THIRD DIVISION G.R. No. 113795 March 28, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

JESUS ESPINOSA, JR. and RODNEY ESPINOSA, accused. JESUS ESPINOSA, JR., accused-appellant. MELO, J.: Accused were charged with murder in an Information reading as follows: That on or about the 13th day of February 1993, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused Jesus Espinosa alias Jingjing Espinosa, armed with a handgun of unknown caliber, conspiring and confederating with Rodney Espinosa, working together and helping one another, with evident premeditation, by means of treachery and with a decided purpose to kill, did then and there wilfully, unlawfully and criminally shot, hit and wound Agusto Elon with the said handgun, with which the herein accused was provided at the time, thereby causing upon said Agusto Elon bulled wounds on his head, which cause his death few moments thereafter. (p. 8, Rollo.) After the, the court a quo rendered a decision dated November 19, 1993 disposing: WHEREFORE, premises considered, the accused Jesus Espinosa, is hereby found guilty beyond reasonable doubt as principal, in the crime of murder, defined and penalized under Art. 248 of the Revised Penal Code and there being no mitigating or aggravating circumstance, is hereby sentenced to suffer the penalty of reclusion perpetua. The accused Rodney Espinosa, alias Rodney Secuilan is acquitted on the ground that the prosecution failed to prove his guilt beyond reasonable doubt. The accused Jesus Espinosa, Jr. is further ordered to pay as civil liability to the heirs of the deceased, the amount of P4,450.00, as actual damages; P50,000.00 for his wrongful death and P20,000.00 as moral damages; and the costs of this suit. Said accused Jesus Espinosa, Jr., who is detained, is accredited with the number of days he spent under detention, if he is qualified, otherwise he shall be credited with only four-fifth (4/5) of his preventive imprisonment. The other accused, Rodney Espinosa, alias Rodney Secuilan, who is also detained, is hereby ordered released immediately. (pp. 87-88, Rollo.) From said decision accused Jesus Espinosa, Jr. appealed, insisting on his alibi. The facts of the case as, summarized by the trial court and as borne out by the evidence, are as follows: At about 11:40 in the evening on February 13, 1993, while the deceased Agusto Elon, a deaf mute, was urinating near the gate of the fence of the house of his sister, Cynthia Villanueva, at Zamora Extension Street, Iloilo City, the accused Jesus Espinosa, Jr. alias Jingjing Espinosa, shot said Agusto Elon at the back of his head three times, which caused his death. Rodney Espinosa, alias Rodney Secuilan, was standing about four feet away from Jesus Espinosa, Jr., when the latter shot Agusto Elon. The shooting of Agusto Elon was witnesses by his father Juan Elon because at that time he was sleeping in the house of his daughter Cynthia, which house is situated along the road, or along Zamora Extension Street. He was requested by his daughter to sleep at her house, which is only fifteen (15) meters away from his own house, as Cynthia's husband was at Lemery, Iloilo, at that time, and she and her children had no companion in their house. As earlier stated, the house of Cynthia Elon Villanueva is located along or about one (1) foot from Zamora Extension Street. The fence of her house which is made of hollow blocks is at the same time the wall of the front of her house. The place where his son was shot at well lighted and there was an electric light at the post near the place of the incident. When Jesus Espinosa, Jr. shot Agusto Elon he was about three feet away, more or less, from the deceased. The deceased was facing the wall when he was shot and his back turned towards the accused, Jesus Espinosa, Jr. Juan Elon cried aloud when he saw his son being shot and ran downstairs, towards him, but he stumbled at the mosquito net of his grandchildren. His wife who was sleeping at their house, which is very near the house of his daughter, arrived first at the scene of the incident. When he reached his son, Juan Elon embraced him. He saw that the bullets were "bulging" on his forehead and blood was oozing from his neck. He was already dead. He recognized the accused because he worked as a "stevedore" at the pier, and had also worked with the grandfather of the accused and had known the accused since they were small. At the time of his death, Agusto Elon was only 21 years old. Although a deaf mute, his son was employed at "Basic Fruit Corporation" situated at Pavia, Iloilo. His job was "peeling banana", to be made into "banana chips" but the does not know how much his son was earning. His son usually went home at about 10 to 11 o'clock in the evening, because before going home he used to pass at the back of the church at Jaro, Iloilo, to visit his friends, who were also deaf muted. After his son died, the cadaver was emblamed and autopsy was conducted. He paid funenaria Porras the amount of Three Thousand Six Hundred (P3,600.00) Pesos, for funeral services. He also hired 6 jeepneys during the funeral at Fifty (P50,00) Pesos. He bought ("Zest-O" Juice" during the funeral, for the merienda of the deceased's friends he spent amount of One Thousand Four Hundred (P1,400.00) Pesos. He also bought bread and sandwich spread and spent One Thousand (P1,000.00) Pesos. For the "pantheon" of his son he spent Six Hundred (P600.00) Pesos. For church services, Two hundred (200.00) Pesos, or a total amount of Four Thousand Four Hundred Fifty (P4,450.00) Pesos. He also bought bread and sandwich spread and spent One Thousand (P1,000.00) Pesos. For the "pantheon" of his son