. Baker, 5 Phil, 87 [1905] and Montenegro vs. Castaneda, 91 Phil.
882 [1952] which enunciated the doctrine that the President's determination in suspending the
privilege of the writ of habeas corpus is final and conclusive upon the courts.
I submit that Barcelon and Montenegro laid down the correct doctrine. The Lansang doctrine is
based on naivete; it demonstrates a lack of contact with reality.
How can this Court determine the factual bases in order that it can ascertain whether or not
the President acted arbitrarily in suspending the writ when, in the truthful words
of Montenegro, "with its very limited machinery [it] cannot be in better position [than the
Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago?" (At p.
887.) The answer is obvious. It must rely on the Executive Branch which has the appropriate
civil and military machinery for the facts. This was the method which had to be used
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in Lansang. This Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court relied on the very branch of the
government whose act was in question to obtain the facts. And as should be expected the
Executive Branch supplied information to support its position and this Court was in no situation
to disprove them. It was a case of the defendant judging the suit. After all is said and done, the
attempt by this Court to determine whether or not the President acted arbitrarily in suspending
the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the
facts given to it by the Executive Branch) it in effect participates in the decision-making process.
It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an
unpopular act.
Lansang was an empty victory for the petitioners. They won a battle but lost the war. It could
be that this Court also lost something in the process. It raised expectations which it could not
fulfill.
2. I cannot accept the statement in paragraph 27 of the main opinion that "because the
privilege of the writ of habeas corpus remains suspended 'with respect to persons at present
detained as well as others who may hereafter be similarly detained for the crimes of
insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and for all
other crimes and offenses committed by them in furtherance of or on the occasion thereof, or
incident thereto, or in connection therewith', the natural consequence is that the right to bail
for the commission of the said offenses is also suspended."
In the instant case, the petitioners were arrested without warrant on April 21, 1982. However, a
Presidential Commitment Order was issued against them on April 23, 1982 and on July 20, 1982
(after the petitions for the writ of habeas corpus had been filed) the petitioners were charged
with rebellion before the Court of First Instance of Rizal in Criminal Case No. Q-21091.
Are they entitled to be released on bail if they so apply?
The ponente says that they have no right to bail because "To hold otherwise would defeat the
very purpose of the suspension" of the writ of habeas corpus. Another reason given to deny bail
is Letter of Instructions No. 1211 issued on March 9, 1982, which stipulates that "4. When
issued, the Presidential Commitment Order shall constitute authority to arrest the subject
person or persons and keep him or them under detention until ordered released by the
President or his duly authorized representative.
I submit that the petitioners are entitled to bail as a matter of right if they should apply for it.
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The nature of LOI No. 1211 has been raised. Does it have the force of law or is it a mere
directive to officers named therein, namely: The Minister of National Defense; The Chief of
Staff, Armed Forces of the Philippines; The Chief, Philippine Constabulary; The Chief, Criminal
Investigation Service; The Director-General, NISA; The Minister of Justice; The Director, National
Bureau of Investigation; and The Solicitor General. To me the nature of LOI No. 1211 is
irrelevant for the right to bail is guaranteed by a higher law-the Constitution.
The Constitution guarantees that "All persons, except those charged with capital offenses when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. Excessive
bail shall not be required. " (Art. IV, Sec. 18.) The penalty for rebellion is reclusion temporal.
Hence rebellion is a non-capital offense and the petitioners should be granted bail by the court
where their case is pending if they ask for it.
The suspension of the writ of habeas corpus and the fact that they are covered by a Presidential
Commitment Order are of no consequence. Since the respondents have elected to bring the
case of the petitioners to court, the court acquired complete jurisdiction over them. To say that
the court cannot grant them bail is to diminish the court's jurisdiction.
The eloquent words of Mr. Justice Pedro Tuason are completely relevant:
Under constitutional guarantee bail is a matter of right which no court or judge
could properly refuse in all cases beyond the exceptions specified in the
Constitution. The meaning of this fundamental provision is that a party accused
of any and every bailable offense shall have the inestimable privilege of giving
security for his attendance at court and shall not be imprisoned. (6 C.J. 893.)
The Constitution will be searched in vain for any provision that abridges this
right. Any argument in support of the contention that the suspension of the writ
of habeas corpus carries with it the suspension of the right to bail is, and has to
be, based on inference. I do not believe that the curtailment of the right to bail is
a normal, legal, or logical outcome of the suspension of the writ. The error, I am
inclined to believe, arises from a confusion of terms and misapprehension of the
principles underlying the suspension of the writ.
The purpose of the suspension of the writ is to enable the executive, as a
precautionary measure, to detain without interference persons suspected of
harboring designs harmful to public safety. (Ex Parte Simmerman, 132 F. 2d, 442,
446.) The Constitution goes no further. (Ex parte Milligan, 4 Wallace 2, 18 Law.
Ed. 281, 297.) If this is the purpose, the suspension can contemplate only cases
which, without the suspension, are open to interference; such cases are arrests
and detentions by the executive department. Since the suspension of the writ is
designed to prevent the issuance of this extraordinary remedy, and since the
writ issues from the courts but never to the courts, it necessarily follows that
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arrests and detentions by order of the courts are outside the purview of the
constitutional scheme.
As stated, the theory of the prosecution stems from a misconception of the ends
pursued by the suspension of the writ. If it is to have any color of validity, this
theory must assume that the Constitution directs positive action to be taken,
orders arrests and detentions to be made. Unfortunately or fortunately, the
Constitution does not do so. The intent of the Constitution in authorizing the
suspension of the writ of habeas corpus is no other than to given the authorities
a free hand in dealing with persons bent on overthrowing the Government. The
effects of the suspension are negative, not positive; permissive, not mandatory
nor even directory. By the suspension, arrests and detentions beyond the period
allowed under normal circumstances are tolerated or legalized. The Constitution
is not in the least concerned with the disposition of persons accused of rebellion
or insurrection, whether or how long they should be kept in confinement, or
whether they should be set at large. In the nature of the governmental set-up
under the Constitution, their immediate fate is left to the discretion, within
reasonable and legal limits, of the proper department.
With these distinctions in mind, the query is, on what department of
Government is entrusted the prerogative of deciding what is to be done with the
prisoners charged with or suspected of rebellion or insurrection? The answser, as
I shall endeavor presently to explain, is either the executive or the Court,
depending on who has jurisdiction over them.
All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the courts to keep their
hands off-unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter.
By the same token, if and when formal complaint is presented, the court steps in
and the executive steps out. The detention ceases to be an executive and
becomes a judicial concern. Thereupon the corresponding court assumes its role
and the judicial process takes its course to the exclusion of the executive or the
legislative departments. Henceforward, the accused is entitled to demand all the
constitutional safeguards and privileges essential to due process. 'The
Constitution does not say that he shall be tried otherwise than by the course of
common law.' (Ex parte Milligan, ante, 297.) The Bill of Rights, including the right
to bail and the right to a fair trial, are unaffected by the suspension of the writ of
habeas corpus. The Constitution 'suspended one great right and left the rest to
remain forever inviolable. (Ex parte Milligan, ante, 297.) (Nava et al vs.
Gatmaitan 90 Phil. 172, 202-205 [1951].)
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It should be stated that Chief Justice Ricardo Paras and Justices Cesar Bengzon, Alex Reyes and
Fernando Jugo shared the above opinion of Justice Tuason. Incumbent Chief Justice Enrique M.
Fernando expressed the same opinion in Lansang.
It is also said that the view "if and when a formal complaint is presented, the court steps in and
the executive steps out," will tend to induce the executive to refrain from filing formal charges
as long as it may be possible. (See opinion of Chief Justice Concepcion in Lansang, op. cit. on p.
494.) The answer has long been given by this Court in Teehankee vs. Rovira, 75 Phil. 634 (1954)
as follows:
This constitutional mandate [on the right to bail] refers to all persons not only to
persons against whom a complaint or information has already been formally
filed. It lays down the rule that all persons shall before conviction be bailable
except those charged with capital offenses when evidence of guilt is strong.
According to this provision, the general rule is that any person, before being
convicted of any criminal offense, shall be bailable, except when he is charged
with a capital offense and the evidence of his guilt is strong, Of course, only
those persons who have been either arrested, detained or otherwise deprived of
their liberty will ever have occasion to seek the benefits of said provision. But in
order that a person can invoke this constitutional precept, it is not necessary
that he should wait until a formal complaint or information is filed against him.
From the moment he is placed under arrest, detention or restraint by the
officers of the law, he can claim this- guarantee of the Bill of Rights, and this right
he retains unless and until he is charged with a capital offense and evidence of
his guilt is strong. Indeed if, as admitted on all sides, the precept protects those
already charged under a formal complaint or information, there seems to be no
legal or just reason for denying its benefits to one as against whom the proper
authorities may even yet conclude that there exists no sufficient evidence of
guilt. To place the former in a more favored position than the latter would be, to
say the least, anomalous and absurd. If there is a presumption of innocence in
favor of one already formally charged with criminal offense (Constitution, Article
III, Section 1[17], a fortiori, this presumption should be indulged in favor of one
not yet so charged, although already arrested or detained." (At pp. 640-64 1.)
What I have said above about the right of an accused to bail in non-capital cases applies mutatis
mutandis to a person accused of a capital offense if the evidence of his guilt is not strong to be
determined after a hearing as provided in the Rules of Court: "Sec. 7. Capital offense-Burden of
proof. -On the hearing of an application for admission to bail made by any person in custody for
the commission of a capital offense, the burden of showing that evidence of guilt is strong is on
the prosecution. ..." (Rule 114.)
Addendum to concurring and dissenting opinion:
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Long after I had written my separate opinion in the above-entitled cases, the newspapers
reported the arrest of Mayor Aquilino Pimentel of Cagayan de Oro City on grounds of national
security. It was said that the arrest of Mayor Pimentel was effected pursuant to a Presidential
Commitment Order (PCO).
It was also reported that Msgr. Patrick Cronin Archbishop of Cagayan de Oro City, requested
President Ferdinand E. Marcos to lift the PCO because Pimentel was innocent of any wrong-
doing.
The issues dated April 20, 1983, of Bulletin Today, Daily Express and Times Journal all report
that President Marcos denied the request of Archbishop Cronin because he had no power to
release Pimentel who was arrested and charged before a Regional Trial Court in Cebu City on
very strong evidence that he provided arms, funds, and sanctuary to subversives.
President Marcos is reported to have told Msgr. Cronin
The disposal of the body of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City, and not within the
powers of the President.
It should be recalled the main opinion holds that the petitioners herein cannot be granted bail
by the court where they stand charged with the crime of rebellion because to hold otherwise
would defeat the very purpose of the suspension of the writ of habeas corpus and also because
under LOI No. 1211, the release of persons arrested pursuant to a PCO can be effected only by
order of the President or his duly authorized representative. And it should be noted that every
PCO has the following operative last paragraph:
I, therefore, hereby order the arrest and detention of the abovenamed persons
until the final disposition/termination of their cases unless sooner ordered
released by me or by my duly authorized representative.
And yet in the case of Mayor Pimentel who was arrested by virtue of a PCO, the President no
less said that the power to release Pimentel "as any lawyer will inform you," is not his but of the
Regional Trial Court of Cebu City.
I am happy to be counted among the "any lawyer" mentioned by President Marcos for I believe,
as I have stated in my separate opinion, that the petitioners herein are entitled to bail after
they were charged in court with rebellion because "the court steps in and the executive steps
out."
DE CASTRO, J., concurring and dissenting:
I concur in the dismissal of the petition. It is my considered opinion, as I have set forth in
my ponenciain the case for Habeas Corpus-Josefina Garcia, petitioner, G.R. No. 61388,
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hereafter referred to as the Parong case, that when a person is arrested by virtue of a PCO or a
PCO is issued after his arrest effected without warrant or with one issued by court, his
detention becomes one without right to bail, even after charges have been filed against him in
court. This is so because, under the circumstance that the rebellion is still continuing, perhaps
with greater intensity, a captured or arrested rebel, or one in conspiracy with the rebels by acts
in pursuance or in furtherance of the rebellion, is not arrested and detained with a view to his
immediate prosecution. It is more for the purpose of detaining him as a military measure to
suppress the rebellion. The suspension of the privilege of the writ of habeas corpus has the
effect of deferring trial for certain specified crimes during the existence of the emergency, as I
stated, citing legal writers and publicists,
1
in the aforecited case of Parong, et al.
The reason is that a person cannot be prosecuted for a crime the commission of which has not
yet come to an end as in the case of the existing rebellion. A person who kills another can and
should immediately be prosecuted, because the killing itself constitutes the termination of the
commission of the crime, as is generally true with the common statutory offenses. But a rebel,
even when already captured or arrested and placed under detention, by reason of conspiracy
with the rebels and their co-conspirators who are free, continues in a state of committing the
crime of rebellion which is a continuing offense. If immediately prosecuted and by virtue
thereof, allowed to be released on bail, the crime of rebellion being bailable, the detainee
would certainly join his comrades in the field to the jeopardy of government efforts to suppress
the rebellion, which is the rationale for the President being constitutionally empowered to
suspend the privilege of habeas corpus in case of invasion, rebellion or insurrection, even mere
imminent danger thereof, when public safety so requires. The President, however, may order
the filing of charges in court and trial thereof forthwith held, or even release on bail, as his best
judgment will dictate to him. But this is for the President alone to decide, without interference
from the courts, he being in the exercise of his military power.
It is for this reason that I dissent from the majority opinion insofar as it would reiterate the
doctrine of the Lansang case, being of the view that the earlier doctrine in the case of Barcelon
vs. Baker and Montenegro vs. Castaneda which was superseded by the Lansang doctrine should
be reverted to, as the more practical and realistic ruling, and more in consonance with the
grant by the Constitution to the President of the power to suspend the privilege of the writ of
habeas corpus in the case of the contingencies mentioned in the Constitution. Such power
could be easily rendered nugatory if interference by the Supreme Court were allowed as when
it is given the power of judicial review over the exercise of this particular presidential power.
The doctrine of "political question" comes in to make it improper for the power of judicial
review to be exercise by the said Court, which doctrine renders the exercise of the presidential
power referred to non-justiciable. Justiciability of the controversy is the basic requirement for
the exercise of the power of judicial review.
Moreover, the Lansang doctrine could easily be viewed as discriminatory against our incumbent
President whose proclamation suspending the privilege of habeas corpus was held subject to
judicial review, where similar proclamations of former Chiefs Executive, Governor General
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Wright and President Quirino, were held binding and conclusive upon the courts and all other
persons. If this is so, as it can be safely surmised that the incumbent President cannot but feel
discriminated against with the pronouncement of the Lansang doctrine, rectification is called
for. Needless to state, I am one with Justice Abad Santos in his vigorous dissent against the
reiteration of the Lansang doctrine as proposed in the majority opinion in the instant case.
In the Parong case (G.R. No. 61388), I stated, inter alia, the following:
In times of war or national emergency, the legislature may surrender a part of its
power of legislation to the President. Would it not be as proper and wholly
acceptable to lay down the principle that during such crises, the judiciary should
be less jealous of its power and more trusting of the Executive in the exercise of
its emergency powers in recognition of the same necessity? Verily, the existence
of the emergencies should be left to President's sole and unfettered
determination. His exercise of the power to suspend the privilege of the writ of
habeas corpus on the occasion thereof, should also be beyond judicial review,
Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions,
sounds good in theory but impractical and unrealistic, considering how well-nigh
impossible it is for the courts to contradict the finding of the President on the
existence of the emergency that gives occasion for the exercise of the power to
suspend the privilege of the writ. For the Court to insist on reviewing Presidential
action on the ground of arbitrariness may only result in a violent collision of two
jealous powers with tragic consequences, by all means to be avoided, in favor of
adhering to the more desirable and long-tested doctrine of "political question" in
reference to the power of judicial review."
Indeed, while the Supreme Court is said to be the Guardian of the Constitution, not all
questions arising therefrom may be brought to it for judicial review as to whether a
constitutional violation has been committed. The power of the President as the defender of the
State has to be granted by the Constitution, for how else could such power be granted except
by the instrument which is the repository of the sovereign will of the people. But certainly, the
exercise of such power of defending the Nation is not to be subordinated to that of the
Supreme Court acting as Guardian of the Constitution, for of what use is it to preserve the
Constitution if We lose the Nation?
TEEHANKEE, J., dissenting:
The bench and bar and law scholars and students are in debt to the writer of the main opinion,
Mr. Justice Concepcion, Jr., for his thorough and perceptive restatement of the constitutional
and basic human rights of accused persons and detainees. The main opinion spotlights the
grievances that persons detained or charged for the crimes of insurrection, rebellion,
subversion, conspiracy or proposal to commit such crimes invariably bring to this Court. They
complain, as petitioners do here, of being arrested without any warrant of arrest; of being kept
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in isolation and being denied of their constitutional right to counsel and to silence; of prolonged
detention without any charges; of having been subjected to maltreatment and torture; and of
their counsel and families undergoing great difficulties in locating or having access to them.
The State through the Solicitor General on the other hand invariably denies all such charges and
submits affidavits of the arresting officers and detention custodian that detainees are afforded
decent and humane treatment, further countering that such claims are merely calculated to
arouse sympathy and as propaganda against the Government and its institutions.
Upon the filing of the petition at bar on July 13, 1982, the Court, in issuing the writ of habeas
corpus, Resolved "to allow counsel for petitioner to visit and confer with the detainee in an
atmosphere of confidentiality, consistent with reasonable security measures which
respondents may impose." At the hearing held on July 22, 1982, the Court granted petitioner's
plea for reinvestigation of the charges and to "appoint the (Quezon) City Fiscal to act as
Commissioner of the Court and receive evidence of the charges made by petitioners before this
Court of alleged torture and violation of their constitutional rights, particularly the right to
counsel." The City Fiscal in due time submitted his report on the reinvestigation, affirming the
existence of a prima facie case for rebellion against petitioner. In February this year, he
submitted the voluminous transcript of the proceedings held before him and the evidence
submitted to him without comment or recommendation on petitioner's charges of alleged
torture and violation of constitutional rights. The "material and relevant" charges have not
been taken up nor deliberated upon by the Court, but apparently will no longer be resolved by
the, Court, as was expected at the time, since the main opinion directs now that "they should
be filed before the body which has jurisdiction over them."
1
On my part, I believe that the
Court should go over the transcript and make some authoritative pronouncements on the
charges at least of violation of petitioners' right to counsel.
I. The vital problem is to assure the enjoyment of such constitutional and basic human rights of
the persons arrested, detained or charged, be they mere dissenters, subversives or hardened
criminals. As observed in the main opinion, this is what distinguishes our country as a
republican and democratic state from those arrested in totalitarian states who have no rights to
speak of. This Court stands as the guarantor of the constitutional rights of all persons within its
jurisdiction and must see to it that the rights are respected and not treated as paper rights.
These are the great rights guaranteed in the Bill of Rights (Article IV) of the Constitution:
The right against unreasonable searches and seizures and arbitrary arrest:
Sec. 3. The right of the people to be secure in their persons, houses, papers, and
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seized.
The right to due process and equal protection of law:
Sec. 1. No person shall be deprived of life, liberty, or property without due
xxx xxx xxx
Sec. 17. No person shall be held to answer for a criminal offense without due
process of law.
The right of free association:
Sec. 7. The right to form associations or societies for purposes not contrary to
law shall not be abridged.
Freedom of speech and press and assembly and petition:
Sec. 9. No law shall be passed abridging the freedom of speech, or of the press,
or the right of the people peaceably to assemble and petition the Government
for redress of grievances.
The great writ of liberty:
Sec. 15. The privilege of the writ of habeas corpus shall not be suspended except
in cases of invasion, insurrection, rebellion, or imminent danger thereof, when
the public safety requires it.
The right to bail:
Sec. 8. All persons, except those charged with capital offenses when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient sureties.
Presumption of innocence and Rights of speedy and impartial trial and confrontation:
Sec. 19. In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the
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production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustified.
The right to counsel and silence.
Sec. 20n No person shall be compelled to be a witness against himself. Any
The main opinion deals with the scope and extent of these rights and a number of passages
bears emphasis and reiteration, as follows:
The arresting officers, upon making the arrest, must inform the subject of the reason for the
arrest and show him the warrant of arrest, if any. They must inform him of his constitutional
rights to remain silent and to counsel. They must respect his right to communicate with his
lawyer. No custodial investigation shall be conducted unless it be in the presence of his counsel.
The right to counsel may be waived knowingly and intelligently and for such reason the waiver
should be recognized only if made with the assistance of counsel. The detainee's right to confer
with counsel at any hour of the day, alone and privately, should be respected.
Care should be exercised in making an arrest without a warrant. Where there is
no justification for the arrest, the public officer could be criminally liable for
arbitrary detention (under Article 124, Revised Penal Code) or unlawful arrest
(under Article 269, Idem) or for some other offense.
2

Furthermore, we hold that under the judicial power of review and by
constitutional mandate, in all petitions for habeas corpus the court must inquire
into every phase and aspect of petitioner's detention-from the moment
petitioner was taken into custody up to the moment the court passes upon the
merits of the petition. Only after such a scrutiny can the court satisfy itself that
the due process clause of our Constitution has in fact been satisfied.
The submission that a person may be detained indefinitely without any charges
and the courts cannot inquire into the legality of the restraint goes against the
spirit and letter of the Constitution and is contrary to the basic precepts of
human rights and a democratic society.
3

However, there is a difference between preventive and punitive imprisonment.
Where the filing of charges in court or the trial of such charges already filed
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becomes protracted without any justifiable reason, the detention becomes
punitive in character and the detainee regains his right to freedom.
4

II. Respondents' return in these cases, in asserting that "the allegations that petitioners have
been denied their right to counsel are not true. They simply did not ask for one, " disregards the
consistent injunction of the Court and of the law that the detainees need not bear the burden
of asking for counsel but should be informed of their right to counsel. The return's assertion
that "petitioners also waived the assistance of counsel during the investigation of their cases"
also falls short of the requirement that such waiver be made with the assistance of counsel to
assure the validity thereof.
The late Chief Justice Fred Ruiz Castro, in maintaining in his dissenting opinion in Magtoto vs.
Manguera
5
that the 1973 constitutional ban on uncounselled confessions should operate
retrospectively to June 15, 1954 when Republic Act 1083 (amending Article 125 of the Revised
Penal Code) was enacted recognizing the right of a detained person to counsel in any custodial
inquest, and not prospectively only as to such confessions obtained after the effectivity of the
1973 Constitution, stressed anew that it is "the obligation on the part of any detaining officer to
inform the person detained of his right to counsel before the very inception of custodial
inquest." He enjoined us eloquently that "(I) hold no brief against custodial interrogation per se.
But I do entertain mortal fear that when a detained person is subjected, without the assistance
of counsel, to custodial interrogation by peace officers, official lawlessness could be the rule
and not the exception. Witness the innumerable cases in the annals of adjudication where this
Court has set at naught and declared inadmissible confessions obtained from detained persons
thru official lawlessness. It is a verity in the life of our nation that people without influence and
without stature in society have, more often than not, been subjected to brutal and brutalizing
third-degree methods, if not actually framed, by many police agencies in this country. Instead
of blinking our eyes shut to this reality, we must recognize it for what it is, (and) I am
completely conscious of the need for a balancing of the interests of society with the rights and
freedoms of the individual. I have advocated the balancing-of-interests rule in all situations
which call for an appraisal of the interplay of conflicting interests of consequential dimensions.
But I reject any proposition that would blindly uphold the interests of society at the sacrifice of
the dignity of any human being," and echoed Justice Douglas' aphorism that the rights of none
are safe unless the rights of all are protected.
In the recent case of Sobremonte vs. Enrile,
6
the Court did not rule on the therein detailed
assertions of maltreatment of the detainee, stating only that "redress for the alleged violation
of Socorro's constitutional rights may be secured through appropriate civil, criminal or
administrative charges."
7
The case was dismissed for having become moot with the detainee's
release from detention upon her filing the recommended P l,000.00-bail bond. But the Court
decried that "all the effort, energy and manhours expended by the parties and their counsel,
including this Court, ... could have been avoided had the officers of the AVSECOM and the ISAFP
responded promptly to the inquiries of petitioner instead of giving her the 'run-round' by
referring her from one office to another."
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III. I join Mr. Justice Abad Santos' stand that notwithstanding the suspension of the privilege of
the writ of habeas corpus and the issuance on March 9, 1982 of Letter of Instruction No. 1211
that the Presidential Commitment Order (PCO) constitutes authority to keep the subject person
under detention "until ordered released by the President or his duly authorized
representative," the higher and superior mandate of the Constitution guarantees the right to
bail and vests the courts with the jurisdiction and judicial power to grant bail which may not be
removed nor diminished nor abdicated. We cannot but so hold, if we are to be true to the
fundamental precept that "The Constitution is a law for rulers and for people equally in war and
in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances. "
The argument that otherwise the purpose of the suspension of the privilege would be defeated
ignores the overwhelming capability of the State and its military and police forces to keep
suspects under surveillance and the courts' imposition of reasonable conditions in granting bail,
such as periodic reports to the authorities concerned, and prohibiting their going to certain
critical areas.
In my dissenting opinion in Buscayno vs. Military Commission,
8
Ireiterated my adherence to the
majority holding in the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs.
Montesa
9
(although it failed one vote short of the required majority of six affirmative votes at
the time) as expounded by then Chief Justice Ricardo Paras and Associate Justice (later Chief
Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes and Fernando Jugo that
after formal indictment in court by the filing against them of an information charging rebellion
with multiple murder, etc., accused persons covered by the proclamation of suspension of the
privilege of the writ of habeas corpus are entitled to the right to bail. As stressed by then Chief
Justice Ricardo Paras. "(T)he right to bail, along with the right of an accused to be heard by
himself and counsel, to be informed of the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses in his behalf (Article III, Section 1, Paragraph 17,
of the Constitution), tends to aid the accused to prove his innocence and obtain acquittal. If it
be contended that the suspension of the privilege of the writ of habeas corpus includes the
suspension of the distinct right to bail or to be provisionally at liberty, it would a fortiori imply
the suspension of all his other rights (even the rights to be tried by a court) that may win for
him ultimate acquittal and, hence, absolute freedom. The latter result is not insisted upon for
being patently untenable, "
Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the
right to bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of
the framers of the Constitution was that the suspension of the privilege of the writ of habeas
corpus carries or implies the suspension of the right to bail, they would have very easily
provided that all persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong and except when the privilege of
the writ of habeas corpus is suspended. As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18
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L. ed. 297, the Constitution limited the suspension to only one great right, leaving the rest to
remain forever inviolable."
10
It is noteworthy and supportive of the prevailing stand since 1951
that the other great constitutional rights remain forever inviolable since the Constitution
limited the suspension to only one great right (of the privilege of the writ of habeas corpus),
that there has been no amendment of the Constitution to curtail the right to bail in case of such
suspension notwithstanding the numerous constitutional amendments adopted after the 1973
Constitution.
The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State
would be jeopardized by the release of the defendants on bail, the answer is that the existence
of danger is never a justification for courts to tamper with the fundamental rights expressly
granted by the Constitution. These rights are immutable, inflexible, -yielding to no pressure of
convenience, expediency or the so-called 'judicial statesmanship.' The Legislature itself cannot
infringe them, and no court conscious of its responsibilities and limitations would do so. If the
Bill of Rights are incompatible with stable government and a menace to the Nation, let the
Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the
courts of justice as the repository of civil liberty are bound to protect and maintain undiluted
individual rights."
11

And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days
by men of goodwill that respect for constitutional and human rights and adherence to the rule
of law would help in the fight against rebellion and movement for national reconciliation, thus:
"And in my opinion, one of the surest means to ease the uprising is a sincere demonstration of
this Government's adherence to the principles of the Constitution together with an impartial
application thereof to all citizens, whether dissidents or not. Let the rebels have no reason to
apprehend that their comrades now under custody are being railroaded into Muntinglupa,
without benefit of those fundamental privileges which the experience of the ages has deemed
essential for the protection of all persons accused of crime before the tribunal of justice. Give
them the assurance that the judiciary, ever mindful of its sacred mission, will not, thru faulty or
misplaced devotion, uphold any doubtful claims of Governmental power in diminution of
individual rights, but will always cling to the principles uttered long ago by Chief Justice
Marshall that when in doubt as to the construction of the Constitution, 'the Courts will favor
personal liberty.'"
12

IV. The most authoritative pronouncement in regard to the courts' judicial power to grant the
constitutional right to bail is of course none other than the President's himself. In all the
metropolitan newspapers of April 20, 1983, the President is reported to have "said that
Pimentel has been charged with rebellion before the regional trial court of Cebu City and is
therefore under the jurisdiction of the civil court and not only under the jurisdiction of the
military by virtue of the PCO " In a telegram in reply to the appeal of Msgr. Patrick Cronin,
Archbishop of Cagayan de Oro and Misamis Oriental, for lifting of the PCO on Mayor Aquilino
Pimentel of Cagayan de Oro City, the President said that "(T)he disposal of the body of the
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accused, as any lawyer will inform you, is now within the powers of the regional trial court of
Cebu City and not within the powers of the President."
The statement of the now Chief Justice in his separate opinion in Gumaua vs. Espino
13
referring
to his earlier concurring and dissenting opinion in Aquino vs. Military Commission No. 2,
14
is
most relevant, mutatis mutandis, thus: " 'Were it not for the above mandate of the Transitory
Provisions [Article XVII, section 3, par. (2), 1973 Constitution], the submission of petitioner as to
a military commission being devoid of jurisdiction over civilians elicits approval. The controlling
principle, to my mind, is that supplied in the opinion of the United States Supreme Court
in Duncan v. Kahanamoku [327 U.S. 304, 322 (1946)], a decision impressed with the greatest
relevance inasmuch as it interpreted the specific section found in the Hawaiian Organic Act,
which was also a feature of the Philippine Autonomy Act, the source of the martial law
provision in the 1935 Constitution.' As was pointed out in the Duncan opinion penned by Justice
Black: 'Courts and their procedural safeguards are indispensable to our system of government.
They were set up by our founders to protect the liberties they valued. Ex parte Quirin, supra,
317 U.S. at page 19, 63 S. Ct. at page 6, 87 L. Ed. 3. Our system of government clearly is the
antithesis of total military rule and the founders of this country are not likely to have
contemplated complete military dominance within the limits of a Territory made part of this
country and not recently taken from an enemy. They were opposed to governments that placed
in the hands of one man the power to make, interpret and enforce the laws. Their philosophy
has been the people's throughout the history. For that reason we have maintained legislatures
chosen by citizens or their representatives and courts and juries to try those who violate
legislative enactments. We have always been especially concerned about the potential evils of
summary criminal trials and have guarded against them by provisions embodied in the
constitution itself.' ... The phrase 'martial law' as employed in that Act, therefore, while
intended to authorize the military to act vigorously for the maintenance of an orderly civil
government and for the defense of the island against actual or threatened rebellion or invasion,
[it] was not intended to authorize the supplanting of courts by military courts."
V. The courts, and ultimately the Supreme Court, are therefore called upon to review all such
cases and the accused's right to bail, pending trial and conviction or acquittal, on a case by case
basis. The courts with their procedural safeguards are then called upon to apply the
Constitution and the Law and to grant bail for clearly bailable (non-capital) offenses and in
capital offenses to determine whether or not evidence of guilt is strong, in consonance with
guidelines laid down by the Supreme Court, as in the leading case of Montano vs.
Ocampo
15
(involving Senator Montano who was charged with multiple murders and frustrated
murders), as follows:
Brushing aside the charge that the preliminary investigation of this case by the
aforesaid Judge was railroaded, the same having been conducted at midnight, a
few hours after the complaint was filed, we are of the opinion that, upon the
evidence adduced in the application for bail in the lower court, as such evidence
is recited lengthily in the present petition and the answer thereto, and
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extensively analyzed and discussed in the oral argument, there is not such clear
showing of guilt as would preclude all reasonable probability of any other
conclusion.
Exclusion from bail in capital offenses being an exception to the otherwise
absolute rightguaranteed by the constitution, the natural tendency of the courts
has been toward a fair and liberal appreciation rather than otherwise, of the
evidence in the determination of the degree of proof and presumption of guilt
necessary to warrant a deprivation of that right.
Besides, to deny bail it is not enough that the evidence of guilt is strong; it must
also appear that in case of conviction the defendant's criminal liability would
probably call for a capital punishment. No clear or conclusive showing before this
Court has been made.
In the evaluation of the evidence the probability of flight is one other important
factor to be taken into account. The sole purpose of confining accused in jail
before conviction, it has been observed, is to assure his presence at the trial. In
other words, if denial of bail is authorized in capital cases, it is only on the theory
that the proof being strong, the defendant would flee, if he has the opportunity,
rather than face the verdict of the jury. Hence, the exception to the fundamental
right to be bailed should be applied in direct ratio to the extent of the probability
of evasion of prosecution.
The possibility of escape in this case, bearing in mind the defendant's official and
social standing and his other personal circumstances, seems remote if not nil.
As editorially commented in one daily,
16
"(T)he danger, however, lies in the possibility that
such means (PCO's) may not always be employed judiciously. In issuing a PCO the President in
most cases must rely on field reports and recommendations filed by his subordinates, usually
the military and the intelligence community. No one can totally dismiss the possibility that the
President may be fed with false information in some instances. The consequences of such an
error can only aggravate further the country's security problems." When such cases occur and
executive relief is not obtained, the courts provide the means of securing redress from
erroneous or wrongful arrests and detentions, and at the very least, as shown from past
experience, serve as the means for bringing the matter to the President's attention and
securing the needed relief.

Separate Opinions
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FERNANDO, C.J., concurring:
concurring in the dismissed of the petitions, expressing conformity with the reiteration of the
doctrine announced in Lansang v. Garcia, and dissenting on the question of the right to bail
which for him may be invoked whenever allowable under the Constitution:
Let me make clear at the outset that I limit myself to a concurrence in the dismissal of the
petitions, expressing conformity with the reiteration of the doctrine in Lansang v. Garcia,
1
and a
dissent on the question of the right to bail during a period of suspension of the privilege of the
writ of habeas corpus, which for me may be invoked whenever allowable under the
Constitution, a stand I took both as counsel in Hernandez v. Montesa
2
and thereafter as a
member of the Court in Lansang v. Garcia,
3
Buscayno v. Enrile,
4
and Garcia-Padilla v. Ponce
Enrile.
5
This is by no means to indicate lack of due recognition of the intensity of conviction and
lucidity of expression so evident in the exhaustive opinion of Justice Concepcion Jr. It is merely
to adhere to the norm of limiting myself to an appraisal of the constitutional rights invoked
insofar as they have a bearing on these petitions.
6
Hence this separate expression of my views.
1. The first paragraph of the decisions of this Court is worded as follows: "The petitions are
without merit and are hereby DISMISSED."
7
I am in full agreement. The authoritative doctrine
followed by this Court in accordance with well-settled jurisprudence is that the moment it can
be shown that the persons detained are being held in lawful custody by virtue of a judicial
process, then an application of the privilege of the writ of habeas corpus cannot succeed.
8

2. There is equally to my mind no question about the validity as a legal proposition of paragraph
4 of the opinion, which speaks of the Philippines being "a republican state. Sovereignty resides
in the people and all government authority emanates from them. We have a Constitution
framed by a constitutional convention and duly ratified by the people. We subscribe to the rule
of law. We believe in human rights and we protect and defend them. Petitioners are entitled to
the full enjoyment of all the rights granted to them by law. And this Court stands as the
guarantor of those rights."
9
This Court in normal times as well as under emergency conditions
has displayed fealty to human rights, as protected and safeguarded by the Constitution. It is a
matter of legitimate pride that even under the 1935 Charter, the Philippines has accorded full
recognition not only to the traditional civil and political rights but to social and economic rights.
The autonomy of the human personality and the assurance of his dignity are a matter of deep
public concern. It is equally a matter of legitimate pride that during the period of martial law,
with fun recognition of the power of the government to maintain peace and order and preserve
its authority, the judiciary, was not recreant to such a trust.
10
For the entire judiciary, not only
this Court, stands as a guarantor of those rights. It does so when it has to act in a proper case
submitted to it. The political branches are equally, to my mind, guarantors of human rights; the
Batasan Pambansa in the enactment of laws and the President in their enforcement whether
through executive orders implementing them or the issuance of decrees having the force and
effect of law. In the sense, however, that decisions coming from this Court have not merely
an inter-partes but an erga omneseffect, binding not only the litigants but also others finding
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themselves similarly situated, it is quite accurate to state that "this Court stands as a guarantor
of those rights."
3. It is by virtue of the respect for constitutional rights that in the resolutions of this Court in
both applications for the writ, it was made clear that counsel of petitioners can visit them and
confer with them in an atmosphere of confidentiality consistent with reasonable security
measures to be imposed by respondents.
11
Again, it is by virtue of deference to the
Constitution that in succeeding resolutions, their allegations as to other instances of violation of
their rights were referred for investigation to the City Fiscal of Quezon City.
12

4. Paragraphs 5 to 19 of the opinion of the Court elaborate further on the matter. They are
notable for the concern shown for constitutional rights, with full recognition of the power of
the state to deal effectively with rebellion or subversion. I view the matter similarly. The same
thought was given expression in Lansang v. Garcia.
13
In the memorable language of Chief
Justice Concepcion: "Manifestly, however, the liberty guaranteed and protected by our Basic
Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and,
hence, within the framework of the social order established by the Constitution and the context
of the Rules of Law. Accordingly, when individual freedom is used to destroy that social order,
by means of force and violence, in defiance of the Rule of Law-such as rising publicly and taking
arms against the government to overthrow the same, thereby committing the crime of
rebellion there emerges a circumstance that may warrant a limited withdrawal of the
aforementioned guarantee or protection, by suspending the privilege of the writ of habeas
corpus, when public safety requires it. Although we must be forewarned against mistaking
mere dissent-no matter how emphatic or intemperate it may be-for dissidence amounting to
rebellion or insurrection, the Court cannot hesitate, much less refuse-when the existence of
such rebellion or insurrection has been fairly established or cannot reasonably be denied-to
uphold the finding of the Executive thereon, without, in effect, encroaching upon a power
vested in him by the Supreme Law of the land and depriving him, to this extent, of such power,
and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the
Court is called upon to epitomize."
14

5. In the opinion of Justice Concepcion Jr., paragraph 21 explicitly states: "We reiterate this
doctrine." There is thus a reaffirmance of the ruling in Lansang cited in paragraph 20 to the
effect that the suspension of the privilege of the writ raises a judicial rather than a political
question. I am in complete agreement. That was the point of my dissent in the recently decided
case of Garcia-Padilla v. Enrile.
6. There is also on my part conformity with the view set forth in paragraph 22 that "in all
petitions forhabeas corpus the court must inquire into every phase and aspect of petitioner's
detention-from the moment petitioner was taken into custody up to the moment the court
passes upon the merits of the petition."
15

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7. I am in agreement with the view expressed in paragraph 23 that there can be no indefinite
detention without charges being filed. It must be recognized, however, that in cases of invasion,
rebellion and insurrection, or imminent danger thereof, the power of preventive detention is
recognized by the Constitution, considering that when public safety requires, the privilege of
the writ of habeas corpus may be suspended or martial law, as a last resort, declared. I had
occasion to speak on the matter in my separate opinion in Garcia-Padilla v. Enrile, where I
stated that when the stage of punitive detention is reached, there can be reliance on the writ of
habeas corpus.
16

8. The next five paragraphs deal with the right to bail. Paragraph 24 correctly noted: "Next to
life, man loves his freedom." In the next paragraph reference is made of the presumption of
innocence and then of the constitutional right to bail, after which it was noted in paragraph 26
that under Presidential Proclamation No. 2045 lifting martial law, the privilege of the writ of
habeas corpus "continues to be suspended in the two autonomous regions in Mindanao and in
all other places with respect to certain offenses," namely "the crimes of insurrection or
rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes
and offenses committed by them in furtherance of or on the occasion thereof, or incident
thereto, or in connection therewith." Paragraph 27 reaches the heart of the matter, the main
opinion laying down the principle that due to the privilege of the writ of habeas corpus remain
suspended, "the natural consequence is that the right to bail for the commission of anyone of
the said offenses is also suspended. To hold otherwise would defeat the very purpose of the
suspension. Therefore, where the offense for which the detainee was arrested is anyone of the
said offenses he has no right to bail even after the charges are filed in court." Paragraph 28 sets
forth the ratio decidendi: "The crimes of rebellion, subversion, conspiracy or proposal to
commit such crimes, and crimes or offenses committed in furtherance thereof or in connection
therewith constitute direct attacks on the life of the State." Then an analogy is made in the next
paragraph in this wise: "Just as an individual has a right to self-defense when his life is
endangered, so does the State. The suspension of the privilege of the writ is to enable the State
to hold in preventive imprisonment pending investigation and trial those persons who plot
against it and commit acts that endanger the State's very existence. For this measure of self-
defense to be effective, the right to bail must also be deemed suspended with respect to these
offenses." With respect, I dissent. It is not necessary to repeat what I said right at the beginning
of this opinion why I am unable to agree to the proposition that the suspension of the privilege
of the writ carries with it the suspension of the right to bail. Nor is there need to quote from my
concurring and dissenting opinions both in the Lansang and the Garcia-Padilla cases. Briefly put,
my perception of the matter traces itself to what was said in the landmark Milligan decision
where the American Supreme Court said that only one great right may be suspended "leaving
all the rest forever inviolable."
17
This is not to ignore the practical consideration set forth in the
opinion of retired Chief Justice Concepcion in Lansang that militates against my approach. First
he aptly summarized it in the words of Justice Tuason in Henandez, "if and when formal
complaint is presented, the court steps in and the executive steps out."
18
After which came this
portion of the opinion of the then Chief Justice: "From a long-range viewpoint, this
interpretation-of the act of the President in having said formal charges filed is, We believe,
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more beneficial to the detainees than that favored by Mr. Justice Fernando. His view-
particularly the theory that the detainees should be released immediately, without bail, even
before the completion of said preliminary examination and/or investigation-would tend to
induce the Executive to refrain from firing formal charges as long as it may be possible.
Manifestly, We should encourage the early filing of said charges, so that courts of justice could
assume jurisdiction over the detainees and extend to them effective protection."
19

9. That brings us to paragraph 33 of the main opinion. The characterization of a "merged
executive and legislative branches" does not suffer from the taint of in accuracy, if viewed from
the practical standpoint. Viewed as a matter of legal theory, I am not prepared to go that far.
This Court, in a unanimous opinion, expressly held: "The adoption of certain aspects of a
parliamentary system in the amended Constitution does not alter its essentially presidential
character."
20
There is therefore no repudiation of the theory of separation of powers. Through
the exercise of vigorous presidential leadership, however, made manifest in party caucuses,
there is attained both unity of purpose and action. In that sense, it could be asserted with truth
that there is to all intents and purposes fusion of the executive and legislative branches. Hence
the need for the maintenance of the concept of an independent judiciary. So it was pointed out
in Fortun v. Labang.
21

10. One last word. Doctrines have to be assessed in terms of its effect on the governmental
process. The rationale cannot be dissociated from the texture of the times. They cannot ignore
the forces at work which may either solidify or rent asunder the political community. A crisis
situation has a compulsion all its own. There may then be a conflict between the traditional
formulations and the coercion of events. That may render even more unavoidable the intrusion
of the demands of the hour into the domain of law. Adherence to what has been all along the
accepted basic approach to human rights calls for fealty. There must be also, however,
recognition of a more fluid standard in the assessment of governmental action to protect the
security of the state. It is my submission, however, that only when there may be grave public
danger should reliance on the high estate accorded constitutional rights be stigmatized as being
in the grip of the suffocating orthodoxies of the law.
GUTIERREZ, JR., J., concurring opinion:
I concur in the sharply perceptive and heartfelt main opinion penned by Mr. Justice
Hermogenes Concepcion, Jr. especially in the reminders about rights of the accused, the cry of
our people for material necessities to give them a better life, and the proper administration of
justice. However, I would like to add some qualifying observations to a few points discussed by
the ponente.
I agree, that the issuance of a presidential arrest and commitment order (PCO) must comply
with the requirements of the Constitution. However, until the issue is placed squarely before us
in a more appropriate case, I hesitate to concur in a categorical statement that a PCO may be
equated with a warrant of arrest issued by a judge under Section 3, Article IV of the
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Constitution. An examination of Letters of Instructions Nos. 1125-A and 1211 indicates that the
PCO is issued by the President, not as "such other responsible officers as may be authorized by
law" under Section 3 of the Bill of Rights but as Commander-in-Chief exercising exclusively
executive powers under the Constitution to meet problems of invasion, insurrection, or
rebellion or imminent danger thereof, when the public safety requires it. Precisely, the letters
of instructions call for preliminary examination or investigation by a judge as the regular
procedure. Only when resort to judicial process is not possible or expedient without
endangering public order and safety and when the release on bail of the person or persons
already under arrest by virtue of a judicial warrant would endanger said public order and safety
may the military commander or the head of the law enforcement agency apply to the
President, through the Minister of National Defense, for a presidential commitment order. The
fact that the stated procedure in the issuance of a PCO is an exception to and differs from the
regular procedure before a judge for the issuance of a warrant of arrest shows that a PCO may
not be equated completely with a warrant of arrest.
In Qua Chee Gan v. Deportation Board, (9 SCRA 27), the issue was raised that the President,
having been given the power to deport undesirable aliens, may not be denied power which is
essential to carry into effect the deportation. This Court did not categorically rule that the
President himself may order the arrest of an alien for deportation purposes, but neither did it
rule that he may not do so. The fact is the President has on various occasions, such as those
involving among others, Mr. Harry Stonehill and some associates and perhaps and Yuyiteng
brothers, ordered the arrest of aliens without having to secure a warrant of arrest from a judge
at a time when under the Constitution only a judge could issue such a warrant. The
commander-in-chief's power in a situation where the writ of habeas corpus has been
suspended or martial law has been proclaimed is certainly broader and less subject to
constitutional restrictions than the power of deportation. I may also add that the President
does not personally examine the complainant and the witnesses the latter may produce as the
multifarious affairs of state prevent him from doing so. But as in the case of judges relying on
investigations conducted by the fiscal, the President may rely on his Minister of National
Defense or the recommending military commander or the head of the law enforcement agency
to conduct what would be the equivalent of the judicial examination for probable cause. Of
course, the rules in Amarga v. Abbas, (98 Phil. 739) which impose on the judge issuing the
warrant of arrest the legal duty to first satisfy himself that there is probable cause without
relying completely or ministerially upon the findings of the fiscal, should also apply and I believe
are in fact applied to PCO's.
It also hesitate to give concurrence to an unqualified reiteration of the Lansang v. Garcia (42
SCRA 448) doctrine on the Court's inquiring into the existence of factual bases for the
suspension of the privilege of the writ of habeas corpus or the proclamation of martial law to
determine their constitutional sufficiency. While the Court has not been very receptive lately to
the invocation of the political question doctrine by State lawyers, I believe that the doctrine
does apply in cases where a political department- either the President or the Batasang
Pambansa-exercises powers expressly granted in an exclusive manner by the Constitution and
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which are of a clearly political nature not proper for judicial determination. If the proclamation
of martial law or the suspension of the privilege of the writ is so patently arbitrary and as
Justice Abad Santos says, lacking in popular support, there will always be constitutional
foundation for Supreme Court action to rule against arbitrariness. However, as a general
principle, whenever the President exercises his powers under the Constitution to meet the
supreme dangers of invasion, insurrection, or rebellion or imminent danger thereof when the
public safety requires it, we should not assume a power, upon the mere filing of a petition, to
render a judicial interpretation of an exclusively constitutionally granted power of the
President. Paraphrasing Coleman v. Miller (307 US 433, 83 L. Ed. 1385), the question of the
sufficiency of factual bases for the suspension of the privilege of the writ or the proclamation of
martial law would involve an appraisal of a great variety of relevant conditions involving
national security which can hardly be said to be within the appropriate range of evidence
receivable in a court of justice and as to which it would be an extravagant extension of judicial
authority to assert judicial notice, which after all is what we would be asserting in most cases
involving the exercise of this extraordinary presidential power.
Relova, J., I vote with Mr. Justice Hugo E. Gutierrez, Jr.
MELENCIO-HERRERA, J., concurring in the result:
I concur with paragraph 1 of the Decision, dismissing the petitions filed in these cases. The term
petitioner as used herein shall refer not only to Horacio R. Morales, Jr,, but will also include
Antonio C. Moncupa, Jr. insofar as legal statements may be applicable to the latter.
Petitioner was detained on April 21, 1982 by the Armed Forces of the Philippines under a
Presidential Commitment Order approved on April 23, 1982. On July 9, 1982, he filed the
petition for habeas corpusalleging that he was being illegally detained by respondents Minister
of National Defense, Chief of Staff of the Armed Forces of the Philippines, and, specifically, by
Colonel Galileo Kintanar, Commanding Officer of the 15th Military Intelligence Group.
Petitioner's prayer was for the issuance of the Writ directing respondents "to show the cause of
his imprisonment or restraint, and after hearing, to order his release forthwith." The Court
issued the Writ on July 13,1982.
In a Supplemental Return to the Writ, respondents informed the Court that petitioner, on July
20, 1982, had been charged with Rebellion in Criminal Case No. Q-21091 of the Court of First
Instance of Rizal, and they asked that the petition for habeas corpus be denied for the reason
that "with the pendency of the case against petitioner before the Court below for trial and
before the City Fiscal for reinvestigation, there is all the more reason to dismiss the petition.
Under the foregoing facts, it is my opinion that these cases have become moot. There is no
longer any cause of action against respondents who must be deemed to have lost custody of
petitioner (In re Lasam vs. Enrile, 67 SCRA 43 [1975]). I do not agree with the view that
petitioner is still not within the jurisdiction of the Court below. If that were a correct
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proposition, the Court below would be without jurisdiction to try the rebellion case. In criminal
law, "the Court must also have jurisdiction over the subject matter, that is, jurisdiction of the
offense, and must have jurisdiction of the person of the accused" (U.S.-U.S. v. Simon, D.C. Pa.,
248, cited in 22 C.J.S. 300). Even if there has been no warrant of arrest issued by the Court
below, the person of petitioner, who is now being tried, must be deemed as already within its
jurisdiction (Carrington vs. Peterson, 4 Phil. 134 [1905]).
As petitioner is now within the jurisdiction of the Court below, the question in regards to the
suspension of the Writ of habeas corpus has become irrelevant. Considering that the Writ is
never issuable to a Court (Nava v. Gatmaitan, 90 Phil. 172 [1951]), there should be no
justification in these cases to assail whatever has been said or resolved in Lansang v. Garcia, 42
SCRA 448 (1971). That particular matter could have been raised, procedurally, if petitioner had
not been charged with Rebellion before the Court below. Of course, it would then be for this
Court to give or not to give due course to the question. After all, habeas corpus is a
discretionary Writ (Engels vs. Amrine 155 Kan. 385, 125 P2d 379, cited in 39 Am. Jur. 2d, 269).
Or, that would be the occasion for the Court to express its present views in regards to Lansang-
Garcia. The Constitution is a living institution, and its interpretation and construction lives with
changing times and circumstances.
On the other hand, in reference to whether or not petitioner is entitled to bail in the rebellion
case, I believe that the proper procedure should be for petitioners to apply for bail before the
Court below, and after his motion is granted or denied, the matter can thereafter be elevated
to appellate consideration.
Once prosecuted in Court the position should not be taken that petitioner cannot be bailed, the
right to bail being a fundamental right except for those charged with capital offenses when
evidence of guilt is strong. The Constitution limited the suspension of the privilege of the writ
of habeas corpus to only one great right leaving the rest to remain forever inviolable (Ex parte
Milligan, 18 U.S. Law ed., 281, 297). The power of the Courts to grant bail cannot be curtailed if
the supremacy of the Judiciary within its own sphere is to be preserved. (Angara vs. Electoral
Commission 63 Phil. 139 [1936]; Fernandez Subido vs. Lacson, 2 SCRA 1054 [1961]).
The reason for the objection to bail poses the same risk should the Court acquit petitioner. The
risk need not be taken by continuing the detention under the Presidential Commitment Order,
for a reasonable period, in the exercise of executive discretion by way of precaution essential
for the public safety. "Public danger warrants the substitution of executive process for judicial
process" (Moyer vs. Peabody, 53 Law, Ed., US 211-214, p.411).
MAKASIAR, J., concurring and dissenting:
I
I join Justices De Castro and Abad Santos in their opinion to abandon the Lansang doctrine and
to adhere to the doctrine in the Montenegro and Barcelon cases that determination by the
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Chief Executive of the existence of invasion, rebellion, insurrection or imminent danger thereof
and that public safety requires it, for the suspension of the privilege of writ of habeas corpus
and for the proclamation of martial law, is a political question and therefore beyond the sphere
of judicial inquiry. In addition to the reasons advanced by Justices De Castro and Abad Santos, it
should be stressed that the prime responsibility for the preservation of the territorial integrity
and sovereignty of the Republic as well as its security, rests on the commander- in-chief and not
on the Judiciary. It is a classical truism that there is no power under the sun that is not
susceptible of abuse. Any abuse or any arbitrary exercise by the President as commander-in-
chief of his constitutional power to proclaim martial law or to suspend the privilege of the writ
of habeas corpus, can be repudiated or overruled by the people in the exercise of their
sovereign right of suffrage at the next election, and, pending the holding of the next election,
through their constitutional right of free expression to sway public opinion against such abuse
of power.
To repeat, only the Chief Executive is well-equipped with the intelligence services as
commander-in-chief to secure the desired information as to the existence of the requirements
for the proclamation of martial law or for the suspension of the privilege of the writ of habeas
corpus. The Supreme Court is bereft of such aids. This was clearly demonstrated at the
executive session during one of the hearings in the Lansang case where the lawyers for the
petitioners were present. Counsel for the petitioners had no means of rebutting the evidence
and information gathered by the military organization presented in said Lansang case before
this Court, which had to rely on such evidence and information submitted by the Armed Forces.
It was clearly an exercise in futility.
II
Corollary to the doctrine in the case of Aquino vs. Enrile (59 SCRA 183), which was re-affirmed
inGumaua vs. Espino (96 SCRA 402, 412), that the proclamation of martial law automatically
suspends the privilege of the writ of habeas corpus, the suspension of the privilege of the writ
of habeas corpus must necessarily include the suspension of the right to bail for crimes which
are grounds for the suspension of the privilege. This should be the ruling principle because, as
well-stated by Mr. Justice De Castro, to release on bail persons indicted for rebellion or
insurrection would be to nullify the very purpose of the suspension of the privilege, which is
precisely to prevent them from continuing with the rebellion or insurrection or abetting the
same. The suspension of the privilege is precisely to restore tranquility and prevent the
shedding of blood by our own people, more than just insuring the safety of public and private
properties.
Executive process is as valid as judicial process. In the epigramatic language of Mr. Justice
Holmes:
... when it comes to a decision involving its (state) life, the ordinary rights of
individuals must yield to what he (the President) deems the necessities of the
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moment. Public danger warrants the substitution of executive process for
judicial process. (See Kelly vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This
was admitted with regard to killing men in the actual clash of arms. And we think
it is obvious, although it was disputed, that the same is true to temporary
detention to prevent apprehended harm. (Moyer vs, Peabody, 212 U.S. 77.85. 53
L ed., 411, 417).
ABAD SANTOS, J., concurring and dissenting:
I concur in the result, i.e. in the dismissal of the petitions. This is as far as I can go because I
cannot give my assent to some of the statements made in the main opinion. My list is not
exhaustive but among them are the following:
1. I reject the doctrine laid down in Lansang vs. Garcia, 42 SCRA 448 [1971] that this Court "has
the authority to inquire into the existence of said factual bases [for the issuance of
Proclamations Nos. 889 and 889-A which suspended the privilege of the writ of habeas corpus]
in order to determine the constitutional sufficiency thereof." (At p. 473.) In other words, this
Court, on the urging of the petitioners, declared that it has the power to determine whether or
not the President acted arbitrarily in suspending the writ. In so doing, this Court did a complete
turnabout from Barcelon vs. Baker, 5 Phil, 87 [1905] and Montenegro vs. Castaneda, 91 Phil.
882 [1952] which enunciated the doctrine that the President's determination in suspending the
privilege of the writ of habeas corpus is final and conclusive upon the courts.
I submit that Barcelon and Montenegro laid down the correct doctrine. The Lansang doctrine is
based on naivete; it demonstrates a lack of contact with reality.
How can this Court determine the factual bases in order that it can ascertain whether or not
the President acted arbitrarily in suspending the writ when, in the truthful words
of Montenegro, "with its very limited machinery [it] cannot be in better position [than the
Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago?" (At p.
887.) The answer is obvious. It must rely on the Executive Branch which has the appropriate
civil and military machinery for the facts. This was the method which had to be used
in Lansang. This Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court relied on the very branch of the
government whose act was in question to obtain the facts. And as should be expected the
Executive Branch supplied information to support its position and this Court was in no situation
to disprove them. It was a case of the defendant judging the suit. After all is said and done, the
attempt by this Court to determine whether or not the President acted arbitrarily in suspending
the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one reason or another. But when this
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Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the
facts given to it by the Executive Branch) it in effect participates in the decision-making process.
It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an
unpopular act.
Lansang was an empty victory for the petitioners. They won a battle but lost the war. It could
be that this Court also lost something in the process. It raised expectations which it could not
fulfill.
2. I cannot accept the statement in paragraph 27 of the main opinion that "because the
privilege of the writ of habeas corpus remains suspended 'with respect to persons at present
detained as well as others who may hereafter be similarly detained for the crimes of
insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and for all
other crimes and offenses committed by them in furtherance of or on the occasion thereof, or
incident thereto, or in connection therewith', the natural consequence is that the right to bail
for the commission of the said offenses is also suspended."
In the instant case, the petitioners were arrested without warrant on April 21, 1982. However, a
Presidential Commitment Order was issued against them on April 23, 1982 and on July 20, 1982
(after the petitions for the writ of habeas corpus had been filed) the petitioners were charged
with rebellion before the Court of First Instance of Rizal in Criminal Case No. Q-21091.
Are they entitled to be released on bail if they so apply?
The ponente says that they have no right to bail because "To hold otherwise would defeat the
very purpose of the suspension" of the writ of habeas corpus. Another reason given to deny bail
is Letter of Instructions No. 1211 issued on March 9, 1982, which stipulates that "4. When
issued, the Presidential Commitment Order shall constitute authority to arrest the subject
person or persons and keep him or them under detention until ordered released by the
President or his duly authorized representative.
I submit that the petitioners are entitled to bail as a matter of right if they should apply for it.
The nature of LOI No. 1211 has been raised. Does it have the force of law or is it a mere
directive to officers named therein, namely: The Minister of National Defense; The Chief of
Staff, Armed Forces of the Philippines; The Chief, Philippine Constabulary; The Chief, Criminal
Investigation Service; The Director-General, NISA; The Minister of Justice; The Director, National
Bureau of Investigation; and The Solicitor General. To me the nature of LOI No. 1211 is
irrelevant for the right to bail is guaranteed by a higher law-the Constitution.
The Constitution guarantees that "All persons, except those charged with capital offenses when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. Excessive
bail shall not be required. " (Art. IV, Sec. 18.) The penalty for rebellion is reclusion temporal.
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Hence rebellion is a non-capital offense and the petitioners should be granted bail by the court
where their case is pending if they ask for it.
The suspension of the writ of habeas corpus and the fact that they are covered by a Presidential
Commitment Order are of no consequence. Since the respondents have elected to bring the
case of the petitioners to court, the court acquired complete jurisdiction over them. To say that
the court cannot grant them bail is to diminish the court's jurisdiction.
The eloquent words of Mr. Justice Pedro Tuason are completely relevant:
Under constitutional guarantee bail is a matter of right which no court or judge
could properly refuse in all cases beyond the exceptions specified in the
Constitution. The meaning of this fundamental provision is that a party accused
of any and every bailable offense shall have the inestimable privilege of giving
security for his attendance at court and shall not be imprisoned. (6 C.J. 893.)
The Constitution will be searched in vain for any provision that abridges this
right. Any argument in support of the contention that the suspension of the writ
of habeas corpus carries with it the suspension of the right to bail is, and has to
be, based on inference. I do not believe that the curtailment of the right to bail is
a normal, legal, or logical outcome of the suspension of the writ. The error, I am
inclined to believe, arises from a confusion of terms and misapprehension of the
principles underlying the suspension of the writ.
The purpose of the suspension of the writ is to enable the executive, as a
precautionary measure, to detain without interference persons suspected of
harboring designs harmful to public safety. (Ex Parte Simmerman, 132 F. 2d, 442,
446.) The Constitution goes no further. (Ex parte Milligan, 4 Wallace 2, 18 Law.
Ed. 281, 297.) If this is the purpose, the suspension can contemplate only cases
which, without the suspension, are open to interference; such cases are arrests
and detentions by the executive department. Since the suspension of the writ is
designed to prevent the issuance of this extraordinary remedy, and since the
writ issues from the courts but never to the courts, it necessarily follows that
arrests and detentions by order of the courts are outside the purview of the
constitutional scheme.
As stated, the theory of the prosecution stems from a misconception of the ends
pursued by the suspension of the writ. If it is to have any color of validity, this
theory must assume that the Constitution directs positive action to be taken,
orders arrests and detentions to be made. Unfortunately or fortunately, the
Constitution does not do so. The intent of the Constitution in authorizing the
suspension of the writ of habeas corpus is no other than to given the authorities
a free hand in dealing with persons bent on overthrowing the Government. The
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effects of the suspension are negative, not positive; permissive, not mandatory
nor even directory. By the suspension, arrests and detentions beyond the period
allowed under normal circumstances are tolerated or legalized. The Constitution
is not in the least concerned with the disposition of persons accused of rebellion
or insurrection, whether or how long they should be kept in confinement, or
whether they should be set at large. In the nature of the governmental set-up
under the Constitution, their immediate fate is left to the discretion, within
reasonable and legal limits, of the proper department.
With these distinctions in mind, the query is, on what department of
Government is entrusted the prerogative of deciding what is to be done with the
prisoners charged with or suspected of rebellion or insurrection? The answser, as
I shall endeavor presently to explain, is either the executive or the Court,
depending on who has jurisdiction over them.
All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the courts to keep their
hands off-unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter.
By the same token, if and when formal complaint is presented, the court steps in
and the executive steps out. The detention ceases to be an executive and
becomes a judicial concern. Thereupon the corresponding court assumes its role
and the judicial process takes its course to the exclusion of the executive or the
legislative departments. Henceforward, the accused is entitled to demand all the
constitutional safeguards and privileges essential to due process. 'The
Constitution does not say that he shall be tried otherwise than by the course of
common law.' (Ex parte Milligan, ante, 297.) The Bill of Rights, including the right
to bail and the right to a fair trial, are unaffected by the suspension of the writ of
habeas corpus. The Constitution 'suspended one great right and left the rest to
remain forever inviolable. (Ex parte Milligan, ante, 297.) (Nava et al vs.
Gatmaitan 90 Phil. 172, 202-205 [1951].)
It should be stated that Chief Justice Ricardo Paras and Justices Cesar Bengzon, Alex Reyes and
Fernando Jugo shared the above opinion of Justice Tuason. Incumbent Chief Justice Enrique M.
Fernando expressed the same opinion in Lansang.
It is also said that the view "if and when a formal complaint is presented, the court steps in and
the executive steps out," will tend to induce the executive to refrain from filing formal charges
as long as it may be possible. (See opinion of Chief Justice Concepcion in Lansang, op. cit. on p.
494.) The answer has long been given by this Court in Teehankee vs. Rovira, 75 Phil. 634 (1954)
as follows:
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This constitutional mandate [on the right to bail] refers to all persons not only to
persons against whom a complaint or information has already been formally
filed. It lays down the rule that all persons shall before conviction be bailable
except those charged with capital offenses when evidence of guilt is strong.
According to this provision, the general rule is that any person, before being
convicted of any criminal offense, shall be bailable, except when he is charged
with a capital offense and the evidence of his guilt is strong, Of course, only
those persons who have been either arrested, detained or otherwise deprived of
their liberty will ever have occasion to seek the benefits of said provision. But in
order that a person can invoke this constitutional precept, it is not necessary
that he should wait until a formal complaint or information is filed against him.
From the moment he is placed under arrest, detention or restraint by the
officers of the law, he can claim this- guarantee of the Bill of Rights, and this right
he retains unless and until he is charged with a capital offense and evidence of
his guilt is strong. Indeed if, as admitted on all sides, the precept protects those
already charged under a formal complaint or information, there seems to be no
legal or just reason for denying its benefits to one as against whom the proper
authorities may even yet conclude that there exists no sufficient evidence of
guilt. To place the former in a more favored position than the latter would be, to
say the least, anomalous and absurd. If there is a presumption of innocence in
favor of one already formally charged with criminal offense (Constitution, Article
III, Section 1[17], a fortiori, this presumption should be indulged in favor of one
not yet so charged, although already arrested or detained." (At pp. 640-64 1.)
What I have said above about the right of an accused to bail in non-capital cases applies mutatis
mutandis to a person accused of a capital offense if the evidence of his guilt is not strong to be
determined after a hearing as provided in the Rules of Court: "Sec. 7. Capital offense-Burden of
proof. -On the hearing of an application for admission to bail made by any person in custody for
the commission of a capital offense, the burden of showing that evidence of guilt is strong is on
the prosecution. ..." (Rule 114.)
Addendum to concurring and dissenting opinion:
Long after I had written my separate opinion in the above-entitled cases, the newspapers
reported the arrest of Mayor Aquilino Pimentel of Cagayan de Oro City on grounds of national
security. It was said that the arrest of Mayor Pimentel was effected pursuant to a Presidential
Commitment Order (PCO).
It was also reported that Msgr. Patrick Cronin Archbishop of Cagayan de Oro City, requested
President Ferdinand E. Marcos to lift the PCO because Pimentel was innocent of any wrong-
doing.
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The issues dated April 20, 1983, of Bulletin Today, Daily Express and Times Journal all report
that President Marcos denied the request of Archbishop Cronin because he had no power to
release Pimentel who was arrested and charged before a Regional Trial Court in Cebu City on
very strong evidence that he provided arms, funds, and sanctuary to subversives.
President Marcos is reported to have told Msgr. Cronin
The disposal of the body of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City, and not within the
powers of the President.
It should be recalled the main opinion holds that the petitioners herein cannot be granted bail
by the court where they stand charged with the crime of rebellion because to hold otherwise
would defeat the very purpose of the suspension of the writ of habeas corpus and also because
under LOI No. 1211, the release of persons arrested pursuant to a PCO can be effected only by
order of the President or his duly authorized representative. And it should be noted that every
PCO has the following operative last paragraph:
I, therefore, hereby order the arrest and detention of the abovenamed persons
until the final disposition/termination of their cases unless sooner ordered
released by me or by my duly authorized representative.
And yet in the case of Mayor Pimentel who was arrested by virtue of a PCO, the President no
less said that the power to release Pimentel "as any lawyer will inform you," is not his but of the
Regional Trial Court of Cebu City.
I am happy to be counted among the "any lawyer" mentioned by President Marcos for I believe,
as I have stated in my separate opinion, that the petitioners herein are entitled to bail after
they were charged in court with rebellion because "the court steps in and the executive steps
out."
DE CASTRO, J., concurring and dissenting:
I concur in the dismissal of the petition. It is my considered opinion, as I have set forth in
my ponenciain the case for Habeas Corpus-Josefina Garcia, petitioner, G.R. No. 61388,
hereafter referred to as the Parong case, that when a person is arrested by virtue of a PCO or a
PCO is issued after his arrest effected without warrant or with one issued by court, his
detention becomes one without right to bail, even after charges have been filed against him in
court. This is so because, under the circumstance that the rebellion is still continuing, perhaps
with greater intensity, a captured or arrested rebel, or one in conspiracy with the rebels by acts
in pursuance or in furtherance of the rebellion, is not arrested and detained with a view to his
immediate prosecution. It is more for the purpose of detaining him as a military measure to
suppress the rebellion. The suspension of the privilege of the writ of habeas corpus has the
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effect of deferring trial for certain specified crimes during the existence of the emergency, as I
stated, citing legal writers and publicists,
1
in the aforecited case of Parong, et al.
The reason is that a person cannot be prosecuted for a crime the commission of which has not
yet come to an end as in the case of the existing rebellion. A person who kills another can and
should immediately be prosecuted, because the killing itself constitutes the termination of the
commission of the crime, as is generally true with the common statutory offenses. But a rebel,
even when already captured or arrested and placed under detention, by reason of conspiracy
with the rebels and their co-conspirators who are free, continues in a state of committing the
crime of rebellion which is a continuing offense. If immediately prosecuted and by virtue
thereof, allowed to be released on bail, the crime of rebellion being bailable, the detainee
would certainly join his comrades in the field to the jeopardy of government efforts to suppress
the rebellion, which is the rationale for the President being constitutionally empowered to
suspend the privilege of habeas corpus in case of invasion, rebellion or insurrection, even mere
imminent danger thereof, when public safety so requires. The President, however, may order
the filing of charges in court and trial thereof forthwith held, or even release on bail, as his best
judgment will dictate to him. But this is for the President alone to decide, without interference
from the courts, he being in the exercise of his military power.
It is for this reason that I dissent from the majority opinion insofar as it would reiterate the
doctrine of the Lansang case, being of the view that the earlier doctrine in the case of Barcelon
vs. Baker and Montenegro vs. Castaneda which was superseded by the Lansang doctrine should
be reverted to, as the more practical and realistic ruling, and more in consonance with the
grant by the Constitution to the President of the power to suspend the privilege of the writ of
habeas corpus in the case of the contingencies mentioned in the Constitution. Such power
could be easily rendered nugatory if interference by the Supreme Court were allowed as when
it is given the power of judicial review over the exercise of this particular presidential power.
The doctrine of "political question" comes in to make it improper for the power of judicial
review to be exercise by the said Court, which doctrine renders the exercise of the presidential
power referred to non-justiciable. Justiciability of the controversy is the basic requirement for
the exercise of the power of judicial review.
Moreover, the Lansang doctrine could easily be viewed as discriminatory against our incumbent
President whose proclamation suspending the privilege of habeas corpus was held subject to
judicial review, where similar proclamations of former Chiefs Executive, Governor General
Wright and President Quirino, were held binding and conclusive upon the courts and all other
persons. If this is so, as it can be safely surmised that the incumbent President cannot but feel
discriminated against with the pronouncement of the Lansang doctrine, rectification is called
for. Needless to state, I am one with Justice Abad Santos in his vigorous dissent against the
reiteration of the Lansang doctrine as proposed in the majority opinion in the instant case.
In the Parong case (G.R. No. 61388), I stated, inter alia, the following:
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In times of war or national emergency, the legislature may surrender a part of its
power of legislation to the President. Would it not be as proper and wholly
acceptable to lay down the principle that during such crises, the judiciary should
be less jealous of its power and more trusting f the Executive in the exercise of
its emergency powers in recognition of the same necessity? Verily, the existence
of the emergencies should be left to President's sole and unfettered
determination. His exercise of the power to suspend the privilege of the writ of
habeas corpus on the occasion thereof, should also be beyond judicial review,
Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions,
sounds good in theory but impractical and unrealistic, considering how well-nigh
impossible it is for the courts to contradict the finding of the President on the
existence of the emergency that gives occasion for the exercise of the power to
suspend the privilege of the writ. For the Court to insist on reviewing Presidential
action on the ground of arbitrariness may only result in a violent collision of two
jealous powers with tragic consequences, by all means to be avoided, in favor of
adhering to the more desirable and long-tested doctrine of "political question" in
reference to the power of judicial review."
Indeed, while the Supreme Court is said to be the Guardian of the Constitution, not all
questions arising therefrom may be brought to it for judicial review as to whether a
constitutional violation has been committed. The power of the President as the defender of the
State has to be granted by the Constitution, for how else could such power be granted except
by the instrument which is the repository of the sovereign will of the people. But certainly, the
exercise of such power of defending the Nation is not to be subordinated to that of the
Supreme Court acting as Guardian of the Constitution, for of what use is it to preserve the
Constitution if We lose the Nation?
TEEHANKEE, J., dissenting:
The bench and bar and law scholars and students are in debt to the writer of the main opinion,
Mr. Justice Concepcion, Jr., for his thorough and perceptive restatement of the constitutional
and basic human rights of accused persons and detainees. The main opinion spotlights the
grievances that persons detained or charged for the crimes of insurrection, rebellion,
subversion, conspiracy or proposal to commit such crimes invariably bring to this Court. They
complain, as petitioners do here, of being arrested without any warrant of arrest; of being kept
in isolation and being denied of their constitutional right to counsel and to silence; of prolonged
detention without any charges; of having been subjected to maltreatment and torture; and of
their counsel and families undergoing great difficulties in locating or having access to them.
The State through the Solicitor General on the other hand invariably denies all such charges and
submits affidavits of the arresting officers and detention custodian that detainees are afforded
decent and humane treatment, further countering that such claims are merely calculated to
arouse sympathy and as propaganda against the Government and its institutions.
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Upon the filing of the petition at bar on July 13, 1982, the Court, in issuing the writ of habeas
corpus, Resolved "to allow counsel for petitioner to visit and confer with the detainee in an
atmosphere of confidentiality, consistent with reasonable security measures which
respondents may impose." At the hearing held on July 22, 1982, the Court granted petitioner's
plea for reinvestigation of the charges and to "appoint the (Quezon) City Fiscal to act as
Commissioner of the Court and receive evidence of the charges made by petitioners before this
Court of alleged torture and violation of their constitutional rights, particularly the right to
counsel." The City Fiscal in due time submitted his report on the reinvestigation, affirming the
existence of a prima facie case for rebellion against petitioner. In February this year, he
submitted the voluminous transcript of the proceedings held before him and the evidence
submitted to him without comment or recommendation on petitioner's charges of alleged
torture and violation of constitutional rights. The "material and relevant" charges have not
been taken up nor deliberated upon by the Court, but apparently will no longer be resolved by
the, Court, as was expected at the time, since the main opinion directs now that "they should
be filed before the body which has jurisdiction over them."
1
On my part, I believe that the
Court should go over the transcript and make some authoritative pronouncements on the
charges at least of violation of petitioners' right to counsel.
I. The vital problem is to assure the enjoyment of such constitutional and basic human rights of
the persons arrested, detained or charged, be they mere dissenters, subversives or hardened
criminals. As observed in the main opinion, this is what distinguishes our country as a
republican and democratic state from those arrested in totalitarian states who have no rights to
speak of. This Court stands as the guarantor of the constitutional rights of all persons within its
jurisdiction and must see to it that the rights are respected and not treated as paper rights.
These are the great rights guaranteed in the Bill of Rights (Article IV) of the Constitution:
The right against unreasonable searches and seizures and arbitrary arrest:
Sec. 3. The right of the people to be secure in their persons, houses, papers, and
seized.
The right to due process and equal protection of law:
Sec. 1. No person shall be deprived of life, liberty, or property without due
xxx xxx xxx
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Sec. 17. No person shall be held to answer for a criminal offense without due
process of law.
The right of free association:
Sec. 7. The right to form associations or societies for purposes not contrary to
law shall not be abridged.
Freedom of speech and press and assembly and petition:
Sec. 9. No law shall be passed abridging the freedom of speech, or of the press,
or the right of the people peaceably to assemble and petition the Government
for redress of grievances.
The great writ of liberty:
Sec. 15. The privilege of the writ of habeas corpus shall not be suspended except
in cases of invasion, insurrection, rebellion, or imminent danger thereof, when
the public safety requires it.
The right to bail:
Sec. 8. All persons, except those charged with capital offenses when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient sureties.
Presumption of innocence and Rights of speedy and impartial trial and confrontation:
Sec. 19. In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustified.
The right to counsel and silence.
Sec. 20. No person shall be compelled to be a witness against himself. Any
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The main opinion deals with the scope and extent of these rights and a number of passages
bears emphasis and reiteration, as follows:
The arresting officers, upon making the arrest, must inform the subject of the reason for the
arrest and show him the warrant of arrest, if any. They must inform him of his constitutional
rights to remain silent and to counsel. They must respect his right to communicate with his
lawyer. No custodial investigation shall be conducted unless it be in the presence of his counsel.
The right to counsel may be waived knowingly and intelligently and for such reason the waiver
should be recognized only if made with the assistance of counsel. The detainee's right to confer
with counsel at any hour of the day, alone and privately, should be respected.
Care should be exercised in making an arrest without a warrant. Where there is
no justification for the arrest, the public officer could be criminally liable for
arbitrary detention (under Article 124, Revised Penal Code) or unlawful arrest
(under Article 269, Idem) or for some other offense.
2

Furthermore, we hold that under the judicial power of review and by
constitutional mandate, in all petitions for habeas corpus the court must inquire
into every phase and aspect of petitioner's detention-from the moment
petitioner was taken into custody up to the moment the court passes upon the
merits of the petition. Only after such a scrutiny can the court satisfy itself that
the due process clause of our Constitution has in fact been satisfied.
The submission that a person may be detained indefinitely without any charges
and the courts cannot inquire into the legality of the restraint goes against the
spirit and letter of the Constitution and is contrary to the basic precepts of
human rights and a democratic society.
3

However, there is a difference between preventive and punitive imprisonment.
Where the filing of charges in court or the trial of such charges already filed
becomes protracted without any justifiable reason, the detention becomes
punitive in character and the detainee regains his right to freedom.
4

II. Respondents' return in these cases, in asserting that "the allegations that petitioners have
been denied their right to counsel are not true. They simply did not ask for one, " disregards the
consistent injunction of the Court and of the law that the detainees need not bear the burden
of asking for counsel but should be informed of their right to counsel. The return's assertion
that "petitioners also waived the assistance of counsel during the investigation of their cases"
also falls short of the requirement that such waiver be made with the assistance of counsel to
assure the validity thereof.
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The late Chief Justice Fred Ruiz Castro, in maintaining in his dissenting opinion in Magtoto vs.
Manguera
5
that the 1973 constitutional ban on uncounselled confessions should operate
retrospectively to June 15, 1954 when Republic Act 1083 (amending Article 125 of the Revised
Penal Code) was enacted recognizing the right of a detained person to counsel in any custodial
inquest, and not prospectively only as to such confessions obtained after the effectivity of the
1973 Constitution, stressed anew that it is "the obligation on the part of any detaining officer to
inform the person detained of his right to counsel before the very inception of custodial
inquest." He enjoined us eloquently that "(I) hold no brief against custodial interrogation per se.
But I do entertain mortal fear that when a detained person is subjected, without the assistance
of counsel, to custodial interrogation by peace officers, official lawlessness could be the rule
and not the exception. Witness the innumerable cases in the annals of adjudication where this
Court has set at naught and declared inadmissible confessions obtained from detained persons
thru official lawlessness. It is a verity in the life of our nation that people without influence and
without stature in society have, more often than not, been subjected to brutal and brutalizing
third-degree methods, if not actually framed, by many police agencies in this country. Instead
of blinking our eyes shut to this reality, we must recognize it for what it is, (and) I am
completely conscious of the need for a balancing of the interests of society with the rights and
freedoms of the individual. I have advocated the balancing-of-interests rule in all situations
which call for an appraisal of the interplay of conflicting interests of consequential dimensions.
But I reject any proposition that would blindly uphold the interests of society at the sacrifice of
the dignity of any human being," and echoed Justice Douglas' aphorism that the rights of none
are safe unless the rights of all are protected.
In the recent case of Sobremonte vs. Enrile,
6
the Court did not rule on the therein detailed
assertions of maltreatment of the detainee, stating only that "redress for the alleged violation
of Socorro's constitutional rights may be secured through appropriate civil, criminal or
administrative charges."
7
The case was dismissed for having become moot with the detainee's
release from detention upon her filing the recommended P l,000.00-bail bond. But the Court
decried that "all the effort, energy and manhours expended by the parties and their counsel,
including this Court, ... could have been avoided had the officers of the AVSECOM and the ISAFP
responded promptly to the inquiries of petitioner instead of giving her the 'run-round' by
referring her from one office to another."
III. I join Mr. Justice Abad Santos' stand that notwithstanding the suspension of the privilege of
the writ of habeas corpus and the issuance on March 9, 1982 of Letter of Instruction No. 1211
that the Presidential Commitment Order (PCO) constitutes authority to keep the subject person
under detention "until ordered released by the President or his duly authorized
representative," the higher and superior mandate of the Constitution guarantees the right to
bail and vests the courts with the jurisdiction and judicial power to grant bail which may not be
removed nor diminished nor abdicated. We cannot but so hold, if we are to be true to the
fundamental precept that "The Constitution is a law for rulers and for people equally in war and
in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances. "
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The argument that otherwise the purpose of the suspension of the privilege would be defeated
ignores the overwhelming capability of the State and its military and police forces to keep
suspects under surveillance and the courts' imposition of reasonable conditions in granting bail,
such as periodic reports to the authorities concerned, and prohibiting their going to certain
critical areas.
In my dissenting opinion in Buscayno vs. Military Commission,
8
Ireiterated my adherence to the
majority holding in the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs.
Montesa
9
(although it failed one vote short of the required majority of six affirmative votes at
the time) as expounded by then Chief Justice Ricardo Paras and Associate Justice (later Chief
Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes and Fernando Jugo that
after formal indictment in court by the filing against them of an information charging rebellion
with multiple murder, etc., accused persons covered by the proclamation of suspension of the
privilege of the writ of habeas corpus are entitled to the right to bail. As stressed by then Chief
Justice Ricardo Paras. "(T)he right to bail, along with the right of an accused to be heard by
himself and counsel, to be informed of the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses in his behalf (Article III, Section 1, Paragraph 17,
of the Constitution), tends to aid the accused to prove his innocence and obtain acquittal. If it
be contended that the suspension of the privilege of the writ of habeas corpus includes the
suspension of the distinct right to bail or to be provisionally at liberty, it would a fortiori imply
the suspension of all his other rights (even the rights to be tried by a court) that may win for
him ultimate acquittal and, hence, absolute freedom. The latter result is not insisted upon for
being patently untenable, "
Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the
right to bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of
the framers of the Constitution was that the suspension of the privilege of the writ of habeas
corpus carries or implies the suspension of the right to bail, they would have very easily
provided that all persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong and except when the privilege of
the writ of habeas corpus is suspended. As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18
L. ed. 297, the Constitution limited the suspension to only one great right, leaving the rest to
remain forever inviolable."
10
It is noteworthy and supportive of the prevailing stand since 1951
that the other great constitutional rights remain forever inviolable since the Constitution
limited the suspension to only one great right (of the privilege of the writ of habeas corpus),
that there has been no amendment of the Constitution to curtail the right to bail in case of such
suspension notwithstanding the numerous constitutional amendments adopted after the 1973
Constitution.
The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State
would be jeopardized by the release of the defendants on bail, the answer is that the existence
of danger is never a justification for courts to tamper with the fundamental rights expressly
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granted by the Constitution. These rights are immutable, inflexible, -yielding to no pressure of
convenience, expediency or the so-called 'judicial statesmanship.' The Legislature itself cannot
infringe them, and no court conscious of its responsibilities and limitations would do so. If the
Bill of Rights are incompatible with stable government and a menace to the Nation, let the
Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the
courts of justice as the repository of civil liberty are bound to protect and maintain undiluted
individual rights."
11

And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days
by men of goodwill that respect for constitutional and human rights and adherence to the rule
of law would help in the fight against rebellion and movement for national reconciliation, thus:
"And in my opinion, one of the surest means to ease the uprising is a sincere demonstration of
this Government's adherence to the principles of the Constitution together with an impartial
application thereof to all citizens, whether dissidents or not. Let the rebels have no reason to
apprehend that their comrades now under custody are being railroaded into Muntinglupa,
without benefit of those fundamental privileges which the experience of the ages has deemed
essential for the protection of all persons accused of crime before the tribunal of justice. Give
them the assurance that the judiciary, ever mindful of its sacred mission, will not, thru faulty or
misplaced devotion, uphold any doubtful claims of Governmental power in diminution of
individual rights, but will always cling to the principles uttered long ago by Chief Justice
Marshall that when in doubt as to the construction of the Constitution, 'the Courts will favor
personal liberty.'"
12

IV. The most authoritative pronouncement in regard to the courts' judicial power to grant the
constitutional right to bail is of course none other than the President's himself. In all the
metropolitan newspapers of April 20, 1983, the President is reported to have "said that
Pimentel has been charged with rebellion before the regional trial court of Cebu City and is
therefore under the jurisdiction of the civil court and not only under the jurisdiction of the
military by virtue of the PCO " In a telegram in reply to the appeal of Msgr. Patrick Cronin,
Archbishop of Cagayan de Oro and Misamis Oriental, for lifting of the PCO on Mayor Aquilino
Pimentel of Cagayan de Oro City, the President said that "(T)he disposal of the body of the
accused, as any lawyer will inform you, is now within the powers of the regional trial court of
Cebu City and not within the powers of the President."
The statement of the now Chief Justice in his separate opinion in Gumaua vs. Espino
13
referring
to his earlier concurring and dissenting opinion in Aquino vs. Military Commission No. 2,
14
is
most relevant, mutatis mutandis, thus: " 'Were it not for the above mandate of the Transitory
Provisions [Article XVII, section 3, par. (2), 1973 Constitution], the submission of petitioner as to
a military commission being devoid of jurisdiction over civilians elicits approval. The controlling
principle, to my mind, is that supplied in the opinion of the United States Supreme Court
in Duncan v. Kahanamoku [327 U.S. 304, 322 (1946)], a decision impressed with the greatest
relevance inasmuch as it interpreted the specific section found in the Hawaiian Organic Act,
which was also a feature of the Philippine Autonomy Act, the source of the martial law
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provision in the 1935 Constitution.' As was pointed out in the Duncan opinion penned by Justice
Black: 'Courts and their procedural safeguards are indispensable to our system of government.
They were set up by our founders to protect the liberties they valued. Ex parte Quirin, supra,
317 U.S. at page 19, 63 S. Ct. at page 6, 87 L. Ed. 3. Our system of government clearly is the
antithesis of total military rule and the founders of this country are not likely to have
contemplated complete military dominance within the limits of a Territory made part of this
country and not recently taken from an enemy. They were opposed to governments that placed
in the hands of one man the power to make, interpret and enforce the laws. Their philosophy
has been the people's throughout the history. For that reason we have maintained legislatures
chosen by citizens or their representatives and courts and juries to try those who violate
legislative enactments. We have always been especially concerned about the potential evils of
summary criminal trials and have guarded against them by provisions embodied in the
constitution itself.' ... The phrase 'martial law' as employed in that Act, therefore, while
intended to authorize the military to act vigorously for the maintenance of an orderly civil
government and for the defense of the island against actual or threatened rebellion or invasion,
[it] was not intended to authorize the supplanting of courts by military courts."
V. The courts, and ultimately the Supreme Court, are therefore called upon to review all such
cases and the accused's right to bail, pending trial and conviction or acquittal, on a case by case
basis. The courts with their procedural safeguards are then called upon to apply the
Constitution and the Law and to grant bail for clearly bailable (non-capital) offenses and in
capital offenses to determine whether or not evidence of guilt is strong, in consonance with
guidelines laid down by the Supreme Court, as in the leading case of Montano vs.
Ocampo
15
(involving Senator Montano who was charged with multiple murders and frustrated
murders), as follows:
Brushing aside the charge that the preliminary investigation of this case by the
aforesaid Judge was railroaded, the same having been conducted at midnight, a
few hours after the complaint was filed, we are of the opinion that, upon the
evidence adduced in the application for bail in the lower court, as such evidence
is recited lengthily in the present petition and the answer thereto, and
extensively analyzed and discussed in the oral argument, there is not such clear
showing of guilt as would preclude all reasonable probability of any other
conclusion.
Exclusion from bail in capital offenses being an exception to the otherwise
absolute rightguaranteed by the constitution, the natural tendency of the courts
has been toward a fair and liberal appreciation rather than otherwise, of the
evidence in the determination of the degree of proof and presumption of guilt
necessary to warrant a deprivation of that right.
Besides, to deny bail it is not enough that the evidence of guilt is strong; it must
also appear that in case of conviction the defendant's criminal liability would
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probably call for a capital punishment. No clear or conclusive showing before this
Court has been made.
In the evaluation of the evidence the probability of flight is one other important
factor to be taken into account. The sole purpose of confining accused in jail
before conviction, it has been observed, is to assure his presence at the trial. In
other words, if denial of bail is authorized in capital cases, it is only on the theory
that the proof being strong, the defendant would flee, if he has the opportunity,
rather than face the verdict of the jury. Hence, the exception to the fundamental
right to be bailed should be applied in direct ratio to the extent of the probability
of evasion of prosecution.
The possibility of escape in this case, bearing in mind the defendant's official and
social standing and his other personal circumstances, seems remote if not nil.
As editorially commented in one daily,
16
"(T)he danger, however, lies in the possibility that
such means (PCO's) may not always be employed judiciously. In issuing a PCO the President in
most cases must rely on field reports and recommendations filed by his subordinates, usually
the military and the intelligence community. No one can totally dismiss the possibility that the
President may be fed with false information in some instances. The consequences of such an
error can only aggravate further the country's security problems." When such cases occur and
executive relief is not obtained, the courts provide the means of securing redress from
erroneous or wrongful arrests and detentions, and at the very least, as shown from past
experience, serve as the means for bringing the matter to the President's attention and
securing the needed relief.

Footnotes
1 Section 1, Article II, Constitution of the Republic of the Philippines.
2 Article IV, Constitution of the Republic of the Philippines.
3 Rule 113, Sec. 18, Revised Rules of Court.
4 Sec. 1, Rule 113, Revised Rules of Court.
5 Art. IV, Constitution of the Republic of the Philippines.
6 Letter of Instruction Nos. 1125-A and 1211 which reads:
MALACAANG
Manila

LETTER OF INSTRUCTIONS NO. 1125-A

TO: The Minister of National Defense
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The Chief of Staff, Armed Forces of the Philippines
The Chief, Philippine Constabulary
The Chief, Criminal Investigation Service
The Director-General, NISA
The Minister of Justice
The Director, National Bureau of Investigation

The Solicitor General
WHEREAS, by virtue of Proclamation No. 2045 the privilege of the writ of habeas corpus remains suspended in the two
autonomous regions of Mindanao and in all other places with respect to-
persons at present detained as well as others who may hereafter be similarly detained for the crimes of insurrection or
rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by
them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith,'
WHEREAS, the abovesaid Proclamation has rendered unquestionable the authority of the President to cause the arrest
and detention of persons engaged in, or charged with, the crimes or offenses mentioned in said Proclamation;
WHEREAS, in view of the full normalization of the government following the inauguration of the New Republic, it is
necessary and proper that the regular procedures prescribed by existing laws for the arrest and detention of persons
accused of violation of criminal law be observed with respect to those charged with the above-mentioned crimes or
offenses.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, do hereby order and direct the following:
l. All cases involving the crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes, and
all other crimes or offenses committed in furtherance of or on the occasion thereof, or incident thereto, or in connection
therewith, shall be investigated by the provincial/city fiscal, or by the municipal/city circuit/district judge, or by the duly
authorized investigating officer, as the case may be, in accordance with the provisions of the Rules of Court and other
existing laws.
2. After preliminary examination/investigation in any of the aforementioned cases, the judge or other investigating
officer shall, upon a finding of probable cause, respectively, issue or cause to be issued the appropriate warrant/s of
arrest against any or all accused persons who shall forthwith be arrested and detained.
3. In any of the abovementioned cases, the judge or other investigating officer shall immediately upon the arrest of the
accused, submit a report to the President specifying,inter alia, the crime/s or offense/s charged, the extent of the
involvement or participation of the accused, a summary of all the evidence adduced at the investigation, and his finding
on whether or not the evidence of guilt is strong.
4. On the basis of the report submitted by the judge or other investigating officer containing a finding that the evidence
of guilt is strong, the President may, pursuant to this authority under Proclamation No. 2045, issue a commitment order
against the accused who shag thereafter be kept under detention in the appropriate institution specified in the
commitment order until the final disposition of the case unless sooner ordered released by the President or his duly-
authorized representative.
5. In every case where no commitment order is issued by the President, the accused under detention may be released on
bail in accordance with the provisions of the Constitution and the applicable laws.
6. In no case shall the powers of the President under Proclamation No. 2045 be invoked so as to authorize the arrest and
indefinite detention of persons accused of the crimes mentioned in paragraph I hereof except insofar as the exercise of
such powers may be warranted under paragraph 4 hereof.
This Letter of Instructions shall take effect immediately and shall supersede the provisions of Letter of Instructions No.
1125.
Done in the City of Manila, this 25th day of May, in the year of Our Lord, nineteen hundred and eighty-one.