he spent Six Hundred (P600.00) Pesos. For church services, Two hundred (200.00) Pesos, or a total amount of Four Thousand Four Hundred Fifty (P4,450.00) Pesos. The testimony of Juan, the father of the deceased was corroborated by another eyewitness Romualdo Robles. He testified that while he was on his way home to Zamora Extension Street, at around 11:40 in the evening of February 13, 1993, coming from Rotary park and while he was across the street in front of the house of Juan Elon, he saw Jesus Espinosa, Jr., shoot of Agusto Elon of "Apa Elon", in front of their house at Zamora Extension, Iloilo City, He was about fifteen to twenty meters away from the place of the incident and the place was well lighted. At the time of the shooting, Agusto Elon was urinating and the deceased was bout three to four feet away from the assailant. He saw Jesus Espinosa, Jr. shoot "Apa" Elon three times and the deceased feel on his face on the fence (nagdamhag sa kudal) and he fell on the ground on his back. (pp. 70-73, Rollo) Accused-appellant maintains that the prosecution failed in its task to identify him positively as the perpetrator of the crime. The evidence does not support accused-appellant as the person who shot the victim. Prosecution witness Romualdo Robles positively and unequivocably identified accused-appellant as the perpetrator of the crime. Robles testified thusly: ATTY. CASTRO: You said you witnessed the shooting of Apa Elon, in what particular While you were on your way home that evening of February 13, place was Apa Elon shot? 1993, at around 11:40 in the evening, can you recall whether there WITNESS: was any untoward incident that happened? In front of their house? WITNESS: ATTY. CASTRO: Yes, I witnessed the shooting incident done by Jingjing Espinosa to In what street? Apa Elon. WITNESS: ATTY. CASTRO: Zamora Extension. Who is this Apa Elon ATTY. CASTRO: WITNESS: Iloilo city? The son of Tyo Juan Elon? WITNESS: ATTY. CASTRO: Yes, sir. What is his name if you know? ATTY. CASTRO: WITNESS: You said you saw the shooting of Apa Elon, how far were you from Agusto Elon. the place where the shooting took place? ATTY. CASTRO: WITNESS: My distance from the victim is about from 15 to 20 meters.

ATTY. CASTRO: WITNESS: From where you were situated, where is the shooting incident, can Yes, sir. you tell whether the place of the incident is lighted or not? PROSECUTOR: WITNESS: What happened then when your son was urinating? In the house of Tyo Juan there was a light and the place of the WITNESS: incident is so well lighted. Jesus alias Jingjing and Rodney Espinosa passed by and without any ATTY. CASTRO: provocation they shot my son three times. Who is the Tyo Juan you are referring to? PROSECUTOR: WITNESS: Why did you say that without the provocation they shot your son The father of Apa Elon. three times. ATTY. CASTRO: WITNESS: You said you saw the actual shooting of Apa Elon, what was the I do not know, because my son was urinating and my son is a victim doing when he was the shot? deafmute. WITNESS: PROSECUTOR: He was urinating and his back turned down the assailant. Did you see where your son was shot? ATTY. CASTRO: WITNESS: How far was the assailant from the victim when the victim was shot? At the "tangkugo". WITNESS: PROSECUTOR: Three to four feet from the back. How many times he was shot? ATTY. CASTRO: WITNESS: You said Apa Elon was shot by Jingjing Espinosa, do you know the Three times. complete name of Jingjing Espinosa? PROSECUTOR: WITNESS: Who shot him? Jesus Espinosa. WITNESS: ATTY. CASTRO: Jesus Espinosa, Jr. alias Jingjing. If this person whom you and who shot Apa Elon is inside the PROSECUTOR: courtroom, can you point to him? Did you see him holding a gun? WITNESS: WITNESS: Yes, sir. Yes, sir. ATTY. CASTRO: PROSECUTOR: Please point to him? Did you see his face clearly when he shoot your son? WITNESS: WITNESS: There (witness is pointing to one in the audience whom when asked Yes, sir. answered by the name of Jesus Espinosa. PROSECUTOR: (pp. 7-13, tsn, July 23, 1993) Why do you say you saw his face clearly? The testimony of Romualdo Robles was fully corroborated by Juan WITNESS: Elon, the father of the victim, who testified as follows: Because the street was well-lighted and there is a post-lamp and the PROSECUTOR: light at the houses were lighting. At about that time 11:40 you said you witnessed the shooting of your (pp. 12-15, Ibid). son, where was your son situated insofar as you are concerned in Accused-appellant questions veracity of the testimony of Juan Elon, relation to you? maintaining that Juan Elon was asleep at the time that the victim was WITNESS: shot. Again the evidence does not substantiate accused-appellants Beside the gate because he was urinating. contention. Juan Elon unequivocably testified that he was fully awake PROSECUTOR: when the shooting place. While your son was urinating were you also witnessing the same? ATTY. MACAHILIG: What time did you wake up after having gone to sleep? WITNESS: I am already old and my sleep is not so heavy and its so light that I can hear the noise and I hear the tryskad that stopped and I saw my son alighted from that tryskad. (p. 29, tsn., July 7, 1993) In the absence of any ill motive on the part of Juan Elon to point to accused-appellant as the perpetrator of the crime charged, Juan Elon's testimony must be given full faith and credit (People vs. Tolentino, 218 SCRA 337 [1993]. A thorough search of the record fails to uncover any such ill motive. neither does not his relationship to the victim impair his credibility ( People vs. Dominguez, 217 SCRA 170 [1993]. Further, accused-appellant impugns the testimony of prosecution witness Romualdo Robles. Accused-appellant asserts that the testimony of Robles Accused-appellant asserts that the testimony of Robles to the effect that Juan Elon and his wife went out of the house together is inconsistent with the testimony of Juan Elon that his wife went out of their house first then followed by him. The question of who got out of their respective houses first is obviously a minor, trivial, and inconsequential matter that cannot adversely effect the testimony of Robles that he saw accused-appellant shoot the victim. Accused-appellant also assails Robles for his failure to immediately report what he saw to the policeman who arrived at the scene of the crime. Such failure does not subvert the credibility of Robles for as explained by him he immediately went home after the shooting because he was afraid that he might get involved (p. 7, tsn., July 23, 1993). The reticence of Cabatas to immediately reveal the said statement to the police officers was satisfactorily explained; he was then afraid. The natural reluctance of witnesses to volunteer information to the police authorities in criminal cases is a matter of judicial notice. He might have deemed it the better part of valor not to give the name of the accused who was still at large and who probably recognize him. Such reluctance should not affect his testimony. The decisive factor is that he in fact identified the accused. (People vs. Vicente, 225 SCRA 361, 370.) In an attempt to destroy the credibility of Robles, accused-appellant presented a certification of Kilayko Express Services, Inc. to the effect that Robles had never been an employee thereat, this to rebut the statement of Robles that he was an errand boy of Kilayko Express, Inc. In this regard, we fully agree with the following observation of the trial court: The defense would like to assail the credibility of Romualdo Robles, the second witness of the prosecution by presenting a certification issued by the president or General of Kilayko Express, Inc., Victor Kilayko, that Mr. Romualdo Robles has not been an employee of Kilayko Express, Inc. in whatever capacity since 1990 up to 1993. but Romualdo never asserted that he was an employee of Kilayko Express, Inc. He merely testified that he was a "errand boy" or "messenger" but not a regular employee. he received no regular salary accepted whatever amount that might be given to him as an errand boy. As a matter of fact, in his personal circumstance, he stated that he was jobless. (pp. 25-26, Rollo.) We reject the defense of alibi put up by accused-appellant not only because alibi cannot prevail over the positive identification by the prosecution witnesses (People vs. Dominguez, 217 SCRA 170 [1993]), but also because accused-appellant has failed to establish that it was physically impossible for him to have been present at the place where the crime was committed at the time it happened, ( People vs. Flores, 217 SCRA 613 [1993]). In the case at bench, accused-appellant professes that he was in a fishpond situated at Brgy. Taguangin, Ajuy, Iloilo at the time of the commission of the crime. However, said place is only 80 kilometers away from Iloilo City, and can be negotiated by bus in about 1-1/2 to 2 hours. Therefore, the element of physical impossibility of presence of accused-appellant at the scene and the time of the crime does not obtain.

We, however, agree with accused-appellant that the mitigating circumstance of a voluntary surrender should be taken into consideration in fixing the penalty The trial court itself stated that the record shows the act of voluntary surrender but refrained from taking it into consideration because according to the trial court, the report on the warrant of arrest was not offered in evidence. There was no need for said report to be submitted in evidence because the court can take cognizance of it, the same being part of the record. It is a settled rule that a tribunal may at any time take judicial notice of the records of a case pending before it. (Universal Textile Mills, Inc. vs. Court of Industrial Relations; 36 SCRA 619, 623 [1970]) We nonetheless concur with the following findings of the trial court that the killing of the victim was characterized by treachery: In this case, it was clearly shown beyond reasonable doubt that the back of the deceased was turned to the accused when he was shot three times. He was urinating when shot and was defenseless. He was unaware what happened to him. He could not have put up any defense at all. In short, the accused in executing the crime, employed means , methods or forms which tend directly and specially to ensure its execution, without risks to himself arising from the defense which the offended party might make . There was no way the deceased should not defend himself under the circumstances. (p. 84, Rollo.) In view of the presence of the qualifying circumstance of treachery, the crime committed by accused-appellant is murder under article 248 of the Revised Penal Code. There being a mitigating circumstance, the penalty for murder prescribed by said Article 248, which is reclusion temporal. In its maximum period to death, should be imposed in its minimum period, or 17 years, 4 months, and 1 day, to 20 years. Applying the Indeterminate Sentence Law, the proper penalty is that next lower in degree, which is prision mayor in its maximum period toreclusion temporal in its medium period, or 10 years and 1 day of prision mayor, to 17 years and 4 months ofreclusion temporal. (People vs. Roel Ponayo y Villanueva, G.R No. 111523, August 10, 1994), WHEREFORE, the decision appealed from is HEREBY AFFIRMED, with the modification that accused-appellant