MALACAANG
Manila
LETTER OF INSTRUCTIONS NO. 1211

TO: The Minister.- of National Defense
The Chief of Staff, Armed Forces of the Philippines
The Chief, Philippine Constabulary
The Chief, Criminal Investigation Service
The Director-General, NISA
The Minister of Justice
The Director, National Bureau of Investigation
The Solicitor General
WHEREAS, by virtue of Proclamation No. 2045 the privilege of the writ of habeas corpusremains suspended in the two
autonomous regions of Mindanao and in all other places with respect to-
persons at present detained as well as others who may hereafter be similarly detained for the crimes of insurrection or
rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by
them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith;'
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WHEREAS, the aforesaid Proclamation has rendered unquestionable the authority of the President to cause the arrest
and detention of persons engaged in, or charged with, the crimes or offenses mentioned in said Proclamation;
WHEREAS, on May 25, 1981 I issued Letter of Instructions No. 1125-A providing for guidelines in the arrest and detention
of the aforesaid persons for the purpose of insuring that the President's power of arrest incident to the suspension of the
privilege of the writ is not abused; and
WHEREAS, it is necessary to clarify the aforesaid guidelines in order to insure protection to individual liberties without
sacrificing the requirements of public order and safety and the effectiveness of the campaign against those seeking the
forcible overthrow of the Government and duly constituted authorities;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, do hereby order and direct the following.
1. All cases involving the crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes and
all other crimes or offenses committed in furtherance of or on the occasion thereof, or incident thereto, or in connection
therewith, shall be referred to the provincial or city fiscal or to the municipal, city, circuit, or district, judge for preliminary
examination or investigation in accordance with existing laws.
2. Only upon proper warrant issued by a judge shall the person or persons charged with the above crimes be arrested and
detained; Provided, however, that should the military commander or the head of the law enforcement agency determine
that the person or persons to be arrested would probably escape or commit further acts which would endanger public
order and safety before the proper warrant could be obtained, arrest may be immediately effected and the said person
or persons shall be detained. Thereafter, he or they shall immediately be investigated and charged and a judicial warrant
for his or their arrest obtained.
3. The above notwithstanding, the military commander or the head of the law enforcement agency may apply to the
President thru the Minister of National Defense, for a Presidential Commitment Order covering the person or persons
believed to be participants in the commission of the crimes referred to in paragraph 1 under the following circumstances:
a) When resort to judicial process is not possible or expedient without endangering public order and safety; and
b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger
said public order and safety.
4. When issued, the Presidential Commitment Order shall constitute authority to arrest the subject person or persons and
keep him or them under detention until ordered released by the President or his duly authorized representative.
5. In every case where no Presidential Commitment Order is issued by the President, the accused under detention may
be released on bail in accordance with the applicable laws.
6. In no case shall the powers of the President under Proclamation No. 2045 be invoked except as provided above.
This Letter of Instructions shall take effect immediately and shall supersede the provisions of Letter of Instructions No.
1125-A. It shag apply to those persons now detained by virtue of Presidential Commitment Order.
Done in the City of Manila, this 9th day of March, in the year of Our Lord, Nineteen hundred and eighty-two.

7 Rule 113, The Revised Rules of Court in the Philippines.
8 Article 124. Revised Penal Code.
9 Article 269, Revised Penal Code.
10 Grunche vs. Director of Prisons, 77 Phil. 993,
11 Art. IV of the Constitution of the Republic of the Philippines.
12 M.O.
13 Art. IX, Sec. 1, Constitution of the Republic of the Philippines.
FERNANDO, J.:
1 L-39964, December 11, 1971, 42 SCRA 448.
2 90 Phil. 172 (1951). Since there were two other cases of similar nature decided the same day, October 11, 1951, the
resolution setting forth the view of a divided Court is more commonly referred to as Nava v. Gatmaitan. Five of the ten
Justices who sat, one short of the necessary votes for a binding doctrine, the then Chief Justice Paras and Justices
Bengzon, C., Tuason, Reyes, A., and Jugo sustained the right to bail.
3 42 SCRA 448.
4 L-47185, January 15, 1981, 102 SCRA 7.
5 G. R. No. 61388, April 20, 1983.
6 Cf. Nuez v. Sandiganbayan, G.R. No. 50581, January 30. 1982, 111 SCRA 433.
7 Opinion of the Court, par. 1.
8 Cf. Cruz v. Montoya, L-39823, February 25, 1975, 62 SCRA 543; Romero v. Ponce Enrile, L-44613, February 28, 1977, 75
SCRA 429; De la Plata v. Escarcha, L-46367, August 1, 1977, 78 SCRA 208; Caas v. Director of Prisons, L-41557, August 18,
1977, 78 SCRA 271; Anas v. Ponce Enrile, L-44800, April 13, 1978, 82 SCRA 333; Dacuyan v. Ramos, L-48471 , September
30, 1978, 85 SCRA 487; Ventura v. People, L-46576, November 6, 1978, 86 SCRA 188; Florendo v. Javier, L-36101, June
29,1979,91 SCRA 204.
9 Ibid, par. 4.
10 So I have invariably maintained in my separate opinions in the martial law cases. Cf. Aquino, Jr. v. Enrile, L-35546,
September 17, 1974, 59 SCRA 183; Aquino. Jr. v. Commission on Elections, L-40004, January 31, 1975, 62 SCRA 275;
Aquino, Jr. v. Military Commission No. 2, L-37364, May 9, 1975, 63 SCRA 546; Sanidad v. Commission on Elections, L-
44640, October 12,1976, 73 SCRA 333.
11 Cf. Resolution of this Court dated July 13, 1982 in G.R. No. 61091, Morales v. Enrile, and resolution of this Court dated
July 20, 1982 in G.R. No. 61107, Moncupa v. Enrile.
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12 Cf. Resolution of this Court dated July 22, 1982 in both petitions.
13 42 SCRA 448.
14 Ibid 475.
15 Accordingly, I subscribe to the principle in paragraphs 31 and 32 as to the power of this Court to inquire in a habeas
corpus petition into allegations of torture.
16 Paragraph 30 of the main opinion views with this matter similarly.
17 4 Wall 2,123(1866).
18 It is usually reported as Nava v. Gatmaitan, 90 Phil. 172, 204, there being only one resolution.
19 4 SCRA 448, 494-495.
20 Free. Telephone Workers Union v. Minister of Labor and Employment, L-58184, October 30,1981, 108 SCRA 757,763.
21 L-38383, May 27, 1981, 104 SCRA 607. Cf. De la Llana V. Alba, G.R. No. 57883, March 12,1982,112 SCRA 294.
TEEHANKEE, J.:
1 Paragraphs 31-32, main opinion.
2 Par. 14, main opinion.
3 Pars. 22-23, main opinion.
4 Par. 30, Idem.
5 63 SCRA 4, 25-26 (1975).
6 G.R. No. 60602, September 30,1982, per Escolin, J.
7 Villaber vs. Diego, et al., 108 SCRA 468.
8 G.R. No. 58284, Nov. 19,1981.
9 Jointly decided with Angeles vs. Abaya and reported in 90 Phil. 172 (1951).
10 Emphasis supplied.
12 Idem. 12 Idem.
13 102 SCRA 7 (1981).
14 63 SCRA 546 (1975).
15 G.R. No. L-6352, Resolution of Jan. 29, 1953, 49 O.G. 1855, emphasis supplied. See Villasenor vs. Abancio, 21 SCRA
321.
16 Times Journal issue of April 24, 1983; note in brackets supplied.
DE CASTRO, J.:
1 Encyclopedia of the Social Scienes, Volume III, p. 236, 1950 ed.

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-69844 February 23, 1988
vs.
ROMEO POLICARPIO y MIRANDA, accused-appellant.

GANCAYCO, J.:
Convicted of violation of Section 4 Art. II of Republic Act No. 6425 as amended in a decision of
the Regional Trial Court of Rizal, the dispositive part of which reading as follows:
WHEREFORE, finding the accused guilty beyond a reasonable doubt for Violation
of Section 4. Article II of Republic Act 6425 as amended, the court hereby
sentenced the accused to suffer a penalty of CADENA PERPETUA and to pay a
fine of P30,000.00 without subsidiary imprisonment in case of insolvency with
costs against the accused.
The accused shall be entitled to the full term of his preventive imprisonment
pursuant to Article 29 of the Revised Penal Code as amended by Republic Act
6127, provided he abides by the rules imposed upon convicted prisoners,
otherwise, he shall only be entitled to 4/5.
accused Romeo Policarpio y Miranda now interposed, this appeal to this Court alleging that the
trial court committed the following assigned errors:
I
THE LOWER COURT SERIOUSLY ERRED IN NOT FINDING THAT CONSTITUTIONAL
RIGHTS OF THE ACCUSED-APPELLANT WERE VIOLATED BY THE APPREHENDING
NARCOTICS AGENTS.
II
THE LOWER COURT ERRED IN FINDING THAT ACCUSED-APPELLANT WAS
APPREHENDED IN THE ACT OF SELLING MARIJUANA, OR IMMEDIATELY
THEREAFTER, AND IN FAILING TO FIND THAT HE WAS CHASED AND CAUGHT IN A
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RICEFIELD BETWEEN SITIOS BAGONG BAYAN AND SAN JUAN AT DARANGAN,
BINANGONAN, RIZAL.
III
THE LOWER COURT ERRED IN FAILING TO GIVE CREDENCE TO THE TESTIMONY
OF ACCUSED-APPELLANT AND HIS WITNESS ISIDRO PARALEJAS.
IV
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF
VIOLATING THE PROVISIONS OF SECTION 4, ARTICLE II OF REPUBLIC ACT 6425 AS
AMENDED.
The facts of the case as found by the court a quo are as follows:
On June 16,1984 at 2:00 o'clock in the afternoon, operatives of the Narcotics
Command, Camp Crame headed by P/Capt. Gabriel Paile swooped down at
Bagong Bayan, Kalawaan, Darangan, Binangonan, Rizal, after receiving an
information that the accused alias Dupong is engaged in the sale and distribution
of marijuana and other prohibited drugs and tagged as the main source at the
area. The team was organized earlier by Lt. Col. Manuel T. Raval, Commanding
officer, 13th NRU Narcotics Command and was dispatched to the target area to
entrap the accused Romeo Policarpio, accordingly, Pat. Mangila will pose as a
buyer and was handed the marked P20.00 bill (Exhibit "I" to "I-3") with which to
buy the stuff before they proceeded to the area of operation. At about 2:00 p.m.
same date, the operatives arrived at Bagong Bayan, Kalawaan, Darangan,
Binangonan, Rizal. Leaving their vehicle at a distance, they posted themselves at
strategic places. The poseur buyer Pat. Enrico Mangila, together with the
informant, looked for the accused and at about 5:00 o'clock in the afternoon of
same date Pat. Mangila and the informant were able to locate the accused in
front of his house. Thereafter, Pat. Mangila was introduced by the informant to
the accused as the person who needs some marijuana leaves, and after they had
talked with the accused for a while, the accused gave Pat. Mangila two small
plastic bags containing dried marijuana leaves and rolling paper (Exhibit "B" to
"B-4"). In turn Pat. Mangila gave to the accused the marked P20.00 bill (Exhibit
"I" to "I-3"). As previously arranged, Pat. Mangila scratched his head and his
companions, Pfc. Basco and Mendiola grabbed and arrested the accused. From
the accused was confiscated the marked P20.00 bill on his front pocket. After the
arrest of the accused, the latter led his captors to his house and the operatives
seized another six (6) small plastic bags of dried marijuana leaves together with
rolling papers contained in a bigger plastic bag marked Tie Tae Toe (Exhibit "C" to
"C-6") placed on a top of the refrigerator at the kitchen of their house. Arrested
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with the accused is a certain person Rogelio Policarpio, who turned out to be his
cousin and who was earlier convicted by this Court for Possession of Dried
Marijuana Leaves in Criminal Case No. 273-B of this Court. The accused and the
confiscated prohibited drugs were brought to Camp Crame and the Marijuana
leaves were turned over to the PCCL for examination (Exhibit "D"). The PCCL
conducted examination over the evidence thus (sic) over, and rendered its
Chemistry Report with the finding that the evidence thus examined gave a
positive result for the test for marijuana (Exhibit "A" to "A-3"). At the PC
Headquarters, the accused Romeo Policarpio signed a bond paper
acknowledging that the six (6) small plastic bags of marijuana leaves were
confiscated from him (Exhibit "G" to "G-2"). He likewise signed a document
acknowledging the fact that the marked P20.00 bill was confiscated from him
(Exhibit "F" to "F-1"). Similarly, accused signed a sworn statement where he
opted not to give statement until he is represented by a counsel (Exhibit "J" to
"J-2").
Under the first assigned error appellant claims that Exhibit G which is a receipt signed by
appellant acknowledging that six (6) small plastic bags of marijuana leaves were confiscated
from him and Exhibit F a receipt signed by appellant acknowledging that the P20.00 bill
involved in the purchase of the marijuana leaves was confiscated from him are not admissible
in evidence as they were taken in violation of his constitutional right.
What the records show is that appellant was informed of his constitutional right to be silent
and that he may refuse to give a statement which maybe used against him, that is why he
refused to give such a written statement unless it is made in the presence of his lawyer as
shown by the paper he signed to this effect.
1
However, he was made to acknowledge that the
six (6) small plastic bags of dried marijuana leaves were confiscated from him by signing a
receipt
2
and to sign a receipt for the P 20.00 bill as purchase price of the dried marijuana leaves
he sold to Pat. Mangila.
3

Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts
which in effect are extra-judicial confessions of the commission of the offense. Indeed it is
unusual for appellant to be made to sign receipts for what were taken from him. It is the police
officers who confiscated the same who should have signed such receipts. No doubt this is a
violation of the constitutional right of appellant to remain silent whereby he was made to admit
the commission of the offense without informing him of his right.
4
Such a confession obtained
in violation of the Constitution is inadmissible in evidence.
The second, third, and fourth assigned errors are factual in nature wherein the appellant raises
the question of credibility of the witnesses and reiterates his defense denying that he had been
apprehended in the act of selling marijuana and receiving P 20.00 as payment thereof He
alleges that he was then at a mahjong session and that he was pursued by the police when they
came.
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The too-well known rule in this jurisdiction is that the findings of facts of the trial court are
conclusive in this proceeding and will not be disturbed unless some facts or circumstances may
have been overlooked that may otherwise affect the result of the case. The Court finds no
reason to depart from this rule in the present case.
While the Court now holds that the receipts for the six (6) plastic bags of marijuana and the
P20.00 bill which appellant was made to sign
5
are not admissible in evidence against him,
nevertheless there is ample evidence in the record other than these receipts to establish the
commission of the offense by the appellant. Prosecution witnesses Pat. Enrico Mangila and Pfc.
Jose Basco were present and categorically attested to the fact that the appellant sold two (2)
tea bags of dried marijuana leaves to Mangila and received as consideration thereof P 20.00.
6

While the appellant attempts to discredit the testimony of said police officers, he has not
shown any improper motive why they should testify in the manner that they did. Thus their
testimonies are entitled to full faith and credence.
7
As a matter of fact courts give much
credence to entrapping police officers, as in this case, as they are presumed to be in the regular
performance of official duties.
8

Drug addiction is one of the most pernicious evils that has ever crept into our society. More
often than not it is the young who constitute the greater majority of the citizenry who are the
victims. It is of common knowledge that drug addicts become useless if not dangerous
members of society and in some instances turn up to be among the living dead. This is the
reason why the courts and law enforcement agencies should continue in their relentless
campaign not merely to minimize but to totally eradicate the evil before it is too late. And
everyone must be involved in this drive if we are to succeed. The peddlers of drugs are actually
agents of destruction. They deserve no less than the maximum penalty.
WHEREFORE, the decision appealed from is AFFIRMED in toto with costs against accused-
appellant.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.

Footnotes
1 Exhibits J to J-1.
2 Exhibit G.
3 Exhibit F.
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4 Section 20 Art. IV of the 1973 Constitution provide the following: "No person shall be compelled to be a witness against
himself. Any person under investigatin for the commission of an offense shall have the right to remain silent and to
counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence."
Section 12(1), Article III of the 1987 Constitution also provides: "Any person under investigation for
the commission of an offense shall have the right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These right cannot be waived except in writing and in the
presence of counsel."
5 Exhibit G and J.
6 TSN, November 5, 1984, pp. 3-12, September 24, 1984, pp. 4-14.
7 People vs. Alcantara, 126 SCRA 425 (1983); People vs. Zurbito, 151 SCRA 677 (1982).
8 Rule 131, Section 5(m) Rules of Court.

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FIRST DIVISION
G.R. No. L-101003 March 24, 1994
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JONATHAN BARLIS Y MERCADO, FERDINAND
DOE and EDUARDO DOE, accused. JONATHAN BARLIS Y MERCADO,Accused-Appellant.
The Solicitor General for plaintiff-appellee.chanrobles virtual law library
Alfredo U. Malabaguio for accused-appellant.
DAVIDE, JR., J.:
On 30 January 1990, Jonathan Barlis, accompanied by his uncle,
Pfc. Patrocinio Mercado of the Northern Police District, surrendered to
Pfc. Mariano Rivera at the Kamias police station, Quezon City. Jonathan admitted that he was
with the group which was responsible for the killing on
20 January 1990 of Honorina Ballerda inside her house at No. 30, Masaya Street, Gulod,
Novaliches, Quezon City, and that on the same occasion, one of his companions, "Buboy"
(Eduardo Nining), took three men's watches while his other companion, Ferdie (Ferdinand
Lopez) took some money which they later divided among themselves. Thereafter, assisted by
Atty. Confesor B. Sansano, Chairman of the Legal Assistance Office of the IBP-Quezon City
Chapter, Jonathan signed a sworn statement wherein he narrated in detail how the crime was
committed and the extent of his participation therein.chanroblesvirtualawlibrary chanrobles
virtual law library
On 6 February 1990, an information
1
for robbery with homicide, docketed as Criminal Case No.
Q-40-10283, was filed with the Regional Trial Court of Quezon City against Jonathan Barlis and
his companions. Its accusatory portion reads as follows:
That on or about the 20th day of January, 1990, in Quezon City, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring together,
confederating with and mutually helping one another, with intent to gain and by means of
violence and intimidation against person, did then and there wilfully, unlawfully and feloniously
rob HONORINA BALLERDA Y CASADA, in the following manner, to wit: on the date and in the
place aforementioned, the said accused pursuant to their conspiracy went to the house of said
complainant-victim and once inside the house, rob, took and carted away victim's personal
properties, to wit:
One (1) ladies gold necklace worth P1,500.00
One (1) ladies Seiko wrist watch worth P2,000.00
One (1) diamond stone worth P800.00
Cash money in the amount of P3,000.00
Assorted pieces of jewelry of undetermined value
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in the total amount of P7,300.00 and assorted pieces of jewelry of undetermined amount,
belonging to HONORINA BALLERDA Y CASADA, and on the occasion of said Robbery, the said
accused pursuant to their conspiracy, with intent to kill and without any justifiable cause,
attacked, assaulted and employed personal violence upon the person of HONORINA BALLERDA
Y CASADA by stabbing her on the neck and upper chest, thereby inflicting upon her serious and
mortal wounds which were the direct and immediate cause of her untimely death, to the
damage and prejudice of the heirs of the said victim in the amount aforementioned and in such
amount as may be awarded to them under the provisions of the New Civil Code.
The case was assigned to Branch 88 of the said court.chanroblesvirtualawlibrary chanrobles
virtual law library
Trial proceeded against Jonathan Barlis only because the two other accused remained at
large.chanroblesvirtualawlibrarychanrobles virtual law library
The witnesses presented by the prosecution to establish its case were Adela Argate, who was
the house helper and companion of the deceased victim, Pfc. Mariano Rivera, Atty. Confesor
Sansano, Dr. Dario Gajardo, and Wilma Ballerda, the victim's
daughter.chanroblesvirtualawlibrarychanrobles virtual law library
Adela Argate testified that at about 9:20 a.m. of 20 January 1990, Jonathan Barlis and his two
other companions entered the house of Honorina Ballerda with the permission of the latter.
Thereafter, while she was about to cook, Honorina called her and when she turned to face
Honorina, she saw the latter being pushed ("ginigitgit") by Jonathan and one of his
companions. Another companion, who was carrying an icepick, grabbed her (Adela), gagged
and hogtied her, and brought her inside the bathroom. She observed that the volume of the
radio was increased and that the two untied dogs inside the house were barking. She was able
to free herself and when she went out of the bathroom, she noticed that Jonathan and his
companions were no longer in the house. She then saw the body of Honorina sprawled on the
floor with her face covered with blood. She went out of the house and asked their neighbors to
call the police.
2
chanrobles virtual law library
She was able to identify Jonathan "because he is tall and had no hat." His companions were thin
and young, but she failed to identify them because they were always looking down and were
hiding behind Jonathan.
3
She further declared that she lost a wrist watch and less than P100.00
in cash during the incident.
4
Pfc. Mariano Rivera testified that he investigated Jonathan who then voluntarily gave his
confession, with the assistance of Atty. Confesor Sansano of the IBP-Quezon City Chapter, after
he was duly apprised of his constitutional rights in Tagalog. He identified the extrajudicial
confession (Exhibit "B"), which is in the form of a sworn statement or"salaysay," and the advice
to Jonathan of his constitutional rights (Exhibit "A").
5
Atty. Sansano's testimony corroborated
that of Rivera.
6
The pertinent part of the extrajudicial confession reads as follows:
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T.3 - Alam mo na ba ngayon ang dahilan kung bakit tayo naririto at nagbibigay ng salaysay?
S - Dahil ho sa nasangkot ako sa pagnanakaw at pagpatay sa loob ng bahay ni Aling Nena sa
Masaya St. corner Nenita, RP Shooters, Gulod, Novaliches, Quezon City.chanrobles virtual law
library
T.4 - Kailan nangyari ang sinasabi mong iyan? Natatandaan mo pa?
S - A beinte ho ng Enero 1990, mga alas-9:00 ng umaga.chanrobles virtual law library
T.5 - Meron ka bang kasama nang maganap ang pangyayaring iyan?
S - Meron ho, sina FERDIE at BUBOY na mga taga Sta. Lucia din.chanrobles virtual law library
T.6 - Alam mo ba kung anong buong pangalan nina FERDIE at BUBOY?
S - Si FERDIE ho ay FERDINAND LOPEZ at si BUBOY ay si EDUARDO NINING.chanrobles virtual
law library
T.7 - Ang sabi mo ay nasangkot ka sa pagnanakaw at pagpatay sa bahay ni Aling Nena, sino
naman ang napatay at ninakawan doon?
S - Si Aling Nena ho and napatay doon at ninakawan.chanrobles virtual law library
T.8 - Sino ang pumatay kay Aling Nena?
S - Si FERDIE ho, pinagsasaksak ho ng treskantos.chanrobles virtual law library
T.9 - Nakita mo ba ng sinaksak ni FERDIE si Aling Nena?
S - Oho, marami ho, hindi ko matandaan, pero nakita kong sinaksak niya sa leeg si Aling
NENA.chanrobles virtual law library
T.10 - Ano naman ang dahilan at sinaksak ni FERDIE si Aling NENA?
S - Hoholdapin ho sana namin, pero nanlaban at sumigaw.chanrobles virtual law library
T.11 - Isalaysay mo nga ang buong pangyayari kung paano napatay si Aling NENA at
napagnakawan.chanrobles virtual law library
S - Gipit ho kasi ang girlfriend kong si Cristy at kailangang- kailangan niya ang pera kaya
ipinasangla sa akin yun kanyang Crown Video Home Service. Ngayon, dahil ho sa bagong galing
ako sa trangkaso, isinama ko sina FERDIE at BUBOY para salisi kami sa pagbuhat dahil sa
mabigat yung VHS. Pagkakatok namin ay pinapasok kami ni Aling NENA. Inaalok ko sa kanya na
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isangla o ibenta na yung dala naming VHS. Tumanggi siya at wala daw pera. Yun namang VHS na
nakalagay sa dala naming bag ay nakabukas at nakapatong sa ibabaw ng ref. Nang ayaw niyang
tanggapin ay isinara ko na yung zipper ng bag at bubuhatin ko na. Sinenyasan ko sina Ferdie na
aalis na kami pero bigla na lang pinagsasaksak ni FERDIE yung matanda. Pumalag pa si Aling
Nena at sumigaw habang sinasaksak ni FERDIE. Hanggang sa bumagsak si Aling NENA ay
pumapalag siya. Nabigla ako. Umakyat ako sa itaas ng bahay at naghalughog. Sumunod din sa
akin si FERDIE at naghalughog. Wala naman akong nakuha.chanrobles virtual law library
T.12 - Si FERDIE, meron ba siyang nakuha habang naghahalughog din sa itaas ng bahay?
S - Meron akong nakitang ibinulsa niya na galing sa aparador, hindi ko lang alam kung ano
iyon.chanrobles virtual law library
T.13 - Ano pa ang alam mong nakuha ni FERDIE sa bahay na iyon?
S - Ang alam ko lang ay tatlong relos na panlalaki, isa lang ang natatandaan ko na SEIKO
automatic na stainless, saka mga barya. Sa tindahan yata niya nakuha iyon dahil si FERDIE ang
pumasok sa tindahan.chanrobles virtual law library
T.14 - Si BUBOY naman, ano ang alam mong ginawa niya.chanrobles virtual law library
S - Itinali ho yung katulong at dinala yata sa CR.chanrobles virtual law library
T.15 - Ayon sa salaysay ni REGINO FLORENCIO, yung asawa ng biktimang si NENA, nawalan din
sila ng mga alahas, meron ba kayong nakuhang mga alahas kina NENA?
S - Wala ho.chanrobles virtual law library
T.16 - Sa tantiya mo, mga gaano kayo katagal sa loob ng bahay nina NENA nang umagang
mangyari iyon?
S - Mga kinse minutos lang ho siguro.chanrobles virtual law library
T.17 - Ang ibig mo bang sabihin, sa buong panahong iyon, wala kang nakuhang pera o alahas at
mamahaling bagay?
S - Wala ho, kasi pagdating namin sa Blumentritt, si FERDIE lang ang naglabas ng pera. Si Buboy
ay inabot sa akin yung tatlong relos.chanrobles virtual law library
T.18 - Paano naman kayo nakarating sa Blumentritt?
S - Nang paalis na kami ay una-una lang. Una si Buboy, pangalawa si Ferdie at ako ang huli.
Naglakad lang kami hanggang sa sakayan. Pagdating sa Quirino Highway ay sumakay kaming
tatlo sa jeep na papuntang Blumentritt. Pagdating doon sa may Avenida ay naghati-hati na lang
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kami sa kalye habang naglalakad. Nakaparte kaming tatlo ng tigpo-four hundred pesos.
Naghiwalay na kami at yung dalawa ay pupunta daw sila sa Alfonso, Cavite. Isinasama nila ako,
pero hindi ako sumama. Tumuloy ako sa bahay ng tiyuhin ko sa may Grotto. Pero pagkaraan ng
may ilang araw ay nagpagala ako sa Maynila, at bumalik ako sa tiyuhin ko ng January 23, 1990.
Hindi ako mapakali.
xxx xxx xxx
(Signed)
JONATHAN M. BARLIS
Nagsasalaysay?
NILAGDAAN SA HARAP NINA:
(Unsigned) (Unsigned)
1. Cristina A. Lopez 2. Luzviminda M. Barlischanrobles virtual law library
ASSISTED BY:chanrobles virtual law library
(Signed)
ATTY. CONFESSOR SANSANO
SUBSCRIBED AND SWORN to before me this 30[th] day of January 1990 at Quezon City,
Philippines.
(Signed)
ASST. CITY PROSECUTOR
Dr. Dario L. Gajardo, Medico-Legal Officer of the PC/INP Crime Laboratory Service at Camp
Crame, conducted an autopsy on the body of Honorina Ballerda. He testified that he found
thirty-four stab wounds caused by a pointed instrument, such as an icepick, located mainly on
the neck and front of the body. Sixteen of these stab wounds were fatal.
7
chanrobles virtual law
library
Wilma Ballerda testified that in connection with the untimely death of her mother, she spent
P15,900.00 for the funeral services, P3,900.00 for burial services, which excluded that for the
lot, and P3,725.00 for the mass, flowers, and food during the wake. She hired the services of a
lawyer for P20,000.00.
8
The witnesses for the defense were accused Jonathan Barlis, Cristina Lopez, Rizaldy Reyes,
Hernando Angeles, Joselito Gatdula, and the accused's uncle, Pfc. Patrocinio Mercado. The
accused's testimony is summarized by the trial court as follows:
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That on January 20, 1990 at around 9 o'clock in the morning, accused Barlis was on his way to
Grotto, San Jose, Bulacan when he met his co-accused Ferdinand Lopez and Eduardo Nining;
that the two requested him to accompany them to Ballerda's place in order to pawn their VHS
to the latter; that he accompanied them but immediately went to Bulacan after talking to
Honorina Ballerda at the latter's store and when said Ballerda allowed the two to enter her
house; that he did not stay long at Grotto, San Jose, Bulacan and went back to Novaliches; that
he learned, upon reaching home, that police authorities are looking for him; that since he does
not know what to do, he went back to Bulacan and stayed there until January 30, 1990 when
police officers, one of whom is his uncle (Pfc. Patrocinio Mercado), went thereat and fetch him
to act as a witness against Ferdinand Lopez and Eduardo Nining; that he actually aided police
operatives in tracking them although said Lopez was able to escape from the police officers;
that he was brought to the Quezon City Police Station where he was investigated and told to
sign a paper (his salaysay), that he signed the same since Pfc. Mariano Rivera was in a hurry to
get a lawyer; that they (accused Barlis and Pfc. Rivera) went to the office of a lawyer who
signed the document without asking any question from him; that he was brought back to the
police station where he was detained.
9
Cristina Lopez, Jonathan's girlfriend, testified that she and Jonathan's mother accompanied
Jonathan when he surrendered to the police in Quezon City and when he was brought to the
Office of the IBP-Quezon City Chapter. However, she and Jonathan's mother were not allowed
to go inside the said Office.
10
Rizaldy Reyes, Hernando Angeles, and Joselito Gatdula tried to corroborate Jonathan's alibi.
Rizaldy claimed that he and Jonathan were on board the same passenger jeepney when he
went to work at about 9:00 a.m. on 20 January 1990. Jonathan told him that he was going to
Grotto, San Jose, Bulacan.
11
Hernando declared that he only saw Ferdinand Lopez and Eduardo
Nining coming out from the house of Honorina Ballerda at about 9:00 a.m. to 9:20 a.m. of the
said date.
12
Joselito testified that he and Jonathan were on the same passenger jeepney bound
for Grotto, San Jose, Bulacan, before 9:30 a.m. of that date.
13
Pfc. Patrocinio Mercado, Jonathan's uncle and a member of the Quezon City Police, testified
that on 30 January 1990, he and Jonathan's mother went to Grotto, San Jose, Bulacan, to see
Jonathan. The latter told him of his intention to surrender because he is innocent. They brought
Jonathan to the Quezon City Police Station where an investigator helped Jonathan to be a
witness in the case. He was not with Jonathan inside the investigation room. After the
investigation, he discovered that Jonathan had executed a sworn statement and had been
included in the charge. He asked Jonathan if he was assisted by a lawyer when he executed the
sworn statement to which Jonathan answered that he was.
14
On 4 April 1991, the trial court promulgated its decision
15
finding Jonathan Barlis guilty beyond
reasonable doubt of the crime of robbery with homicide and sentencing him "to suffer the
penalty of RECLUSION PERPETUA . . . to pay the heirs of Honorina Ballerda the amount of Fifty
Thousand Pesos (P50,000.00) by virtue of the former's death and Ten Thousand Pesos
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(P10,000.00) by way of moral damages" and to restore to the victim's heirs one lady's gold
necklace, one Seiko wrist watch, one diamond stone, or their equivalent value of P4,300.00 if
restoration cannot be done, and cash worth P3,000.00.
16
The trial court found that there was a conspiracy among Jonathan and his companions in the
commission of the crime and convicted the former on the basis of the circumstantial evidence
and his extrajudicial confession, thus:
While the prosecution did not show any real evidence to establish the killing of the victim and
the taking of personal properties at her residence, nonetheless, the attending circumstances of
the instant case are indicative of accused['s] participation in the commission of the offense
charge[d]. There is no dispute that movables were lost and the victim died of stab wounds on
January 20, 1990. Such occurrence transpired after accused went inside the house of Ballerda,
gagged their victim and tied Adela Argate. These facts are conclusive upon him since he did not
advance any denial. His defense of alibi cannot prevail over his positive identification by
Argate.chanroblesvirtualawlibrarychanrobles virtual law library
The acts of gagging their victims, tying and carrying Argate to the bathroom, and increasing the
volume of the radio manifest a clear case of conspiracy. For this purpose, the Honorable
Supreme Court held that:
Direct proof is not essential to establish conspiracy. Since by its nature, conspiracy is planned in
utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence and
concurrence of minds which is involved in conspiracy, may be inferred from proof of facts and
circumstances which, taken together, apparently indicate that they are merely parts of some
complete whole.chanroblesvirtualawlibrarychanrobles virtual law library
If it is proved that two or more persons aimed by their acts towards the accomplishment of the
same unlawful object, each doing a part so that their acts, though apparently independent
were in fact connected and cooperative, indicating closeness of personal association and
concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them
to concert means is proved. That would be termed as implied conspiracy. (Orodio v. CA,
September 13, 1988, GR 57519).chanroblesvirtualawlibrarychanrobles virtual law library
Accused likewise questions the admissibility of his "salaysay" by proving that the same was
executed by him without the assistance of counsel. Testimonies to this effect lack credence. His
uncle and his own witness, Pfc. Patrocinio Mercado, admitted that such "salaysay" was taken
regularly and with the constitutional requisite of assistance [of] counsel. While the
constitutional presumption of innocence should be upheld, such presumption cannot rise
above the regularity in the performance of police duties and lawyer's function when the latter
evidence is strong.
17

Jonathan Barlis (hereinafter appellant) appealed the judgment to this Court. In his brief, he
contends that the trial court erred:
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308 | P a g e
1. . . . IN NOT CONSIDERING THE DEFENSE OF ALIBI RAISED BY THE
ACCUSED.chanroblesvirtualawlibrarychanrobles virtual law library
2. . . . IN GIVING CREDENCE TO THE STATEMENT (EXHIBIT "B") OF THE
ACCUSED.chanroblesvirtualawlibrarychanrobles virtual law library
3. . . . IN ADJUDGING THE ACCUSED AS CIVILLY LIABLE.chanroblesvirtualawlibrarychanrobles
virtual law library
4. . . . IN CONVICTING THE ACCUSED JONATHAN BARLIS OF THE CRIME OF ROBBERY WITH
HOMICIDE.
18
We shall take up these assigned errors seriatim.chanroblesvirtualawlibrarychanrobles virtual
law library
In the first assignment of error, the appellant asserts that the trial court erred in rejecting his
strongly corroborated alibi and in convicting him on the basis of the weak circumstantial
evidence of the prosecution. He argues that even the trial court recognized the weakness of the
prosecution's evidence when it stated in its decision that "[w]hile the prosecution did not show
any real evidence to establish the killing of the victim and the taking of personal properties at
her residence, nonetheless, the attending circumstances of the instant case are indicative of
accused['s] participation in the commission of the offense charge[d]." He also assails the
credibility of Adela Argate whose statements on the identity of the malefactors before the
police which investigated the crime in the afternoon of 20 January 1990 (Exhibit "2")
19
were
inconsistent with her declaration given in court and who could not have seen the malefactors
because, as she testified, the house was dark. Finally, he attacks the "seeming suppression of
evidence by the prosecution when it did not present in evidence Exhibit "2."chanrobles virtual
law library
The appellant's defense of alibi was rightly rejected by the trial court not only because it was
belied by his sworn statement (Exhibit "B") but also because he was positively identified by
Adela Argate. The appellant admitted in his sworn statement that he was one of three persons
who entered the house of Honorina with the intention of robbing her although he denied that
he killed
her;
20
that after the victim was killed, he searched the house for things which he could take
with him but was unsuccessful; however, his companion, Ferdie, took three men's watches. He
also admitted that they divided the loot among themselves and each of them got P400.00 in
cash.
21
Adela Argate positively identified the appellant as one of the three persons who entered the
house of the victim. Contrary to the appellant's claim, there was sufficient illumination inside
the house when they entered it. The lights were turned off by the appellant and his companions
only after they consummated the crime and before they left the house.
22
She also identified
him as one of two persons who pushed ("ginigitgit") the victim. We have ruled time and again
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that alibi is a weak defense and cannot prevail over the positive identification of the
accused.
23
The appellant's claim that the prosecution suppressed evidence is without merit. It was not
necessary for the prosecution to present Adela Argate's statement before the police authorities
since Adela Argate was herself presented as a witness and the prosecution had explained that it
opted not to present such statement because the same was not sworn to before any officer
authorized to administer oaths.
24
Moreover, the defense had access to a copy of such
statement and even marked it as its Exhibit "2." The presumption that evidence willfully
suppressed would be adverse if produced
25
does not apply where the evidence is available to
the accused.
26
Furthermore, the defense did not comply with Section 13, Rule 132 of the Rules
of Court
27
in attempting to impeach Adela's credibility by evidence of a prior inconsistent
statement (Exhibit "2"). In this case, while Adela was cross-examined by the counsel for the
appellant, she was never confronted regarding her alleged inconsistent statements in
Exhibit "2".chanroblesvirtualawlibrarychanrobles virtual law library
In his second assignment of error, the appellant contends that the trial court erred in giving
credence to his sworn statement or "salaysay" (Exhibit "B") which was taken without the
assistance of a lawyer in violation of Section 12(1), Article 3 of the 1987 Constitution. He alleges
that he surrendered to the police only to help them find the real culprits, that Pfc. Rivera misled
him into signing the sworn statement by telling him not to worry, and that he was brought to
the Office of the IBP-Quezon City Chapter where Atty. Sansano signed the document without
conferring with him. Furthermore, he questions the fact that the names of his girlfriend,
Cristina Lopez, and his mother, Luzviminda Barlis, appear as witnesses in Exhibit "B-1" although
they had not signed it.chanroblesvirtualawlibrarychanrobles virtual law library
We are not persuaded. It was the appellant's uncle who surrendered him to Pfc. Rivera, his
uncle's colleague. Before he was questioned, he was duly informed and advised in Tagalog, a
language he speaks and understands, of his constitutional rights to remain silent and to have a
competent and independent counsel, preferably of his own choice.
28
He voluntarily agreed to
be assisted by no less than the Chairman of the Legal Aid Assistance Office of the IBP-Quezon
City Chapter, Atty. Confesor Sansano. The latter affirmed in court that he assisted the appellant
during the investigation. A lawyer is an officer of the court and upon his shoulders lies the
responsibility to see to it that protection has been accorded the rights of the accused and that
no injustice to him has been committed.
29
He has in his favor the presumption of regularity in
the performance of his duties. This presumption was not rebutted in this case. With the
presence of Atty. Sansano, we believe that the rights of the appellant were duly
protected.chanroblesvirtualawlibrarychanrobles virtual law library
The failure of the mother and the girlfriend of the appellant to sign as witnesses to the taking of
his sworn statement is of no moment for the Constitution does not require the presence of
witnesses during custodial investigation. What is required is the assistance of counsel, which
can even be waived. As held in People vs. Layuso,
30
what is sought to be protected by the
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Constitution is the compulsory disclosure of incriminating facts. The right is guaranteed merely
to preclude the slightest coercion as would lead the accused to admit something false, not to
prevent him from freely and voluntarily telling the truth.chanroblesvirtualawlibrarychanrobles
virtual law library
The last two assigned errors, being interrelated, shall be discussed
jointly.chanroblesvirtualawlibrarychanrobles virtual law library
The information alleged that the appellant took one ladies' gold necklace, one ladies' Seiko
watch, one diamond stone worth P800.00, cash in the amount of P3,000.00, and assorted
pieces of jewelry of undetermined value, "all belonging to the victim." However, the only
evidence of such taking is the appellant's sworn statement wherein he admitted that his
companions took three men's watches and about P1,200.00 in cash which they divided among
themselves. Adela Argate, for her part, testified that she lost one ladies' watch and less than
P100.00 in cash. The Office of the Solicitor General in the Brief for the Appellee agrees with the
appellant that it was an error for the trial court to order the restitution of (a) one ladies' gold
necklace, (b) one Seiko wrist watch, (c) one diamond stone and (d) cash in the amount of
P3,000.00, since there was no proof of loss thereof. It maintains, however, that it was proved
that witness Adela Argate lost her wrist watch and cash of less than P100.00, which fact was
not disputed by the appellant; hence, "the element of unlawful taking of property was amply
established."
31
To sustain a conviction for the crime of robbery with homicide, it is necessary that the robbery
itself be proved as conclusively as any other essential element of the crime.
32
The taking with
intent to gain of personal property belonging to another, by means of violence against or
intimidation of any person, or using force upon things are the essential elements of
robbery.
33
There is robbery with homicide when by reason or on occasion of a robbery with the
use of violence against or intimidation of person, the crime of homicide shall have been
committed.
34
As shown above, the only evidence of the taking of the personal property of the victim is the
extrajudicial confession of the appellant. Under Section 3, Rule 133 of the Rules of Court, "an
extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti." Corpus delicti is the body (material substance)
upon which a crime has been committed, e.g., the corpse of a murdered man or the charred
remains of a house burned down. In a derivative sense, it means the substantial fact that a
crime was committed.
35
It is made up of two elements:
(a) that a certain result has been proved, for example, a man has died or a building has been
burned; and (b) that some person is criminally responsible for the act.
36
Section 3, Rule 133
does not mean that every element of the crime charged must be clearly established by
independent evidence apart from the confession. It means merely that there should be some
evidence tending to show the commission of the crime apart from the confession. Otherwise,
utility of the confession as a species of proof would vanish if it were necessary, in addition to
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the confession, to adduce other evidence sufficient to justify conviction independently of such
confession.
37
Otherwise stated, the other evidence need not, independently of the confession,
establish the corpus delicti beyond a reasonable doubt.
38
The prosecution failed to corroborate the extrajudicial confession of the appellant on the
robbery with evidence of corpus delicti. In short, the robbery was not conclusively proved. The
instant case should be distinguished from People vs. Mones.
39
In Mones, the four accused who
were charged with robbery with homicide executed separate confessions of the crime charged.
Their confessions were also corroborated by the testimony of a witness. We held therein:
[W]here the accusation of robbery fails, but multiple homicide or murder is proved, the accused
must be sentenced for the several separate offenses of homicide or murder (U.S. vs.
Lahoylahoy and Madanlog, 38 Phil., 330); and in this case, if the proof should be held
insufficient as to the robbery, the result would be, under the Revised Penal Code, that each of
the accused would be sentenced for the four murders committed by them. In view of this fact
we are constrained to sustain the conviction for robbery with homicide, upon the concurrent
confessions of each of the four accused to the effect that robbery was the purpose of the crime
and that P100 in money were taken from the trunk of Manuel Mico. As to the moral basis of
this fact we entertain no doubt whatever, although there is no independent evidence, apart
from the confessions that robbery was committed. In thus sustaining the trial court in its finding
of robbery we do not wish to be understood as declaring that this appreciation could prevail if
the prosecution consisted of a charge of robbery only, or if the conclusion reached were in fact
unfavorable to the accused.
40
In Mones, the conviction of the four accused for robbery with homicide is sustainable under the
doctrine of interlocking confessions: "extra-judicial confessions independently made without
collusion which are identical with each other in their essential details and are corroborated by
other evidence on record are admissible, as circumstantial evidence, against the person
implicated to show the probability of the latter's actual participation in the commission of the
crime."
41
Clearly, the doctrine is inapplicable here for we only have the solitary confession of
the appellant.chanroblesvirtualawlibrarychanrobles virtual law library
The Office of the Solicitor General, as earlier observed, concedes that there was no proof of
robbery. It argues, however, that such is not fatal because the unrebutted fact remains that
Adela Argate lost a wrist watch and cash of less than P100.00 on the occasion of the robbery.
We cannot sustain this proposition because of the rule enumerated in United States vs.
Lahoylahoy,
42
to wit:
To permit a defendant to be convicted upon a charge of robbing one person when the proof
shows that he robbed an entirely different person, when the first was not present, is violative
of the rudimentary principles of pleading; and in addition, is subject to the criticism that the
defendant is thereby placed in a position where he could not be protected from a future
prosecution by a plea of former conviction or acquittal. If we should convict or acquit these
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312 | P a g e
defendants to-day of the robbery which is alleged to have been committed upon the property
of Roman Estriba, it is perfectly clear that they could be prosecuted tomorrow for robbery
committed upon the property of Juana; and the plea of former jeopardy would be of no avail.
The death of the victim has been sufficiently established by evidence independent of the
appellant's extrajudicial confession, namely, the unrebutted testimonies of prosecution
witnesses Adela Argate, Dr. Dario Gajardo, and Wilma
Ballerda.chanroblesvirtualawlibrarychanrobles virtual law library
Finally, we agree with the trial court that the conspiracy among the appellant and his two
companions was proved beyond reasonable doubt by circumstantial
evidence.chanroblesvirtualawlibrarychanrobles virtual law library
Since the alleged robbery was not conclusively proved in this case, the appellant could only be
convicted of homicide under Article 249 of the Revised Penal Code. The penalty prescribed
therefor is reclusion temporal.chanroblesvirtualawlibrarychanrobles virtual law library
The aggravating circumstance of dwelling
43
was proved in this case and may be appreciated
against the appellant. This is offset, however, by the mitigating circumstance of voluntary
surrender.
44
The applicable period of reclusion temporal is therefore the medium period or
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4)
months.
45
Since he is entitled to the benefits of the Indeterminate Sentence Law,
46
the penalty
to be imposed upon him shall be one whose minimum shall be within the range of prision
mayor and whose maximum shall be within the range of the prescribed penalty taking into
account the modifying circumstances.
47
The award of moral damages in the amount of P10,000.00 is proper under Article 2206(3) of
the Civil Code considering that Wilma Ballerda, the only child of the victim, testified that she
was shocked and could not sleep for several nights when she learned of her mother's
death.
48
WHEREFORE, the appealed decision is MODIFIED as follows: appellant JONATHAN BARLIS Y
MERCADO is hereby found guilty beyond reasonable doubt of the crime of Homicide under
Article 249 of the Revised Penal Code, and, applying the Indeterminate Sentence Law, is hereby
sentenced to suffer an indeterminate penalty ranging from ten (10) years of prision mayor as
minimum to sixteen (16) years of reclusion temporal as maximum. The appellant is ordered to
pay the heirs of Honorina Ballerda the sum of P50,000.00 as indemnity and P10,000.00 as moral
damages. Costs against the appellant.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.