IS HEREBY SENTENCED to an indeterminate sentence of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen. (17) years and four (4) months of reclusion temporal, as maximum. In all other respects, the decision appealed from is hereby affirmed. No special pronouncement is made as to costs. SO ORDERED the doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety exists; and reasonable doubt on the subject should be resolved in the negative Facts: The state prosecutors who are members of the DOJ Panel of Prosecution filed a complaint against respondent Judge Muro on the ground of ignorance of the law, grave misconduct and violation of the provisions in the Code of Judicial Conduct. The case at bar involves the prosecution of the 11 charges against Imelda Marcos in violation of the Central Bank Foreign Exchange Restriction in the Central Bank Circular 960. The respondent judge dismissed all 11 cases solely on the basis of the report published from the 2 newspapers, which the judgebelieves to be reputable and of national circulation, that the Pres. of the Philippines lifted all foreign exchange restrictions. The respondents decision was founded on his belief that the reported announcement of the Executive Department in the newspaper in effect repealed the CB 960 and thereby divested the court of its jurisdiction to further hear the pending case thus motu propio dismissed the case. He further contends that the announcement of the President as published in the newspaper has made such fact a public knowledge that is sufficient for the judge to take judicial notice which is discretionary on his part. The complainants contend that the respondent judge erred in taking judicial notice on matters he purported to be a public knowledge based merely on the account of the newspaper publication that the Pres. has lifted the foreign exchange restriction. It was also an act of inexcusable ignorant of the law not to accord due process to the prosecutors who were already at the stage of presenting evidence thereby depriving the government the right to be heard. The judge also exercised grave abuse of discretion by taking judicial notice on the published statement of the Pres. In the newspaper which is a matter that has not yet been officially in force and effect of the law. Issue: Whether or not the respondent judge committed grave abuse of discretion in taking judicial notice on the statement of the president lifting the foreign exchange restriction published in the newspaper as basis for dismissing the case? Ruling: The Supreme Court held the respondent judge guilty for gross ignorance of the law. It cannot comprehend his assertion that there is no need to wait for the publication of the circular no. 1353 which is the basis of the Presidents announcement in the newspaper, believing that the public announcement is absolute and without qualification and is immediately effective and such matter becomes a public knowledge which he can take a judicial notice upon in his discretion. It is a mandatory requirement that a new law should be published for 15 days in a newspaper of general circulation before its effectivity. When the Presidents statement was published in the newspaper, the respondent admitted of not having seen the official text of CB circular 1353 thus it was premature for him to take judicial notice on this matter which is merely based on his personal knowledge and is not based on the public knowledge that the law requires for the court to take judicial notice of. For the court to take judicial notice, three material requisites should be present: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; (3) it must be known to be within the limits of the jurisdiction of the court. The fact that should be assumed as judicially known must be on such notoriety that such fact cannot be disputed. Judicial notice is not judicial knowledge where the personal knowledge of the judge does not amount to the judicial notice of the court. The common knowledge contemplated by the law where the court can take judicial notice must come from the knowledge of men generally in the course of ordinary experiences that are accepted as true and one that involves unquestioned demonstration. The court ruled that the information he obtained from the newspaper is one of hearsay evidence. The judge erred in taking cognizant of a law that was not yet in force and ordered the dismissal of the case without giving the prosecution the right to be heard and of due process. The court ordered for the dismissal of the judge from service for gross ignorance of the law and grave abuse of discretion for dismissing the case motu proprio and for erring in exercising his discretion to take judicial notice on matters that are hearsay and groundless with a reminder the power to take judicial notice is to be exercised by the courts with caution at all times. [G.R. No. 130730. October 19, 2001] HERNANDO GENER, petitioner, vs. GREGORIO DE LEON and ZENAIDA FAUSTINO, respondents. DECISION DE LEON, JR., J.: Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals dated May 30, 1997 in CA-G.R. SP No. 37346 reversing the Decision[2] dated April 3, 1995 of the Regional Trial Court of Malolos, Bulacan, Branch 11 in Civil Case No. 370-M-93 which set aside the Decision[3] dated February 19, 1993 of the Municipal Trial Court of Norzagaray, Bulacan in a forcible entry case filed by respondents spouses Gregorio de Leon and Zenaida Faustino against petitioner Hernando Gener. The forcible entry case was initiated on April 30, 1990 before the Municipal Trial Court of Norzagaray, Bulacan. The respondents, as plaintiffs therein, alleged that they are the original claimants and actual possessors in good faith under a bona fide claim of ownership of a parcel of agricultural land situated at Poblacion, Norzagaray, Bulacan with an area of approximately Four Thousand Four Hundred Four (4,404) square meters. The said parcel of land and the adjoining lots on the north and south thereof were originally part of the course or bed of the Angat River