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Endnotes:

1 Original Records (OR), 1-2; Rollo, 3-4.chanrobles virtual law library
2 TSN, 15 March 1990, 5-8.chanrobles virtual law library
3 Id., 5-6.chanrobles virtual law library
4 Id., 10.chanrobles virtual law library
5 TSN, 19 March 1990, 4-5.chanrobles virtual law library
6 TSN, 22 March 1990, 5.chanrobles virtual law library
7 TSN, 24 July 1990, 5-7.chanrobles virtual law library
8 TSN, 31 July 1990, 5-10.chanrobles virtual law library
9 OR, 172-173.chanrobles virtual law library
10 TSN, 17 August 1990, 3-4.chanrobles virtual law library
11 TSN, 20 August 1990, 2.chanrobles virtual law library
14 Id., 5-6.chanrobles virtual law library
15 OR, 171-175. Per Judge Tirso D.C. Velasco.chanrobles virtual law library
18 Rollo, 62.chanrobles virtual law library
20 "T.10 - Ano naman ang dahilan at sinaksak ni FERDIE si Aling NENA?
S - Hoholdapin ho sana namin, pero nanlaban at sumigaw."
21 Exhibit "B-1," T.18.chanrobles virtual law library
22 TSN, 15 March 1990, 8.chanrobles virtual law library
23 People vs. Lee, 204 SCRA 900 [1991]; People vs. Devaras, 205 SCRA 676 [1992]; People vs. De la Cruz, 207 SCRA 632 [1992]; People vs.
Florida, 214 SCRA 227 [1992].chanrobles virtual law library
25 Section 3(e), Rule 131, Rules of Court.chanrobles virtual law library
26 People vs. Casinillo, 213 SCRA 777 [1992].chanrobles virtual law library
27 Said section reads: "Sec. 13. How witness impeached by evidence of inconsistent statements. - Before a witness can be impeached by
evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the
circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to
explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them."
28 Section 12(1), Article III, 1987 Constitution.chanrobles virtual law library
29 People vs. Alvarez, 201 SCRA 364 [1991].chanrobles virtual law library
30 175 SCRA 47 [1989].chanrobles virtual law library
31 Rollo, 152.chanrobles virtual law library
32 People vs. Martinado, 214 SCRA 712 [1992]; People vs. De la Cruz, 217 SCRA 283 [1993].chanrobles virtual law library
33 Article 293, Revised Penal Code.chanrobles virtual law library
34 Article 294(1), Id.chanrobles virtual law library
35 BLACK'S LAW DICTIONARY 310 (5th ed. 1979).chanrobles virtual law library
36 7 (Part 2) VICENTE J. FRANCISCO, THE REVISED RULES OF COURT, 694 (1973 ed.).chanrobles virtual law library
37 People vs. Bantagan, 54 Phil. 834 [1930]. See also, People vs. Mones, 58 Phil. 46 [1933].chanrobles virtual law library
38 FRANCISCO, op. cit., 699.chanrobles virtual law library
39 Supra at footnote no. 37.chanrobles virtual law library
40 Id. at 59.chanrobles virtual law library
41 People vs. Molleda, 86 SCRA 667, 701 [1978].chanrobles virtual law library
42 38 Phil. 330, 334-335 [1918].chanrobles virtual law library
43 Article 14(3), Revised Penal Code.chanrobles virtual law library
44 Article 13(7), Id.chanrobles virtual law library
45 Article 64(4), in relation to Article 77, Id. See 1 RAMON C. AQUINO, THE REVISED PENAL CODE, 712 (1987 ed.).chanrobles virtual law library
46 Act No. 4103, as amended.chanrobles virtual law library
47 Article 61(3), Revised Penal Code.chanrobles virtual law library
48 TSN, 31 July 1990, 7.

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 85215 July 7, 1989
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region,
Baguio City, and FELIPE RAMOS, respondents.
Nelson Lidua for private respondent.
NARVASA, J.:
What has given rise to the controversy at bar is the equation by the respondent Judge of the
right of an individual not to "be compelled to be a witness against himself" accorded by Section
20, Article III of the Constitution, with the right of any person "under investigation for the
commission of an offense . . . to remain silent and to counsel, and to be informed of such
right," granted by the same provision. The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL),
assigned at its Baguio City station. It having allegedly come to light that he was involved in
irregularities in the sales of plane tickets,
1
the PAL management notified him of an
investigation to be conducted into the matter of February 9, 1986. That investigation was
scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective
Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA)
to which Ramos pertained.
2

On the day before the investigation, February 8,1986, Ramos gave to his superiors a
handwritten notes
3
reading as follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES
ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS
MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.
Felipe Ramos
(Sgd.)

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At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City,
Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the
finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were
taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed
made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had
been "misused" by him, that although he had planned on paying back the money, he had been
prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation,
and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known
in the next investigation;" that he desired the next investigation to be at the same place,
"Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves
Blanco;" and that he was willing to sign his statement (as he in fact afterwards did).
4
How the
investigation turned out is not dealt with the parties at all; but it would seem that no
compromise agreement was reached much less consummated.
About two (2) months later, an information was filed against Felipe Ramos charging him with
the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986
to January 29, 1987. In that place and during that time, according to the indictment,
5
he
(Ramos)
.. with unfaithfulness and/or abuse of confidence, did then and there willfully ...
defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner,
to wit: said accused ... having been entrusted with and received in trust fare
tickets of passengers for one-way trip and round-trip in the total amount of
P76,700.65, with the express obligation to remit all the proceeds of the sale,
account for it and/or to return those unsold, ... once in possession thereof and
instead of complying with his obligation, with intent to defraud, did then and
there ... misappropriate, misapply and convert the value of the tickets in the sum
of P76,700.65 and in spite of repeated demands, ... failed and refused to make
good his obligation, to the damage and prejudice of the offended party .. .
On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter
ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and
supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence
dated June 21, 1988,
6
which included "the (above mentioned) statement of accused Felipe J.
Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as
Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above
referred to, which had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence."
7
Particularly as
regards the peoples' Exhibit A, the objection was that "said document, which appears to be a
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confession, was taken without the accused being represented by a lawyer." Exhibit K was
objected to "for the same reasons interposed under Exhibits 'A' and 'J.'
By Order dated August 9, 1988,
8
the respondent judge admitted all the exhibits "as part of the
testimony of the witnesses who testified in connection therewith and for whatever they are
worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in
evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9,
1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x
since it does not appear that the accused was reminded of this constitutional rights to remain
silent and to have counsel, and that when he waived the same and gave his statement, it was
with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the
handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the
same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was
assisted by counsel when he made said admission."
The private prosecutors filed a motion for reconsideration.
9
It was denied, by Order dated
September 14, 1988.
10
In justification of said Order, respondent Judge invoked this Court's
rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA
467, People. v. Sison, 142 SCRA 219, and People v. Decierdo,149 SCRA 496, among others, to the
effect that "in custodial investigations the right to counsel may be waived but the waiver shall
not be valid unless made with the assistance of counsel," and the explicit precept in the present
Constitution that the rights in custodial investigation "cannot be waived except in writing and in
the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL
Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the
tickets issued to him' and therefore clearly fell "within the coverage of the constitutional
provisions;" and the fact that Ramos was not detained at the time, or the investigation was
administrative in character could not operate to except the case "from the ambit of the
constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for
certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of
the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge
Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY
RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial
and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance
of any order, decision or judgment in the aforesaid case or on any matter in relation to the
same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial
Region." The Court also subsequently required the Solicitor General to comment on the
petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been
filed. The Solicitor General has made common cause with the petitioner and prays "that the
petition be given due course and thereafter judgment be rendered setting aside respondent
Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The
Solicitor General has thereby removed whatever impropriety might have attended the
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institution of the instant action in the name of the People of the Philippines by lawyers de
parte of the offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue of whether or not it was
grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K.
It will now proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973 Constitution,
11
to which
respondent Judge has given a construction that is disputed by the People. The section reads as
follows:
SEC. 20. No person shall be compelled to be a witness against himself Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force,
It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the
section, namely:
1) the right against self-incrimination i.e., the right of a person not to be
compelled to be a witness against himself set out in the first sentence, which
is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and
is similar to that accorded by the Fifth Amendment of the American
Constitution,
12
and
2) the rights of a person in custodial interrogation, i.e., the rights of every
suspect "under investigation for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the individuality and
disparateness of these rights. It has placed the rights in separate sections. The right against self-
incrimination, "No person shall be compelled to be a witness against himself," is now embodied
in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial
interrogation, which have been made more explicit, are now contained in Section 12 of the
same Article III.
13

Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973
Constitution, is accorded to every person who gives evidence, whether voluntarily or under
compulsion of subpoena, in any civil, criminal, or administrative proceeding.
14
The right is NOT
to "be compelled to be a witness against himself"
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318 | P a g e
The precept set out in that first sentence has a settled meaning.
15
It prescribes an "option of
refusal to answer incriminating questions and not a prohibition of inquiry."
16
It simply secures
to a witness, whether he be a party or not, the right to refue to answer any particular
incriminatory question, i.e., one the answer to which has a tendency to incriminate him for
some crime. However, the right can be claimed only when the specific question, incriminatory
in character, is actually put to the witness. It cannot be claimed at any other time. It does not
give a witness the right to disregard a subpoena, to decline to appear before the court at the
time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey
it, appear as required, take the stand, be sworn and answer questions. It is only when a
particular question is addressed to him, the answer to which may incriminate him for some
offense, that he may refuse to answer on the strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the
judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation
to advise a witness of his right against self-incrimination. It is a right that a witness knows or
should know, in accordance with the well known axiom that every one is presumed to know the
law, that ignorance of the law excuses no one. Furthermore, in the very nature of things,
neither the judge nor the witness can be expected to know in advance the character or effect of
a question to be put to the latter.
17

The right against self-incrimination is not self- executing or automatically operational. It must
be claimed. If not claimed by or in behalf of the witness, the protection does not come into
play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at
the appropriate time.
18

Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group
of rights. These rights apply to persons "under investigation for the commission of an offense,"
i.e., "suspects" under investigation by police authorities; and this is what makes these rights
different from that embodied in the first sentence, that against self-incrimination which, as
aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal,
or administrative.
This provision granting explicit rights to persons under investigation for an offense was not in
the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in
Miranda v. Arizona,
19
a decision described as an "earthquake in the world of law
enforcement."
20

Section 20 states that whenever any person is "under investigation for the commission of an
offense"--
1) he shall have the right to remain silent and to counsel, and to be informed of
such right,
21

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319 | P a g e
2) nor force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him;
22
and
3) any confession obtained in violation of x x (these rights shall be inadmissible in
evidence.
23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person
in police custody, "in-custody interrogation" being regarded as the commencement of an
adversary proceeding against the suspect.
24

He must be warned prior to any questioning that he has the right to remain silent, that anything
he says can be used against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those rights must be afforded to him
throughout the interrogation. After such warnings have been given, such opportunity afforded
him, the individual may knowingly and intelligently waive these rights and agree to answer or
make a statement. But unless and until such warnings and waivers are demonstrated by the
prosecution at the trial, no evidence obtained as a result of interrogation can be used against
him.
The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statement without full warnings of constitutional
rights."
25

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons."
26
And, as this Court has already stated, by custodial
interrogation is meant "questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way."
27
The situation contemplated has also been more precisely described by this Court."
28

.. . After a person is arrested and his custodial investigation begins a
confrontation arises which at best may be tanned unequal. The detainee is
brought to an army camp or police headquarters and there questioned and
"cross-examined" not only by one but as many investigators as may be necessary
to break down his morale. He finds himself in strange and unfamiliar
surroundings, and every person he meets he considers hostile to him. The
investigators are well-trained and seasoned in their work. They employ all the
methods and means that experience and study have taught them to extract the
truth, or what may pass for it, out of the detainee. Most detainees are
unlettered and are not aware of their constitutional rights. And even if they
were, the intimidating and coercive presence of the officers of the law in such an
atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks
to remedy this imbalance.
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Not every statement made to the police by a person involved in some crime is within the scope
of the constitutional protection. If not made "under custodial interrogation," or "under
investigation for the commission of an offense," the statement is not protected. Thus, in one
case,
29
where a person went to a police precinct and before any sort of investigation could be
initiated, declared that he was giving himself up for the killing of an old woman because she
was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was
admissible, compliance with the constitutional procedure on custodial interrogation not being
exigible under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-
incrimination and (2) those during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary investigation is not under
custodial interrogation. His interrogation by the police, if any there had been would already
have been ended at the time of the filing of the criminal case in court (or the public
prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in
court (or the public prosecutor's office), there is no occasion to speak of his right while under
"custodial interrogation" laid down by the second and subsequent sentences of Section 20,
Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial
interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation before the
public prosecutor), in common with all other persons, possesses the right against self-
incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e.,
the right to refuse to answer a specific incriminatory question at the time that it is put to him.
30

Additionally, the accused in a criminal case in court has other rights in the matter of giving
testimony or refusing to do so. An accused "occupies a different tier of protection from an
ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is
entitled among others-
1) to be exempt from being a witness against himself,
31
and 2) to testify as witness in his own
behalf; but if he offers himself as a witness he may be cross-examined as any other witness;
however, his neglect or refusal to be a witness shall not in any manner prejudice or be used
against him.
32

The right of the defendant in a criminal case "to be exempt from being a witness against
himself' signifies that he cannot be compelled to testify or produce evidence in the criminal
case in which he is the accused, or one of the accused. He cannot be compelled to do so even
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321 | P a g e
by subpoena or other process or order of the Court. He cannot be required to be a witness
either for the prosecution, or for a co-accused, or even for himself.
33
In other words unlike
an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena,
having only the right to refuse to answer a particular incriminatory question at the time it is put
to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take
the witness stand, be sworn, answer any question.
34
And, as the law categorically states, "his
neglect or refusal to be a witness shall not in any manner prejudice or be used against him."
35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he
does testify, then he "may be cross- examined as any other witness." He may be cross-
examined as to any matters stated in his direct examination, or connected therewith .
36
He
may not on cross-examination refuse to answer any question on the ground that the answer
that he will give, or the evidence he will produce, would have a tendency to incriminate him for
the crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be asked a question
which might incriminate him, not for the crime with which he is charged, but for some other
crime, distinct from that of which he is accused, he may decline to answer that specific
question, on the strength of the right against self-incrimination granted by the first sentence of
Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus,
assuming that in a prosecution for murder, the accused should testify in his behalf, he may not
on cross-examination refuse to answer any question on the ground that he might be implicated
in that crime of murder; but he may decline to answer any particular question which might
implicate him for a different and distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and subsequently charged with its
commission in court, has the following rights in the matter of his testifying or producing
evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for
preliminary investigation), but after having been taken into custody or otherwise
deprived of his liberty in some significant way, and on being interrogated by the
police: the continuing right to remain silent and to counsel, and to be informed
thereof, not to be subjected to force, violence, threat, intimidation or any other
means which vitiates the free will; and to have evidence obtained in violation of
these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT
37

a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such
refusal;
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322 | P a g e
c) to testify in his own behalf, subject to cross-examination by the
prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question
which tends to incriminate him for some crime other than that for
which he is then prosecuted.
It should by now be abundantly apparent that respondent Judge has misapprehended the
nature and import of the disparate rights set forth in Section 20, Article IV of the 1973
Constitution. He has taken them as applying to the same juridical situation, equating one with
the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his
thesis by arguments he took to be cogent and logical. The thesis was however so far divorced
from the actual and correct state of the constitutional and legal principles involved as to make
application of said thesis to the case before him tantamount to totally unfounded, whimsical or
capricious exercise of power. His Orders were thus rendered with grave abuse of discretion.
They should be as they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket sales in which he appeared to
have had a hand. The constitutional rights of a person under custodial interrogation under
Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no
relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions
posed to him on the first day of the administrative investigation, February 9, 1986 and agreed
that the proceedings should be recorded, the record having thereafter been marked during the
trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that
the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day
before the investigation, offering to compromise his liability in the alleged irregularities, was a
free and even spontaneous act on his part. They may not be excluded on the ground that the
so-called "Miranda rights" had not been accorded to Ramos.
His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the
right of any person against self-incrimination when the investigation is conducted by the
complaining parties, complaining companies, or complaining employers because being
interested parties, unlike the police agencies who have no propriety or pecuniary interest to
protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects,
whether employees or not, to give statements under an atmosphere of moral coercion, undue
ascendancy and undue influence." It suffices to draw attention to the specific and peremptory
requirement of the law that disciplinary sanctions may not be imposed on any employee by his
employer until and unless the employee has been accorded due process, by which is meant
that the latter must be informed of the offenses ascribed to him and afforded adequate time
and opportunity to explain his side. The requirement entails the making of statements, oral or
written, by the employee under such administrative investigation in his defense, with
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opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee
may, of course, refuse to submit any statement at the investigation, that is his privilege. But if
he should opt to do so, in his defense to the accusation against him, it would be absurd to
reject his statements, whether at the administrative investigation, or at a subsequent criminal
action brought against him, because he had not been accorded, prior to his making and
presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof,
etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that
the employee's statements, whether called "position paper," "answer," etc., are submitted by
him precisely so that they may be admitted and duly considered by the investigating officer or
committee, in negation or mitigation of his liability.
Of course the possibility cannot be discounted that in certain instances the judge's expressed
apprehensions may be realized, that violence or intimidation, undue pressure or influence be
brought to bear on an employee under investigation or for that matter, on a person being
interrogated by another whom he has supposedly offended. In such an event, any admission or
confession wrung from the person under interrogation would be inadmissible in evidence, on
proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV
of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary
or coerced statements may not in justice be received against the makers thereof, and really
should not be accorded any evidentiary value at all.
WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the
respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988,
and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said
Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The
temporary restraining order of October 26, 1988 having become functus officio, is now
declared of no further force and effect.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Rollo, P. 21, 34.
2 Id., p. 13.
3 Id., p, 29.
4 Rollo pp. 6, 28.
5 Id., p. 19.
6 Rollo, pp. 8, 21-27.
7 Id., pp. 30-32.
8 Id., pp. 8-9, 33.
9 Id., pp. 34-44.
10 Id., pp. 48-55.
11 The admissions were allegedly made on February 8 and 9, 1986, at which time the 1987 Constitution was not yet in
effect, indeed had not yet been conceived or drafted.
12 SEE, e.g., Tanada & Fernando, Constitution of the Phil., Anno., 2d ed., pp. 378-379.
13 The provision reads as follows:
SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
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afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are
prohibited. (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in
evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.
14 Bermudez v. Castillo, 64 Phil. 483; Gonzales v. Secretary of Labor, 94 Phil. 325; Suarez v. Tengco, 2 SCRA 71; Pascual v.
Board of Medical Examiners, 28 SCRA 344.
15 SEE Chavez v. C.A., 24 SCRA 663; Suarez v. Tengco, supra, 2 SCRA 71; Gonzales v. Secretary of Labor, supra, 94 Phil.
325, citing Jones on Evidence, Vol. 6, pp. 4926-7.
16 Suarez v. Tengco, supra, at p. 73.
17 SEE Cruz, I.A., Constitutional Law, 1987 ed., p. 275.
18 U.S. v. Molina, 317 U.S., 424; U.S. v. Binayoh, 35 Phil. 23; SEE also Tanada & Fernando, op. cit., p. 379.
19 384 U.S. 436, 16 L. Ed. 694. 1 0 A.L.R. 3d 974.
20 Peo. v. Duero, 104 SCRA 379.
21 The 1987 Constitution (Sec. 12, ART. III) makes clear that the person's right to "counsel" refers to "competent and
independent counsel preferably of his own choice," that if "the person cannot afford the services of (such) counsel, he
must be provided with one," and, as suggested in Peo. v. Galit, 135 SCRA 465, that the rights to silence and to counsel
"cannot be waived except in writing and in the presence of counsel' (SEE Cruz, op. cit., p. 282).
22 The 1987 Constitution adds that "Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited."
23 The proviso, as now found in the 1987 Constitution, makes inadmissible in evidence any confession or admission
obtained not only in infringement of the rights mentioned (to silence, to counsel, etc.) but also in violation of Sec. 11, Art.
III, to the effect that "Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied
to any person by reason of poverty." The new charter also requires that "The law shall provide for penal and civil
sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar
practices, and their families."
24 SEE Peo. v. Duero, supra, 104 SCRA 379; Peo. v. Jimenez, 71 SCRA 186; Peo. v. Robles, 104 SCRA 450; Peo. v. Caguioa,
95 SCRA 2.
25 Peo. v. Duero, supra, at p. 388.
26 Peo. v. Duero, supra, at p. 386.
The Solicitor General's Comment, rollo, pp. 95, 102-103, states that the 1971 Constitutional Convention defined
"investigation" as "investigation conducted by the police authorities which will include investigations conducted by the
municipal police, the PC and the NBI and such other police agencies in our government (Session, November 25,1972)."
27 Peo. V. Caguioa, 95 SCRA 2, 9, quoting Miranda.
The Solicitor General's Comment (rollo, p. 103) states that according to Escobedo v. Illinois, 378 U.S. 478, which preceded
Miranda, 384 U.S. 436, "the right to counsel attaches when 'the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect. the suspect has been taken into police custody, the police
carry out a process of interrogations that lends itself to eliciting incriminating statements."' The Comment (rollo, p. 108)
also draws attention to Gamboa v. Cruz G.R. No. 56292, June 27, 1988 where this Court declared that "The right to
counsel attaches only upon the start of an investigation, when the police officer starts to ask questions designed to elicit
information and/or confessions or admissions from the accused."
28 Morales v. Enrile, et al; Moncupa, Jr. v. Enrile, et al., 121 SCRA 538, 553.
29 Peo. v. Taylaran 108 SCRA 373. In this connection, the Solicitor General opines that so-called "on-the-scene
questioning" of citizens by police officers in the fact- finding process are "undoubtedly admissible," for, as "distinguished
from all questioning of a suspect, in x x (such a) situation the compelling atmosphere inherent in the process of in-
custody interrogation is not necessarily present." According to him, "when investigating crimes, an officer may inquire of
persons not under restraint (Constitutional Law, Klotter/Kanovitz, 4th ed., 1984) x x x and such general on-the-scene
questions are not thought to be accusatory because they lack the compelling atmosphere inherent in the process of in-
custody interrogation' (Civil Rights and Liberties, A.L. Bonnicksen, 1982 ed.).'
30 See footnotes 2 to 5 and related text, at p. 5, supra.
31 Sec. 1 (e), Rule 115 of the 1964 Rules of Court. The 1985 Rules on Criminal Procedure have amended the provision to
read, 'to be exempt from being compelled to be a witness against himself.'
32 Sec. 1 (d), Rule 115. The 1985 Rules on Criminal Procedure amended the provision to read: "To testify as a witness in
his own behalf but subject to cross-examination on matters covered by direct examination. His silence instead of merely
his 'neglect or refusal to be a witness shall not in any manner prejudice him."
33 Chavez v. C.A., supra, 24 SCRA 663.
34 Id., at pp. 677-678, citing; Cabal v. Kapunan, L-19052, Dec. 29, 1962; 21 Am. Jur. 2d., p. 383; 98 C.J.S., p. 265; Wigmore,
Evidence, 1961 ed., p. 406; 3 Wharton's Criminal Evidence, llth ed., pp. 19591960, all cited in Gupit, Jr., Rules of Criminal
Procedure, 1986 ed., p. 240.
35 See People v. Gargoles, 83 SCRA 282.
36 However, as already pointed out, the rule now limits cross-examination of an accused only to "matters covered by
direct examination."
37 Or during preliminary investigation before a Judge or public prosecutor.
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SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 96602 November 19, 1991
EDUARDO ARROYO, JR., petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 96715 November 19, 1991
RUBY VERA-NERI, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents.
Efren C. Carag for Eduardo C. Arroyo, Jr.
Singson, Valdes & Associates for Ruby Vera Neri.
R E S O L U T I O N

FELICIANO, J.:p
In G.R. No. 96602, the Court summarized the facts of the case in this manner:
Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial
Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and Eduardo
Arroyo committed on 2 November 1982 in the City of Baguio.
Both defendants pleaded not guilty and after trial, the RTC convicted petitioner
and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the Revised
Penal Code.
The essential facts of the case, as found by the trial court and the Court of
Appeals, are as follows:
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... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the
company of Mrs. Linda Sare and witness Jabunan, took the
morning plane to Baguio. Arriving at around 11:00 a.m., they
dropped first at the house of Mrs. Vera, mother of Ruby Vera at
Crystal Cave, Baguio City then proceeded to the Mines View Park
Condominium of the Neri spouses. At around 7:00 o' clock in the
evening, accused Eduardo Arroyo arrived at the Neris'
condominium. Witness opened the door for Arroyo who entered,
he went down to and knocked at the master's bedroom where
accused Ruby Vera Neri and her companion Linda Sare were. On
accused Ruby Vera Neri's request, Linda Sare left the master's
bedroom and went upstairs to the sala leaving the two accused.
About forty-five minutes later, Arroyo Jr. came up and told Linda
Sare that she could already come down. Three of them,
thereafter, went up to the sala then left the condominium. (Court
of Appeals Decision, p. 4) 1
Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision.
Petitioner Ruby Vera Neri also moved for reconsideration or a new trial, contending that a
pardon had been extended by her husband, private complain ant Dr. Jorge B. Neri, and that her
husband had later con traded marriage with another woman with whom he is presently co-
habiting. Both motions were denied by the Court of Appeals.
Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this
court denied in a Resolution dated 24 April 1991.
In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19
February 1991.
Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23
May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715.
On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in
accordance with long-stand ing practice of the Court.
On 29 July 1991, the Third Division deliberated upon the case which was then assigned to
the ponente for the writing of the Court's Resolution. 2
On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case
against petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4
Petitioners then filed their respective motions praying for the dismissal or for the granting of
new trial of the case claiming a basis for their motions Dr. Neri's manifestation. The Solicitor
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General was then asked to comment on the manifestation; hi comment was filed with this
Court on 18 October 1991. 5
In October 1991, the consolidated cases were, again in accordance with long-standing practice
of the Court, assigned to the First Division upon the assignment of the ponente to that division.
On 4 November 1991, the consolidated cases were re deliberated upon by the members of the
First Division who reached the same conclusion as the members of the Third Division of the
Court.
In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following
contentions:
1. Dr. Neri's affidavit of desistance which states that the case was filed out of
"pure misunderstanding' raises questions as to the truth of the alleged admission
made by Mrs. Neri;
2. The other prosecution witnesses' corroborative testimonies merely proved the
existence of an illicit affair but not that adultery was committed on the date and
place in question;
3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged
subsequent marriage to another woman which, if proven would preclude either
of the spouses from filing charges of adultery or concubinage against each other.
In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:
1. The Honorable Court of Appeals gravely erred in not granting the motion for
reconsideration and/or new trial of the petitioner;
2. The Honorable Court of Appeals gravely erred by violating the constitutional
rights of petitioner against self-incrimination;
3. The Honorable Court of Appeals erred in failing to take into consideration the
material inconsistencies of the testimony of the complaining witness; and
4. The Honorable Court of Appeals gravely erred in discarding medical testimony
as to the physical impossibility of the petitioner to have committed the crime
charged. 6
The issues in the consolidated cases may be summarized as follows:
1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable
doubts on his credibility;
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2. Whether or not Mrs. Neri's constitutional right against self-incrimination had
been violated;
3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing
the criminal complaint on the ground of pari delicto; and
4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a
new trial.
Deliberating on the:
1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has
failed to show any ground that would warrant the Court reversing its Resolution dated 24 April
1991; and on the
2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby
Vera Neri has failed to show reversible error on the part of the Court of Appeals in issuing its
Decision dated 21 May 1990 and its Resolution, dated 18 December 1990.
Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on
the basis of Dr. Neri's pardon. He, together with petitioner Neri, now cites the same affidavit in
the effort to cast doubts on the credibility of Dr. Neri's testimony given before the trial court.
However, in the Court's Resolution, dated 24 April 1991, dismissing the Petition for certiorari in
G.R. No. 96602, the Court held that:
It has been our constant holding that:
In certiorari proceedings under Rule 45, the findings of fact of the
lower court as well itsconclusions on credibility of witnesses are
generally not disturbed, the question before the court being
limited to questions of law (Rule 45, Sec. 2). Specifically, the
conclusions of the trial court on the credibility of witnesses are
given considerable weight, since said court is in the best position
to observe the demeanor, conduct and attitude of witnesses at
the trial. (Aguirre v. People, 155 SCRA 337 [1987]; emphasis
supplied)
Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this
stage. Besides, the Court does not believe that such an admission by an unfaithful
wife was inherently improbable or impossible. 7 (Emphasis supplied)
The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs.
Neri's constitutional right against self-incrimination had been disregarded when her admission
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to her husband in the privacy of their conjugal home that she had indeed lain with petitioner
Arroyo was taken into account by the trial court, to wit:
Dr. Jorge Neri was also presented as a witness and he testified that sometime in
December of 1982, he surprised his wife while she was looking at some
photographs in their bedroom in their house in Dasmarias Village, Makati.
Accused Ruby Vera Neri then turned pale and started for the door. Struck by this
unusual behavior, Dr. Neri started looking around the dressing room and he
came upon a Kodak envelope with film negatives inside. He took the negatives
for printing and a few days later, armed with the photographs which showed his
wife in intimate bedroom poses with another man, confronted Ruby Vera Neri. It
was at this point that Ruby Vera Neri admitted to her husband that Eduardo
Arroyo was her lover and that they went to bed in Baguio on 2 and 3 November
1982.
xxx xxx xxx
As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988])
that:
The right to counsel attaches upon the start of an investigation,
i.e., when theinvestigating officer starts to ask questions to elicit
information and/or confession or admissions from respondent-
accused.(emphasis supplied)
In the present case, Dr. Neri was not a peace officer nor an investigating officer
conducting a custodial interrogation, hence, petitioner cannot now claim that
Mrs. Neri's admission should have been rejected.
In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:
The declaration of an accused expressly acknowledging his guilt of
the offense may be given in evidence against him.
The rule is that any person, otherwise competent as witness, who
heard the confession, is competent to testify as to substance of
what he heard if he heard and understood all of it. An oral
confession need not be repeated verbatim, but in such case it
must be given in its substance.
Compliance with the constitutional procedures on custodial
investigation is not applicable to a spontaneous statement, not
elicited through questioning, but given in an ordinary manner,
whereby the accused orally admitted having slain the victim.
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We also note that the husband is not precluded under the Rules of Court from
testifying against his wife in criminal cases for a crime committed by one against
the other (Section 22, Rule 129, Revised Rules of Court).
In short, the trial court and the Court of Appeals did not err in admitting Dr.
Neri's testimony as he was a competent witness. Neither was said testimony
rendered inadmissible by the constitutional provision on the right to remain
silent and the right to counsel of a "person under investigation for the
commission of an offense."
Petitioner next claims that the trial court erred in convicting him on the basis of
the failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83
SCRA 282 [1978]), it was held that:
We have held that an accused has the right to decline to testify at
the trial without having any inference of guilt drawn from his
failure to go on the witness stand. Thus, a verdict of conviction on
the basis, solely or mainly, of the failure or refusal of the accused
to take the witness stand to deny the charges against him is a
judicial heresy which cannot be countenanced. Invariably, any
such verdict deserves to be reserved.
Such situation does not obtain, however, in the case at bar.
For while the trial court took note of the failure of defendant to
take the witness stand to deny the charge against him,the same
was not the main reason, much less the sole basis, of the trial
court in holding, as credible the testimony of complainant, and in
ultimately concluding that the crime of rape had been committed
by the accused-appellant. (Emphasis supplied)
Examination of the trial court decision here shows that said failure to testify was
not the sole nor the main basis of the conviction. Aside from accused's failure to
deny Dr. Neri's testimony, the trial court also considered the testimonies of Dr.
Neri and other prosecution witnesses and the photographs of the two accused in
intimate poses (and three of which showed them half naked in bed). 8 (Emphasis
supplied)
We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and
concubinage and that in such a case "it would be only a hypocritical pretense for such spouse to
appear in court as the offended spouse." 9
In the first place, the case cited does not support petitioner Neri's position. In
the Guinucud case, the Court found that the complaining husband, by entering into an
agreement with his wife that each of them were to live separately and could marry other
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persons and by filing complaint only about a year after discovering his wife's infidelity, had
"consented to, and acquiesced in, the adulterous relations existing between the accused, and
he is, therefore, not authorized by law to institute the criminal proceedings." In fine,
the Guinucud case refers not to the notion of pari delicto but to consent as a bar to the
institution of the criminal proceedings. In the present case, no such acquiescence can be
implied: the accused did not enter into any agreement with Dr. Neri allowing each other to
marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering
the illicit affair.
Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article
1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates only to
contracts with illegal consideration.10 The case at bar does not involve any illegal contract
which either of the contracting parties is now seeking to enforce.
Petitioners also contend that Dr. Neri's manifestation which reads:
2. Even before I filed the complaint in court and before the pardon that I had
extended to my wife and her co-accused, I was in reality aware of what was
going on between and therefore, tacitly consented to my wife's infidelity, ...
should result in the dismissal of the case or, at the very least, in the remand of the case for new
trial claiming that in People v. Camara 11 it was held that "the consent of the spouse is valid
defense to a prosecution for adultery and/or concubinage." 12
Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by
him before the trial court. It is settled that not all recantations by witnesses should result in the
granting of a new trial. 13 In People v. Follantes and Jacinto, 14 it was held that:
... [R]ecantation by witnesses called on behalf of the prosecution does not
necessarily entitle defendant to a new trial. The question whether a new trial
shall be granted on this ground depends on all the circumstances of the case,
including the testimony of the witnesses submitted on the motion for the new
trial. Moreover,recanting testimony is exceedingly unreliable, and it is the duty of
the court to deny a new trial where it is not satisfied that such testimony is
true. ... 15 (Emphasis supplied)
Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated
recantation. Dr. Neri had two (2) previous occasions to make the claim contained in his
manifestation: first, in the compromise agreement 16dated 16 February 1989 submitted before
the Regional Trial Court of Makati, Branch 149 in relation to Civil Case No. M-001; and second,
his affidavit 17 dated 23 November 1988 submitted to the Court of Appeals. Instead, however,
these two (2) documents merely stated that Dr. Neri had pardoned petitioners 18 and the
complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of
the adulterous relations. It appears to the Court that Dr. Neri's manifestation was so worded as
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to attempt to cure the deficiency noted by the Court in the two (2) previous documents in the
disposition of the petition in G.R. No. 96602:
Petitioner will find no solace in the cases he cites, in support of his prayer to
dismiss the case based on Dr. Neri's pardon. People v. Camara (100 Phil. 1098
(1957) is inapplicable as the affidavit there expressly stated that the wife had
consented to the illicit relationship. In Gomez v. Intermediate Appellate
Court (135 SCRA 620 [1985]) a case involving estafa, the criminal case was
dismissed as the affidavit of desistance specifically stated that the accused had
nothing to do whatsoever with the crime charged. In the present case, the
pardon did not state that Dr. Neri had consented to the illicit relationship
petitioner and Mrs. Neri. Neither did it state that the case was filed against the
wrong parties. 20
Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of
petitioner Arroyo's motion for reconsideration, it was subscribed to only on 23 August 1991.
Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise
agreement operate as a pardon meriting a new trial. The Court notes that the cases of People v.
Camara (supra) and Gomez v. Intermediate Appellate Court (supra) were the very same cases
which petitioner Arroyo cited in G.R. No. 96602 which the Court has already held to be
inapplicable in the present case.
The rule on pardon is found in Article 344 of the Revised Penal Code which provides:
ART. 344. ... The crime of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both
parties, if they are both alive, nor in any case, if he shall have consented
or pardoned the offenders.
xxx xxx xxx
While there is a conceptual difference between consent and pardon in the sense that consent is
granted prior to the adulterous act while pardon is given after the illicit affair, 21 nevertheless,
for either consent or pardon to benefit the accused, it must be given prior to the filing of a
criminal complaint. 22 In the present case, the affidavit of desistance was executed only on 23
November 1988 while the compromise agreement was executed only on 16 February
1989, after the trial court had already rendered its decision dated 17 December 1987 finding
petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated and signed
after issuance of our Resolution in G.R. No. 96602 on 24 April 1991.
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It should also be noted that while Article 344 of the Revise Penal Code provides that the crime
of adultery cannot be prosecuted without the offended spouse's complaint, once the complaint
has been filed, the control of the case passes to the public prosecutor. 23 Enforcement of our
law on adultery is not exclusively, nor even principally, a matter of vindication of the private
honor of the offended spouse; much less is it a matter merely of personal or social hypocrisy.
Such enforcement relates, more importantly, to protection of the basic social institutions of
marriage and the family in the preservation of which the State has the strongest interest; the
public policy here involved is of the most fundamental kind. In Article II, Section 12 of the
Constitution there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect find strengthen
the family as a basic autonomous social institution ...
The same sentiment has been expressed in the Family Code o the Philippines in Article 149:
The family, being the foundation of the ration, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are governed
by law and no custom, practice or agreement destructive of the family shall be
recognized or given effect.
In U.S. v. Topio, 24 the Court held that:
... The husband being the head of the family and the only person who could
institute the prosecution and control its effects, it is quite clear that the principal
object in penalizing the offense by the state was to protect the purity of the
family and the honor of the husband, but now the conduct of the
prosecution, after it is once commenced by the husband, and the enforcement of
the penalties imposed is also a matter of public policy in which the Government is
vitally interested to the extent of preserving the public peace and providing for
thegeneral welfare of the community. ... 25 (Emphasis supplied)
As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a
month after her ceasarian operation, the Court agrees with the Solicitor General that this is a
question of fact which cannot be raised at this stage. In any case, we find no reason to overturn
the Court of Appeals' finding that "a woman who has the staying power to volley tennis bags for
fifteen minutes at the [John Hay] tennis court would not be incapable of doing the sexual act"
which ball play was followed, as noted by the Court of Appeals "by a picture taking of both
accused in different intimate poses." 26
ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of
merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly
DENIED for lack of merit. Costs against petitioners.
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Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23
August 1991 be forwarded to the Department of Justice for inquiry into the possible liability of
Dr. Neri for perjury.
Narvasa (Chairman), Cruz, Grio-Aquino and Medialdea, JJ., concur.

# Footnotes
1 Resolution in G.R. No. 96602, promulgated 24 April 1991, p. 1; Rollo, p. 82.
2 Rollo in G.R. No. 96602, p. 142a.
3 The Court notes the while the manifestation was dated 14 May 1991, it was subscribed only on 23 August 1991.
4 Rollo in G.R. No. 96602, p. 144.
5 Id., pp. 160-161.
6 Petition in G.R. No. 96715, pp. 7-8; Rollo, pp. 14-15.
7 Resolution in G.R. No. 96602, promulgated 24 April 1991, p. 4; Rollo in G.R. No. 96602, p. 92.
8 Id., pp. 4-6; Rollo, pp. 85-87.
9 Petition in G.R. No. 96715, p. 9, Rollo, p. 16, citing People v.Guinucud and Tagayun, 58 Phil. 621.
10 See Gonzales v. Trinidad, 67 Phil. 682 (1939).
11 G.R. No. L-11085, 27 February 1957.
12 Motion, p. 2; Rollo of G.R. No. 96602, p. 148.
13 People v. Pasilan, 14 SCRA 694 [1965].
14 64 Phil. 515 [1937].
15 64 Phil. at 536.
16 Rollo in G.R. No. 96715. pp. 91-100.
17 Id., p. 103.
18 Id., p. 99.
19 Id., p. 103.
20 Resolution in G.R. No. 96602, promulgated 24 April 1991, pp. 46: Rollo in G.R. No. 96602, p. 94-95.
21 People v. Schneckenburger, 73 Phil. 413 (1941).
22 People v. Infante, 57 Phil. 138 (1932); Ligtas v. Court of Appeals, 149 SCRA 514 (1987).
23 See U.S. v. Gallegos, 37 Phil. 289 (1917); Rule 110, Section 5 of the Rules of Criminal Procedure.
24 35 Phil. 901 (1916).
25 35 Phil. at 912.
26 Decision, p. 20, Rollo in G.R. No. 96602, p. 68.

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SECOND DIVISION
G.R. No. L-41166 August 25, 1976
PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO,Petitioners, vs. HON
NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO
OJOY respondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and
Solicitor Mariano M. Martinez for petitioner People of the Philippines.chanrobles virtual law
library
Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del Rosario and
Dionisio Cerbo.chanrobles virtual law library
Sixto P. Demaisip for private respondent.
ANTONIO, J.:p
Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of
respondent Judge, dated July 30, 1975, sustaining the procedure proposed by defense counsel
that, in lieu of the testimony of the witnesses for the accused on direct examination in open
court, he was filing their affidavits, subject to cross-examination by the prosecution. Per
Resolution dated August 22, 1975, this Court issued a temporary restraining order enjoining the
respondent Judge from enforcing the questioned Order.chanroblesvirtualawlibrarychanrobles
virtual law library
In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio Ojoy,
accused", of the Court of First Instance of Iloilo, Branch III, after the accused himself had
testified in his defense, his counsel manifested that for his subsequent witnesses he was filing
only their affidavits subject to cross-examination by the prosecution on matters stated in the
affidavits and on all other matters pertinent and material to the case. Private prosecutor Atty.
Amelia K. del Rosario, one of the petitioners here, objected to the proposed procedure but this
notwithstanding, respondent Judge gave his conformity thereto and subsequently issued the
questioned Order. Contending that respondent Judge gravely abused his discretion because the
aforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court, which
requires that the testimony of the witness should be given orally in open court, and there is no
appeal nor any plain, speedy and adequate remedy in the ordinary course of law, petitioners
instituted the present petition.chanroblesvirtualawlibrarychanrobles virtual law library
We grant the petition.chanroblesvirtualawlibrarychanrobles virtual law library
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Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require
that the testimony of a witness shall be given orally in open court. The afore-cited Sections 1
and 2 provide:
SECTION 1. Testimony to be given in open court. - The testimony of witnessesshall be given
orally in open court and under oath or affirmation.chanroblesvirtualawlibrarychanrobles virtual
law library
SEC. 2. Testimony in superior courts to be reduced to writing.- In superior courts the testimony
of each witness shall be taken in shorthand or stenotype, the name, residence, and occupation
of the witness being stated, and all questions put to the witness and his answers thereto being
included. If a question put is objected to and the objection is ruled on, the nature of the
objection and the ground on which it was sustained or overruled must be stated, or if a witness
declines to answer a question put, the fact and the proceedings taken thereon shall be entered
in the record. A transcript of the record made by the official stenographer or stenotypist and
certified as correct by him shall be prima facie a correct statement of such testimony and
proceedings.
Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of
Sections 77 and 78 of Rule 123, of the Old Rules of Court. Section 77 in turn was taken from
Section 381 of Act No. 190,
1
while Section 78 from Section 32 of General Order No.
58.
2
The main and essential purpose of requiring a witness to appear and testify orally at a trial is to
secure for the adverse party the opportunity of cross-examination. "The opponent", according
to an eminent authority,
3
demands confrontation, not for the Idle purpose of gazing upon the
witness, or of being gazed upon by him, but for the purpose of cross-examination which cannot
be had except by the direct and personal putting of questions and obtaining immediate
answers." There is also the advantage to be obtained by the personal appearance of the
witness before the judge, and it is this it enables the judge as the trier of facts "to obtain the
elusive and incommunicable evidence of a witness deportment while testifying, and a certain
subjective moral effect is produced upon the witness.
4
It is only when the witness testifies
orally that the judge may have a true idea of his countenance, manner and expression, which
may confirm or detract from the weight of his testimony.
5
Certainly, the physical condition of
the witness will reveal his capacity for accurate observation and memory, and his deportment
and physiognomy will reveal clues to his character. These can only be observed by the judge if
the witness testifies orally in court. Indeed, the great weight given the findings of fact of the
trial judge in the appellate court is based upon his having had just that opportunity and the
assumption that he took advantage of it to ascertain the credibility of the witnesses. This has
been explained by Chief Justice Appleton, thus:
The witness present, the promptless and unpremeditatedness of his answers or the reverse,
their distinctness and particularity or the want of these essentials, their incorrectness in
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generals or particulars, their directness or evasiveness are soon detected. ... The appearance
and manner, the voice, the gestures, the readiness and promptness of the answers, the
evasions, the reluctance the silence, the contumacious silence, the contradictions, the
explanations, the intelligence or the want of intelligence of the witness, the passions which
more or less control-fear, love, have, envy, or revenge are all open to observation, noted and
weighed by jury.
6

Thus, Section 1 of Rule 133 of the Rule
7
requires that in determining the superior weight of
evidence on the issues involved, the court, aside from the other factors therein enumerated,
may consider the "witness manner of testifying" which can only be done if the witness gives his
testimony orally in open court". If a trial judge prepares his opinion immediately after the
conclusion of the trial, with the evidence and his impressions of the witnesses fresh in his mind,
it is obvious that he is much more likely to reach a correct result than if he simply reviews the
evidence from a typewritten transcript, without having had the opportunity to see, hear and
observe the actions and utterances of the witnesses.chanroblesvirtualawlibrarychanrobles
virtual law library
There is an additional advantage to be obtained in requiring that the direct testimony of the
witness be given orally ill court. Rules governing the examination of witnesses are intended to
protect the rights of litigants and to secure orderly dispatch of the business of the courts. Under
the rules, only questions directed to the eliciting of testimony which, under the general rules of
evidence, is relevant to, and competent to prove, the issue of the case, may be propounded to
the witness. A witness in testify only on those facts which he knows of his own knowledge.
Thus, on direct examination, leading questions are not allowed, except or, preliminary matters,
or when there is difficult in getting direct and intelligible answer from the witness who is
ignorant, a child of tender years, or feebleminded, or a deaf mute.
8
It is obvious that such
purpose may be subverted, and the orderly dispatch of the business of the courts thwarted if
trial judges are allowed, as in the case at bar, to adopt any procedure in the presentation of
evidence other than what is specifically authorized by the Rules of
Court.chanroblesvirtualawlibrarychanrobles virtual law library
WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and the
order of respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside,
and the temporary restraining order issued on August 22, 1975 is hereby made permanent,
without any pronouncement as to costs.
Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.