which was formerly adjacent thereto and the boundary on the east or north-east of Lot No. 1050, Cad-350, plan Ap-03-003056, covered by Original Certificate of Title No. 0-1208 (M) of respondent Gregorio de Leon. [4] During the big flood in 1978, the Angat River allegedly changed its course by moving more than one hundred (100) meters far to the east or northeast, leaving its former course or bed along the eastern or north-eastern boundary of Lot No. 1050 which is elevated so that the said lot dried up. Then, the respondents extended their occupation and cultivation to this elevated and dried up land, planting and cultivating thereon coconuts, bananas and vegetables until May 8, 1989 when petitioner allegedly through force, threat and intimidation, unlawfully entered the property and deprived respondents of the possession thereof, removing the barbed wire fence placed by respondents on the northern boundary of the land in dispute and transferred it to the eastern boundary. Since demands to vacate fell on deaf ears and subsequent efforts toward amicably settling the dispute through the Barangay Justice System proved futile, respondents instituted the complaint for forcible entry against the petitioner.[5] Petitioner, as defendant in the ejectment case, denied the material allegations of the complaint. Instead, he alleged that he is the real owner and lawful and actual possessor of the land in dispute evidenced by a notarized deed of sale executed on October 10, 1988 by Benjamin Joaquin, heir of the previous owner, Proceso Joaquin. Upon acquisition of the land in dispute, he immediately caused the declaration of the land for taxation purposes in the Office of the Municipal Assessor of Norzagaray, Bulacan and paid realty taxes thereon. Further, he claimed that the land is a private land which was previously owned by Proceso Joaquin and that the said fact is admitted and recognized by Gorgonio de Leon, the late father and predecessor-in-interest of respondent Gregorio de Leon, in an affidavit he executed on November 13, 1961 in which he mentioned Proceso Joaquin as a neighboring landowner in the east of his land. Petitioner further averred that it was respondents who forcibly entered his lot in question as evidenced by two (2) criminal cases which petitioner filed, namely, (a) Criminal Case No. 3998 for malicious mischief against Rosendo Buen and Ignacio Cadungcol alias Lolong, two (2) alleged helpers of the land of Gregorio de Leon, who allegedly entered the disputed land on October 24, 1988 and destroyed coconut trees, papaya and langka trees which belonged to petitioner, and (b) Criminal Case No. 4043 against Hugo de Leon and Rolly de Leon, brothers of Gregorio de Leon, who allegedly entered the disputed land on March 12, 1989 and destroyed mango trees and other plants belonging to the petitioner Gener. Thus, considering that his occupation of the land in dispute allegedly started on October 10, 1988, the Municipal Trial Court has no jurisdiction over the action since the forcible entry suit filed by respondents was filed beyond the one year period. [6] Thereafter, trial ensued with Ignacio Cadungol, Teodoro Mendoza, Andres Palad, Balagtas P. San Pedro, Marcelino Samson, Norman Maclang and respondent Zenaida Faustino testifying for the plaintiffs (respondents herein) in the ejectment case, while petitioner Gener was the sole witness for his defense. The Municipal Trial Court condensed their respective testimonies in this manner: [7] xxx xxx xxx For the plaintiffs, Ignacio Cadungol testified that he is a helper, caretaker and overseer of plaintiffs in their lot in Sitio Pulo, Barangay Tabtab, Norzagaray, Bulacan, for the last twenty (20) years; that the lot he is working on as an overseer is bounded on the western portion previously by a river, the northern portion by Andres Palad, southern portion by the property of Miguel Sarmiento and on the eastern portion by Uyong Sison; he does not know a person by the name of Proceso nor Benjamin Joaquin but knows defendant Hernando Gener as the one who is occupying a neighboring lot having planted his lot with coconut, langka, mango trees and who has a house in his occupied lot consisting of galvanized iron and hollow blocks, a fact he knew they being neighbors for five (5) years; the lot of Hernando Gener is fifty (50) meters away from the farm of which he is an overseer; he started occupancy of the lot even during the lifetime of Gorgonio de Leon, father of Gregorio de Leon, one of the plaintiffs; that the western portion subject matter of this case prior to the time it submerged was previously occupied by Sendo a relative of G orgonio de Leon and after the big flood occasioned by typhoon Dading in 1978 re -surfaced and was continued to be possessed by Gregorio de Leon and is now declared for taxation purposes in his name but which is now and since 1989 being physically possessed by Hernando Gener and had planted langka trees which are now four (4) feet in height; that Hernando Gener destroyed the banana trees which he planted by Rolly Gener running them over with his jeep on the pretext that he would just pass by but had instead caused them to be planted with banana trees and other improvements which fact he reported to the owner Gregorio de Leon and Zenaida Faustino and for which he had been scolded. xxx xxx xxx Thereafter, in the meanwhile, in the absence of the defendant who is still abroad, the parties through counsels agreed to present another plaintiffs witness in the person of Teodoro Mendoza, who in brief testified knowing plaintiffs and defendant, the latter being the husband of his granddaughter; that he farmed a tomana near the tomana being then farmed by Gorgonio de Leon during his lifetime even before Pre-War and upon his death, Gregorio de Leon took possession by introducing improvements like coconut and mango trees; that he saw Hernando Gener in the lot being litigated only in the year 1990. Likewise for the plaintiffs, Andres Palad, 70 years of age, testified merely to corroborate Teodoro Mendozas testimonies tha t the De Leon father and son had long been in occupation of Lot No. 1050 and that Hernando Geners lot is adjacent only to that of Gorgonio de Leon. Zenaida Faustino de Leon, plaintiff, testified that she and her husband had actually been in possession of the land subject matter of this case since she got married to Gregorio de Leon in 1950 as well as their titled lot; that she has a Sketch Plan as surveyed by Delfin Bumanglag, Geodetic Engineer (Exh. C) where they introduced improvements like banana, coconut trees, kaimito, papaya and langka trees; that they were in formed by their overseer Ignacio Cadungol in Marikina, Metro Manila that Rolly Gener, son of the defendant and who is even her cousin, destroyed the banana plants and that Rolly Gener would replace them with new ones but claimed ownership instead and fenced the premises; that the land is declared in their name under Tax Declaration No. 13621 (Exh. K) and under Property Index No. 020 -13-001-04-037 (Exh.I) and had paid taxes therefor (Exh. J).. Another witness, Balagtas P. San Pedro, Tax Mapper Supervisor of the Provincial Assessors Office, Malolos, Bulacan , testified that per their record and in accordance with their Sketch Plan (Exh. M) prepared by the Municipal Assessors Office prepared by their personnel, the property adjoining Lot No. 1050 with an area of 4,404 square meters is owned by plaintiffs Gregorio de Leon and Zenaida Faustino. On cross examination, witness admitted that she is not in a position to know who is the actual possessor of the property but issued that only to determine the tax due and assessment thereon; that she is not involved in the issuance and preparation of the tax declaration. Marcelino Samson, Municipal Draftsman of the Municipal Assessors Office and Norma Maclang, Local Assessment Officer IV, Malo los Bulacan, dwelt mainly on the circumstances that are in amplification of how the tax declaration and sketch plan were prepared. For his defense, Hernando Gener declared that he did not forcibly enter plaintiffs lot on October 10, 1988 as alleged in the complaint but it is the plaintiffs who forcibly entered his lot which he bought from Benjamin Joaquin, son of Proceso Joaquin, as evidenced by a Deed of Sale executed before Judge Filomeno Pascual (Exh. I) after which he cleared (hinawan) and planted mangoes, bananas, camias and other plan ts; that the land he bought had not been possessed by Gregorio de Leon and Zenaida Faustino as they are residing at Santos St., Norzagaray, Bulacan, which is five hundred (500) meters away from the lot he bought. After buying the property, Ignacio Cadungol together with others entered the property so he filed Criminal Case No. 4043 also before this Court (Exh. E). Thereafter, he caused the land to be declared under Tax Declaration No. 13400 (Exh. 2) and paid taxes for the same (Exh. 3): that Tax Declaration No. 1512 (Exh. 5) for Gorgonio de Leon which he secured at the Municipal Assessors Office even showed Proceso Joaquin, father of Benjamin Joaquin, as boundary owner of the small portion on the east and abutting to that of Agapito Gener and Sinforosa Torres. For the current year, he had paid taxes under Official Receipt No. 0023591 (Exh. 3-B). That in fact, in the Salaysay dated November 13, 1961 executed before Atty. Raymundo R. Cruz, (Exh. 8) Gorgonio de Leon, father of the plainti ffs, admitted Joaquin as one of his boundary owners; that for the filing of this case, he suffered damages and other ordeals of litigation as well as attorneys fees. xxx xxx xxx After weighing the conflicting evidence, the Municipal Trial Court of Norzagaray, Bulacan rendered judgment [8] dated February 19, 1993, the dispositive portion of which reads: PREMISES CONSIDERED, judgment is hereby rendered in favor of the plaintiffs and against the defendant, ordering: 1. the defendant and/or all persons claiming right under him to vacate the portion described in Tax Declaration No. ARP-4675 and described in the Sketch Plan marked as Exhibit M; 2. the defendant to pay the plaintiffs P1,000.00 as litigation expenses; 3. the defendant to pay plaintiff P2,000.00 as attorneys fees; All other plaintiffs claim are denied for lack of merit. SO ORDERED. On appeal to the Regional Trial Court (RTC) of Malolos, Bulacan, on April 3, 1995, the said court rendered a decision reversing the decision of the Municipal Trial Court of Norzagaray, and thereby dismissed herein respondents complaint for forcible entry. [9] In its decision, the Regional Trial