Separate Opinions
BARREDO, J., concurring:
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I concur, with the qualification herein set forth.
At the outset, I wish to make it clear that I find the innovative procedure sanctioned by
respondent judge to be in line with the progressive tendency characterizing the new rules that
have modified the system of preliminary investigation of criminal complaints by fiscal's, where
basically the determination of the existence or non-existence of probable cause is now
supposed to be made on the basis of mere affidavits and counter-affidavits, as well as those
now obtaining in practically all labor cases in the offices in the Department of Labor which have
been vested with exclusive jurisdiction over the same pursuant to the policy of the government
to dejudicialize them, And so, if the subject case herein were only a civil case instead of being a
criminal one and it appearing that the counsel for the supposedly aggrieved partner the trial
fiscal in this instance, who, under the law, has supervision and control of the prosecution, not
the private prosecutor who alone filed the petition herein, and, at that, in her own name
instead of her client, the alleged offended party,
1
I would have voted to deny the petition.
Indeed, I do not see anything fundamentally wrong with the basic procedure approved by His
Honor of allowing the direct examination of a witness to be presented in the form of a
previously prepared affidavit, provided that the same s reaffirmed over the oath of the affiant
in open court when he testifies. But I am now voting to giant the petition because the
procedure questioned here is a little short of what I feel ought to have been done, even on the
phypothesis that We were dealing with a civil case.
While I Would consider it a substantial compliance with the requirement of Sections 1 and 2 of
Rule 132 about the testimony of a witness being given in open court and that the questions and
answers be dully recorded by the stenographic notes that the direct examination be in the form
of an affirmation by the witness under oath of a ready made affidavit, particularly when the
adverse parts does not object, it is but in keeping with better practice and more protective of
the rights of the adverse party, to require that the said affidavit be first pasturized or sanitized
so as to limit the same only to evidence that is material and competent. This preliminary step
may be done either at the Pre-trial Where the court may require all affidavits to be used for the
purpose to be submitted, or at a preliminary state of the trial proper before the witness takes
the Witness stand. Thus, the resulting direct testimony will not be polluted with inadmissible
evidence and the cross-examination will be confined to what is material and competent. The
only remaining possible objection then would be that the question asking for affirmation would
be leading and that the answer would be in narrative form, but these are minor considerations.
To start with, the affidavit may be made in question and answer form. Secondly, I have always
considered the objection to a leading question as essentially relating to a mere matter of form,
not of substance, hence relatively unimportant. And as to answers in narrative form, the basic
objection thereto is that it may include irrelevant and incompetent testimony, (Francisco on
Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211) but if the affidavit to be
affirmed by a witness has already been purged of the objectionable portions as above indicated
the form of the answer should already be of no consequence.
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Undoubtedly this innovative procedure will advance greatly the march towards simplification
and speed in the conduct of trials. As against possible shortcomings thereof in actual operation
as above outlined, I am certain that the advantages to be derived by adopting it far outweigh
the bases of the objections thereto. Of course, it is without saying that for this procedure to be
successfully employed and to attain the objective of speeding up the trial of cases, it is
imperative that there should be intelligent cooperation between the court and contending
counsels, who should try to avoid unnecessary inconsequential objections, for every lawyer
must know that the profession's first mission is to help the court in every way possible so that
his case could be disposed of not only justly but with utmost dispatch, as long as with expedient
means employed no substantial prejudice is caused to the interests of his client.
In brief, my concurrence here is premised on the failure of respondent judge to first have the
affidavits of the accused and his witnesses subjected to the possible legitimate objections of
the prosecution to any portion thereof. It is not decision although significant, that it does not
appear in the record that the fiscal who did not object to the Procedure suggested by counsel
for the accused took pains to require that the affidavits be first submitted for his examination,
to give him the opportunity to make proper objections to portions thereof that might be
incompetent or inadmissible. I take it that such omission could be due to the fiscal's
unawareness of the exact import of the unorthodox procedure in question, hence he was
unprepared to act accordingly. His Honor should nevertheless have seen to it, before giving his
assent to the proposal of the defense, that the proper measures were taken to insure that all
the matters contained in the affidavits offered by the defense are competent and admissible
under the law.
I reiterate I see no fundamental objection to a direct testimony in the form I have discussed
above. After all, according to the scholarly main opinion itself, "the main and essential purpose
of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the
opportunity of cross-examination. No doubt, it is Cross-examination in open court that is
indispensable. The direct examination is secondary because, ordinarily, as is generally known, it
can be fully rehearsed anyway, unlike cross-examination.
In closing, I wish to personally commend His Honor's obvious attitude of trying to improve
upon existing procedures with an eve to making trials less burdened with time-consuming and
complicated technical features that can anyway be done away with without sacrificing the
essence of the judicial inquiry into the facts in dispute. Indeed, I have always tried to encourage
all judges to look for ways and means of improving upon the beaten paths of existing practices
and techniques, to the end that the trial and disposition of all kinds of cases before them may
be simplified and abbreviated, if they have to be activists or revolutionaries in the process. Just
a word of caution those for there are corners that cannot and must not be cut, and it is always
best to occasionally seek counsel from among the knowledgeable members of the bar,
preferably in the open, before plunging into untrodden areas.

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340 | P a g e
Separate Opinions
BARREDO, J., concurring:
I concur, with the qualification herein set forth.
At the outset, I wish to make it clear that I find the innovative procedure sanctioned by
respondent judge to be in line with the progressive tendency characterizing the new rules that
have modified the system of preliminary investigation of criminal complaints by fiscal's, where
basically the determination of the existence or non-existence of probable cause is now
supposed to be made on the basis of mere affidavits and counter-affidavits, as well as those
now obtaining in practically all labor cases in the offices in the Department of Labor which have
been vested with exclusive jurisdiction over the same pursuant to the policy of the government
to dejudicialize them, And so, if the subject case herein were only a civil case instead of being a
criminal one and it appearing that the counsel for the supposedly aggrieved partner the trial
fiscal in this instance, who, under the law, has supervision and control of the prosecution, not
the private prosecutor who alone filed the petition herein, and, at that, in her own name
instead of her client, the alleged offended party,
1
I would have voted to deny the petition.
Indeed, I do not see anything fundamentally wrong with the basic procedure approved by His
Honor of allowing the direct examination of a witness to be presented in the form of a
previously prepared affidavit, provided that the same s reaffirmed over the oath of the affiant
in open court when he testifies. But I am now voting to giant the petition because the
procedure questioned here is a little short of what I feel ought to have been done, even on the
phypothesis that We were dealing with a civil case.
While I Would consider it a substantial compliance with the requirement of Sections I and 2 of
Rule 132 about the testimony of a witness being given in open court and that the questions and
answers be dully recorded by the stenographic notes that the direct examination be in the form
of an affirmation by the witness under oath of a ready made affidavit, particularly when the
adverse parts does not object, it is but in keeping with better practice and more protective of
the rights of the adverse party, to require that the said affidavit be first pasturized or sanitized
so as to limit the same only to evidence that is material and competent. This preliminary step
may be done either at the Pre-trial Where the court may require all affidavits to be used for the
purpose to be submitted, or at a preliminary state of the trial proper before the witness takes
the Witness stand. Thus, the resulting direct testimony will not be polluted with inadmissible
evidence and the cross-examination will be confined to what is material and competent. The
only remaining possible objection then would be that the question asking for affirmation would
be leading and that the answer would be in narrative form, but these are minor considerations.
To start with, the affidavit may be made in question and answer form. Secondly, I have always
considered the objection to a leading question as essentially relating to a mere matter of form,
not of substance, hence relatively unimportant. And as to answers in narrative form, the basic
objection thereto is that it may include irrelevant and incompetent testimony, (Francisco on
Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211) but if the affidavit to be
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341 | P a g e
affirmed by a witness has already been purged of the objectionable portions as above indicated
the form of the answer should already be of no consequence.
Undoubtedly this innovative procedure will advance greatly the march towards simplification
and speed in the conduct of trials. As against possible shortcomings thereof in actual operation
as above outlined, I am certain that the advantages to be derived by adopting it far outweigh
the bases of the objections thereto. Of course, it is without saying that for this procedure to be
successfully employed and to attain the objective of speeding up the trial of cases, it is
imperative that there should be intelligent cooperation between the court and contending
counsels, who should try to avoid unnecessary inconsequential objections, for every lawyer
must know that the profession's first mission is to help the court in every way possible so that
his case could be disposed of not only justly but with utmost dispatch, as long as with expedient
means employed no substantial prejudice is caused to the interests of his client,
In brief, my concurrence here is premised on the failure of respondent judge to first have the
affidavits of the accused and his witnesses subjected to the possible legitimate objections of
the prosecution to any portion thereof. It is not decision although significant, that it does not
appear in the record that the fiscal who did not object to the Procedure suggested by counsel
for the accused took pains to require that the affidavits be first submitted for his examination,
to give him the opportunity to make proper objections to portions thereof that might be
incompetent or inadmissible. I take it that such omission could be due to the fiscal's
unawareness of the exact import of the unorthodox procedure in question, hence he was
unprepared to act accordingly. His Honor should nevertheless have seen to it, before giving his
assent to the proposal of the defense, that the proper measures were taken to insure that all
the matters contained in the affidavits offered by the defense are competent and admissible
under the law.
I reiterate I see no fundamental objection to a direct testimony in the form I have discussed
above. After all, according to the scholarly main opinion itself, "the main and essential purpose
of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the
opportunity of cross-examination. No doubt, it is Cross-examination in open court that is
indispensable. The direct examination is secondary because, ordinarily, as is generally known, it
can be fully rehearsed anyway, unlike cross-examination.
In closing, I wish to personally commend His Honor's obvious attitude of trying to improve upon
existing procedures with an eve to making trials less burdened with time-consuming and
complicated technical features that can anyway be done away with without sacrificing the
essence of the judicial inquiry into the facts in dispute. Indeed, I have always tried to encourage
all judges to look for ways and means of improving upon the beaten paths of existing practices
and techniques, to the end that the trial and disposition of all kinds of cases before them may
be simplified and abbreviated, if they have to be activists or revolutionaries in the process. Just
a word of caution those for there are corners that cannot and must not be cut, and it is always
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342 | P a g e
best to occasionally seek counsel from among the knowledgeable members of the bar,
preferably in the open, before plunging into untrodden areas.

Endnotes:

1 Section 381 of Act No. 190 provides;
SECTION 381. Witnesses. - The testimony of all witnesses, except such as has been taken in writing in the form of depositions as otherwise
provided by law, shall be given on oath in open court orally, and each witness may be orally cross-examined by the adverse party or his counsel
with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. The courts shall be liberal in allowing cross- examinations, but shall have the power to restrict them so
as to confine them to the purposes last above specified and to prevent irrelevant or insulting interrogatories.
2 Section 32 of general order No. 58 provides:
SEC. 32. In courts of first instance or of similar jurisdiction each witness must be duly sworn and his testimony reduced to writing as a
deposition by the court or under its direction. The deposition must state the name, residence and occupants of the witness. It must contain all
questions put to the witness and his answers thereto. If a question put is objected to and the objection be either overruled or sustained, the
fact of objection and its nature, together with the ground on which it shall have been sustained or overruled must be stated, or if a witness
declines to answer a question put, the fact and the proceedings taken thereon shall be entered in the record. The deposition must be read to
the witness and made to conform to what he declares to be the truth. lie must sign the name, or, if he refuses his reason for such refusal must
be stated. It must also Be signed by the magistrate and certified by the clerk. In cases where an official stenographer is engaged, the testimony
and proceedings may be taken by him in shorthand, and it will not then be necessary to read the testimony to the witness nor for the latter to
sign the same; but a transcript of the record made by the official stenographer and certified as correct by him shall Be a correct statement of
such testimony and proceedings.
Rule 43(a) of the Federal Rule of Procedure provides generally for oral testimony in open court. This is based the practice in equity under Equity
Rule 46.
3 5 Wigmore on Evidence, Section 1395, p. 123.
4 Ibid., pp. 125-126.
5 As observed in Blache z,. Blache 233 P. 2d 547, 549-550.
The seriousness of the trial court's error is apparent when we consider the reasons for the requirement that the witness, if available, take the
stand. Not only can the credibility of the witness on the stand be tested by cross-examination; another purpose is served by the requirements
of the witness' presence, the trier of fact cap 'obtain the elusive and incommunicable evidence of a witness deportment while testifying.' 5
Wigmore, op. cit., pp. 125-126.) Wigmore states that 'No one has ever doubted that the former testimony of a witness cannot be used if the
witness is still available for the purpose of testifying at the present trial. (Wigmore op. cit., p. 191.)
As was aptly stated by the district court of Appeal after the first trial of this case, 'On appeal we cannot evaluate the truth of the testimony from
the manner and demeanor of the witnesses. There appear enough contradictory and inconsistent statements in the transcript of the testimony
of each of the three principal parties to justify this court in sustaining a finding contrary to the testimony of any one of the parties.' Blache v.
Blache [1945], supra, 69 Cal. App. 2d 616, 624-625, 160 P. 2d 136.) The judge who tried the case the second time was no better qualified than
was the appellate court to evaluate the truth of vague, evasive and self- contradictory testimony of a witness whom he had not observed.
6 Wigmore on Evidence, p. 126
7 Section 1 Rule 133, Revised Rules of Court, provides:
SEC. 1.-Proponderance of evidence, how determined.-In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. in determining where the preponderance or superior weight of evidence on the issues involved lies, the court may
consider all the facts and circumstances of the case, thewitnesses' manner of testifying their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony,
their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may
also consider the number of witnesses, though the preponderance is not necessarily with the greatest number.
This was reproduced from Section 94 of Rule 123, of the former Rules, which in turn was taken from Section 273 of Act No. 190.
8 Section 5, Rule 132, of the Revised Rules of Court,
Barredo, J.:
1 The People of the Philippines was joined here only upon orders of the Court.

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SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 92355 January 24, 1991
vs.
PEDRING CALIXTRO, CELSO FERRER and LOUIE FERRER, accused, PEDRING CALIXTRO, accused-
appellant.
Eliseo A. Mendoza for accused-appellant.

PARAS, J.:p
This is an appeal from the decision of the Regional Trial Court, Branch 33, Guimba, Nueva Ecija,
in Criminal Case No. 536-G1 entitled "People of the Philippines v. Pedring Calixtro, Celso Ferrer
and Louie Ferrer", convicting the accused-appellant, Pedring Calixtro, of the crime of rape
(Rollo, pp. 22-26).
The accused Pedring Calixtro, Celso Ferrer and Louie Ferrer were charged with the crime of
Robbery with Rape under the following information:
That on or about the 24th day of April, 1989 in Barangay Faigal, Municipality of
Guimba, Province of Nueva Ecija, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused being then armed with sharp-
pointed instrument (patalim), conspiring, confederating and helping one
another, and with intent to gain and by means of force and violence and
intimidation upon person, did then and there willfully, unlawfully and feloniously
take, steal and carry away one (1) gold ring with three (3) stones of diamond and
one (1) pair of earrings with one stone diamond with a total value of TEN
THOUSAND PESOS (P10,000.00) Philippine Currency, more or less, belonging to
EDELIZA ASTELERO to the damage and prejudice of the latter in the said amount;
and that during or on the occasion of the robbery, the said three (3) accused
conspiring, confederating and helping one another did then and there willfully,
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unlawfully and feloniously have sexual intercourse one after the other with said
EDELIZA ASTELERO against her will.
That the crime was committed with the aggravating circumstance of nighttime
which was taken advantage of by the said accused and as a consequence of
which the complaining witness suffered actual, moral and consequential
damages which could be estimated in the total sum of P100,000.00.
CONTRARY TO LAW. (p. 7, Rollo)
The pertinent facts of the case as gathered from the records are as follows:
Edeliza Astelero, her husband Gonzalo Astelero, and an 11 year old son are residents of
Barangay Faigal, Guimba, Nueva Ecija. Pedring Calixtro had been a resident of the same
barangay for a year before the incident occurred.
At about 10:00 o'clock in the night of April 24, 1989, while the Astelero family were peacefully
resting in their abode, Edeliza heard the barking of dogs; she peeped thru the hole of their
window and she saw three male persons. She went to her husband on the bed and awakened
him. Both peeped through the hole of the window where they saw three men calling from
outside, "Manang, Manang, buksan mo ang pintuan." She went near the door of their hut. One
of the three persons threatened her that if she would not open the door, they would blast the
house with a hand grenade. She was about to open the door but they continued kicking the
door to open the same (p. 8, TSN, Oct. 10, 1989). Then they hacked the wall of their house and
the same fell down. She was afraid that her family would be killed, so she decided to open the
door. As she was opening the door, Celso Ferrer pulled her outside of the house and threatened
her not to ask for help. Then they dragged her out to the middle of the fields (pp. 9-10,
TSN, Ibid.).
In the middle of the field, Celso Ferrer and Louie Ferrer took hold of her arms and pointed a
bladed weapon at her neck. At that very moment, accused Pedring Calixtro told her that if she
would not give her womanhood she would be killed. She pleaded for mercy but accused
Pedring Calixtro succeeded in removing her duster and short pants. She struggled but the
accused started hurting her thighs (p. 11, TSN, Ibid.). Pedring Calixtro succeeded in having
sexual intercourse with the victim, while Celso Ferrer took off her ring and earrings. Celso
Ferrer and Louie Ferrer took turns in abusing her. After the heinous acts, the three accused
debated whether to kill Edeliza Astelero or not. Edeliza took the opportunity to flee while the
three were discussing. She ran as fast as she could until she saw a jeep, which she later found to
be carrying her husband. Thereafter, she was brought to the hacienda of Bebang Adriano (pp.
12-14, TSN, Ibid.).
The testimony of complainant witness is corroborated by Rogelio de la Cruz, a barangay tanod
and neighbor of the Asteleros. He testified that in the evening of April 24, 1989 at around 10:00
o'clock, more or less, the accused Pedring Calixtro, Celso Ferrer and Louie Ferrer arrived in his
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house, and asked him for chicken, which they told him to cook and prepare as "pulutan" but he
refused. The three consumed a bottle of wine in his house. When the three left, he followed
them secretly towards the house of complainant. He saw them kicking the house and ordering
the occupants to open the door. Moments later, he saw them dragging the complainant away
from her house towards the field. He reported the incident to the Barangay Captain (pp. 3-8,
TSN, Nov. 14, 1989).
Police Corporal Juanito Villaba testified that in the evening of April 24, 1989, while in the office
of the Integrated National Police, Guimba, Nueva Ecija, Barangay Captain Marina Quitallas and
companions arrived and reported that a certain Edeliza Astelero had forcibly been taken from
her house by three male persons. Officer-in-charge, Lt. Soriano, dispatched Sgt. Mendoza and
other policemen to respond to the call (pp. 5-6, TSN, Nov. 21, 1989).
Dr. Diosdado Barawid testified that the victim was brought to him for examination sometime on
April 25, 1989 and he made the following observation: "light blackish discoloration right hip
lower portion, inner aspect; several abrasion upper portion and inner aspect, and laboratory
examination of vaginal smear-positive (+) for sperm cell, 3 counted." He further testified that
the abrasions or injuries sustained by Edeliza Astelero were caused by a blow and there were
signs of struggle (pp. 3-7, TSN, Nov. 27,1989).
Pedro Calixtro testified on his behald that at 5:00 p.m. on April 24, 1989 he was tendering water
in his ricefield. And about 5:30 of the same afternoon he was invited by Celso Ferrer and Louie
Ferrer to the house of Rogelio de la Cruz to buy chicken. He proceeded back to the ranch after
30 minutes and attended to the water pump. That during the hours of 10:00 and 11:00 p.m. of
the same night he heard shouts. He proceeded to the direction of the shouts and saw a naked
woman being forced and brought away by Celso Ferrer and Louie Ferrer. Then he heard from
Celso Ferrer the words "papatayin kita", being addressed to Edeliza. Witness gave to Edeliza the
dress which he noticed behind her. A fist fight ensued between him and Celso. After the fight,
he noticed that Edeliza ran away, whereas, he went to the watering pump.
At about 6:00 o'clock the following morning, he was apprehended by Sgt. Soriano (pp. 3-11,
TSN, November 28, 1989; pp. 7-9, Brief for the Accused-Appellant; Rollo, pp. 43-45).
Of the three accused, only Pedring Calixtro was apprehended. Pedring Calixtro pleaded "not
guilty" to the crime charged, thereafter, trial on the merits ensued. After trial, the court a
quo rendered a decision, the dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused Pedring Calixtro guilty beyond
reasonable doubt of the crime of Rape as described under Art. 335 of the
Revised Penal Code, as amended, and hereby sentences him to suffer the
penalty of reclusion perpetua and to indemnify the complainant in the amount of
P30,000.00, without subsidiary imprisonment in case of insolvency.
SO ORDERED. (pp. 26, Rollo)
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Dissatisfied, Pedring Calixtro appealed and assigned the following errors, to wit:
I
THE LOWER COURT ERRED IN CATEGORICALLY PRONOUNCING THAT THE
TESTIMONIES OF THE COMPLAINANT EDELIZA ASTELERO DURING THE TRIAL OF
THE CASE CLEARLY ESTABLISHED THE GUILT OF ACCUSED-APPELLANT BEYOND
REASONABLE DOUBT, AS NARRATED BY SAID COURT IN THE THIRD AND
LONGEST PARAGRAPH OF PAGE 2 OF THE DECISION IN QUESTION.
II
THE LOWER COURT ERRED IN: STATING THAT THE ACCUSED-APPELLANT'S
DEFENSE CONSISTED OF MERE DENIALS OF THE CRIME CHARGED AND ALIBI;
AND IN RE-STATING THE TESTIMONIES OF SAID ACCUSED- APPELLANT IN SHORT
FIRST PARAGRAPH OF PAGE 4 OF SAID DECISION.
III
THE LOWER COURT ERRED IN FINDING THAT THE COMPLAINANT HAD
POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS ONE OF THE PERSONS WHO
SEXUALLY MOLESTED HER.
IV
THE LOWER COURT ERRED IN DISCREDITING THE TESTIMONIES OF THE
ACCUSED-APPELLANT AS THE SAME WERE NOT CORROBORATED BY OTHER
EVIDENCE.
V
THE LOWER COURT ERRED IN NOT FINDING COGENT REASON WHY THE
COMPLAINANT SHOULD FALSELY CHARGE THE ACCUSED-APPELLANT OF THE
SERIOUS CRIME OR ROBBERY WITH RAPE.
VI
THE LOWER COURT ERRED IN NOT DISCREDITING THE TESTIMONIES OF ROGELIO
DE LA CRUZ.
VII
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THE LOWER COURT ERRED IN ALLOWING THE COMPLAINANT TO TESTIFY IN
STORY-TELLING MANNER OVER THE OBJECTION OF THE UNDERSIGNED
COUNSEL; and
VIII
THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION IN MAKING ITS
DECISION, THE ACCUSED-APPELLANT'S MEMORANDUM FILED ON JANUARY
2,1990, PURSUANT TO THE VERBAL ORDER DATED DECEMBER 11, 1989 AND IN
NOT INCLUDING SAID MEMORANDUM AND THE NOTICE OF APPEAL IN THE
RECORDS OF THE CASE REMANDED TO THIS HONORABLE SUPREME COURT. (pp.
37-38, Rollo)
Under Article 335 of the Revised Penal Code, rape is committed if the accused had carnal
knowledge of a woman and such act is accomplished under the following circumstances: (1) by
using force or intimidation; (2) when the woman is deprived of reason or otherwise
unconscious; and (3) when the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs is present.
There are three settled principles to guide an appellate court in reviewing the evidence in rape
cases: (1) an accusation for rape can be made with facility; it is difficult to prove it but more
difficult for the person accused, though innocent, to disprove it (People v. Aldana, G.R. No.
81817, July 27, 1989); (2) in view of the intrinsic nature of the crime of rape where two persons
are usually involved, the testimony of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and
cannot be allowed to draw strength from the weakness of the evidence for the defense (People
v. Villapana, 161 SCRA 72). What is decisive in the rape charged is complainant's positive
identification of the accused-appellant as the malefactor (People v. Mustacisa, 159 SCRA 227;
People v. Ramilo, 146 SCRA 258).
In the case at bar, the defense depended heavily on supposed inconsistencies pervading
complainant's testimony at the trial court below. Appellant pointed out alleged inconsistencies
and improbabilities in the testimony of the rape victim Edeliza Astelero which allegedly cast
reasonable doubt on his guilt. The most notable of these were: (a) although she testified on
direct that she was alone when she peeped through the hole of their window and saw three (3)
male persons, on cross, she claimed that it was she and her husband who peeped through the
hole of their window (b) while, on direct, she testified that she heard the barking of the dogs at
around 10:00 p.m., on cross, she stated that she heard the barking of the dogs at around 7:00
p.m.; (c) on direct, she did not state that her assailants wore masks and that she herself was
blindfolded which she mentioned only on cross; (d) she could not have recognized her
assaillants because they wore masks and she was blindfolded.
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We find the alleged inconsistencies as too trivial, insignificant and inconsequential to merit the
reversal of the trial court's decision. The inconsistencies pointed out by appellant can hardly
affect the complainant's credibility. They refer to minor details or to the precise sequence of
events that do not detract from the central fact of rape, on which complainant had consistently
and candidly testified. A witness who is in a state of flight cannot be expected to recall with
accuracy or uniformity matters connected with the main overt act (People v. Ramilo, supra).
The testimonial discrepancies could have also been caused by the natural fickleness of memory,
which tend to strengthen, rather than weaken, credibility as they erase any suspicion of
rehearsed testimony (People v. Cayago; 158 SCRA 586). These discrepancies on minor details
serve to add credence and veracity to her categorical, straightforward, and spontaneous
testimony (People v. Ramilo, supra).
Minor discrepancies indicate that the witness was not previously rehearsed, and consequently
strengthen her credibility. It would, perhaps, have been more suspicious if complainant had
been able to pinpoint with clarity or described with precision the exact sequence of events
(People v. Cayago, supra; People v. Alfonso, 153 SCRA 487). The rape victim should not be
expected to keep an accurate account of the traumatic and horrifying experience she went
through.
Needless to say, when the issue is one of credibility of witnesses, the findings of the trial court
are generally accorded a high degree of respect, the court having observed the demeanor and
deportment of witness. We find no compelling reason to deviate from this settled rule.
Appellant alleged that it was improbable for Edeliza to have recognized him when she herself
was blindfolded and her assaillants wore masks. Such contention is devoid of merit.
Although Edeliza was blindfolded and her assaillants wore masks, she was positive in her
testimony that she recognized the appellant as one of her attackers through the latter's voice.
Edeliza could recognize appellant through his voice inasmuch as they are barriomates. In fact,
appellant even admitted that they were friends, thus:
Q Mr. Witness, how long have you been in Faigal, Guimba, Nueva
Ecija, in the ranch of Mrs. Bebang Adriano prior to April 24,1989?
A About one (1) year, sir, that I had been staying there.
Q And during that length of time you came to know Edeliza
Astelero and her husband who are also from Faigal, Guimba,
Nueva Ecija, is it not?
A Yes, sir.
Q And they used to go to that ranch. In fact considering the length
of time that you have known Edeliza Astelero and her husband
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you alleged that you are their friend and the same way that they
also were your friends?
A Yes, sir. (p. 16, TSN, Nov. 18,1989)
In People vs. Inot, 150 SCRA 322 (1987), We ruled:
. . . complainant's identification of the appellant was not based solely on the
latter's physical defect, but by his voice as well, when he warned complainant,
"Flor, keep quiet." Although complainant did not see appellant's face during the
sexual act because the house was dark, nevertheless, no error could have been
committed by the complainant in identifying the voice of the accused, inasmuch
as complainant and appellant were neighbors. . . .
This is corroborated by the testimony of Rogelio de la Cruz who saw Pedring Calixtro, Celso
Ferrer and Louie Ferrer dragged Edeliza Astelero out of her house.
Appellant put up the defense of alibi that he was looking after his irrigation task when he heard
shouts, and went back after having a fist fight with Celso Ferrer.
Defense of alibi is inherently weak and cannot prevail over the positive identification of the
accused (People v. Cayago, 158 SCRA 586). For the defense of alibi to succeed, the accused
must establish physical impossibility and improper motive of the prosecution witnesses, which
matters the accused failed to prove (People v. Alfonso, 153 SCRA 487).
Edeliza Astelero had positively identified the accused Pedring Calixtro as one of the persons
who had raped her in the middle of the fields. His alibi, that he was at the ranch during the
hours of 10:00 and 11:00 p.m. of April 24, 1989 and while he was looking after his farm he
heard shouts, and he was the one who saved and rescued Edeliza Astelero, can only be taken
with a grain of salt. Such a statement could easily be fabricated, more so when it is not
corroborated by testimonies of other impartial witnesses. The accused was the lone witness for
his defense. The accused could have had his testimony corroborated by presenting other
persons who could well testify on what he had been doing in the evening of April 24, 1989.
Mere denial of the commission of a crime cannot prevail over the positive identification made
by the complaining witness.
Appellant stresses the prosecution's failure to present the husband and son of Edeliza. The
expected testimony of husband and son had already been dealt upon by Edeliza Astelero and
Rogelio de la Cruz. There is no cogent reason for them to corroborate what had been testified
on. Besides it is the prerogative of the prosecution to choose its witnesses (People v. Quebral,
134 SCRA 425; People v. Martinez, 127 SCRA 260).
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In rape, the prosecution need not, present testimonies of people other than the offended party
herself if the same is accurate and credible (People v. Robles, G.R. No. 53569, February 23,
1989).
Appellant questions the credibility of Rogelio de la Cruz as a witness. The former argues that
being a barangay tanod, de la Cruz should have apprehended the malefactors and should have
prevented the heinous crime. De la Cruz reasoned out that he was afraid that they might kill
him; the malefactors were, then, armed with deadly bladed weapons. His only weapon was a
stick, which was not a match against bladed weapons. He feared for his life, such is not contrary
to human nature. Thus, de la Cruz should not foolhardily attempt to stop the malefactors in his
state of physical disavantage and stake his life in the process.
The allegation that Pedring Calixtro was implicated because the real perpetrators were not
arrested defies human reason.
It is hard to believe that a woman, a simple housewife and mother, would fabricate a rape
charge and subject herself and family to shame, humiliation and embarrassment of a public
trial. We have oftentimes ruled that a woman would not undergo the expense, trouble and
inconvenience of a public trial, not to mention the scandal, embarrassment and humiliation
such action inevitably invites, as well as allow an examination of her private parts, if her motive
is not to bring to justice the persons who had abused her (People v. Muoz, 163 SCRA 730;
People v. Cayago, 158 SCRA 586; People v. Viray 164 SCRA 135; People v. Magdaraog, 160 SCRA
153; People v. Bulosan, 160 SCRA 492; People v. Hacbang, 164 SCRA 441).
Appellant further contends that the trial court erred in allowing the complainant-witness to
testify in narrative form.
This contention is likewise devoid of merit.
Usually in criminal cases, the material facts within the knowledge of a witness are elicited by
questions put to him by the counsel calling him. By this means, the evidence is readily limited
and confined within the issue for the reason that the relevancy of the answer can in most cases
be ascertained from the character of the question (Underhill's Criminal Evidence, Sec. 387, p.
742). While this is the general rule, it still rests within the sound discretion of the trial judge to
determine whether a witness will be required to testify by question and answer, or will be
permitted to testify in a narrative form (98 C.J.S., Sec. 325, p. 26). There is no legal principle
which prevents a witness from giving his testimony in a narrative form if he is requested to do
so by counsel. A witness may be allowed to testify by narration if it would be the best way of
getting at what he knew or could state concerning the matter at issue. It would expedite the
trial and would perhaps furnish the court a clearer understanding of the matters related as they
occurred. Moreover, narrative testimony may be allowed if material parts of his evidence
cannot be easily obtained through piecemeal testimonies. But if, in giving such testimony, the
witness states matters irrelevant or immaterial or incompetent, it is the right and duty of
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counsel objecting to such testimony to interpose and arrest the narration by calling the
attention of the court particularly to the objectionable matter and, by a motion to strike it out,
obtain a ruling of the court excluding such testimony from the case (98 C.J.S., Ibid.). While a
witness may be permitted in the discretion of the court to narrate his knowledge of material
facts bearing upon the case without specifically being interrogated in detail, it is also within the
discretion of the court to prohibit a witness from volunteering unsought information in
connection with the case (5 Jones on Evidence, Sec. 2312).
Appellant takes notice of the fact that the trial court did not consider his memorandum. We
find that the contents of the memorandum were passed upon in the judgment of the trial
court. The arguments therein were discussed by it. The arguments presented did not raise new
issues; hence, the memorandum deserves scant consideration.
We find, as the trial court found, that appellant successively raped the offended party while the
other two accused held down the victim, showing that conspiracy existed. Said other two also
took turns in raping. In a conspiracy, the act of one is the act of all. There are three (3) crimes of
rape, appellant, having conspired with the two others, should be convicted on three counts of
rape. Thus, Pedring Calixtro is also responsible for the acts of Celso Ferrer and Louie Ferrer. The
case of People v. Cayago, (158 SCRA 586) is applicable in the case at bar:
The trial court found as a fact that appellant and others, having conspired with
each other, successively raped the offended party while the other held down the
victim. This is adequate basis for convicting appellant Cayago of three (3) crimes
of rape. The judgment of the trial court does not purport to convict Macaraeg
and Capitle and would not, of course, bind them should they ever be arrested
and brought to trial; they may plead any defense to which they might feel
entitled, such as insanity or mistaken identity, etc.
We find the accused's guilt to have been proved beyond reasonable doubt.
ACCORDINGLY, the judgment of conviction is hereby AFFIRMED, INCREASING the penalty
imposed on the appellant to three (3) penalties of RECLUSION PERPETUA, and for him to
indemnify the offended party in the sum of P30,000.00 in each case for a total of P90,000.00
and to pay the costs.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 71537 September 17, 1987
EMILIO DE LA PAZ, JR., ENRIQUE DE LA PAZ, MANUELA DE LA PAZ, NATIVIDAD DE LA PAZ,
MARGARITA DE LA PAZ and ZENAIDA DE LA PAZ, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, ADELAIDA S. TRINIDAD, CONRADO P. SANTOS, JR.,
CESAR P. SANTOS, FELICITAS S. DE LEON, PONCIANITO P. SANTOS, SR., EVANGELINE S.
TANSINGCO, ANTONIO P. SANTOS, and JAIME P. SANTOS, respondents.
GUTIERREZ, JR., J.:
The petitioners have lumped in one amended petition an original action for certiorari to set
aside the decision of the Regional Trial Court, Branch 71 at Antipolo, Rizal, in Civil Case No. 164-
A and a petition for review to nullify the decision of the Intermediate Appellate Court in AC-G.R.
SP No. 05472.
The records show the following incidents which transpired prior to the filing of the instant
petition.
On May 12, 1983, Loreto de la Paz filed a complaint against the petitioners with the Regional
Trial Court of Rizal for a judicial declaration of ownership of a 43,830 square meter parcel of
land covered by Original Certificate of Title No. 901 of the Register of Deeds, Rizal in the name
of Ponciano de la Paz with damages. The case was docketed as Civil Case No. 164-A.
Loreto alleged that the subject parcel of land was among the properties adjudicated to her and
her mother as a result of a partition submitted by the heirs of Ponciano de la Paz and approved
by the court in Civil Case No. 1399 of the Court of First Instance of Rizal. The subject matter of
Civil Case No. 1399 was Ponciano's testate estate.
In their answer, the petitioners denied that the disputed lot was among the properties
adjudicated to Loreto and her mother. They claimed that the parcel of land was not accounted
for in the probate proceedings but is actually community property of the parties.
The parties, except for petitioner Enrique de la Paz, were admittedly compulsory heirs of
Ponciano de la Paz who died in 1916. Loreto was the only legitimate child of Ponciano while: 1)
Emilio de la Paz, Jr., is the son of Emilio, a recognized natural child of Ponciano; 2) Manuela de
la Paz is the recognized natural child of Ponciano; 3) Natividad de la Paz is the daughter of
Emilio, recognized natural child of Ponciano; 4) Margarita de la Paz is the daughter of
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Wenceslao, a recognized natural child of Ponciano; and 5) Zenaida de la Paz, is the daughter of
Augusto, another recognized natural child of Ponciano. As regards petitioner Enrique de la Paz,
Loreto denied his claim that he is one of the heirs of Ponciano. The petitioners, however, allege
that he is also a compulsory heir of Ponciano, he being the son of Ponciano de la Paz, Jr., the
eldest child of the decedent.
The parties failed to arrive at an amicable settlement during pre-trial. Hence, trial on the merits
followed.
Loreto took the witness stand. She finished her direct testimony on March 12, 19984.
On April 25, 1984, the petitioners' counsel began his cross-examination of Loreto. The cross-
examination was, however, not completed. The petitioners' counsel moved in open court for
the continuance of the cross-examination on the ground that he still had to conduct a lengthy
cross-examination. (p. 17, Court of Appeals' rollo).
On May 18, 1984, Loreto's counsel filed a motion for "correction of transcript" due to some
errors in the transcript of stenographic notes taken during the direct testimony of Loreto. The
motion was granted.
This order granting the correction prompted the petitioners'' counsel to manifest that he would
not be able to undertake the cross-examination of the witness as scheduled. He asked for the
postponement of the May 23, 1984 hearing. The trial court postponed the trial of the case to
May 31, 1984 and later to July 5, and 11, 1984. (p. 16, Court of Appeals' rollo)
On August 13, 1984, trial resumed. The petitioners' counsel, however, asked for still another
postponement of the cross-examination to give him a chance to go over the stenographic
notes. In an order of the same date, the hearing was again postponed. (p. 17, Court of Appeals'
rollo)
During the scheduled trial on September 14, 1984, neither the petitioners, nor their counsel
appeared despite due notice. Loreto's counsel, therefore, filed a motion that she be allowed to
present evidence ex parte before a commissioner. The motion was granted and Loreto
presented additional evidence ex parte in the afternoon of the same day. On this same date,
she finished the presentation of her evidence and submitted her case for decision.
Despite this development, the petitioners upon their motion were allowed to cross-examine
Loreto.
On the scheduled hearing set on September 18, 1984, the petitioners' counsel failed to appear,
and the cross-examination of Loreto was deferred for the fourth (4th) time. (p. 17, Court of
Appeals' rollo)
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Finally, on November 7, 1984, the petitioners' counsel resumed his repeatedly postponed cross-
examination of Loreto. The cross-examination was, however, cut short and rescheduled again
on motion of the petitioners' counsel.
Unfortunately, Loreto died on December 1, 1984. An amended complaint was filed for the
purpose of substituting the respondents, herein, they being the children and heirs of Loreto.
At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike off
the record the entire testimony of Loreto. The motion was denied. A verbal motion for
reconsideration was likewise denied.
In view of the petitioners' manifestation that they will appeal the ruling the appellate court, the
trial court issued on January 24, 1985 a more detailed order denying the motion to strike off
the record Loreto's testimony. (p. 17, Court of Appeals' rollo).
On February 11, 1985, the trial court issued another order allowing, among other things, the
private respondents to present their exhibits. A controversy as to the contents of this February
11, 1985 order will be discussed later.
On February 18, 1985, the petitioners filed a petition with the Intermediate Appellate Court to
annul the lower court's orders dated January 24, 1985 and February 11, 1985 and to prohibit
the court from further proceeding in Civil Case No. 164-A. The petition for certiorari and
prohibition was docketed as AC-G.R. SP. No. 05472.
This petition notwithstanding, the lower court continued the proceedings in Civil Case No. 164-
A. Thus, on March 29, 1985, the lower court promulgated a decision in Civil Case No. 164-A
declaring the private respondents, the children and heirs of Loreto, as the true owners of the
subject parcel of land. Damages were also awarded in favor of the private respondents. The
dispositive portion of the decision reads:
IN VIEW OF THE FOREGOING, JUDGMENT is hereby rendered
(a) Declaring plaintiffs as the true and lawful owners of the parcel of land
covered by Original Certificate of Title No. 901 of the Register of Deeds of Rizal;
(b) Ordering the defendants to surrender the owner's duplicate copy of Original
Certificate of Title No. 901;
(c) Directing the Register of Deeds of Rizal, Pasig Branch to cancel Original
Certificate of Title No. 901 and to issue a new one in the names of the plaintiffs;
(d) Ordering the defendants jointly and severally to pay to the plaintiffs Five
Hundred Thousand Pesos (P500,000.00) as actual damages, Five Hundred
Thousand Pesos (P500,000.00) as moral damages, Five Hundred Thousand Pesos
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(P500,000.00) as exemplary or corrective damages, Fifty Thousand Pesos
(P50,000.00) as attorney's fees, plus the costs; and
(e) Dismissing the defendants counterclaim. (pp. 13-14, rollo)
On June 20, 1985, the appellate court also rendered a decision in AC-G. R. SP No. 05472. The
petition was denied due course and dismissed. A motion for reconsideration was denied for
lack of merit.
Initially, the petitioners filed only a petition to review on certiorari the appellate court's
decision and resolution respectively.
Upon motion of the petitioners, we admitted the amended petition which now seeks to annul
the decision of the lower court in Civil Case No. 164-A aside from setting aside the appellate
court's decision and resolution in AC-G.R. SP No. 05472.
In another resolution dated January 20, 1986, we gave due course to the petition and
considered the respondents' comments as answer.
We first review the challenged decision and order of the appellate court. The petitioners
contend that the appellate committed grave abuse of discretion when it sanctioned the trial
court's orders which denied the striking out of the testimony of original plaintiff Loreto de la
Paz from the record.
A motion to strike off testimony from the record is an interlocutory order. Well-settled is the
rule that interlocutory orders may not be subjects of a petition of certiorari unless issued in
patent abuse of discretion. (See Villalon, Jr. v. Intermediate Appellate Court, 144 SCRA 443;
Bautista v. Sarmiento, 138 SCRA 587).
We see no grave abuse of discretion on the part of the trial court when it issued the questioned
order. True, we have consistently ruled on the nature of the right of cross-examination, to wit:
The right of a party to confront and cross-examine opposing witnesses in a
judicial litigation, be it criminal or civil in nature, or in proceedings before
administrative tribunals with quasi-judicial powers, is a fundamental right which
is part of due process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino,
et al., 1975, 62 SCRA 258).
xxx xxx xxx
The right of a party to cross-examine the witness of his adversary in invaluable as
it is inviolable in civil cases, no less than the right of the accused in criminal
cases. The express recognition of such right of the accused in the Constitution
does not render the right thereto of parties in civil cases less constitutionally
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based, for it is an indispensable part of the due process guaranteed by the
fundamental law. ... Until such cross-examination has been finished, the
testimony of the witness cannot be considered as complete and may not,
therefore, be allowed to form part of the evidence to be considered by the court
in deciding the case. (Bacrach Motor Co., Inc., v. Court of Industrial Relations, 86
SCRA 27 citing Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et
al., supra, Ortigas, Jr. vs. Lufthansa German Airlines, 64 SCRA 610)
But we have also ruled that it is not an absolute right which a party can demand at all times.
This Court has stated that:
xxx xxx xxx
the right is a personal one which may be waived expressly or impliedly by
conduct amounting to a renunciation of the right of cross-examination. Thus,
where a party has had the opportunity to cross-examine a witness but failed to
avail himself of it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be received or allowed
to remain in the record.
The conduct of a party which may be construed as an implied waiver of the right
to cross-examine may take various forms. But the common basic principle
underlying the application of the rule on implied waiver is that the party was
given the opportunity to confront and cross-examine an opposing witness but
failed to take advantage of it for reasons attributable to himself alone.
xxx xxx xxx
The case of the herein petitioner, Savory Luncheonette, easily falls within the
confines of the jurisprudence given above. Private respondents through their
counsel, Atty. Amante, were given not only one but five opportunities to cross-
examine the witness, Atty. Morabe, but despite the warnings and admonitions of
respondent court for Atty. Amante to conduct the cross-examination or else it
will be deemed waived, and despite the readiness, willingness and insistence of
the witness that he be cross-examined, said counsel by his repeated absence
and/or unpreparedness failed to do so until death sealed the witness' lips
forever. By such repeated absence and lack of preparation on the part of the
counsel of private respondents, the latter lost their right to examine the witness,
Atty. Morabe, and they alone must suffer the consequences. The mere fact that
the witness died after giving his direct testimony is no ground in itself for
excluding his testimony from the record so long as the adverse party was
afforded an adequate opportunity for cross-examination but through fault of his
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own failed to cross-examine the witness. (Savory Luncheonette v. Lakas ng
Manggagawang Pilipino,supra; at pp. 263-267)
In the case at bar, the petitioners' failure to cross-examine Loreto was through no fault of the
respondents. As can be gleaned from the record, Loreto was available for cross-examination
from the time she finished her direct testimony on March 12, 1984 to November 7, 1984, the
last scheduled hearing of the case before her death on December 1, 1984. The petitioners not
only kept on postponing the cross-examination but at times failed to appear during scheduled
hearings. The postponement of the trial on May 23, 1984 to a later date duet o the correction
of the stenographic notes of Loreto's testimony may be justified, but the same cannot be said
for the subsequent posponements requested by the petitioners. The scheduled trials before
November 7, 1984, did not push through, because of the petitioners' fault. It may also be
recalled that at the scheduled hearing on September 14, 1984 neither the petitioners nor their
counsel appeared leading to the presentation of evidence ex parte. And also during the
scheduled hearing on September 18, 1984, when the petitioners were allowed to cross-
examine Loreto despite the fact that the case was already deemed submitted for decision, the
petitioners again failed to appear.
Under these circumstances, we rule that the petitioners had waived their right to cross-
examine Loreto. Through their own fault, they lost their right to cross-examine Loreto. Her
testimony stands.
As regards the petition to set aside the trial court's decision, the pivotal issue hinges on the
contents of the February 11, 1985 order. The petitioners argue that Presiding Judge Benedicto
"arbitrarily and whimsically changed without notice to either party, the tenor of the order it
dictated in open court, apart from injecting facts that did not and could not have transpired on
February 11, 1985, acts apparently calculated to deprive petitioners, as in fact they were
deprived petitioners, as in fact they were deprived of their right to present evidence in their
behalf." (p. 38, Rollo).
According to the petitioners, the trial court issued two conflicting versions of the February 11,
1985 order. The order dictated in open court on February 11, 1985 states:
In view of the manifestation of the counsel for the plaintiff that he is formally re-
offering in evidence all documentary exhibits and testimonial evidence
presented and it appearing that the transcript taken during the ex-parte hearing
is already available and availed of by counsel for the defendant, he is hereby
given ten (10) days from today to file his objections after which this case will be
deemed submitted for resolution. In view of the fact that he will appeal the
order of this court denying his motion to strike out from the record, the
testimony of the plaintiff, Loreto de la Paz, the presentation of the evidence of
the defendants is hereby held in abeyance. (p. 29, Court of Appeals' rollo)
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while the signed order dated February 11, 1985 states, to wit:
In view of the manifestation of the counsel for the plaintiff that he is formally re-
offering in the evidence all documentary exhibits and testimonial evidence
presented and after their admission he will rest his case and it appearing that the
transcript taken during the ex-parte hearing has been long available and availed
of by counsel for the defendants, he is hereby given ten (10) days from today to
file his objections thereto after which action will be taken on the admission of
said exhibits. The said period having lapsed without defendants' counsel filing his
comments on the admission of the exhibits A to Z and the sub-marked exhibits
are admitted in evidence for Plaintiffs, Defendants' counsel forthwith manifested
that he will appeal to the Intermediate Court of Appeals (sic) the ruling of this
Court denying his Motion to Strike off from the records the entire testimony of
Plaintiff Loreto de la Paz who was partly cross-examined already but who died
thus his cross examination could not be completed. Said counsel then refused to
present evidence in behalf of defendants on the ground that he intended to
appeal as already alluded above the Order of this court denying the Motion in
question. The court has ruled in its Order of January 21, 1983 that inspite of the
attitude of Counsel the trial shall proceed as scheduled.
Thus, at the hearing today said Counsel failed to proceed with the trial to
present his evidence. This case shall be deemed submitted for Resolution. (p. 31,
Court of Appeals' rollo)
It is to be noted that in the dictated version of the February 11, 1985 order, the petitioners
were given ten (10) days from February 11, 1985 to file their objections after which the case
will be submitted for resolution and that the presentation of evidence for the petitioners was
held in abeyance.
However, in the other version, the case was declared as already deemed submitted for
resolution.
It is this second version of the February 11, 1985 order which the trial court used as justification
for its promulgation of the March 29, 1985 decision in Civil Case No. 164-A.
The record clearly shows that this second version of the February 11. 1985 order was issued
without the knowledge of the parties. In fact, on March 14, 1985, the respondents filed an
urgent motion to consider the case submitted for decision with the following allegations: 1)
that in the hearing of February 11, 1985, the petitioners were required to submit their
comment or objection to respondents' offer of evidence and they were given ten (10) days
from the said date within which to do so, and thereafter to present their evidence; and 2) that
notwithstanding the lapse of more than thirty (30) days, the respondents have not submitted
their comment or objection to petitioners' offer of evidence much less have they take any move
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to present their evidence. (pp. 32033, Court of Appeals' rollo). the respondents would not have
filed this motion if the case was already deemed submitted for decision pursuant to the second
version of the February 14, 1985 order. Furthermore, the respondents do not rebut these
allegations.
The trial court committed a grave abuse of discretion in issuing the order dated February 11,
1985, the contents of which conflict with another order of the same date dictated in open court
during the hearing of the case on February 11, 1985.
The issuance of this second version of the February 11, 1985 order prejudiced the petitioners'
cause. They were deprived of their right to present evidence in their behalf.
Consequently, the decision of the trial court in Civil Case No. 164-A must be declared null and
void,
Another issue raised by the petitioners centers on whether or not the trial court committed
grave abuse of discretion in rendering judgment in Civil Case No. 164-A despite the pendency of
the petition which sought to inhibit it from further proceeding with the case.
The appellate court did not restrain the trial court until April 22, 1985 after the petitioners
presented the certified copy of the February 11, 1985 order. (p. 35, Court of Appeals rollo). The
trial court did not abuse its discretion or commit reversible error. It is within its sound
discretion to either proceed with the case in the absence of the prayed-for restraining order to
refrain from acting on the case until the higher court decides the matter elevated. to it. the
circumstances of each case dictate what action shall be take.
The final issue raised by the petitioners is with regard to the damages awarded the respondents
by the trial court.
In their complaint, the respondents asked for the following damages: 1) at least P150,000.00 as
actual damages; 2) P200,000.00 as moral damages; and 3) P50,000.00 as attorney's fees plus
exemplary damages which may be deemed just and equitable in the premises. The trial court
awarded to the respondents the following: P500,000.00 as actual damages; P500,000.00 as
moral damages; P500,000.00 as exemplary damages; P50,000.00 as attorney's fees and costs.
The questioned decision, however, is silent as to how the court arrived at these damages.
Nowhere in the decision did the trial court discuss the merit of the damages prayed for by the
petitioners. There should be clear factual and legal bases for any award of considerable
damages. (See Rubio v. Court of Appeals, 141 SCRA 488).
WHEREFORE, the amended petition is partly DENIED in that the questioned decision and resolution of
the Intermediate Appellate Court, now court of Appeals in AC-G. R. SP No. 05472 are AFFIRMED. The
petition is GRANTED in part. The questioned decision of the then Court of First Instance of Rizal in Civil
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Case No. 164-A is SET ASIDE as null and void. The successor Regional Trial Court is directed to conduct
further proceedings and to receive the evidence of the petitioners in Civil Case No. 164-A.
SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