Court sustained petitioners claim of ownership of the property in dispute by virtue of having bought such property fr om the heir of the former owner thereof. The Regional Trial Court also declared that petitioner has been in possession of the disputed property since October 10, 1988. Insisting on the validity of their cause, respondents interposed a petition for review with the Court of Appeals which reversed the decision of the Regional Trial Court and reinstated the decision of the Municipal Trial Court. [10] Petitioners motion for reconsideration was denied by the Court of Appeals in its Resolution promulgated on September 16, 1997. [11] Hence, the instant petition for review before this Court anchored on twelve (12) assignment of errors, to wit:[12] 1. THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION IN NOT DISMISSING THE CASE IN VIEW OF THE FAILURE OF THE RESPONDENTS TO ALLEGE IN THE COMPLAINT PRIOR POSSESSION OF THE LAND IN QUESTION; 2. THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION IN NOT HOLDING THAT RESPONDENTS COMPLAINT FOR FORCIBLE ENTRY FILED BEFORE THE MUNICIPAL TRIAL COURT OF NORZAGARAY, BULACAN (ANNEX K) WAS FILED BEYOND THE ONE -YEAR REGLEMENTARY PERIOD. 3. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING RESPONDENTS GUILTY OF LACHES ASSUMING ARGUENDO THAT THE CASE WAS FILED WITHIN THE PRESCRIBED PERIOD. 4. THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR AMOUNTING TO GRAVE ABUSE OF DISCRETION IN DISREGARDING AND/OR MISAPPREHENDING FACTS OF VALUE AND SUBSTANCE WHICH IF CONSIDERED WOULD HAVE ALTERED THE RESULT OF ITS JUDGMENT, SUCH AS (1) THE FILING OF CRIMINAL COMPLAINT FOR MALICIOUS MISCHIEF AGAINST ROSENDO BUEN AND IGNACION CADUNGOL FOR HAVING ENTERED THE LAND OWNED AND POSSESSED BY THE PETITIONER AND DESTROYED PLANTS THEREIN ON OCTOBER 24, 1988 NEGATING RESPONDENTS CLAIM THAT PETITIONER ENTERED THE SAME ON MAY 8, 1989 THROUGH FORCE, THREAT AND INTIMIDATION; (2) THE ENTRY INTO THE LAND FOR THE SECOND TIME AND DESTRUCTION OF THE BARBED WIRE AND PLANTS BY HUGO AND ROLLY DE LEON, BROTHERS OF RESPONDENT GREGORIO DE LEON AND IGNACIO CADUNGOL AND OTHERS, ON MARCH 12, 1989 AT 2:00 OCLOCK P.M. 5. THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION DISREGARDING THE JOINT AFFIDAVIT OF ADRIANO DE GUZMAN, GORGONIO DE LEON, AND GREGORIO SISON DECLARING AND RECOGNIZING PROCESO JOAQUIN AS A BOUNDARY OWNER ON THE SOUTH ALONG WITH GORGONIO DE LEON, OF THE LAND WHICH ADRIANO DE GUZMAN SOLD TO PETITIONER, AS A DECLARATION AGAINST INTEREST UNDER SEC. 28 OF RULE 130 OF THE RULES OF COURT AND BINDING UPON RESPONDENTS AS ADMISSION BY PRIVIES UNDER SEC. 31 OF THE SAME RULE. 6. THAT THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION IN HOLDING THAT IT WAS UNCLEAR WHETHER THE DISPUTED PROPERTY FORMED PART OF THE PURCHASE PACKAGE, MEANING THE SALE OF ADRIANO DE GUZMANS LAND TO PETITIONER HERNANDO GENER, WHICH FINDING IS OBVIOUSLY GROUNDED ENTIRELY ON SPECULATION, SURMISES AND CONJECTURES NECESSITATING THE EXERCISE OF THE POWER OF REVIEW BY THE HONORABLE SUPREME COURT. 7. THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION IN FINDING THAT PETITIONER WAS NOT THE INITIAL OCCUPANT OF THE CONTESTED LOT, THE SAME BEING THEN IN THE POSSESSION OF PETITIONERS (NOW RESPONDENTS) WHOSE PRESENCE THEREAT DATES BACK TO 1978, WITHOUT CITATION OF SPECIFIC EVIDENCE ON WHICH THEY ARE BASED. AGAIN, SAID FINDING IS BASED ON CONJECTURES AND SURMISES. 8. THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION IN FINDING THAT PETITIONER FORCIBLY EXCLUDED RESPONDENTS FROM THE LOT IN QUESTION WITH THE OUSTING FORCE COMING IN THE FORM OF MAN AND MACHINE. PETITIONERS SON ROLLY GENER AND HIS RAMMING JEEP, WHICH FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 9. THE HONORABLE COURT OF APPEALS AGAIN ERRED IN GRAVE ABUSE OF DISCRETION IN FINDING THAT THE REGIONAL TRIAL COURT OF BULACAN, BRANCH 11 TREATED THIS CASE AS AN ACCION PUBLICIANA TO DETERMINE WHO BETWEEN THE PARTIES HAD THE BETTER RIGHT TO POSSESSION WHICH HOLDING IS ERRONEOUS AS THE RTC OF BULACAN MERELY HELD THAT PETITIONER HAD SHOWN BY CLEAR AND CONCRETE EVIDENCE THAT HE IS IN POSSESSION OF THE DISPUTED PROPERTY SINCE OCTOBER 10, 1988. 10. THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION IN DISREGARDING THE OVERWHELMING EVIDENCE SHOWING PREPONDERANTLY THAT PETITIONER DID IN FACT AND IN TRUTH START OCCUPYING THE LOT IN QUESTION ON OCTOBER 10, 1988 BY ENCLOSING IT WITH BARBED WIRE AND PLANTING THE SAME TO COCONUTS, MANGOES, LANGKA, BANANAS, ETC. 11. THE HONORABLE COURT OF APPEALS ERRED IN GRAVE ABUSE OF DISCRETION IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT OF BULACAN DATED APRIL 3, 1995, AND UPHOLDING THE QUESTIONABLE DECISION RENDERED ON FEBRUARY 19, 1993 BY THE MUNICIPAL TRIAL COURT PRESIDED BY JUDGE BASA. 12. THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE MUNICIPAL TRIAL COURT OF NORZAGARAY, BULACAN SHOULD HAVE TAKEN JUDICIAL NOTICE OF THE PENDENCY OF CRIMINAL CASE NUMBER 3998 FOR MALICIOUS MISCHIEF AGAINST ROSENDO BUEN AND IGNACIO CADUNGOL FILED BY P/SGT. JOSE S. SISON, OFFICER-IN-CHARGE OF THE NORZAGARAY POLICE STATION FOR ENTERING THE LOT IN QUESTION ON OCTOBER 24, 1988 AT 9:00 P.M. AND DESTROYED THE BARBED WIRE FENCE AND SOME OF THE PLANTS BELONGING TO PETITIONER HERNANDO P. GENER (EXHIBIT 6). All the foregoing issues raised by the petitioner essentially question the factual findings of the appellate court as appearing in its assailed decision, contending that such findings do not have any factual moorings. He avers that the appellate court disregarded evidence showing his prior possession of the disputed property which negate the alleged cause of action of the respondents for petitioners ejectment. In petitions for review on certiorari, the jurisdiction of the Supreme Court in cases brought before it from the Court of Appeals is limited to reviewing questions of law.[13] For a question to be one of law, it must involve no examination of the probative value of the evidence presented by the litigants or any of them.