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SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-28773 June 30, 1975
FRANCISCO ORTIGAS, JR., plaintiff-appellant-appellee,
vs.
LUFTHANSA GERMAN AIRLINES, defendant-appellant-appellee.
Baizas, Alberto and Associates for appellant Lufthansa German Airlines.
Pelaez, Jalandoni and Jamir for appellant Francisco Ortigas, Jr.

BARREDO, J.:
Direct appeals of both parties plaintiff, Francisco Ortigas, and defendant Lufthansa German
Airlines, from the decision of the Court of First Instance of Manila, Branch X, "condemning the
defendant to pay plaintiff the amount of P100,000 as moral damages, P30,000 as exemplary or
corrective damages, with interest on both sums at the legal rate from the commencement of
this suit until fully paid, P20,000 as attorney's fees and the costs" for the former's failure to
"comply with its obligation to give first class accommodation to (the latter) a (Filipino)
passenger holding a first class ticket," aggravated by the giving of the space instead to a Belgian
and the improper conduct of its agents in dealing with him during the occasion of such
discriminatory violation of its contract of carriage.
Defendant buttresses its appeal on the following:
ASSIGNMENT OF ERRORS
I
THE LOWER COURT ACTED WITH GRAVE ABUSE OF DISCRETION IN DENYING THE
DEFENDANT'S URGENT MOTION FOR POSTPONEMENT DATED SEPTEMBER 24,
1966.
II
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THE LOWER COURT CONSEQUENTLY ERRED IN ORDERING THE STRIKING FROM
THE RECORDS THE TESTIMONY OF WITNESS IVO LAZZARI AND IN DEEMING THE
CASE SUBMITTED FOR DECISION ON THE EVIDENCE OF THE PLAINTIFF ALONE.
III
THE LOWER COURT ERRED IN CONDEMNING DEFENDANT TO PAY THE PLAINTIFF
THE AMOUNT OF P100,000.00 AS MORAL DAMAGES, P30,000.00 AS EXEMPLARY
OR CORRECTIVE DAMAGES, WITH INTEREST ON BOTH SUMS AT THE LEGAL RATE
FROM THE COMMENCEMENT OF THIS SUIT UNTIL FULLY PAID, P20,000.00 AS
ATTORNEY'S FEES, AND COSTS. (Pp. 12-13, p. 118, Record.)
On the other hand, plaintiff's sole ground for his appeal is that "the trial court erred in ordering
Lufthansa to pay Ortigas only P100,000 as moral damages, P20,000 as exemplary or corrective
damages, and P20,000 as attorney's fees." (Plaintiff-Appellant's Brief, p. a.) Thus, apart from the
contention of defendant that it has been denied its full day in court, the only issue raised by
both appellants relate to the amount of the damages awarded by the trial court, plaintiff
claiming it is less than he is entitled to and the defendant insisting on the opposite.
Lufthansa maintains it has not had its full day in court because the trial court abruptly ended
the trial by denying its last motion for postponement notwithstanding it was well founded and
forthwith ordering the striking out of the testimony of its absent witness whose cross-
examination had not been finished and then declaring the case submitted for decision. In this
connection, the record reveals the following facts:
Plaintiff's complaint was filed with the court below on December 24, 1963 and after issues were
joined, a pre-trial was held, the parties submitted a partial stipulation of facts and thereafter
went to trial, the last day of which was on September 28, 1966. As to what happened in
between, a detailed account is made in the brief of Ortigas as plaintiff-appellee as follows:
... Thereafter the case was set for hearing twenty four (24) times, or on April 27, 1964, July 9,
1964, August 20, 1964, October 1, 1964, November 11, 1964, December 22, 1964, February 3,
1965, March 18, 1965, May 5, 1965, June 11, 1965, July 22, 1965, August 26, 1965 and
September 8, 1965, September 22, 1965, November 3, 1965, November 24, 1965, December
17, 1965, December 29, 1965, January 14, 1966, February 2, 1966, April 19, 1966, April 20,
1966, July 5, 6 and 7, 1966, August 25, 1966 and September 28, 1966.
One (1) hearing, or that of August 25, 1966, was cancelled because the trial
judge, Hon. Jose L. Moya, was then sick. Other postponements were as follows:
Postponements at instance of
plaintiff
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Three (3) settings were cancelled upon motion of plaintiff on grounds that
defendant's counsel (Atty. Crispin Baizas) himself must have found sufficient, for
he gave his conformity thereto. These were the hearings set for:
July 9, 1964 postponed upon plaintiff's motion, dated June 27, 1964, or 12
days before the hearing, on the ground that he had to attend an important
business matter in Mindanao, which was so urgent that "for plaintiff to even
make a flying trip to Manila for the scheduled hearing might jeopardize and
render to naught a project to which plaintiff has already expended considerable
time, money and effort" (RA pp. 28-29. Note: All reference herein will be to
plaintiff's Record on Appeal).
August 26, 1965 postpone upon plaintiff's motion, dated August 23, 1965, for
the reason that he was in London for business reasons and could not return to
the Philippines on time for the hearing. This motion is not reproduced in any
Record on Appeal but is admitted.
July 5-7, 1966 18 days before the dates set for the hearing, counsel for
plaintiff filed a motion, dated June 17, 1966, for Postponement on the ground
that Atty. Rodegelio M. Jalandoni, who had been personally handling this case
was then in Washington, D.C. on business and would not be back until the
middle part of August, 1966. Considering that the trial of the case was far
advanced, it would be difficult for another lawyer to substitute for Atty.
Jalandoni. Defendant's counsel agreed to the motion (RA pp. 50-51).
Postponement at instance of
both parties
Four (4) settings, or those of August 20, 1964, October 1, 1964, November 11,
1964 and December 22, 1964, were cancelled upon the joint motion of the
parties on the ground that negotiations for the possible settlement of this case
were pending (RA pp. 31-34).
While both attorneys for plaintiff and defendant signed the joint motions for
postponement, the initiative to have the hearings cancelled actually came from
defendant's counsel who claimed that he needed time to consult with his client.
Plaintiff welcomed the possibility of compromise and acceded to join the
requests for postponement but became impatient at and suspicious of the
attempt to delay so that in the motion to postpone the December 22, 1964
hearing, plaintiff insisted on the insertion of the phrase "be postponed for the
last time" (RA p. 34).1wph1.t These took place after the pre-trial but
before plaintiff had started presenting his evidence.
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Postponement at instance of
defendant
Of the remaining 16 settings, at least TEN (10) were postponed or could not
proceed except for a few minutes because either Atty. Crispin Baizas, counsel for
defendant, was not available or needed time to prepare or had to attend a
meeting somewhere else, or, as in the case of September 28, 1966, defendants
witnesses wanted to avoid the inconvenience of coming to the Philippines. The
situation became such that on two (2) occasions the court a quo warned the
defendant and/or its counsel that it was postponing the trial "for the last time"
and "definitely for the last time." Thus:
February 3, 1965 On this date, although plaintiff was ready to present his
evidence and the Court to hear the parties, Atty. Baizas asked for postponement
for the reason that he had to be somewhere else. The undersigned graciously
obliged by not objecting, albeit the motion was made without warning and in
open court.
March 18, 1965 Once again the hearing scheduled for this date was
postponed on motion of Atty. Baizas in open court. The undersigned did not
object because, as far as he can now recall, the excuse given was that opposite
counsel had another appointment.
June 11, 1965 The Court was free the whole morning of this day and plaintiff
actually took the witness stand. After plaintiff was through with his direct
testimony, Atty. Zaida R. Alberto, who appeared for the defendant, asked that
the cross-examination be postponed for the next hearing, on the ground that
Atty. Baizas knew more of the defense. The following appears of record:
"ATTY. ALBERTO:
If Your Honor please, may I request to allow the
cross examination at the next hearing.
COURT:
You can handle the cross
examination now.
ATTY. ALBERTO:
The defense are more in the
knowledge of Atty. Baizas.
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COURT:
If you postpone the cross-examination we will
forget the testimony and will be spending much
time referring to his testimony, so you better cross-
examine him while his testimony is still fresh.
ATTY. ALBERTO:
May I ask for a reconsideration, Your Honor,
anyway it is past 11:00 o'clock I do not think there
will be enough time.
COURT:
We still have one hour.
ATTY. ALBERTO:
I ask for a reconsideration, Your
Honor.
COURT:
On motion of the defendant's counsel, the
continuation of the trial is postponed to July 22,
1965, at 8:30 a.m. The parties were notified in
open court of this new assignment." (t.s.n. pp. 43-
44, June 11, 1965)
Notwithstanding there was an hour left, which was precious considering the
crowded calendar of the Court, and Judge Moya wanted to hear the cross-
examination because plaintiff's testimony was fresh, the Court pleased counsel
for the defendant and postponed the hearing to July 22, 1965.
September 22, 1965 At this hearing the undersigned requested that Dr. Isidro
Pertiera be permitted to take the witness stand. He is a heart specialist and it
was difficult to bring him to court because of his many patients. His direct
testimony did not take long, after which Atty. Baizas asked for postponement,
for the reason that he did not expect Dr. Pertiera to testify and, since the subject
of the testimony was important and technical, he needed time to be able to
cross-examine. The undersigned, understanding the predicament of Atty. Baizas,
did not offer any objection.
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November 3, 1965 This scheduled hearing was postponed upon motion dated
October 7, 1965, of Atty. Baizas on the ground that he was leaving on a business
trip abroad. The undersigned again did not object.
November 24, 1965 It will be recalled that the hearing of September 22,
1965, supra, was postponed to enable Atty. Baizas to prepare for his cross-
examination of Dr. Pertiera. On this date, November 24, 1965, Atty. Baizas cross-
examined briefly the doctor, but announced:
"ATTY. BAIZAS:
May I announce, your Honor, that after I cross-examine the
Doctor I will ask for a postponement of my cross examination of
Atty. Ortigas because I will have to attend a meeting of the PAL
Board of Directors this morning. My cross examination will not be
very long." (t.s.n., pp. 34, November 24, 1965)
The PAL Board of Directors' meeting was certainly not more important than the
occupation of the Court, and it was still early, but counsel was insistent. The
Court was beginning to be perturbed by the dilatory motions; yet it granted
counsel's requested postponement but "for the last time." Thus:
"ATTY. BAIZAS:
That is all. May I make that request, Your Honor,
that it is simply that I have to be present at the
meeting. I wish to finish my cross examination on
Atty. Ortigas but it is merely that the meeting is
held for today at 10:00 o'clock and I would like to
ask for a postponement to continue the cross
examination.
COURT:
I will grant this for the last time. On motion of Atty.
Baizas, the continuation of the hearing is
postponed for the last time to December 17, 1965,
at 8:30 a.m., by agreement between him and Atty.
Jalandoni." (t.s.n., p. 17, November 24, 1965)
December 17, 1965 Although at the hearing of November 24, 1965 trial was
postponed for the last time to December 17, 1965, the Court's warning did not
seem to register because on December 7, 1965 defendant's counsel filed
another motion for postponement alleging that he had received a telegram to
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367 | P a g e
the effect that the meeting of the Legal Committee of IATA that he was
attending, originally scheduled for December 10-15, had been deferred and
would begin on December 13 and as it was for 5 days, it would not be possible
for him to return for the December 17 hearing; hence, he requested that said
hearing be reset for December 27 and 29. In his undated motion filed on
December 7,1965 counsel averred that:
"There is no intention whatever to delay the case but because of
the circumstances above-stated, undersigned counsel is
constrained to ask, for the last time, for the cancellation of the
hearing on December 17 and for its resetting on such dates as
may be convenient to this Honorable Court, preferably December
27 and 29." (RA p. 41)
The undersigned opposed said motion and alleged:
"That this case has been pending since December 24, 1963, or
almost two years now, and trial thereof has been repeatedly
suspended and/or postponed;
That at the hearing of November 24, 1965, this Honorable Court
precisely postponed continuation of the trial thereof for the last
time to December 17, a date which was fixed by agreement of the
parties;
That when counsel for defendant left, as alleged, on December 6,
1965 he did so with full knowledge of the intransferable character
of the trial set for December 17;
That defendant can well be represented by Atty. Baizas' associate,
Atty. Alberto, who, as a matter of fact, handled this case when
trial started on June 11, 1965 and has been actively collaborating
with Atty. Baizas since then;
That when plaintiff testified on direct examination on June 11,
1965 said Atty. Alberto appeared for defendant and that plaintiff
is now merely due for further cross-examination." (RA p. 43)
In spite of said opposition, the Trial Court once more granted defendant's
request but was more categorical this time with its admonition against further
postponements and used the word "definitely" in its order which read:
"ORDER
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For the reasons stated in the defendant's motion for
postponement and in view of the fact that it seeks a deferment of
the hearing for only a few days, the continuation of the trial is
postponed definitely for the last time to December 29, 1965, at
8:30 a.m.
"SO ORDERED.
"Manila, Philippines, December 11, 1965.
J
O
S
E

L
.

M
O
Y
A

J
u
d
g
e
"
(RA p. 46)
March 10, 1966 The hearing on this date lasted for only a few minutes, with
the undersigned offering the documentary evidence for the plaintiff. Thereupon,
defendant's counsel again asked for postponement so he could go over said
evidence. Since he had no witnesses to present, the Court once more postponed
the trial to April 19, 1966 without any objection on the part of the undersigned.
April 19, 1966 The hearing for this day was cancelled upon motion of
defendant's counsel (RA p. 49) on his representation that defendant's witness
Ivo Lazzari had arrived from Italy at midnight of April 18, 1.966 and was not in a
condition to take the witness stand. The Court again accommodatingly
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transferred the hearing to the following day, April 20, 1966, although it had
other cases scheduled for that date and the case at bar was not among them,
just so Lazzari's trip would not be useless. The undersigned likewise did not
oppose the transfer of hearing. (Pp. 2-13 Brief, p. 132 Record.)
Defendant does not seriously deny these facts. Seemingly, the controversy between the parties
revolves around defendant's motion for postponement of the hearing set for September 28,
1966 which was denied by the trial court. It is this denial that is the subject of the first above-
quoted alleged errors assigned by Lufthansa in its brief as defendant-appellant.
At the time this incident of postponement arose, plaintiff had already closed his evidence, and
so it was the turn of the defendant to prove its defenses. The starting date for this was April 19,
1966, but, upon motion of defendant's counsel, it was deferred to the next day, April 20, 1966,
on which date defendant's first witness, Ivo Lazzari, took the witness stand. His testimony,
however, was not finished in the morning and afternoon of that day nor during the whole day
of April 22, 1966. Atty. Rodegelio M. Jalandoni was still cross-examining him when the hearing
was continued "to the first available date in the calendar". Eventually, the next continuation of
the trial was set at first for July 5, 6 and 7, 1966, but upon motion of plaintiff's counsel, it was
reset for August 25, 1966, on which date, in spite of the presence of Lazzari who came from
Rome purposely for the trial together with another expected witness, Severino Caselli, and still
another witness, C.H. Dehio, who came from Hongkong, no trial could be held because of the
absence of the judge. Hence, another date, September 28, 1966 was fixed with notice to the
parties received by them respectively the month previous.
On September 24, 1966, defendant's counsel filed a motion for postponement thus:
COMES NOW the defendant by undersigned counsel and to this Honorable Court
respectfully states:
1
The above-entitled case is set for hearing on September 28, 1966 at 8:30 o'clock
in the morning.
2
The witnesses who are scheduled to testify for the defendant at said hearing are
to come from Rome, Italy;
3
Word has been received from the defendant that said witn will not be able to
come for the hearing aforementioned.
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WHEREFORE, it is respectfully prayed that the hearing of this case scheduled for
September 28 be postponed to some other date most convenient to this
Honorable Court, preferably on any of the following dates: October 21, 17;
Novembers, 3, 8, 9 or 11, 1966.
... . (Page 53, Record on Appeal, p. 29, Rec.)
On September 27, 1966, plaintiff's counsel filed the following opposition to the above motion:
COMES NOW plaintiff, through undersigned counsel and, in opposition to
defendant's urgent motion for postponement, dated September 24, 1966, to this
Honorable Court respectfully states:
That this case has been pending since December, 1963;
That defendant's aforesaid motion does not give any valid reason for postponing
the hearing, since it does not state why defendant's witnesses cannot come to
Manila on the scheduled dates of continuation of trial;
That the convenience and motive of defendant and its witnesses in not exerting
every effort to testify are not the concern of the plaintiff, and more so of this
Honorable Court, and that the speedy and proper administration of justice
dictates that the hearing proceed irrespective of defendant's obvious disregard
of the need thereofl;
That defendant's attitude is aggravated by the fact that, being an airline
company, it has all facilities to have its employees available as witnesses at any
time it desires.
WHEREFORE, it is respectfully prayed that defendant's aforesaid motion for
postponement be denied.
... . (Pp. 55-56, id.)
In view of this opposition, on the same day, His Honor issued an order of denial:
No reason whatsoever having been alleged or shown why the defendant's
witnesses will not be able to come from Rome to Manila on the day of the
hearing, and this case having been pending since December, 1963, the motion
for postponement is denied. (Pp. 56-57, id.)
On the day set for the hearing, September 28, 1966, Atty. Zaida Ruby S. Alberto appeared for
defendant and verbally moved for reconsideration of the foregoing order of denial. She argued
that:
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Actually, it is not intended to delay the termination of this case. As a matter of
fact, on August 15, 1966, the date set for the hearing of this case, we were ready
with the presentation of our evidence as our two witnesses from Rome were
here. But unfortunately, Your Honor was indisposed, so the hearing was
postponed to this date. I really do not know why our witness failed to come.
However, I intend to make an inquiry about the matter so that I could file the
corresponding explanation for their failure to appear in Court today. May I,
therefore, reiterate my motion for reconsideration, with the reservation that I be
allowed to file my explanation for the failure of these two witnesses coming
from Rome to appear for today's hearing. (Page 2, t.s.n., Sept. 28/66.)
But as counsel could not give the exact reason why defendant's witness scheduled to testify
were absent, the trial court denied the motion; ruling that "no ground has been alleged in
support thereof." (p. 6, t.s.n., September 28, 1966.)
This order was immediately followed by a motion of plaintiff's counsel for the striking out of the
entire testimony of the witness, Ivo Lazzari, upon the ground that counsel had not yet finished
his cross-examination of him and his absence was unexplained. No objection appears to have
been made to such motion, albeit counsel for defendant tried to point out that Atty. Jalandoni
had already finished his cross-examination of the witness. After verifying from the records that
such was not the case, His Honor issued the following order:
The witness Ivo Lazzari not having appeared at the hearing set for today, for
which reason his cross-examination cannot be continued, on motion of the
plaintiff's counsel, his testimony is striken from the record, and this case is
deemed submitted for decision on the evidence already presented. (Pp. 57-58,
Rec. on Ap., id.)
Thus the trial ended and parties were allowed to submit their respective memoranda.
On October 19, 1966, however, defendant's counsel filed the following motion for
reconsideration:
MOTION FOR RECONSIDERATION .
COMES NOW defendant by undersigned counsel this Honorable Court moving
for a reconsideration of the orders dated September 27 and September 28,
1966, respectively, respectfully states:
1
On September 26, 1966 a motion for postponement of the hearing on
September 28, 1966 was filed by undersigned counsel for the reason that word
had just been received from the defendant that the witnesses who were
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scheduled to testify at the said hearing and who were to come from Rome, Italy,
would not be able to come to the Philippines for said hearing. This motion was
denied in the order of September 27, 1966;
2
No reason could be stated in the aforesaid motion for postponement because at
the time it was prepared, counsel for defendant did not really know the specific
reasons for the inability of said witnesses to come. A simple telex message had
been sent by the Far East Manager of the defendant company to defendant's
representatives in Manila advising the latter that the witnesses in question could
not come. Copy of said telex message is attached to and made part of this
motion for reconsideration as Annex "I";
3
For this reason on September 28, 1966, when the case was called, counsel for
the defendant reiterated the motion for postponement and requested this
Honorable Court for time to submit an explanation on the failure of defendant's
witnesses to come as a letter elaborating on the matter would surely follow the
telex' message. This request was however denied by the Honorable Court and
upon motion of plaintiff's counsel, another order was issued striking out from
the record the testimony of defendant's only witness so far, Ivo Lazzari, whose
cross-examination was to be continued that date, for the latter's failure to
appear at the hearing, and deeming the case submitted for decision;
4
It is alleged by opposing counsel that the witnesses did not come for the hearing
of September 28, 1966 because it was inconvenient for them and for defendant.
This accusation is absolutely without basis and malicious;
5
If inconvenience were the only reason for the witnesses' failure to come, then
they would not also have come previously because it was just as inconvenient for
them then. It will be recalled that Ivo Lazzari had been here in April 1966 when
he was presented on direct examination and partly on cross-examination. On
August 25, 1966, the case was also scheduled for hearing. All of defendant's
witnesses came here from Rome, Italy for said hearing. Even Mr. C. H. Dehio was
also here to testify. Unfortunately, the Presiding (Judge) of this Honorable Court
was indisposed on that particular morning and so the hearing on said date was
cancelled. We mention this only to show that the failure of the witnesses to
come for the hearing on September 28 was not caused by mere inconvenience;
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6
Defendant had and had no intention to delay the proceedings whatsoever. The
witnesses in question could not come because of certain circumstances that
rendered their coming over virtually impossible. Both witnesses, Ivo Lazzari and
Saverino Casilli are employees of defendant company at the Rome office. The air
traffic in Rome has been particularly heavy this season. Some of the personnel of
the Lufthansa Rome office were on leave and these two employees had to
assume some of the duties of those employees who were on leave, aside from
performing their own regular duties, If they were to leave their posts to come for
the hearing on September 28, there would be grave disruption to the public
service and for this reason they were not able to come. These facts are
contained in a letter dated September 29, 1966 written to undersigned counsel
by C. H. Dehio, IATA Agency Manager, Far East and Australasia, Lufthansa
German Air Lines, copy of which is attached to and made part of this motion for
reconsideration as Annex "2";. The envelope in which said letter contained is
likewise attached to and made part of this motion as Annex "2-A";
7
Witness Ivo Lazzari had first shed his testimony on direct examination and on
September 28, 1966, opposing counsel was to continue cross-examination of
said witness. The other witness Saverino Casilli was to be presented after Ivo
Lazzari would have finished testifying. Both witnesses are material for the
defense and no other person could testify on the facts that are the subject of
their testimony. The inability of said witnesses to come for the hearing on
September 28 was not due to any fault or neglect on the part of defendant who
in fact had exerted every effort to have them come, but because of the
supervening circumstances above-described, their coming over could not have
been possible without seriously disrupting public service;
8
There is no question that the granting or denial of a motion for postponement
rests upon the sound discretion of the court. We submit however that under the
circumstances, the ends of justice would have been better served by granting
the motion on question. The reason for defendant's motion for postponement is
valid and meritorious, and the grant of a postponement based on such ground
would not have adversely affected the substantial rights of plaintiffs.
"Continuances and postponements of trial are part and parcel of
our judicial system of justice, and where no substantial rights are
affected and the intention to delay is not manifest, it is sound
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judicial discretion to allow them. (Rexwell vs. Canlas, No. L-16746,
Dec. 30, 1961)
"There is even authority for the view that the right to a speedy
trial is not violated by granting a continuance on the ground of
absence of material witness. (People vs. Romero, G.R. No. L-4517-
20, May 25, 1953)
The lower court erred in denying a motion for postponement filed
by defense to await arrival of a material witness." (People vs.
Narsolis, et al. G.R. No. L-2764, March 24, 1950)
"A miscarriage of justice may result from the accidental or
excusable absence of a material witness, where presence can be
secured by the grant of a reasonable continuance." (Luna vs.
Arcenas, 34 Phil. 80, 98-99)
8
Defendant has a valid and meritorious defense, and if given opportunity to
present its side of the case, it would certainly diminish, if not altogether disprove
plaintiffs claim.
... court litigations are primarily for the search of truth. ... A trial
by which both parties are given the chance to adduce truth is the
best way to find out such truth. A denial of this chance would be
too technical. The dispensation of justice and the vindication of
grievances should not be barred by technicalities." (Ronquillo vs.
Marasigan, L-11621, May 21, 1962; Santiago vs. Joaquin, L-15237,
May 31, 1963, emphasis ours.)
"Judicial experience dictates that it is better that cases are tried
on the merits even with a little delay than that substantial rights
of a party litigant be sacrificed on the altar of technicality." (Uy vs.
Demetillo, CA-G.R. No. 32665-R, Jan. 14, 1964.)
9
An affidavit of merit by Clarita C. de la Riva, Manager, Rocha & Cua., Inc., General
Sales Agents, Lufthansa German Airlines is likewise attached to and made an
integral part of this motion for reconsideration as Annex "3";
10
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The order dated September 27, denying defendant's motion for postponement
and the order of September 28, 1966 striking off from the records the testimony
on direct examination of the witness Ivo Lazzari and holding the case submitted
for decision on the evidence presented would unduly prejudice defendant's
stand, and would amount to a denial of due process to defendant.
"The paramount interests of justice demand such reasonable
allowances as would prevent, without doing an injustice to the
opposing party, the loss by a litigant of his chance to duly present
his side of the case before the court. With a view of avoiding a
possible miscarriage of justice, the exercise of the court's
discretion ought to lean, in a reasonable degree toward bringing
about a presentation of evidence on both sides. ..." (Gerona vs.
Calada, CA-G.R. No. 23955-R March 30, 1963, Tormes vs. Balzado,
CA-G.R. No. 32019-R, April 17, 1964.)
WHEREFORE, it is respectfully prayed that the orders of the Honorable Court
dated September 27, and September 28, 1966, respectively, be reconsidered and
set aside; that the testimony of defendant's witness Ivo Lazzari be allowed to
remain on record and that a date be set for the continuation of defendant's
evidence.
Manila, Philippines, October 19, 1966.
CRISPI
N D.
BAIZAS
&
ASSOCI
ATES
By: s/t/
Crispin
D.
Baizas
Counse
l for
the
defend
ant
Suite
305
Shurdu
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t
Buildin
g
Intram
uros,
Manila
VERIFICATION
I, CRISPIN D. BAIZAS, after having been sworn according to law, depose and say:
I am the counsel for the defendant in the above-entitled case;
I have prepared the foregoing motion for reconsideration and all the allegations
contained therein are true and correct of my own knowledge and to the best of
my information and belief.
s/t/ CRISPIN D.
BAIZAS
SUBSCRIBED AND SWORN TO BEFORE ME this 19th day of October. 1966 in the
City of Manila, affiant exhibiting to me his Res. Cert. No. A- 5892423 issued on
January 28, 1966 at Makati, Rizal.
s/
(Illigibl
e)
NOTAR
Y
PUBLIC

Until
Decem
ber 31,
1967
Doc. No. 1377
Page No. 77
Book No. III
Series of 1966.
(Pages 58-67, Record on Appeal, id.)
to which, plaintiff's counsel filed the following opposition:
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COMES NOW plaintiff, through undersigned counsel, and, in opposition to
defendant's motion for reconsideration, dated October 19, 1966, to this
Honorable Court respectfully states that:
1. This is in effect the second motion for reconsideration that defendant has filed
against the order of September 27, 1966 denying its motion for postponement of
the hearing of September 28. The first motion for reconsideration was made in
open court by Atty. Zaida S. Alberto and denied on the same date.
2. Defendant now claims that it did not intend to delay the trial of this case and
seeks to justify the failure of its witnesses, Ivo Lazzari and Saverino Casilli, to
appear on September 28 on the ground that:
"... The air traffic in Rome has been particularly heavy this season. Some of the
personnel of the Lufthansa Rome office were on leave and these two employees
had to assume some of the duties of these employees who were on leave, aside
from performing their own regular duties. If they were to leave their posts to
come for the hearing on September 28, there would be grave disruption to the
public service and for this reason they were not able to come. ..." (p. 3,
Defendant's Motion for Reconsideration.)
3. Note that the above alleged facts are contained in a mere letter that was
written by a certain Mr. C.H. Dehio, an employee of defendant in Hongkong, to
its counsel on September 29, 1966, or one day after the hearing of September
28, when presumably defendant's aforesaid employee had already been
informed that this Honorable Court had denied the postponement and
considered this case as submitted for decision. Defendant is an airline company
and has all the telex facilities to communicate in a matter of minutes with its
various agencies. The ground for failure to appear, to wit, supposed pressure of
work of said employees, is as easy to conceive and gratuitously state as to flick
one's fingers. We wish to call attention to the significant fact that the statement
of Mr. Dehio in his letter is not under oath. Incorporating said statement in the
body of the motion for reconsideration that is sworn to by counsel merely `to
the best of his information and belief, or in an affidavit of Mrs. Clarita C. de la
Riva (Annex 3) who was only referring to hearsay information derived from Mr.
Dehio's aforesaid letter, is insufficient verification of the motion for
reconsideration under Section 6, Rule 7 of the Rules of Court. Even Mr. Dehio
had he executed the affidavit himself, would have been disqualified to swear to
the facts because he is stationed in Hongkong. So that, when defendant's
counsel and Mrs. de la Riva verified the motion on "information and belief"
derived from Mr. Dehio's letter, their statements were hearsay thrice removed.
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4. But assuming said facts to be true, did this justify the failure of defendant's
witnesses to appear at the scheduled hearing or constitute a valid excuse for
defendant's inability to present evidence. We respectfully submit that they do
not. The September 28 hearing was set as early as August 25, 1966, or more than
one (1) month previous, to suit the schedules not only of this Honorable Court
but of the parties as well. Surely, it was incumbent on defendant, if it has
deference to this Honorable Court and our administration of justice to see to it
that its witnesses, particularly Ivo Lazzari who was on the witness stand and due
for cross-examination, would be available, rather than granting leave to its other
employees and burdening the two needed witnesses with additional work.
Defendant is not a neophyte in the airline business. Assuming arguendo that it is
true that the volume of air traffic in Europe was high in "September and early
October", it should have foreseen the situation and taken appropriate measures
to assure compliance with its obligation to this Honorable Court. The witnesses
are defendant's employees and subject to its exclusive control. Instead,
defendant allegedly rendered itself short handed by granting leave to its other
employees, and now comes to court with a lame excuse requesting that it be
extricated from a predicament that it has deliberatedly brought upon itself. For
the execuse that with the workload for Mr. Lazzari and Mr. Casilli becoming
heavier than usual "it would seriously disrupt our service to the travelling public
if, during this time, they were to leave their jobs for several days" (Please see Mr.
Dehio's letter, Annex "2") is lame, by any standard. The local newspapers are
constantly carrying news articles of how large and expanded is the Lufthansa as
an airline outfit. Surely, of its hundred (if not thousands) of available employees,
two like Lazzari and Casilli could have been dispensed from their work
temporarily to defend the company against the just grievance asserted by an
injured passenger before a court of justice. At the most, defendant was after the
promotion of its own interest in holding the two employees to their jobs, and is
not avoiding "grave disruption to the public service" as counsel exaggerates Mr.
Dehio's expression "seriously disrupt our service to the travelling public" two
distinct ideas, the latter signifying self-interest as distinguished from public
necessity. This Honorable Court can take judicial notice that there are many
other airlines-operating in the same areas as doe, Lufthansa and competing with
it.
5. As we explained at the September 28 hearing, the truth of the matter is that,
contrary to the unverified representations of defendant, the reason for the non-
attendance of defendant's witnesses was to avoid the inconvenience of coming
to the Philippines to testify. In other words, after Ivo Lazzari and Saverino Casilli
were unable to testify last August 25, 1966, defendant thought of avoiding
having said witnesses come again to Manila. We say this because sometime on
September 20, 1966, Atty. Leonardo P. Valmonte (an assistant attorney of
plaintiff who is helping in this case) had a telephone conversation with
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defendant's counsel, Atty. Zaida S. Alberto in connection with the former's
request for a copy of a certain exhibit, and in the course of their conversation
Atty. Alberto informed Atty. Valmonte that the trial scheduled for September 28,
1966 would not proceed because they were intending "to secure the permission
of the court to take the testimonies of their witnesses by way of deposition". In
short, even before the receipt of the alleged telex (Annex "1" of Motion) by
defendant's counsel on September 22, 1966, said counsel announcing that the
trial could not proceed because they were going to resort to depositions of their
witnesses in Rome, rather than have said witnesses come to Manila. The
decision to take depositions having been made on or before September 20, it
was an easy matter to have Lufthansa's Hongkong office send the telex of
September 22 stating that they would be unable to provide witnesses on
September 28. No reason was given why witnesses could not be provided 6 or 7
days thence. If in truth there was unexpected increase in air traffic, surely 6 or 7
days were more than sufficient to make the necessary arrangements so that the
work of Lazzari and Casilli could be taken over temporarily just so these
witnesses could appear before this Honorable Court at the appointed date.
Attached hereto as Annex "A" is the affidavit of Atty. Leonardo P. Valmonte on
his aforesaid conversation with Atty. Alberto.
6. At the hearing on September 28, when we made reference to the above-
referred to conversation between Attys. Valmonte and Alberto, the latter did not
deny that she had in truth spoken to Atty. Valmonte in the tenor above related.
As a matter of fact, she admitted that defendant was intending to take the
depositions of its witnesses in Rome.
7. When this honorable Court denied the motion for postponement on
September 28, 1966, it did so in the exercise of its sound judicial discretion, for
no valid reason was given why the witnesses could not appear, whereas this case
had been pending for about three (3) years and had been postponed several
times with repeated warnings on defendant that said postponements were for
the last time. And now, in its motion for reconsideration, defendant has failed to
effectively allege the ground for the failure of said witnesses to come, and even
if said ground be admitted as true for argument's sake, it merely showed
"inofficiousness, lack of resourcefulness and diligence, if not total indifference"
on the part of defendant to protect in court its interests and to prevent needless
delays in the discharge of judicial business.
"Postponement not based on valid reasons. Where a party seeks
postponement of the hearing of this case for reasons caused by his own
inofficiousness, lack of resourcefulness and diligence if not total indifference to
his own interests or to the interests of those he represents, thereby resulting in
his failure to present his own evidence, the court would not extend to him its
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mantle of protection. If it was he who created the situation that brought about
the resulting adverse consequences, he cannot plead for his day in court nor
claim that he was so denied of it." (De Leon vs. People's Homesite and Housing
Corporation, CA-G.R. No. 31169-R, Aug. 31,1963.)
8. In the case of Hap Hong Hardware Co. vs. Philippine Company, GR. No. L-
16773 (May 23, 1961), the Supreme Court, in sustaining the trial court's denial of
a motion for postponement and on the ground that the defendant's witnesses,
officers of the company, had not come because it was the beginning of the
milling season in the municipality of San Jose, Mindoro Occidental and their
presence in the Central was very, necessary, held that the trial court was
perfectly justified in denying said motion for postponement because the reason
adduced was "not unavoidable and one that could not have been foreseen." Said
the Supreme Court:
"The reason adduced in support of the motion for postponement
is not unavoidable and one that could not have been foreseen.
Defendant ought to have known long before the date of trial that
the milling season would start when the trial of the case would be
held. The motion should have been presented long in advance of
the hearing, so that the court could have taken steps to postpone
the trial without inconvenience to the adverse party. As it is,
however, the motion was presented on the day of the trial.
Knowing as it should have known that postponements lie in the
court's discretion and there being no apparent reason why the
defendant could not have presented the motion earlier, thus
avoiding inconvenience to the adverse party, the appellant cannot
claim that the trial court erred in denying postponement. Under
all the circumstances we hold that the Court was perfectly
justified in denying the motion for postponement."
In the case at bar, the same unjustified excuse is adduced that the witnesses,
who are employees (not even officers) of defendant, had work to do, albeit date
of trial was set one month previous.
9. The cases cited by defendant are not in point, the facts involved therein being
very different from those attending the case at bar. For example, in the cited
case of Lino Luna vs. Arcenas, 34 Phil. 93, the trial judge declined to grant a
continuance of a few hours to give counsel an opportunity to secure the
presence of the defendant. The Supreme Court held that considering that it did
not appear that defendant was indulging in dilatory tactics, the denial of the
motion for short Postponement was improper. Again, in the case of People vs.
Romero, G.R. No. L-4517, May 25, 1953, the prosecution witnesses, although
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subpoenaed, failed to appear; whereupon the fiscal asked that they be ordered
arrested and that in the meantime the trial be postponed. The Supreme Court
likewise held that the denial of the postponement was improper. These fact
situations, however, as can immediately be seen are completely different from
that of Lufthansa whose non-presentation of its employees-witnesses was
motivated by the desire to avoid inconvenience to them, hence its frustrated
plan to have their depositions taken in Rome.
10. Complaints regarding delays in the disposition of court cases are prevalent
and have recently found expression not only in executive pronouncements but in
judicial admonitions. The unclogging of court dockets remains a pressing
problem to the despair of litigants. As the Court of Appeals put it:
"The records reveals that the trial of the case was postponed five
times at the instance of appellants themselves, and for this reason
the trial was delayed for more than one year and three months. In
granting these several postponements, the trial judge was over
liberal already, and to have allowed another postponement would
have been to jeopardize plaintiff's interest. Obviously courts
cannot unduly protect the interests of one party to the detriment
of the other. Already, there are complaints regarding delays in the
disposition of court cases. The unclogging of our court dockets still
remains a pressing problem in the despair of many a litigant.
However to eliminate, at least minimize, these delays is as much
our concern and any act of trial courts conducive towards this
purposeful end will be encouraged by appellate court's." (Rosario
vs. De Leon, CA-G.R. No. 6495-R, April 25, 1941; 40 O.G. 752.)
11. Prejudice will be occasioned plaintiff if defendant's belated motion for
reconsideration is granted. Notwithstanding defendant's counsel's receipt of Mr.
Dehio's letter, dated September 25, 1966, a few days after said date, defendant
delayed the filing of its motion for reconsideration until after about three (3)
weeks later. In the meantime, it knew as of September 28 that this Honorable
Court had striken out the testimony of Ivo Lazzari, considered the case submitted
for decision on the evidence on record, and given plaintiff's counsel 7 days to
present his memorandum. Plaintiff and his counsel exerted all efforts and
worked overtime just so to be able to submit his memorandum within the short
period allowed. Said memorandum was finished on time, and has been served
on defendant's counsel and submitted to Court. In other words, defendant
purposely waited until the submission of plaintiffs memorandum before
presenting its motion for reconsideration based on alleged information received
three (3) weeks previous. To grant defendant's instant motion for
reconsideration would place plaintiff at a great disadvantage, because defendant
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is now fully aware of every facet of plaintiff's cause and can simply tailor its
defenses and evidence in refutation thereof.
12. Defendant claims that plaintiff is taking undue advantage of a technicality
and it should not be deprived of its day in court on this ground. Suffice it to state
that it is never technical to invoke one's rights, and that while the Rules of Court
should be liberally construed, their strict observance has been considered
indispensable to the prevention of needless delays and the orderly and speedy
discharge of judicial business. Thus:
"Although the Rules of Court should be liberally construed,
however their strict observance which have been considered
indispensable to the prevention of needless delays and to the
orderly and speedy discharge of judicial business, is as imperative
necessity. Thus, the rules prescribing the time within which
certain act must be done, or certain proceedings taken, are
considered absolutely indispensable to the prevention of needless
delays and to the orderly and speedy discharge of judicial
business, is as imperative necessity. Thus, the rules prescribing
the time within which certain act must be done, or certain
proceedings taken, are considered absolutely indispensable to the
prevention of needless delays and to the orderly and speedy
discharge of judicial business and therefore must be strictly
complied with." (Alvero vs. De la Rosa, 76 Phil. 428, cited in
Francisco on Civil Procedure, Vol. 1, P. 89)
"Rules of Courts, promulgated by authority of law, have the force
and effect of law; and rules of court prescribing the time within
which certain acts must be done, or certain proceedings taken are
considered absolutely indispensable to the prevention of needless
delays and to the orderly and speedy discharge of judicial
business. "Conlu vs. Court of Appeals, et al., G.R. No. L-14027,
January 29, 1960, citing Shioji vs. Harvey, 43 Phil. 333; Alvero vs.
De la Rosa, et al., 42 Off. Gaz., p. 316, (Supra.)
WHEREFORE, it is respectfully prayed that defendant's motion for
reconsideration, dated October 19, 1966, be denied.
Manila, October 31, 1966. (Pages 74-88, Record on Appeal, id.)
By way of reply to the above opposition, defendant's counsel alleged:
Defendant could have from the beginning taken depositions in Rome, but so as
to avoid any inconvenience to plaintiff and that the court may see and hear the
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witnesses testify to better determine the credibility of their testimony defendant
had been bringing the witnesses here. As a matter of fact, defendant even
without leave of court may take the depositions of its witness by merely giving
the Court notice of its intention to do so.
"After answer has been filed no leave at court is required as a
prerequisite to taking depositions ... (Marzo vs. Moore McCormick
Line, Inc. 8 Feb. Rules of Service, p. 560; cited in Moran Comments
on Rules of Court Vol. II, p. 18)
"After issue is joined, depositions may be taken without leave of
court. (Lyons vs. Bronx Towing Line, Inc., 1 Fed. Service p. 341)
"After answer is served, depositions may be taken as of course
and application should not be made to the court for leave.
(Schultz vs. State Mutual Life Assurance Company, 1 Fed. Rules of
Service, p. 340, US Dist. Ct. Dist. of Oregon, Oct. 14, 1938)
"The statements made by Atty. Valmonte are false and malicious. An affidavit
executed by Atty. Zaida Ruby Alberto is attached to and made part of this Reply
as Annex "1". (Pages 92-93, Record on Appeal, id.)
On October 24, 1966, the trial court resolved the incident in a brief order holding that "(f)or the
reasons stated in the plaintiff's opposition to the motion for reconsideration, it is denied."
In its appeal, defendant reiterates insistently its position that the denial of its motion for
postponement as well as the order striking out the testimony of Ivo Lazzari were issued in grave
abuse of discretion and should be set aside. Before going any further, however, it may be
mentioned that since defendant has not assigned as error, although it discusses in its brief, the
denial of its last motion for reconsideration, plaintiff contends that such failure constitutes a
bar to any further consideration of the merits of the arguments of defendant relative to the
main denial-of-postponement and striking-out orders. To be sure, there is technical plausibility
in such pose of plaintiff, but considering the importance of the other matters involved in this
case, it would serve the interests of justice more if We passed on the merits of the substantial
issues in this controversy. After all, "this Court is clothed with ample authority to review
matters, even if they are not assigned as errors in the appeal, if it finds that their consideration
is necessary in arriving at a just decision of the case." (Saura Import & Export Co., Inc. vs.
Philippine International Surety Co., Inc., L-15184, May 31, 1963, 8 SCRA 143.) And considering
the inter-relation between the omitted assignment of error and those actually assigned and
discussed by defendant's counsel, We can apply here the ruling in Hernandez vs. Andal, 78 Phil.
196, to the effect that "an unassigned error closely related to an error properly assigned or
upon which the determination of the question raised by the error properly assigned is
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dependent, will be considered by the appellate court notwithstanding the failure to assign it as
an error." (at pp. 209-210.)
Now, with respect to defendant's first assignment of error, We feel that the rather extended
recital We have made above of the incidents and proceedings related to the trial court's order
denying defendant's motion for postponement of the hearing set for September 28, 1966 is
self-revealing. It argues against the charge that His Honor's order of denial was improper and
unjustified.
The case had been pending for about three years and had actually suffered during that period
even more than the usually permissible number of continuances, quite often to suit the
convenience of defendant's counsel. Notice of the September 28, 1966 schedule had been
served on counsel the month previous. It must be assumed that due preparations and
arrangements were to be made since the receipt of that notice to insure the presence in Manila
for the expected witnesses on the date set. Under the circumstances, the excuse given by
defendant that the witnesses could not leave their respective stations and places of work to
attend the trial is plainly unacceptable. There was enough time and opportunity for defendant
to have made the corresponding adjustments in the assignments of its personnel so as to
enable its witnesses to be in court. The trouble is that defendant relied on the assumption that
the court could be made to wait until the volume and other conditions of its business would
permit it to comply with the schedule of the court. For an airline company engaged in
international transportation and presumably having all the facilities to have any of its
employees available practically anywhere in the world at a moment's notice, if it only took due
care to do this, defendant's attitude cannot be countenanced.
What is more, the motion of September 24, 1966 gave no reason at all why defendant's
witnesses supposed to come from Rome would be unable to be at the trial. Even as late as the
day of the hearing, September 28, 1966, the court could not be told the reason for such
inability. All that counsel could say was that she "intend(ed) to inquire and file the explanation"
later. This was not as it should have been, for the telex advising the Manila office that the
witnesses would not be available was received on September 22nd yet, and certainly there was
enough time to investigate and find out the reason for such unavailability. And as no justifiable
reason could be advanced in support of the verbal motion for reconsideration. We cannot say
that His Honor acted improperly when he denied the same.
We reiterate, the case had been pending for more than three years, with so many
postponements, and the least that defendant should have done to merit favorable action on
the part of the trial judge was to be ready with an explanation of its inability to proceed with
the trial, giving the detailed and good reasons therefor. As it is, there was actually no basis at all
for the exercise of discretion on the part of the trial judge in a manner favorable to it. Trials
may be postponed because of the absence of evidence only when such absence is justified.
Mere absence is not a justification in itself. Section 4 of Rule 22 is sufficiently clear on this point.
It provides that "A motion to postpone a trial on the ground of absence of evidence can be
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granted only upon affidavit showing the materiality of evidence expected to be obtained, and
that due diligence has been used to procure it." This means that it must be shown to the court
that due diligence had been exercised in either securing the presence of the evidence
(witnesses) or preventing the absence thereof.
There is, of course, defendant's motion for reconsideration of October 19, 1966 praying for the
setting aside of the court's order of denial as well as the other order striking out the testimony
of witness Lazzari. But, as already noted, the only excuse given in said motion is that:
... The witnesses in question could not come because of certain circumstances
that rendered their coming over virtually impossible. Both witnesses, Ivo Lazzari
and Saverino Casilli are employees of defendant company at the Rome office.
The air traffic in Rome has been particularly heavy this season. Some of the
personnel of the Lufthansa Rome office were on leave and these two employees
had to assume some of the duties of those employees who were on leave aside
from performing their own regular duties. If they were to leave their posts to
come for the hearing on September 28, there would be grave disruption to the
public service and for this reason they were not able to come. ... (Page 47, Rec.
on Ap., p. 32, Record.)
Indeed, even if such reason were given earlier on September 24, 1966 the court would have
been as well justified in denying the requested postponement. We cannot see any reason why,
despite its having knowledge of the date of the hearing about a month before, defendant did
not see to it that its expected witnesses were not assigned to do duty on the day they were
supposed to appear in court. We cannot believe Lufthansa could be so undermanned that such
a simple adjustment of its personnel had to be "impossible."
Moreover, the Rome based witnesses were not the only possible witnesses of defendant. To
begin with, Mr. C.H. Dehio, the IATA Agency Manager, Far East and Australasia, Lufthansa
German Air Lines, who, according to the record, had already attended previous hearings as a
prospective witness could have been made to go to court. There is nothing in the record to
show that he was also rendered incapable of doing so. Then there could still be local witnesses,
it is no excuse that presenting other witnesses would have disrupted the presentation of
defendant's case, for parties may be allowed to maintain their own way of presenting their
evidence only where this can be done without injury to the expeditious disposition of the case
and the best interests of the administration of justice.
Coming now to the second assigned error regarding the striking out of the unfinished testimony
of Lazarri, the Court is also of the opinion and so holds that the trial court's action cannot be
categorized as arbitrary or oppressive or as amounting to a grave abuse of discretion. To be
sure, this second order was but a logical consequence of the previous order denying
defendant's motion for postponement. With such denial, the next thing in order was to declare
the presentation of evidence of the defendant terminated. Accordingly, it was necessary to
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determine what evidence could be considered to be for the defendant. And so when counsel
for plaintiff asked the court to strike out the testimony so far given by Lazarri, there was
practically no alternative for the court but to grant the same. Indeed, defendant's counsel could
not and did not offer any objection thereto.
Oral testimony may be taken into account only when it is complete, that is, if the witness has
been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or
in part thru the fault of such adverse party. But when cross-examination is not and cannot be
done or completed due to causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent.
The right of a party to cross-examine the witnesses of his adversary is invaluable as it is
inviolable in civil cases, no less than the right of the accused in criminal cases. The express
recognition of such right of the accused in the Constitution does not render the right thereto of
parties in civil cases less constitutionally based, for it is an indispensable part of the due process
guaranteed by the fundamental law. Subject to appropriate supervision by the judge in order to
avoid unnecessary delays on account of its being unduly protracted and to needed injunctions
protective of the right of the witness against self-incrimination and oppressive and
unwarranted harrassment and embarrassment, a party is absolutely entitled to a full cross-
examination as prescribed in Section 8 of Rule 132 thus: "Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to any matters stated
in the direct examination, or connected therewith, with sufficient fullness and freedom to test
his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue." Until such cross-examination has been finished, the
testimony of the witness cannot be considered as complete and may not, therefore, be allowed
to form part of the evidence to be considered by the court in deciding the case.
In the case at bar, however, We have opted not to rely exclusively on the foregoing
considerations. In order to satisfy Ourselves as to whether or not defendant stands to be
irreparably prejudiced by the impugned action of the trial court relative to the testimony of
Lazzari, We have just the same gone over the transcript thereof. After considering the same,
however, We are of the impression that even his direct testimony, without taking into account
anymore his answers to the cross-examination questions of counsel for plaintiff, cannot be of
much weight in establishing the defenses in defendant's answer. But it would seem more
appropriate to elaborate on this point when We come to the discussion of the mutual
accusation of the parties that the trial court erred in the portion of its discretion awarding
damages to plaintiff.
The last issue submitted for Our resolution relates to the award of damages made by the trial
court in favor of Ortigas against Lufthansa in the amounts aforestated, as to which, as already
noted at the outset, both parties have appealed taking opposite positions. In this respect, the
appealed decision made the following findings and discussion of the material facts:
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In October, 1963, the Sharp Travel Service, the travel department of C. F. Sharp,
Inc., the majority interest-in-which is held by Rocha y Cia., Inc., General Agents of
the defendant, Lufthansa German Airlines issued to the plaintiff First Class Pan
American Ticket No. 026492147076 to 81 which would take him from Manila,
the place of departure, to Hongkong, various cities in the United States, Europe,
Asia, the Far East, and then back to Manila, the place of destination. Ortigas'
ticket for all these different legs of his journey was first class.
He left Manila October 12, 1963, as scheduled. In New York, he decided to leave
out some cities, included in his original itinerary, to be in Hongkong on the 19th
day of November, 1963, for several appointments he had there. He went to the
Trans World Airlines and had his Pan American ticket changed with First Class
TWA Ticket No. 115-460-451- 878 to 881. His TWA ticket was also first class for
the entire trip from New York to several European cities, including Rome, and
thence to the Far East, with Manila also as the place of destination.
Ortigas arrived in due course in Rome. To be sure he could fly first class to
Hongkong on November 18, 1963, for his appointments there the next day,
Ortigas repaired to the office of the Alitalia on Saturday, November 16, 1963, to
book passage. The man at the counter of the Alitalia office told him it had no
flight on Monday but the Lufthansa had. The man thereupon called up the office
of the Lufthansa and, after talking to an employee thereof, told Ortigas that the
Lufthansa had no first class, but only economy, seats available on its Monday
flight.
Ortigas answered that he was not willing to take an economy seat and requested
the employee to call up other airlines. Then the phone rang. The employee
answered and afterwards informed Ortigas that the Lufthansa had a first class
seat available for its Monday flight. Ortigas immediately asked him to get the
seat and to see to it that his ticket be confirmed and validated for the flight and a
first class seat. The man thereafter asked for Ortigas' passport and other travel
papers and attached a validating sticker (Exhibit "D-1") on flight coupon No. 4
(Exhibit "B") which corresponded to the Rome-Hongkong leg of his TWA Ticket
No. 115-460-461-878 The sticker recites:
Flight Res.
Carrier No. Date Time Status
LH 646 18 Nov. 12:35 P.M. O.K.
Wishing to be doubly sure, Ortigas again requested the Alitalia employee to call
back the Lufthansa office to recheck whether his ticket was really confirmed and
validated. The man did so, after which he told Ortigas that his ticket had been
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checked, validated, and confirmed as shown by the word "O.K." on the sticker.
The same employee later wrote on the cover of the plaintiff's ticket "10.15
Terminal-36, via Gioliti" (Exhibits "C" and "C-1") and told him to be in the air
terminal on Monday, November 18, at 10:00 A.M.
The following Monday, Ortigas checked out of his hotel and took a taxi to the
terminal, arriving there about 9:30 A.M. He unloaded his baggage and proceeded
to the counter in charge of the Lufthansa passengers. The lady at the counter
told him the Lufthansa had no space for him that day. Ortigas requested her to
check with her main office, which she did by calling it up. After calling, she
apologized and said the plaintiff's ticket was in order and would be confirmed
and validated. On her request, Ortigas had his luggage weighed and was given
the free luggage allowance of a first class passenger. He was furthermore asked
to pay 800 liras for bus fare and 700 liras as embarkation tax. Then Ortigas, along
with other passengers, one of whom was Amado Castro of the Development
Bank of the Philippines, boarded a bus for the airport.
At the airport, the plaintiff handed over his ticket to the man behind the
Lufthansa counter, who told him everything was all right. At that juncture, the
plaintiff heard his name called. He inquired if he was being called from an
employee of the Lufthansa and, on receiving an affirmative answer, said he was
Ortigas. The employee asked for his passport and other papers and, after
examining his passport, where his Filipino nationality appears, said he could not
board the plane that day because his seat would be given to a Belgian. Ortigas
asked the man why he was doing that to him when his ticket was confirmed and
validated first class. The Lufthansa employee replied he was sorry but Ortigas
could not leave.
Fearing he would have a recurrence of his heart ailment, Ortigas took a
nitroglycerin pill which his doctor advised him to take on occasions of stress. The
plaintiff then told the Lufthansa man to bring the Belgian over so that his papers
may be examined to determine whether he had a preferred right to Ortigas' seat
but the Lufthansa employee turned down the request, raised his voice, and said
if the plaintiff desired, he could take an economy seat and he would be allowed a
refund. Ortigas retorted he was not interested in a refund and what he wanted
was to travel first class in accordance with his ticket.
This argument occurred in the presence of the other passengers, one of whom
was Amado Castro, and the plaintiff felt embarrassed and humiliated because
the Lufthansa employee was shouting at him and treating him the way he did.
Ortigas made another request, namely, that the employee call other airlines to
inquire if they had flights to Hongkong that day but he once more turned down
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the plea and insisted that Ortigas travel economy, with the promise that he will
be transferred to first class in Cairo and onward to Hongkong.
After promising to, the man went inside a room and, after a while, came out and
assured the plaintiff he would travel first class from Cairo to Hongkong because
he sent a communication that it should be done. He then jotted down some
letters on Ortigas' ticket. The plaintiff replied he was not satisfied with the
arrangement but was constrained to agree to it because he had to be in
Hongkong the next day, his luggage was in all probability already inside the
plane, he was not certain he could still secure a hotel reservation, the manager
of the hotel where he stayed having told him it would be hard for him to get
another reservation once he checks out, and he was assured he would be given
first class passage from Cairo onward.
Upon arrival in Cairo, the plaintiff requested the Lufthansa agent to transfer him
to first class but the agent said he could not and that he did not receive any
communication from Rome to that effect. Ortigas also requested the man to find
out if there were other airlines having planes leaving that day but his request
was likewise denied. The man, however, promised that at Dharham, Ortigas will
be transferred to first class. Ortigas had no alternative but to continue traveling
as before but he did so again under protest.
At Dharham, the plaintiff once more requested a transfer to first class but was
also told by the Lufthansa agent that he had not received any communication
about the change and the request could not be granted. The plaintiff had to
travel perforce economy from Dharham. In Calcutta, Ortigas once again
requested a transfer or that he be assisted in booking passage on other planes
but was also refused. It was only in Bangkok when the chief steward asked him if
he wanted to move over to first class but having been already embarrassed and
humiliated and the trip to Hongkong being only three hours, he said he would
not as a sign of protest.
In Hongkong, Ortigas protested against the treatment given him but was told by
the Lufthansa office he had to file his protest in Manila, it being the point of
destination. He did so by means of a letter, dated November 25, 1963 (Exhibit
"F"), followed by another letter, dated December 20, 1963 (Exhibit "C"), and not
having received any definite answer, he brought this suit.
Although Ortigas' ticket for the flight from Rome to Hongkong was validated and
confirmed by the Alitalia, its act bound and obligated the Lufthansa. The Alitalia
and Lufthansa are members of the International Air Transport Association (IATA).
It is admitted that as such member, the Alitalia can issue tickets for other
members of the association like the Lufthansa, Pan American World Airways, and
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others. Par. 10, Order of April 29, 1964, and Exhibit "H", certification of the
manager of the Alitalia. Aside from being members of the IATA, the Alitalia and
Lufthansa are pool partners and conduct a joint service with interchangeable
flights for the European-Far East-and Australia sectors. Par. 11, Order of April 29,
1964. Under the pool agreement (Exhibit "DD") they undertake to adhere to the
appropriate IATA regulations and to take measures to provide district sales
offices with every possibility for close cooperation in the promotion of the pool
services covered by the agreement, including "reservation and booking". They
furthermore, in effect confirm in the agreement that tickets of one, other than
free and reduced tickets, may be validated by the other.
Finally, Manuel Otayza, general manager of Filital, Inc., which is the general
agent of the Alitalia in the Philippines, testified that space reservation through
telephone calls between airlines is permitted by IATA's, "Manual of Traffic
Conference Resolutions" and that telephone calls for reservation by one airline
to another is in fact accepted procedure in accordance with the official airline
guide of the Air Traffic Conference and International Air Transport Association
(Exhibit "W").
The placing by the Alitalia of a sticker on the plaintiff's ticket obligated the
Lufthansa to give him a first class seat on its flight from Rome to Hongkong on
November 18, 1963. The same witness, Manuel Otayza, testified that the placing
of a validating sticker on a ticket is standard airline procedure; that a sticker
changes are status of a reservation; that consequently while Ortigas' ticket was
"open", that is, it had no reservation for a particular flight between Rome and
Hongkong, the moment a validating sticker was placed thereon, stating the flight
number of the airline, the day and hour of departure, with the letters "O-K", his
ticket was changed from an "open" to a "confirmed" or "validated" ticket; and
that the sticker on Ortigas' ticket meant that first class space was confirmed for
him on Lufthansa flight 646 to Hongkong on November 18, 1963, at 12:35 P.M.
Aside from Otayza's testimony, it is admitted that in the stipulation of facts that
"the letters "O.K." (Exhibit D-2) appearing on the "Res. Status" box of the sticker
(Exhibit D-1) attached to Flight Coupon No. 4 of TWA Ticket No. 015-410:451-880
(Exhibit "D") means space confirmed, per IATA Resolution 275, page 4, Issue 2, a
photostatic copy of which is attached hereto as Exhibit "O"; that validate means
to stamp or write on the passenger ticket an indication that the passenger ticket
has been officially issued by the carrier; that "the placing of a sticker on a flight
coupon is a revalidation thereof for the flight mentioned in said sticker and is an
alteration effected on said coupon, in accordance with the procedure laid down
in IATA Resolution 275d, Page 1, Issue 1, a photostatic copy of which is attached
thereto as Exhibit "S";. and that "prior endorsement was not necessary for
Alitalia to revalidate TWA Ticket No. 115-410-880 Exhibit "D" because Alitalia is
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the carrier originally designated in the "Via carrier" box of said ticket, in
accordance with IATA Resolution No. 279, photostatic copy of which is attached
hereto as Exhibit 'T'."
There was, therefore, a valid and binding contract between Lufthansa and the
plaintiff to transport him as a first class passenger from Rome to Hongkong on
November 18, 1963, and this agreement the defendant violated by compelling
the plaintiff to travel as an economy passenger. It cannot be said the breach was
the result of an honest mistake or excusable negligence. There is evidence the
defendant acted with `bad faith and in wilful disregard of the plaintiffs rights.
Ortigas' ticket was confirmed on the early morning of November 16, 1963, more
than 48 hours before his departure on the afternoon of November 18. There
was, therefore, ample time to send a telex message from Rome to the
defendant's main office in Frankfurt, which is only about 2-1/2 flying hours away,
to reserve a first class seat for the plaintiff.
At the terminal on Via Gioliti, he was again told that he had a first class seat, his
luggage was checked in divesting him of control thereof, and transported to the
airport some 37 kilometers distant. He was in this manner deprived of the
opportunity of availing himself of the facilities of other airlines and compelled to
take the Lufthansa flight even against his will.
In the airport, although he, was found entitled to fly first class, he was told after
his Filipino passport was seen, that his seat would be given to a Belgian, without
any reason or explanation whatsoever. His simple request that the Belgian's
ticket be produced and examined to see who had a better right to a first class
seat was turned down. So was his equally simple request that other airlines be
called to find out if any of them could accept him as a first class passenger to
Hongkong that day. He was deceived into boarding the Lufthansa plane at Rome
by falsely assuring him he will be transferred to first class at Cairo, the next stop
in the flight. The same false and deceptive promise was given him at Dharham
and Calcutta.
Indubitable proof of the defendant's bad faith is found in the fact that while its
employee was assuring the plaintiff he would be transferred to first class in
Cairo, he was at the same time writing on his ticket the following notation:
"TRVLDY/c ROME HEG ROME ST", which means "Travelled economy class Rome
to Hongkong St", thereby barring Ortigas from asserting any right to demand
first class accommodation. The defendant's employee, therefore, knew all along
the plaintiff would not travel first class, and yet he deliberately made him believe
he would be transferred to first class from Cairo to Hongkong.
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From the circumstances, it is clear that the defendant not only breached its duty
to the plaintiff but also did not want to release him as a passenger and wished to
hold on to him even if it would cause him inconvenience and embarrassment.
(Pages 97-109, Record on Appeal.) .
Disputing the foregoing conclusions, Lufthansa claims firstly that the Alitalia employee who
validated and confirmed Ortigas' reservation must have made a mistake because actually, he
was informed by the Lufthansa Rome office that Ortigas could only be waitlisted. Assuming,
however, there was such an error, it has been indisputably proven that under the so-called pool
arrangement among different airline companies pursuant to the International Air Transport
Association (IATA) agreement of which Alitalia and Lufthansa are signatories, both companies
are constituted thereby as agents of each other in the issuing of tickets and other matters
pertaining to their relations with those who would need their services, and since there can be
no question that on its face, the annotations made by Alitalia on the ticket here in dispute
cannot have any (other meaning than that the reservation of Ortigas for the Rome Hongkong
flight was validated and confirmed, Lufthansa's disclaimer is unavailing. Besides, it appears that
when Ortigas checked in at the airport, the Lufthansa lady employee thereat told him, after
making the proper verification, that the reservation was correct. What is more, in the
unconcluded testimony of Ivo Lazzari, the striking out of which is questioned by Lufthansa, he
admitted that it was a fact that the said reservation of plaintiff for first class was confirmed,
albeit he qualified that this was done already in the morning of November 18th, the day of the
flight, almost at the last hour. What seems to have happened was that somehow the first class
accommodations for that flight were overboard and Lufthansa tried to solve the problem by
downgrading Ortigas to the economy class in favor of a Belgian, as Ortigas was told by the
Lufthansa employee who paged him over the public address system for the purpose just as he
was about to go to the departure area, with his luggage already checked and his overweight
fees duly paid, so much so that they were already loaded in the plane. Verily, such treatment
given to plaintiff was completely wrong and absolutely unjustifiable. Nobody, much less a
common carrier who is under constant special obligation to give utmost consideration to the
convenience of its customers, may be permitted to relieve itself from any difficulty situation
created by its own lack of diligence in the conduct of its affairs in a manner prejudicial to such
customers. It is Our considered view that when it comes to contracts of common carriage,
inattention and lack of care on the part of the carrier resulting in the failure of the passenger to
be accommodated in the class contracted for amounts to bad faith or fraud which entitles the
passenger to the award of moral damages in accordance with Article 2220 of the Civil Code. But
in the instant case, the breach appears to be of graver nature, since the preference given to the
Belgian passenger over plaintiff was done willfully and in wanton disregard of plaintiff's rights
and his dignity as a human being and as a Filipino, who may not be discriminated against with
impunity.
Lufthansa contends, however, that there could not have been any possible discrimination by
reason of race against Ortigas because from his appearance, said plaintiff can easily be taken
for a European or white more than his own witness Amado Castro and besides, there were
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other orientals in the same flight on that occasion. It is argued that any such policy would be
self-defeating, since it would certainly be damaging to its own business. Again, this ratiocination
cannot carry the day for Lufthansa, for what appears from the evidence in this case is not really
a case of a general policy of discriminating against orientals or non-whites, but a specific act of
Lufthansa employee at the airport of giving preference to a Belgian after examining Ortigas
passport wherein his Filipino nationality is noted. Indeed, the fact that despite plaintiffs
protestations and demand that he be shown how it could happen that somebody else,
particularly that Belgian, should be given his place when his reservation was validated and
confirmed and actually, he had already checked in and his baggage was already in the plane,
nothing was done to satisfy him, merely infused bad faith into the breach of contract already
committed of depriving plaintiff of his reserved accommodation. In other words, from the legal
standpoint, such preference given to a European surely aggravated the damage or injury
suffered by plaintiff, but the very act alone of deliberately downgrading him despite his
confirmed reservation for first class accommodation is sufficient ground for relief. And
considering that there are already recorded cases in this Court wherein Filipinos have been
similarly discriminated against by foreign airline company employees in the treatment of
passengers this new instance can easily be believed and correspondingly dealt with in fixing and
assessing the liability of herein defendant.
As found by the court below what worsened the situation of Ortigas was that Lufthansa
succeeded in keeping him as its passenger by assuring him that he would be given first class
accommodation at Cairo, the next station, the proper arrangements therefor having been made
already, when in truth such was not the case. Thus, instead of complying with the request of
Ortigas that other airlines be contacted to find out it they had first class space for him, the
Lufthansa employee who had indifferently told him about his downgrading paid very little
attention if ever to said request. And to keep him from giving the business to another company,
he was made to believe that he would be given first class accommodation at Cairo. Although
molested and embarrassed to the point that he had to take nitroglycerine pills to ward off a
possible heart attack, Ortigas hardly had any choice, since his luggage was already in the plane.
To his disappointment, when the plane reached Cairo, he was told by the Lufthansa office there
that no word at all had been received from Rome and they had no space for him in first class.
Worse, similar false representations were made to him at Dharham and Calcutta. It was only at
Bangkok where for the first time, Ortigas was at last informed that he could have a first class
seat in that leg of the flight, from Bangkok to Hongkong. This Ortigas rejected, if only to make
patent his displeasure and indignation at being so inconsiderately treated in the earlier part of
his journey.
Lufthansa insists in its brief that it could have proven that there was no such "entrapment of a
captive passenger" had it been allowed the postponement it sought of the September 28, 1966
hearing. It is argued that there could have been no way by which its Rome office could have
assured Ortigas about what he would be given in Cairo, the flight being fully booked as it was
without any assurance of any first class seat being vacated by then. We are not impressed. In
view of the insistence of plaintiff that he be given the first class accommodation he had
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contracted and paid for, the least that the, Rome office should have done was to communicate
with Cairo and strongly urge that all possible effort be made to comply with his well grounded
request. As it happened, however, the Cairo office informed Ortigas when he arrived there that
they had not received any word at all from Rome. On the contrary, as pointed out by the trial
court, contrary to the verbal assurance given Ortigas, the Lufthansa employee made
annotations on his ticket that he was travelling economy class from Rome to Hongkong. If, as
contended by Lufthansa, Ortigas was duly advised to make arrangements for transfer to first
class as soon as he arrived at each station on the way, why was such notation made that he was
travelling up to Hongkong in economy class? All these only go to show that any evidence of
defendant tending to disprove the testimony of Ortigas would in any event have been
inconclusive or unreliable.
Likewise, Lufthansa maintains that it could have proven that Ortigas did not take offense at
being downgraded, as in fact, according to Lufthansa, he was in jovial mood throughout the trip
enjoying his conversation and exchange of amenities with his seatmate, who by strange
coincidence happened to be the Manager of Lufthansa German Airlines for the district of
Australia and New Zealand holding said position since 1962.
1
Moreover, it is argued, the
economy class accommodations are not much different from first class and Ortigas was not
delayed in his trip. We cannot see the point. A passenger contracts for first class
accommodations for many reasons peculiar to himself and pays a higher price therefor, and it is
certainly not for the airplane to say later, after it deprives him of his space in order to favor
another passenger, that economy class is anyway just as good as first class. That Ortigas was
rightfully indignant is not difficult to imagine. No person in his normal senses and possessed of
human dignity would have been unperturbed and unruffled by the treatment he had received.
More, he was under express admonition of his doctor taking care of his ailing coronary
condition to travel only in first class. Indeed, that he complained and made himself
emphatically clear while still in Rome is sufficiently substantiated in the record, as it was more
or less admitted by defendant's witness Lazzari when he testified that he heard about plaintiff's
complaint that same day, November 18, 1963.
In the light of all the foregoing, there can be no doubt as to the right of Ortigas to damages,
both moral and exemplary. Precedents We have consistently adhered to so dictate. Beginning
with Cuenca,
2
wherein the Court rejected the theory that an air carrier is liable only in the
event of death or injury suffered by a passenger, because, according to the Court, to so hold
would be tantamount to declaring the carrier "exempt from any liability for damages in the
event of its absolute refusal, in bad faith, to comply with a contract of carriage, which is
absurd", We have uniformly upheld the right of a passenger to damages in all cases wherein,
after having contracted and paid for first class accommodations duly confirmed and validated,
he is transferred over his objection to economy, class, which he has to take in order to be able
to arrive at his destination on his scheduled time.
In the case of Nicolas L. Cuenca, then Commissioner of Public Highways of the Philippines, he
boarded a Northwest plane in Manila with a first class ticket to Tokyo, but upon arrival at
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Okinawa, an agent of the company rudely compelled him, over his protest, to move over to the
tourist class, which he had to do, so he could reach the international conference he was
attending on time. Under these facts, the Court held that the P20,000 awarded by the lower
court to Cuenca "may well be considered as nominal and also as exemplary, the Court of
Appeals having modified the trial court's designation thereof as moral, saying it should have
been nominal.
In Lopez
3
, Honorable Fernando Lopez, then an incumbent senator and former Vice President of
the Philippines, together with his wife and his daughter and son-in-law, made first class
reservations with the Pan American World Airways in its Tokyo-San Francisco flight. The
reservation having been confirmed, first class tickets were subsequently issued in their favor.
Mistakenly, however, defendant's agent cancelled said reservation, but expecting some
cancellations before the flight scheduled about a month later, the reservations supervisor
decided to withhold the information from them, with the result that upon arrival in Tokyo, the
Lopezes discovered they had no first class accommodations and were thus compelled to take
the tourist class, just so the senator could be on time for his pressing engagements in the
United States. In the light of these facts, the Court held there was a breach of the contract of
carriage and viewed as the element of bad faith entitling the plaintiffs to moral damages for
such contractual breach, the failure of the agents of the defendant to inform the plaintiffs on
time that their reservation for first class had long before been cancelled by mistake. According
to the Court, such omission placed plaintiffs in a predicament that enabled the company to
keep the plaintiffs as their passengers in the tourist class, thereby retaining the business and
promoting the company's self-interest at the expense of, embarrassment, discomfort and
humiliation on the part of the plaintiffs.
In Air France vs. Carrascoso
4
plaintiff Mr. Rafael Carrascoso, a civil engineer who was going to
Lourdes, France, as a member of a religious group of pilgrims was issued by the Philippine Air
Lines, as agent of the defendant Air France, a ticket for first class round trip from Manila to
Rome. From Manila, Carrascoso travelled first class, as per said ticket, but at Bangkok, the
Manager of the defendant airline forced him to vacate the first class seat because there was a
white man who allegedly had a better right thereto, without, however, showing him the basis
for such preference. Upon these factual premises, the Court held:
It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term `bad faith'. But can it be doubted that the
recital of facts therein points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat, worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment just to give way
to another passenger whose right thereto has not been established. Certainly,
this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, bad faith, contemplates a "state of mind
affirmatively operating with furtive design or with some motive of self-interest
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or ill will or for ulterior purpose." (Words & Phrases, Perm. Ed., Vol. 5, p. 13,
citing Warfield Natural Gas Co. vs. Allen, 59 S.W. (2d) 534, 538.)
And if the foregoing were not yet sufficient, there is the express finding of bad
faith in the judgment of the Court of First Instance, thus:
"The evidence shows that defendant violated its contract of
transportation with plaintiff inbad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the
"first class" seat that he was occupying to, again using the words
of the witness Ernesto G. Cuento, a "white man" whom he
(defendant's Manager) wished to accommodate, and the
defendant has not proven that this "white man" had any "better
right" to occupy the "first class" seat that the plaintiff was
occupying, duly paid for, and for which the corresponding "first
class" ticket was issued by the defendant to him." (R.A., p. 74;
emphasis supplied.) (at pp. 166-167.)
These precedents, as may be seen, apply four-square to herein plaintiffs case. Defendant's
liability for willful and wanton breach of its contract of carriage with plaintiff is, therefore,
indubitable.
Coming now to the amount that should be awarded by way of damages to the plaintiff, it is also
the teaching of the cases aforecited that defendant is liable not only for moral but also for
exemplary damages. As earlier stated, the court below fixed the compensation for moral
damages at P100,000 and the exemplary at P30,000. The Court believes that these amounts are
not enough.
According to the lower court:
Although the plaintiff has not held any elective public office, he has however, a
distinguished record as a private citizen, a lawyer, businessman, a civic and
religious leader, a member of numerous government boards and organizations
as well as of local and international bodies, and is the recipient of awards and
citations for outstanding services and achievements.
He was, and still is, moreover suffering from a heart ailment and has been
advised by his physician to travel first class because it is more relaxing and
comfortable. His position as chairman of the boards of directors of the
corporation he represented also required that he travel in that manner. He was,
furthermore, carrying a special passport issued by the Philippine Government to
represent it and business corporations abroad.
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His sickness and the need for him to travel in the most comfortable manner
possible were made known to the defendant's employee, but he paid no heed to
them. Instead, he engaged Ortigas in a heated discussion, summarily brushed off
his protests and pleas, humiliated him, and tricked him into boarding his
employer's plane, endangering thereby his health and obliging him to take
medicine to forestall an attack.
There is, finally, evidence that he was discriminated against because of his
nationality for he was told to yield his first class seat to a Belgian only after his
passport was examined and his Filipino citizenship must have been noted. .
Under the circumstances and measured by the criterion, jurisprudence has
followed, the compensation the plaintiff should be entitled to receive must be
fixed at P100,000.00 as moral damages, P30,000.00 as exemplary damages or
corrective damages, and P20,000.00 as attorney's fees. (Pp. 111-113, Record on
Appeal.)
We have reviewed the evidence and We are convinced there is more than ample basis for these
findings. But under the circumstances revealed in the record, it is Our considered opinion that
the award of moral damages should be increased to P150,000.
We cannot go along with defendant's pose that in Cuenca the amount awarded was only
P20,000, for the very obvious reason that in that case what was involved was only one leg of
the flight contracted for, namely, that from Okinawa to Tokyo, whereas in the case not at bar,
the offense was repeated four times, at Rome, Cairo, Dharham and Calcutta, with apparent cold
indifference of defendant's agents to plaintiff's plight. Besides, it appears that Cuenca did not
appeal from the trial court's decision fixing said amount, hence there was no occasion for the
Supreme Court to award more. This was also what happened in the Carrascoso case, where the
plaintiff did not complain against the award of only P25,000-moral-and P10,000-exemplary
damages made by the trial court. It was Air France who claimed that these were even excessive.
Verily, however, such, discriminatory acts of the defendants in those cases which were not only
violative of their contractual obligations but also offensive to human dignity and national or
racial pride constitute about the most justifiable ground for the award of moral damages, for
the resulting injury therefrom cannot but cause immense mental anguish, besmirched
reputation, wounded feelings, moral shock and social humiliation. (See Article 2217 of the Civil
Code.) We reiterate, they are to be considered as infecting with bad faith the breach of contract
committed, under Article 2220 of the same Code. (Lopez vs. Pan Am., supra.)
Lufthansa suggests that compared to the P100,000 awarded to Vice President Lopez in the case
aforementioned, the P100,000 given by the trial court to Ortigas are "grossly excessive". It does
not appear to Us to be so. As pointed out by His Honor, "although plaintiff has not held any
elective public office, he has, however, a distinguished record as a private citizen, a lawyer,
businessman, a civic and religious leader, a member of numerous boards and organizations as
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well as local and international bodies, and is the recipient of awards and citations for
outstanding services and achievements." Indeed, under the proven facts in the record, We
cannot regard plaintiff in any inferior position vis-a-vis Vice President Lopez in the highest
circles of Philippine society and in the business and religious world, not to speak of his standing
in government officialdom.
Beside there is again the disparity between then Lopez case and this one that here the offense,
which, as in Cuenca, is aggravated by the Lufthansa employee at Rome having falsely noted on
the ticket that Ortigas was travelling in economy from Rome to Hongkong,
5
was repeated four
times in the same trip, namely in Rome, Cairo, Dharham and Calcutta. More importantly, unlike
in the case of Lopez, Ortigas was suffering from a weak heart and under doctor's advice to
travel only in first class, hence, his being compelled to stay in economy or tourist class during
the major part of his trip, must have given him added apprehensive feelings about his safety.
And, moreover, it is to benoted that in the Lopez case, which was decided in 1966, aside from
taking into account the personal circumstances of the plaintiff, the Court considered "the
present rate of exchange and the terms at which amount of damages awarded would
approximately be in U.S. dollars", hence, We may not justifiably do differently here..
Furthermore, it may not be amiss to mention here that in Zulueta vs. Pan American Airways
Inc., 43 SCRA 397, the Court awarded the plaintiffs: Zulueta, the husband, his wife and a minor
daughter, a total of P775,000 as damages consisting of P500,000 as moral, P200,000 as
exemplary and P75,000 as attorney's fees, apart from actual damages. In that case, the
Zulueta's were coming home to Manila from Honolulu in a Pan-American plane. At Wake,
however, where the plane arrived at 4:00 o'clock in the morning, Zulueta could not be found at
flight time because, without letting anyone know, not even his wife or daughter, he had
relieved himself, according to him, at the beach behind the terminal. When at last, he was
found, the Pan-Am employee who first met him while walking back from the beach
remonstrated him thus: "What in the hell do you think you are! Get on that plane." This
angered Zulueta who engaged the said employee in an exchange of angry words. In the
meanwhile, the pilot who had been tipped by a "man from the State Department", also a
passenger in that flight, that there might be a bomb in the plane and expressed apprehension
for the safety of the flight unless Zulueta could be found, ordered the unloading of the bags of
the Zuluetas, and when three of the four of them had already been unloaded, he ordered
Zulueta to open them, but the latter refused. Another exchange of angry words followed, in the
course of which, according to Zulueta's evidence, the pilot went to the extent of referring to
him and his family as "those monkeys". Ultimately, the plane left without Zulueta, albeit his
wife and daughter were on board, because the captain refused to allow Zulueta to board until
after his bags were opened and inspected, which Zulueta refused entirely to do. Although, said
decision is not yet final, because of the pendency of a second motion for reconsideration the
Court has not yet resolved, the Court has already allowed the partial execution of the
judgment, thus enabling Zuluetas to collect already one-half of the amount or over P335,000,
which amount, according to the concurring and dissenting opinion there of the writer of the
instant decision could be the least that should anyway be allowed. Of course, the Court did not
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itemize the award but granted the same to the family as a whole, but it is evident that in the
final distribution, Zulueta would get for himself from at least P150,000 to not more than
P200,00.
6

We hold that the foregoing considerations justify the increase of the award of moral damages
from P100,000 to P150,000.
Finally, We have the dispute regarding the amount of exemplary damages awarded. In this
respect, it is Our considered opinion that defendant should Pay P100,000 instead of the
P30,000 awarded by the trial court. The record of this case taken together with what are
revealed in the other similar cases decided by this Court, those aforediscussed, convinces Us
that defendant, as an airline, should be made to pay an amount that can really serve as a
deterrent against a seeming pattern of indifference and unconcern, and what is worse, of
discrimination for racial reasons, discernible in the treatment of air passengers. This is not the
first case, and unless the proper sanctions are applied, it does not appear it is going to be the
last yet, of instances wherein Filipino passengers having validated and confirmed tickets for first
class would be shoved to the economy class, over their valid objections and without any regard
at all to their feelings and convenience, only to favor other passengers presumed by the airlines
to be of superior race, hence, deserving preference. It is high time everyone concerned were
made to realize that the laws of the Philippines do not permit any act of discrimination against
its citizens, specially when this accompanies a clear breach of contractual obligations of
common carriers whose business is affected with public interest and must be directed to serve
the convenience and comfort of the passengers. When any disregard of such laws is committed,
the Supreme Court, as the interpreter of such laws, must exact the commensurate liability
which they contemplate.
"Exemplary damages are required by public policy, for wanton acts must be repressed. They are
an antidote so that the poison of wickedness may not run through the body politic." (Report of
Code Commission, pp. 75-76) by authority of the decided cases aforediscussed,
7
acts of similar
nature as those herein involved fall within the category of those justifying the imposition of
exemplary damages pursuant to the codal concept just stated.
The rationale behind exemplary or corrective damages is, as the name implies, to provide an
example or correction for public good. ... In view of its nature, it should be imposed in such an
amount as to sufficiently and effectively deter similar breach of contracts by defendant or other
airlines." (Lopez v. Pan-American World Airways, supra; see also Rotea vs. Halili, 109 Phil. 495;
People vs. Medroso, Jr., G.R. No. L-37633, Jan. 31, 1975, 62 SCRA 245; Cotabato Timberland Co.
Inc. vs. Plaridel Lumber Co., Inc., 13 SCRA 235) Thus, all relevant matters considered, P100,000
of exemplary damages, which practically amounts only to not more than $15,000 U.S. under
the present rate of exchange, would serve the ends for which the liability has been conceived.
WHEREFORE, the judgment appealed from is modified by raising the award of moral and
exemplary damages to plaintiff Ortigas to P150,000.00 and P100,000.00, respectively. In all
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other respects, including as to the payment of interests on the said amounts, the same is
affirmed.
Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.
Footnotes
1 Annexed as Appendix 1 to the Reply Brief of Defendant Appellant is the affidavit of Max Albert Springweiler, who
defendant claims is its newly discovered evidence.
2 Northwest Airlines Inc. vs. Cuenca, 14 SCRA 1063.
3 Fernando Lopez, et al. vs. Pan American World Airways, 16 SCRA 431.
4 18 SCRA 155.
5 In Cuenca, supra, his ticket was marked, without his knowledge as W/L or wait-listed despite it had been confirmed.
6 the concurring and dissenting opinion of this writer was relative to the resolution denying the first motion for
reconsideration. It disputes the right of Zulueta to moral damages for breach of contract in bad faith but recognizes his
right to moral damages because of the inconsiderate and insulting manner he was treated by the employees of Pan-Am
a quasi delict. Said opinion has already been released but it has not yet been published in SCRA.
7 Cuenca, Carrascoso and Lopez, supra.

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-48883 August 6, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance, Branch II, Sixteenth Judicial
District, Zamboanga City and PILAR ANGELES DE PIMENTEL, respondents.
MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for a writ of
preliminary injunction, spawned by the August 4, 1978 order of respondent judge in Criminal
Case No. 750 for parricide against therein accused Pilar Angeles de Pimentel, hereinafter
referred to as private respondent, is the admissibility in evidence of the testimony of a
prosecution witness in the said criminal case who dies before completion of his cross-
examination. That issue is crucial to the fate of private respondent, considering that the
deceased prosecution witness "... is the most vital and the only eyewitness available to the
prosecution against respondent Pilar Angeles de Pimentel for the commission of the gruesome
crime of parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was then on official detail
with the office of the City Fiscal, Zamboanga City, filed with the Court of First Instance,
Sixteenth Judicial District, Zamboanga City, an amended information for parricide in Criminal
Case No. 1742, charging herein private respondent as principal by inducement, Mario Nemenio
y delos Santos and Salim Doe as principals by direct participation and MoisesAndaya y
Julkanain, as accomplice, in the fatal stabbing on September 6, 1977 in Zamboanga City of
Eduardo Pimentel y Orario, the lawful husband of private respondent. The amended
information reads:
That on or about September 6, 1977, in the City of Zamboanga, Philippines, and
within the jurisdiction of this Court, the above-named accused Pilar Angeles de
Pimentel, with deliberate intent to kill her husband, Eduardo Pimentel y Orario,
with whom she was united in lawful wedlock, did then and there, willfully,
unlawfully and feloniously, induce and offer a sum of money as consideration or
prize to said accused Mario Nemenio y delos Santos and Salim Doe to kill her
said lawfully wedded husband Eduardo Pimentel y Orario, and because and on
account of said promised consideration or prize which was accepted, the said
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accused Mario Nemenio y delos Santos and Salim Doe, did then and there,
willfully and feloniously assault, attack and stab with a knife with which they
were conveniently provided, the person of said Eduardo Pimentel y Orario,
thereby inflicting upon the latter mortal wound which directly caused his death;
that the above-named accused Moises Andaya y Julkanain although without
having participated directly in the commission of the offense above- described,
took part prior to its commission by then and there acting as the contact man in
the execution of their plot to kill said Eduardo Pimentel y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her counsel, moved and was granted a
separate trial (p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted by his counsel de
oficio, entered on arraignment a plea of guilty. Respondent judge thereafter rendered
judgment convicting accused Mario Nemenio y delos Santos of murder qualified by the
circumstance of prize and reward-and not of parricide as charged in the information; because
he "... had no relation whatsoever to the deceased Eduardo Pimentel ..." and appreciating the
mitigating circumstances of voluntary plea of guilty and lack of instruction and education,
imposed on him the indeterminate penalty of eight (8) years of prision mayor as the minimum,
to fourteen (14) years and eight (8) months of reclusion temporal as the maximum; to
indemnify the heirs of the deceased Eduardo Pimentel the amount of P12,000.00 and to pay
one-fourth () of the costs of the proceedings (pp. 15-19, rec.).
Immediately after promulgation of judgment, accused Mario Nemenio y delos Santos offered to
testify against his co-accused, herein private respondent, in her separate trial earlier granted by
the respondent judge in the same criminal case, now numbered 750. Allowed, he testified as
prosecution witness on February 28, March 6, and March 22, 1978 and as summarized by the
petitioner, his testimony on direct examination contained in seventy-six (76) pages of
transcripts of stenographic notes (pp. 21-44, 57-64, rec.), is to the effect "...that he and Salim
Doe were hired by respondent Pilar Angeles de Pimentel, for the consideration of P3,000.00 to
kill Eduardo Pimentel, husband of respondent Pilar Angeles de Pimentel, in the evening of
September 6, 1977, in the latter's residence in Zamboanga City, and that it was respondent Pilar
Angeles de Pimentel herself who actually pointed out the victim Eduardo Pimentel to the
witness, who then stabbed the said victim to death...That he did not know the Identity of the
victim Eduardo Pimentel at the time of the stabbing in the evening of September 6, 1977. He
was guided solely by respondent Pilar Angeles de Pimentel, who pointed out her victim spouse
to him ..." (allegation No. 4, petition, pp. 4-5, rec.).
After the prosecution had terminated on March 22, 1978 the direct examination of its witness
Mario Nemenio y delos Santos, counsel for private respondent moved for the holding in
abeyance of the cross-examination of the said prosecution witness until after he (counsel) shall
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have been furnished with the transcripts of the stenographic notes of the direct examination of
said prosecution witness (p. 47, TSN, March 22, 1978, p. 64, rec.); allegation No. 5, petition, p.
5, rec.). The same was granted by the respondent judge who ordered the resumption of the
hearing on April 19, 1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to appear because he was not
served with a subpoena (p. 108, rec.). Consequently, the hearing was reset for June 7, 1978
(ibid.)
On June 7, 1978, counsel for private respondent commenced his cross- examination of
prosecution witness Mario Nemenio y delos Santos, which cross-examination however was not
completed on that session for lack of material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT
Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon agreement of the
parties today's hearing is hereby adjourned and to be resumed on July 3, 1978 at
8:30 o'clock in the morning (p. 84, rec.).
According to the petition, the uncompleted cross-examination reduced in fifty-three (53) pages
of transcripts of stenographic notes (pp. 65-84, rec.) had already "... touched on the conspiracy
existing among Salim Doe, witness Mario Nemenio and respondent Pilar Angeles de Pimentel to
kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the evening of September
6, 1977, and also on the actual stabbing by witness Mario Nemenio of the victim Eduardo
Pimentel who was pointed out to the witness-killer by his wife, respondent Pilar Angeles de
Pimentel ..." (p. 7, rec.). This is not disputed by private respondent.
Continuation of the cross-examination was, as aforestated, set for July 3, 1978 at 8:30 o'clock in
the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead by the Integrated
National Police patrols on June 21, 1978 while allegedly escaping from the San Ramon Prison
and Penal Farm, Zamboanga City, where he was then serving his sentence. Consequently, the
completion of his cross-examination became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the defense for the striking out
of the deceased witness's testimony, filed with the respondent court a motion praying for a
ruling on the admissibility of the testimony of deceased witness Mario Nemenio y delos Santos.
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On August 4, 1978, respondent judge issued an order declaring as inadmissible the entire
testimony of the deceased witness Mario Nemenio y delos Santos on the principal ground "...
that the defense was not able to complete its cross-examination of said witness ...", relying on
the case of Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp. 610,636-37).
Hence, this action, to which WE gave due course on December 4, 1978, after considering
private respondent's comment as well as those of the Solicitor General and of the respondent
judge who was required to file one. On even date, WE likewise issued a temporary restraining
order "... effective immediately and until further orders from this Court enjoining respondent
District Judge from continuing with the trial of Criminal Case No. 750 (1742) entitled People of
the Philippines, plaintiff, versus Pilar Angeles de Pimentel, accused, in the Court of First
Instance of Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in ruling as
inadmissible the testimony of prosecution witness Mario Nemenio y delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the accused the right to cross-
examine the witnesses for the prosecution, is one of the most basic rights of an accused person
under our system of justice. It is a fundamental right which is part of due process not only in
criminal proceedings but also in civil proceedings as well as in proceedings in administrative
tribunals with quasi-judicial powers (Savory Luncheonette vs. Lakas Manggagawang Pilipino, et
al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935 and 1973 Constitutions secured it, thus: "In
all criminal prosecutions, the accused ... shall enjoy the right ... to meet the witnesses face to
face ..." (Section 19, Art. IV, Bill of Rights, 1973 Constitution; Section 17, Art. III, 1935
Constitution). Echoing the same guarantee, Section I (f) of Rule 115 of the Revised Rules of
Court provides that in all criminal proceedings the defendant shall have the right to be
confronted at the trial by, and to cross- examine the witnesses against him. Constitutional
confrontation requirements apply specifically to criminal proceedings and have been held to
have two purposes; first and primarily, to secure the opportunity of cross-examination, and
secondarily, to obtain the benefit of the moral impact of the courtroom atmosphere as it
affects the witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it insures that the
witness will give his testimony under oath, thus deterring lying by the threat of perjury charge;
it forces the witness to submit to cross-examination, a valuable instrument in exposing
falsehood and bringing out the truth; and it enables the court to observe the demeanor of the
witness and assess his credibility (California v. Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-examination is a fundamental right, WE have
ruled that the same can be waived expressly or implied by conduct amounting to a renunciation
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of the right of cross-examination (Savory Luncheonettee vs. Lakas ng Manggagawang Pilipino,
et al., supra, p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela Cruz, 56 SCRA 84,
91 [19741). The conduct of a party which may be construed as a implied waiver of the right to
cross-examine may take various forms. But the common basic principles underlying the
application of the rule on implied waiver is that the party was given the opportunity to confront
and cross-examination an opposing witness but failed to take advantage of it for reasons
attributable to himself alone. Thus, where a party has had the opportunity to cross-examine an
opposing witness but failed to avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the witness will be received or
allowed to remain in the record (Savory Luncheonette vs. Lakas ng Maggagawang Pilipino, et
al.,supra, citing Francisco, Revised Rules of Court, Vol. on Evidence, p. 853, in turn citing People
vs. Cole, 43 N.Y. 508-512 and Bradley vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not and cannot be done or completed due to
causes attributable to the party offering the witness, as was the situation in the Lufthansa
German Airlines case (64 SCRA 610 [1975]) relied upon by respondent judge, the uncompleted
testimony is thereby rendered incompetent and inadmissible in evidence. WE emphasized in
the said case that "[T]he right of a party to cross-examine the witness of his adversary is
invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases.
The express recognition of such right of the accused in the Constitution does not render the
right of parties in civil cases less constitutionally based, for it is an indispensable part of the due
process guaranteed by the fundamental law. Subject to appropriate supervision by the judge in
order to avoid unnecessary delays on account of its being unduly protracted and to needed
injunctions protective of the right of the witness against self-incrimination and oppressive and
unwarranted harassment and embarrassment, a party is absolutely entitled to a full cross-
examination as prescribed in Section 8 of Rule 132 ... Until such cross-examination has been
finished, the testimony of the witness cannot be considered as complete and may not,
therefore be allowed to form part of the evidence to be considered by the court in deciding the
case" (p. 637). However, WE likewise therein emphasized that where the right to cross examine
is lost wholly or in part through the fault of the cross-examiner, then the testimony on direct
examination may be taken into account; but when cross-examination is not and cannot be done
or completed due to causes attributable to the party offering the witness, the uncompleted
testimony is thereby rendered incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of witness on the admissibility in
evidence of his testimony on direct examination has been extensively discussed thus: "As a
general rule, the testimony of a witness, given on direct examination, should be stricken where
there is not an adequate opportunity for cross-examination, as where the witness by reason of
his death, illness, or absence cannot be subjected to cross-examination. Although the contrary
has been held (Scott v. McCann, 24 A. 536, 76 Md. 47), the testimony of a witness, given on
direct examination, should be stricken where there is not an adequate opportunity for cross-
examination (Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as where the party against
whom he testified is, through no fault of his own, deprived of the right to cross-examine him by
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reason of his death (Henderson v. Twin Falls County 80 P. 2d 801, 59 Idaho 97; Twin Falls
County, State of Idaho v. Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L. Ed. 358), or as a result of
the illness of the witness or absence, or a mistrial ordered. The direct testimony of a witness
who dies before conclusion of the cross-examination can be stricken only insofar as not covered
by the cross-examination (Curtice v. West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099, 121
N.Y. 696), and absence of a witness is not enough to warrant striking his testimony for failure to
appear for further cross-examination where the witness has already been sufficiently cross-
examined (Lew Choy v. Lim Sing 216 P. 888, 125 Wash 631), or the matter on which further
cross-examination is sought is not in controversy (supra). It has been held that a referee has no
power to strike the examination of a witness on his failure to appear for cross-examination
where a good excuse is given (In re Crooks, 23 Hun 696)" [98 CJS 126-127, Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination without fault upon his
part, as in the case of the illness or death of a witness after direct examination, it is generally
held that he is entitled to have the direct testimony stricken from the record. This doctrine rests
on the common law rule that no evidence should be admitted but what was or might be under
the examination of both parties, and that exparte statements are too uncertain and unreliable
to be considered in the investigation of controverted facts (Wray vs. State, 154 Ala 36, 45 So
697; People vs. Manchetti, 29 Cal. 2d 452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski, 55
Del 304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831; Citizens Bank & Trust Co.
vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been held, however, that the trial court did
not abuse its discretion in refusing to discharge the jury where the state witness collapsed
before cross- examination was completed, it being shown thatno motion to strike the testimony
was made, that it was not indicated what further information was sought to be produced by
further cross-examination, and that the witness' testimony was largely cumulative (Banks vs,
Commonwealth, 312 Ky 297, 227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx
... where the death or illness prevents cross-examination under such
circumstances that no responsibility of any sort can be attributed to either the
witness of his party, it seems harsh measure to strike out all that has been
obtained on the direct examination. Principle requires in strictness nothing
less. But the true solution would be to avoid any inflexible rule, and to leave it to
the trial judge to admit the direct examination so far as the loss of cross-
examination can be shown to him to be not in that instance a material loss.
Courts differ in their treatment of this difficult situation; except that by general
concession a cross-examination begun but unfinished sufices if its purposes have
been substantially accomplished
xxx xxx xxx
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(Vol. II, P. 108, Emphasis supplied).
II
1. Respondent judge's full reliance on the Lufthansa German Airlines case cannot be sustained.
To be sure, while the cross-examination of the witness in the aforesaid Lufthansa case and that
of the witness in the present action were both uncompleted, the causes thereof were different
in that while in the present case it was the death of the witness, in the Lufthansa case, it was
the unjustified and unexplained failure of Lufthansa to present its witness on the scheduled
date for his cross-examination which had already been preceded by several postponements
initiated by Lufthansa itself, thus depriving the other party the opportunity to complete the
cross-examination of said witness. Consequently, this Court therein correctly ruled as
inadmissible the testimony of the said witness on the principle that "... when cross-examination
is not and cannot be done or completed due to causes attributable to the party offering the
witness, the uncompleted testimony is thereby rendered incompetent ..." (supra, at p. 636). As
clear as day, the Lufthansa ruling therefore applies only if there is a finding that the cause for
non-completion of the cross-examination of a witness was attributable to the very party
offering the said witness. Consequently, the same is inapplicable to the instant action as the
cause for the non-completion of the cross-examination of petitioner's witness was a fortuitous
event as he was killed, as per the pleadings submitted in this action, by the law enforcers
(Integrated National Police Patrols) after his escape from prison. As a matter of fact,
respondent judge, in his questioned order, did not lay any basis for the application of the
Lufthansa ruling as he failed to make any finding that the non-completion was due to
petitioner, the party offering the witness, whose testimony he declared as inadmissible in
evidence. A reading of the questioned order reveals that respondent judge ruled as
inadmissible said questioned testimony mainly because private respondent can no longer finish
her cross-examination; hence incomplete. However, private respondent advanced in this action
the cavalier theory that the failure of her counsel to complete his cross-examination of
petitioner's witness was due to the fault of or was attributable to the petitioner, People of the
Philippines, because it was the very agents of State who killed its own witness; hence, making
the questioned testimony of petitioner's witness inadmissible, per the Lufthansa ruling.
The contention does not deserve serious consideration. There was no finding nor any showing
as the same is farfetched or inconceivable that the killing of the witness of petitioner by its own
agents was ill-motivated. The prosecution did not order the shooting of the government
witness. He was shot while escaping from prison. It is petitioner's cause which will possibly
suffer from said death; not the cause of private respondent. It may be true that the escape of
the said witness and his consequent death may be attributable to the negligence of petitioner's
agents; but such negligence may not bind the petitioner as to pre-judicially affect its cause and
interest the prosecution of criminal offenses by reason of the generally accepted principle
that the State is not bound by the negligence or tortious acts of its agents. As the cause of non-
completion was, as aforesaid, beyond the control of the prosecution, respondent judge's
questioned order cannot be sustained on the basis of the Lufthansa ruling which, as
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aforestated, was principally anchored on the finding that the cause of the non-completion of
the cross-examination of the therein witness was attributable to the very party offering him as
a witness.
2. On the other hand, WE find no merit in petitioner's contention that the testimony of its
deceased witness is admissible on the ground that private respondent had waived her right to
cross-examine the witness and that the cause of non-completion was attributable to said
private respondent. As correctly pointed out by private respondent and sustained by
respondent judge, petitioner is not justified in attributing fault to her (private respondent) and
in contending that she is deemed to have partly lost already the right of cross-examination by
not availing of the right to cross-examine the witness Mario Nemenio on March 22, 1978 or
right after his direct examination was closed and delaying until the lapse of two and a half (2)
months thereafter before making such cross-examination; because while it is true that her
counsel did not immediately start with his cross-examination of the deceased witness on March
22, 1978, he did avail, however, of such right on the same day by initially obtaining an
opportunity to make preparations for an effective exercise thereof considering the nature of
the case a capital one and the length of the direct examination; three sittings on three
different dates or on February 28, 1978, March 6, 1978 and March 22, 1978. Hence, there was
no waiver of her right of cross-examination. Moreover, the deferment of the cross-examination
of the witness requested by private respondent on March 22, 1978 was approved by
respondent judge without any objection on the part of petitioner (pp. 45, 46, 64, rec.). And on
the date for the cross-examination of the witness Mario Nemenio or on April 19, 1978, counsel
for private respondent failed to cross-examine the said witness not of his own design but
because said witness failed to appear on that date for the reason that due to the oversight of
the court's personnel the subpoena for said witness was not served on him at the San Ramon
Prison and Penal Farm (pp. 90, 108, rec.). And respondent judge had to re-set the hearing for
the cross-examination of the witness by the private respondent only to June 7, 1978 because of
the fact that respondent judge took, with the approval of the Supreme Court, his summer
vacation the whole month of May, 1978.
It is thus apparent that no fault can be imputed to the private respondent for the length of time
that elapsed before her counsel was able to commence his cross-examination of the witness.
And private respondent's counsel was not able to complete his cross-examination of the
witness on June 7, 1978 for lack of material time by reason of which and upon agreement of the
parties the hearing was adjourned and ordered resumed on July 3, 1978 (p. 84, rec.).
It appears, therefore, that the situation is one whereby the cause of non-completion of the
cross-examination of the deceased witness was attributed neither to the fault of petitioner nor
the private respondent. Consequently, the admissibility or inadmissibility of the testimony of
the said witness cannot be resolved on the basis of the rule enunciated in the Lufthansa case.
III
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There is merit in the contention of the petitioner that the questioned testimony of its deceased
witness is admissible in evidence because private respondent's counsel had already "...
rigorously and extensively cross-examined witness Mario Nemenio on all essential elements of
the crime charged (parricide), all of which have been testified upon by said witness in his direct
examination-in-chief, and consequently, the cross-examination-in- chief, has already been
concluded."
The cross-examination was completed insofar as the essential elements of the crime charged
parricide, fact ofkilling-is concerned. What remained was merely the cross-examination
regarding the price or reward, which is not an element of parricide, but only an aggravating
circumstance (par. 11, Art. 14, Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide under Article 246 of the Revised
Penal Code.
The elements of the crime of Parricide are that a person was killed; that the
killing was intentionally caused by the accused; and that the victim is a parent or
child, whether legitimate or illegitimate, or the lawful spouse, or legitimate
ascendant or descendant of the accused. Once these facts are established
beyond reasonable doubt, conviction is warranted (See Aquino, The Revised
Penal Code, 1961 Ed., Vol. II, p. 1171).
The deceased Eduardo Pimentel has been sufficiently shown to be the lawful
husband of private respondent Pilar Pimentel by means of the marriage contract
executed between them on May 18, 1971 ... marked as Exhibit 'R' for the
prosecution ...
The cross-examination of witness Mario Nemenio by the counsel for private
respondent on June 7, 1978 touched on the conspiracy, and agreement, existing
among Salim Doe, witness Mario Nemenio and private respondent Pilar Pimentel
to kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the
evening of September 6, 1977, and also on the actual stabbing by witness Mario
Nemenio of the victim Eduardo Pimentel who was pointed out to the witness-
killer by his wife, the private respondent Pilar Pimentel herself... The matter of
consideration or price of P3,000.00, which both the public and private
respondents maintain was not touched in the cross-examination of witness
Mario Nemenio, is not an essential element of the crime of parricide. Price or
consideration is merely an aggravating circumstance of the crime charged, not
an essential element thereof. The failure to touch the same in the cross-
examination would not at all affect the existence of the crime of parricide.
Furthermore, there is no showing or even the slightest indication that the
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witness or his testimony would be discredited if he was cross-examined on the
promised consideration. The probability is rather very great that the witness
would only have confirmed the existence of the promised consideration were he
cross-examined on the same.
From the foregoing discussion, it is submitted that the rigorous and searching
cross-examination of witness Mario Nemenio on June 7, 1978, practically
concluded already the cross-examination-in-chief, or has already substantially
accomplished the purpose of the cross-examination, and therefore, the failure to
pursue the privilege of further cross-examination, would not adversely affect the
admissibility of the direct testimony of said witness anymore (pp. 159162, rec.).
Private respondent did not dwell on the aforesaid points in her memorandum.
Because the cross-examination made by the counsel of private respondent of the deceased
witness was extensive and already covered the subject matter of his direct testimony as state
witness relating to the essential elements of the crime of parricide, and what remained for
further cross-examination is the matter of price or reward allegedly paid by private respondent
for the commission of the crime, which is merely an aggravating circumstance and does not
affect the existence of the offense charged, the respondent judge gravely abused his discretion
in declaring as entirely inadmissible the testimony of the state witness who died through no
fault of any of the parties before his cross-examination could be finished.
WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT JUDGE IS HEREBY SET ASIDE;
THE RESTRAINING ORDER OF DECEMBER 4, 1978 ISSUED BY THIS COURT IS HEREBY LIFTED; AND
RESPONDENT JUDGE OR HIS SUCCESSOR IS ACCORDINGLY ORDERED TO PROCEED WITH THE
TRIAL OF CRIMINAL CASE NO. 750 (1742) AND TO ADMIT AND CONSIDER IN DECIDING THE
CASE THE TESTIMONY OF THE DECEASED WITNESS MARIO NEMENIO y DELOS SANTOS
EXCLUDING ONLY THE PORTION THEREOF CONCERNING THE AGGRAVATING CIRCUMSTANCE
OF PRICE OR REWARD WHICH WAS NOT COVERED BY THE CROSS-EXAMINATION. NO COSTS.
Teehankee (Chairman), Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Fernandez, J., is on leave.

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SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 85043 June 16, 1992
vs.
GLENN HATTON, defendant-appellant.

MEDIALDEA, J.:
Accused-appellant, Glenn Hatton, was charged with the crime of murder, for the death of one
Faustino Algarme, in a complaint signed by P/Cpl. Jose C. Custorio of the Catarman Police
Station. The complaint read as follows:
That on or about the 29th day of August, 1986 at about 7:30 in the evening,
more or less, in the municipality of Catarman, province of Northern Samar,
Philippines and within the preliminary jurisdiction of this Honorable Court, the
above-named accused armed with a knife commonly known as "Dipang," with
intent to kill thru treachery and evident premeditation. without any provocation
and justifiable motive, did then and there wilfully, unlawfully and feloniously
attack, assault and stab one FAUSTINO ALGARME with the knife he provided
himself for the purpose hitting him at the back and inflicting upon him mortal
wound which wound caused his death.
CONTRARY TO LAW. (p. 1. Records)
Upon arraignment, accused-appellant, duly assisted by his counsel pleaded not guilty to the
charge (p. 65, Records).
According to the principal witnesses for the prosecution, Edgardo Ongue and Romeo Basierto,
the incidents surrounding the death of Algarme were as follows:
The town of Catarman, Northern Samar was celebrating its fiesta on that day of August 29,
1986. The victim, Faustino Algarme and three (3) of his friends. namely: Jesus Aboda, Romeo
Basierto and witness Edgardo Ongue were on their way to the house of Engr. Corbillo after
drinking two (2) bottles of beer each at Aileen's Restaurant. The group walked abreast Algarme,
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who was on the extreme left at the edge of Bonifacio street, with Ongue, Basierto and Aboda,
in that order, to his right. It was about seven (7) o'clock in the evening. When they neared the
CLAO office, they noticed two (2) men coming towards their direction. One was short and
stocky and the other was tall. While the tall man was one step behind them, he tapped the
shoulder of Faustino Algarme with his left hand and stabbed him with his right hand. Algarme
shouted for help and called "Romy (Basierto), please help me I was struck." At that moment.
Ongue gazed at the tall man who tried to pull back the knife from the victim's back. Ongue did
not know the man who stabbed Algarme, but he took notice of his mestizo features. The tall
man failed to get the knife. Then he ran towards the corner of a house owned by Nonong
Hatton. (TSN. April 28, 1987. pp. 2-8).
Another witness for the prosecution, Romeo Basierto testified that as soon as the tall man
stabbed Algarme, he ran and Basierto chased him (p. 11, TSN, May 26, 1987). Basierto
recognized the tall man who stabbed Algarme when the latter turned his face towards him (p.
21, TSN, May 26, 1987). He recognized the accused because both of them were residents of
Catarman.
Edgardo Ongue brought the victim to the hospital where he died of "massive hemorrhage
secondary to stab wound (Exh. "H"). Meanwhile, Basierto reported the incident to the police
headquarters. Three policemen, one of whom was identified as Titing Varela, accompanied him
to the scene of the crime where they beamed their flashlights towards the house of Nonong
Hatton where he believed the tall man and his companion entered (p. 12, TSN, May 26, 1987).
According to Ongue, the day after the incident when he went to the Police station to shed light
on the incident, he narrated to the police officers what really transpired. He told them that the
features of the assailant was still in his memory and that if they can show or present a person
who will fit his description, he can identify him. He waited at the police station from 8:00 to
11:00 o'clock but the police failed to present any person to him. On the second day after the
incident, he was picked-up from his office and made to identify their suspect who turned out to
be the accused-appellant. The latter was sitting on a bench in the police station and a
policeman pointed to him as their suspect. (pp. 24-26, TSN, April 28, 1987).
The accused-appellant interposed the defense of alibi. He testified that on that same night,
from 6:00 p.m. to 10:30 p.m., he was in the house of his friend Eddie Laguitan. They were
joined by their friends Eric Parnam, Edgar Maningcay, Marlon Acibar, Jaime Mijares and a girl
named Imelda. Since it was the town fiesta and the baptism of the niece of Eddie Laguitan, they
were invited by Eddie for some snacks and drinks. During the entire period, he got up only
twice to go to the comfort room. His testimony was corroborated by Mrs. Laguitan, Eddie's
mother who served them, and another person who was with the group, Jaime Mijares.
The accused-appellant denied having stabbed the victim. He categorically stated also that he
was left-handed.
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After trial, judgment was rendered finding the accused-appellant guilty beyond reasonable
doubt of the crime charged. The dispositive portion of which the decision states:
WHEREFORE, the court hereby finds the accused Glenn Hatton GUILTY beyond
reasonable doubt of the crime of murder, defined and penalized under Article
248, paragraph 1, of the Revised Penal Code. There being neither in attendance
mitigating nor aggravating circumstance, said accused is hereby sentenced to
suffer the penalty of RECLUSION PERPETUA, to indemnify the heirs of Faustino
Algarme in the amount of P30,000.00 including the amount of P10,000.00.
hospitalization and burial expenses, and to pay the costs.
The knife, Exh. "C," is hereby ordered confiscated, to be disposed of in
accordance with regulations.
SO ORDERED. (p. 111. Records)
From the judgment of conviction, accused-appellant filed this appeal.
In his brief, the following issues were raised by him in the assignment of errors:
I. The accused-appellant was condemned before he was heard by a court that
allied itself with the prosecution, in violation of the constitutional right to due
process of law.
II. The trial court erred in holding that the accused-appellant's being left-handed
is a detail "comparatively trivial and does not destroy the credibility of the
witness or his testimony."
III. The trial court erred in holding the identification of the accused-appellant to
the victim's attacker is positive and convincing considering that no courtroom
identification was made, and the said identification was based solely on a pre-
trial line-up of sorts, conducted in violation of the accused-appellant's right to
counsel, and in a manner filled with innumerable "suggestive influences."
IV. The lower court erred in not giving credence to the evidence presented by
the accused-appellant.
V. The lower court erred in holding that the accused-appellant is guilty beyond
reasonable doubt. (pp. 6-7, Appellant's Brief)
The accused-appellant objected to the conduct of the judge during trial. He alleged that the
judge manifested bias and partiality in hearing the case. The judge allegedly asked leading
questions and various points not asked by the fiscal when the prosecution presented its first
witness. He practically took over the task of conducting the direct examination, asking fifty one
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(51) questions while the fiscal asked only a total of twenty-five (25) questions. The judge also
asked another forty (40) questions during cross-examination and practically took over the task
of re-direct examination. The same attitude was displayed by the judge during the entire trial of
the case.
Likewise, the accused-appellant pointed out that after the direct examination of the first
witness for the defense, Jaime Mijares, the judge took the task of conducting the cross-
examination by asking fifty-nine (59) questions while the Fiscal only asked nine (9) questions.
We read the transcript of stenographic notes and indeed, it is true that the judge was
overzealous in controlling the conduct of the hearing. He asked more questions than did
counsel of the accused or the fiscal. It is conceded though that the trial judge did not manifest
any bias in favor of the prosecution in asking the witnesses for the prosecution nor any hostility
or malice against the defense witnesses. We note also that the questions asked by the court
were clarificatory questions aimed to paint a clearer picture of what was testified to by the
witnesses. As we held in People v. Ibasan, Sr. G.R. No. L-61652. June 22, 1984; 129 SCRA 695:
. . . It is not denied that the court had at certain points conducted its own
questioning during the proceedings. The records, however, show that the court's
questions did not amount to interference as to make the case for the
prosecution and deprive the accused of their defense. The questions of the judge
addressed to the witnesses and the accused were merely to clarify certain points
and confirm certain statements. The number of times that a judge intervenes is
not necessarily an indication of bias. It cannot be taken against a judge if the
clarificatory questions he propounds happen to reveal certain truths which tend
to destroy the theory of one party.
As held in the case of Ventura v. Yatco (105 Phil. 287) "Judges are not mere
referees like those of a boxing bout, only to watch and decide the results of a
game; they should have as much interest as counsel in the orderly and
expeditious presentation of evidence, calling attention of counsel to points at
issue that are overlooked, directing them to ask questions that would elicit the
facts on the issues involved, clarifying ambiguous remarks by witnesses, etc."
A judge may properly intervene in the trial of a case to promote expedition and
avoid unnecessary waste of time or to clear up some obscurity (People v.
Catindihan, 97 SCRA 196: Par. 14 Canons of Judicial Ethics: Administrative Order
No. 162 dated August 1, 1946, 42 O.G. 1803). In this respect, the record shows
no irregularity in the conduct of the trial judge.
The counsel for the accused pointed out also that the decision was rendered by the judge on
June 19, 1987 when it was only on June 29, 1987 when the accused-appellant and another
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witness for the defense. Jaime Mijares, was presented as a witness in court. This fact allegedly
showed the bias of judge who already adjudged the accused guilty before hearing his defenses.
It appears from the record of this case that the decision was dated June 29, 1987. The transcript
of stenographic notes showed, however, that the last hearing was conducted the next day, June
30, 1987. It appears to the court that the date appearing in the decision was only a
typographical error. There was no irregularity in the promulgation of the decision. The record
reveals that the promulgation of the decision was set on July 7, 1987 (p. 104, Record) after both
parties submitted their respective testimonial and documentary evidence. Moreover, the
decision reflected that the trial judge took into consideration the defense of the accused and
the testimony of the witnesses in arriving at his decision.
After a careful study of the case, We hold that the judgment of conviction must be reversed.
First, the witness for the prosecution positively stated that the victim was stabbed with a knife
using the right hand of the assailant. The accused-appellant on the other hand testified that he
is left-handed. The accused-appellant takes exception to the finding of the trial court that:
. . . Even if such claim is true, it was not quite demonstrated that from the
location of the wound, the relative positions of assailant and victim and the
trajectory of the blow considering the internal organ pierced thereby, the injury
could not have been inflicted by a right-handed person. It appears, however,
that the location of the injury is compatible with the relative positions of the
assailant and victim as established by the prosecution. At any rate, such detail is
considered comparatively trivial and does not destroy the credibility of the
witness or his testimony (People v. Pielago, 140 SCRA 418). (p 109, Records)
We are of the considered opinion that the matter of the accused-appellant being left-handed
and the testimony of the prosecution witness that the assailant delivered the fatal blow with
his right hard is not a trivial matter. A left-handed person cannot be expected to deliver a thrust
with the same intensity using his right hand. The intensity of the blow can be deduced from the
fact that the assailant failed to remove the knife after the thrust despite his attempt, as
testified to by witness. Ongue (p. 7. TSN, April 28, 1987). In fact, the knife was deeply
embedded with such force that it had to be removed in the hospital (p. 5, TSN, April 28, 1987).
It is erroneous for the trial judge to conclude that there was no direct proof that from "the
location of the wound, the relative positions of assailant and victim and the trajectory of the
blow considering the internal organ pierced thereby, the injury could not have been inflicted by
a right-handed person." What could be a more positive proof of this fact than the categorical
statement of the prosecution witnesses who saw the incident and who categorically stated that
the assailant delivered the fatal blow with his right hand. It is unnatural for a left handed person
to use his right hand in accomplishing a tough act as stabbing another. It is also hard to believe
that the left handed assailant can deliver a stab blow with the same force as that of his right, as
in this case.
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Second, in People v. Llaneras, et al., G.R. No. 89117, June 19, 1991, We held that "(T)here is no
law requiring a police line-up as essential to a proper identification (People v. Espiritu, G-R. No.
80406, November 20, 1990). Thus, even if there was no police line-up, there could still be
proper identification as long as such identification was not suggested to the witnesses by the
police."
The prosecution through witness Ongue, made it appear that the latter identified the accused-
appellant in a police line-up. The details however, showed otherwise. On direct examination by
the court, he said:
COURT:
Q: What time did you see him in the police station for that
identification?
A: In the morning, one day after the incident.
Q: How many hours after the incident?
A: I could not exactly remember the hours, Your Honor.
Q: Was it the day after the incident?
A: A day after the incident. Yes. Your Honor.
Q: You mean to say it was the following morning that you saw him
at the police station?
A: Not exactly because the police was not able to bring him the
following morning, it was the other day.
Q: After the incident?
A: Yes, Your Honor.
On cross-examination, the trial court propounded the following questions.
COURT:
Q: You said that you were able to recognize Glenn Hatton at the
police station two mornings after the incident, did you not say so?
A: Yes sir.
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Q: Why, what transpired at the police station when you went
there? You relate to the court what procedure was followed by
the police in your investigation and in your identification of Glenn
Hatton, that is the point of the question?
A: When I went to the police station to shed light of (sic) the
incident I was made to tell on how the incident happened by the
police who was assigned on us to ask questions and I narrated to
them all what really had transpired and because of the feature
that was in my memory about the person who struck the victim
that night I was able to tell them that if they can show me or
present to me person who will fit the same person in my memory
I can identify and describe the assailant.
Q: You mean to say you describe(d) the feature of the assailant to
the police?
A: Yes, sir.
Q: Thereafter, what did the police do after you described the
feature of the assailant?
A: They said they have already some suspect in mind.
Q: Did you know at the time that you were being investigated by
the police that you knew already the suspect they had?
A: At that time, not yet, your Honor.
Q: Right after you described the feature of the assailant what did
the police do?
A: They begun hunting for their suspect.
Q: How long did you stay inside the police station?
A: I went there 8:00 o'clock in the morning and probably I was
able to go back to the office around 11:00 o'clock already because
it was already ready for dinner. (sic)
Q: So that from 8:00 to 11:00 o'clock in the morning that you
were at the police station you were never confronted with the
presence of the accused at the police station?
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A: Not yet, your Honor.
Q: By the way, when was that investigation that you were made
to relate to the police of what happened?
A: Just after the incident the following morning, I could not
exactly remember the date but it was the following morning after.
Q: Alright, what transpired next in connection with this case after
that investigation the following morning after the incident? What
resulted in the investigation?
A: When they were able to produce their suspect I was again
picked up from the office and made to identify the person.
Q: When was that when you were picked up from the office?
A: It was two days after already.
Q: Who picked you up?
A: A policeman.
Q: Where were you brought?
A: To the police station.
Q: The same police station where you narrated the incident?
A: Yes, sir.
Q: What transpired there at the police station this time?
A: I told them that he is the same fellow.
Q: You describe to the court what procedure was followed after
you arrived at the police station?
A: The accused Glenn Hatton was just sitting along the bench
there and a policeman told me that he is their suspect and I
immediately looked at him. Although he was wearing long sleves
polo (sic) at the time of the incident but I immediately identified
him and told the police that he is really the one who stabbed the
victim.
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Q: You mean to tell the court that you only identified the accused
after the police indicated him to you to be one of their suspect?
A: Yes, sir.
Q: So you had no idea that he was the assailant before the police
indicated him to you as one of their suspects?
A: I had the idea of his feature only but not his name, but when he
was presented to me for identification and looked at him it came
into my memory that he really is the person who stabbed the
victim that night. In other words. Your Honor. when I looked at
him he fits the same feature to the person I saw that night.
Q: Just before the police indicated him to you to be among the
suspects you already saw him?
A: During the incident I saw him.
Q: During that morning just before the police pointed to you that
he is one of the suspects you already saw him? In other words,
that very morning before the police pointed him to you to be one
of the suspects you already saw him?
A: Not yet because there were many people sitting along the
benches.
Q: So before the police pointed him to you you had no idea that
the assailant was one among those seated on the bench?
A: Not yet, Your Honor, but when the police asked me to identify
who among those persons seated on the bench and when I looked
at them I immediately identify the accused Glenn Hatton to be the
person who stabbed Faustino Algarme that night.
Q: How many persons were seated on the bench?
A: I cannot exactly remember, Your Honor, but the bench is full of
persons seated along the bench.
Q: More or less. how many?
A: About ten persons.
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Q: From among the ten persons seated on the bench the
Policeman indicated to you the accused?
A: The police told me that among those persons seated at his right
is one of their suspects, and I was made to identify the accused.
Q: On that bench approximately were seated ten persons
according to you?
A: Yes, Your Honor.
Q: How many persons bearing mestizo's feature seated on that
bench where the accused also sat?
A: Only one.
Q: So it is now clear to the court that from these persons
approximately 10 in number seated on that bench you were made
to point out and identify the assailant of Faustino Algarme?
A: Yes, Your Honor. (pp. 6-27. TSN. April 28, 1987). (emphasis
supplied).
There is every reason to doubt the regularity of the identification by Ongue of the accused-
appellant. From his testimony, it is clear that he did not positively identify the accused-
appellant. At the time of the incident he made a very fleeting glance on the person who
stabbed the victim. At that moment, he had the impression that the assailant was a mestizo.
During the proceedings in the police station where he was supposed to identify the assailant,
he identified the accused-appellant as allegedly the person who stabbed the deceased, not
because he was certain that the accused-appellant was really the assailant but because he was
the only mestizo in the station and because he was pointed to the policemen as their suspect.
The fact is that the accused-appellant was not identified in a police line-up. He was pointed to
by the police as their suspect. He being the only mestizo in the station, Ongue pointed to him as
"the man." From all indications, the identification of accused-appellant by Ongue was
suggested by the police and this is objectionable. We quote hereunder a portion of the decision
of the U.S. Supreme Court expressing its misgivings on the identification of a suspect in a police
line-up where the influence of improper suggestion is strong.
. . . A major factor contributing to the high incidence of miscarriage of justice
from mistaken identification has been the degree of suggestion inherent in the
manner in which the prosecution presents the suspect to witnesses for pre-trial
identification. A commentator has observed that [t]he influence of improper
suggestion upon identifying witnesses probably accounts for more miscarriages
of justice than any other single factor-perhaps it is responsible for more such
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errors than all other factors combined. . . . Suggestion can be created
intentionally or unintentionally in many subtle ways. And the dangers for the
suspect are particularly grave when the witness' opportunity for observation was
insubstantial, and thus his susceptibility to suggestion the greatest.
Moreover, "[i]t is a matter of common experience that, once a witness has
picked out the accused at the line-up, he is not likely to back on hip word later
on, so that in practice the issue of identity may (in the absence of other relevant
evidence) for all practical purposes be determined there and then, before the
trial.
xxx xxx xxx
What facts have been disclosed in specific cases about the conduct of pretrial
confrontations for identification illustrate both the potential for substantial
prejudice to the accused at that stage and the need for its revelation at trial. A
commentator provides some striking examples:
In a Canadian case . . . the defendant had been picked out of a line-up of six men,
of which he was the only Oriental. In other cases, a black-hailed suspect was
placed among a group of light-haired persons, tall suspects have been made to
stand with short non-suspect, and, in a case where the perpetrator of the crime
was known to be a youth, a suspect under twenty was placed in a line-up with
five other persons, all of whom were forty or over.
Similarly state reports, in the course of describing prior identifications admitted
as evidence of guilt, reveal numerous instances of suggestive procedures, for
example, that all in the line-up but the suspect were known to be identifying
witness, that the other participants in a line-up were grossly dissimilar in
appearance to the suspect, that only the suspect was required to wear
distinctive clothing which the culprit allegedly wore, that the witness is told by
the police that they have caught the culprit after which the defendant is brought
before the witness alone or is viewed in jail, that the suspect is pointed out
before or during a line-up. and that the participants in the line-up are asked to
try on an article of clothing which fits only the suspect. (U.S. v. Wade. 388 U.S.
218: 18 L ed. 2d 1149, 87 S Ct, 1926).
Seeking shelter under the just quoted U.S. v. Wade case, the accused-appellant also argued that
when he was presented in a line-up of sorts he was not represented by a counsel. This allegedly
violates his constitutional right to counsel during custodial investigation.
This argument raised by appellant has no merit. The doctrine enunciated in the case of U.S. v
Wade is that the presence of counsel is indispensable in a post-indictment line-up. In this case,
the accused had already been arrested and a lawyer already appointed to represent him. It was
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fifteen days after his arrest and the appointment of a lawyer to represent him when he was
presented in a police line-up to be identified by the prosecution witness. There was no doubt
that Wade in that case was already under custodial investigation where his right to counsel
already attached.
Since it appears that there is grave potential for prejudice. intentional or not, in
the pre-trial lineup. which may not be capable of reconstruction at trial. and
since presence of counsel itself can often avert prejudice and assure a
meaningful confrontation at trial, there can be little doubt that for Wade the
post-indictment lineup was a critical stage of the prosecution at which he was
"as much entitled to such aid [of counsel] . . . as at the trial itself." (United States
Supreme Court Reports. Lawyer Edition, vol. 18. P. 1163).
In the instant case, Hatton was brought to the police station only to be identified. by a witness
to the killing of Algarme. Technically, he was not yet under custodial investigation.
The right to counsel attaches upon the start of an investigation. i.e., when the
investigating officer starts to ask questions to elicit information and/or
confessions or admissions from the respondent/accused. At such point or stage.
the person being interrogated must be assisted by counsel to avoid the
pernicious practice of extorting false or coerced admission or confessions from
the lips of the person undergoing interrogation, for the commission of an
offense.
xxx xxx xxx
As aptly observed, however, by the Solicitor General. the police line-up (at least,
in this case) was not part of the custodial inquest. hence, petitioner was not yet
entitled, at such stage, to counsel, The Solicitor General states:
When Petitioner was identified by the complainant at the police
line-up, he had not been hell vet to answer for a criminal offense.
The police line-up not a part of the custodial inquest, hence, he
was not vet entitled to counsel. Thus, it war held that when the
process had not yet shifted from the investigatory to the
accusatory as when police investigation does not elicit a
confession the accused may not yet avail of the services of his
lawyer (Escobedo v. Illinois of the United States Federal Supreme
Court. 378 U.S. 478, 1964). Since petitioner in the course of his
identification in the police line-up had not yet been held to
answer for a criminal offense, he was, therefore, not deprived of
his right to be assisted by counsel because the accusatory process
had not yet set in. The police could not have violated petitioner's
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right to counsel and due process as the confrontation between
the State and him had not begun. In fact, when he was identified
in the police line-up by complainant, he did not give any
statement to the police. He was, therefore, not interrogated at all
as he was not facing a criminal charge. Far from what professes,
the police did not, at that stage, exact a confession to be used
against him. For it was not he but the complainant who was being
investigated at that time. He "was ordered to sit down in front of
the complainant while the latter was being investigated" (par. 3
03. Petition). Petitioner's right to counsel had not accrued.
(Gamboa v. Cruz. G.R. No. L-56291. June 27, 1988, 162 SCRA 642).
Third, the other prosecution witness who identified the accused-appellant as the knife wielder
was Romeo Basierto. He claimed in his testimony that at the time the victim was stabbed. he
did not at once recognize him (p. 5, TSN. June 30. 1987). However, when he chased him. he
recognized the man as the herein accused-appellant when the latter turned his face towards
Basierto before he allegedly entered the house of Nonong Hatton (p. 7,Ibid). He knew the
accused appellant because they were both residents of Catarman. However, as the defense
counsel pointed out in the cross-examination, Basierto never mentioned the name of the
accused-appellant in the sworn statement he executed on the 2nd of September 1986. In fact,
he categorically stated that he did not recognize the man, who stabbed Algarme. We quote
hereunder the pertinent portion of his affidavit:
xxx xxx xxx
Q Will you narrate to this investigator what transpired on that
date and time
A While the four of us were on our way to the house of Engr.
Corbilla on that particular date and time, passing near the CLAO
office. we met two persons of which one was tall and the other
was short. When the tall one got abreast with Faustino Algarme
who was walking at the edge of the street, he tapped Faustino by
the shoulder and immediately delivered a blow at Faustino and at
this instance he shouted for help saying that he was stabbed. I
backed out a little to see what happened because I was hidden
from view by Edgardo Ongue and I saw this tall man ran towards
the corner near the house of Nonong Hatton and upon nearing
the entrance of the fence of the house of Nonong Hatton, this tall
man together with the short man who was following him got lost
and I believe they entered the entrance of the fence to the house
of Nonong Hatton. After this, I went to the police station.
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Q Did you recognize the man who stabbed Faustino?
A No sir, but this morning, Edgardo Ongue who was the one
who saw the face of this tall man who stabbed Faustino identified
this man at the station who later turned out to be Glenn Hatton
the son of Nonong Hatton. (emphasis ours)
While an affidavit being taken ex parte is almost incomplete and often inaccurate (People v.
Avanzado, 158 SCRA 427) the affiant Basierto could not have omitted the identity of accused-
appellant as the knife-wielder if it were true that he was able to identify him at that time he
gave chase The matter of the identity of the knife-wielder could not have been omitted by him
considering its importance in the resolution of the death of his friend.
While Basierto's other companions brought the victim to the hospital, he allegedly went to the
police station to report the incident (TSN, p. 11, Ibid). The police on duty, Alfredo Nocha.
however, testified that there was no entry in the police blotter regarding the death of Algarme
in the evening of August 29, 1986. There was an entry in the police blotter on August 30, 1986
that at 8:10 in the morning, a certain Vicente Rojas reported the stabbing of Algarme by an
unidentified man.
More importantly, the accused-appellant was not positively identified in court. True, his name
was referred to by both Basierto and Ongue in their respective direct testimonies. However. he
was not identified in Court. The failure of the prosecution witness to positively identify the
assailant in court is fatal to the prosecution's cause. Pre-trial identification is not sufficient.
While it is true that the defense of alibi is weak. it holds true only if the prosecution's evidence
is strong. The better rule is, the prosecution must rely on the strength of its own evidence and
not on the weakness of the defense (People v. Solis. et al., 182 SCRA 182 (1990); People v.
Buenaflor. 181 SCRA 225 (1990), People v. Rodriguez. G.R. No. 95902, Feb. 4, 1992). With the
exclusion of the pre-indictment identification of the accused-appellant and the failure of the
prosecution witnesses to positively identify him in court, the case against him must fail.
ACCORDINGLY, The appealed decision is reversed. Accused-appellant is ACQUITTED on
reasonable doubt.
SO ORDERED.
Cruz, Grio-Aquino and Bellosillo, JJ., concur.

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