[14] Thus, the findings of fact of the appellate court are generally conclusive on this Court which is not a trier of facts. Although if said factual findings do not conform to the evidence on record, this Court will not hesitate to review and reverse the factual findings of the lower courts.[15] In the instant case, we find sufficient basis to deviate from the rule since the extant evidence and prevailing law support a finding different from the conclusion of the appellate court. It bears stress that in ejectment cases, the only issue for resolution is who is entitled to the physical or material possession of the property involved, independent of any claim of ownership set forth by any of the party-litigants. Anyone of them who can prove prior possession de facto may recover such possession even from the owner himself. [16] Ejectment does not depend on title for relief; the criterion is the right to possession. [17]Thus, priority in time should be the pivotal point in resolving the issue of possession. Section 1, Rule 70 of the Revised Rules of Court[18] requires that in actions for forcible entry the plaintiff is allegedly deprived of the possession of land or building by force, intimidation, threat, strategy, or stealth and that the action shall be filed within one year from the time of such unlawful deprivation of possession. This requirement implies that the possession of the disputed land by the defendant is unlawful from the beginning as he acquired possession thereof by unlawful means. The plaintiff must allege and prove that he was in prior physical possession of the property in litigation until he was deprived thereof by the defendant. The one year period within which to bring an action for forcible entry is generally counted from the date of actual entry by the defendant on the land. [19] To support their allegation of prior possession, herein respondents, as plaintiffs in the ejectment case, primarily relied upon the testimonies of Ignacio Cadungol, Teodoro Mendoza, Andres Palad, Balagtas P. San Pedro, Marcelino Samson, Norman Maclang and respondent Zenaida Faustino. The appellate court made much of the testimony that it was petitioner who forcibly excluded respondents from possession of the land on May 8, 1989. In the words of the appellate court, the ousting force came in the form of man and machine: [petitioners] son Rolly Gener a nd his ramming jeep. However, the Municipal Trial Court and Court of Appeals totally overlooked the fact that while petitioner was his own sole witness, his testimony of prior possession was substantiated by several documentary evidence, [20] which were quite damaging to the existence of respondents alleged cause of action for forcible entry. This Court noted that there were two (2) incidents that occurred on October 24, 1988 and March 12, 1989 which resulted in the institution by herein petitioner of criminal complaints for malicious mischief. These two (2) incidents, are the subject of: (a) Criminal Case No. 3998 for malicious mischief against Rosendo Buen and Ignacio Cadungol alias Lolong, two (2) alleged helpers of the land of respondent Gregorio de Leon, who allegedly entered the disputed land on October 24, 1988 and destroyed coconut trees, papaya and langka trees which allegedly belonged to the petitioner, and (b) Criminal Case No. 4043 against Hugo de Leon and Rolly de Leon, brothers of respondent Gregorio de Leon, who allegedly entered the disputed land on March 12, 1989 and destroyed mango trees

and other plants which allegedly belonged to the petitioner. These twin incidents, evidenced by Sinumpaang Salaysay and Complaint[21] show that prior to May 8, 1989, the alleged date of forcible entry of petitioner, petitioner was already in possession of the disputed land. As against the mere testimonial evidence relied upon by respondents that they were forcibly ejected from the land by petitioner on May 8, 1989, the documentary evidence of petitioners prior possession, more particularly the evidence of th e two (2) incidents of October 24, 1988 and March 12, 1989, must prevail. Oral testimony, depending as it does exclusively on human memory, is not as reliable as written or documentary evidence,[22] especially when said documentary evidence is not opposed. As Judge Limkin of Georgia once said, I would rather trust the smallest slip of paper for truth than the strongest and most retentive memory ever bestowe d on mortal man.[23] The Municipal Trial Court of Norzagaray should have taken judicial notice of the said criminal cases involving the subject parcel of land and pending in its docket. While, 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,[24] this rule is subject to the exception that "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, when with 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."[25] Respondents did not impugn nor object to the evidence of petitioner on the existence of the said criminal cases of malicious mischief that sprung from the alleged forcible entry of petitioners alleged property. Thus, the said Municipal Trial Court should have taken judicial notice of these facts in resolving the issue of prior possession. In view of the evidence on the possession of petitioner prior to May 8, 1989, as shown by the incidents on October 24, 1988 and March 12, 1989, the cause of action of respondents for forcible entry against the petitioner has already prescribed when they filed the complaint for ejectment on April 30, 1990. Because forcible entry cases must be filed within one year from the date of actual entry on the land. [26] Forcible entry is a quieting process and the one year time bar to the ejectment suit is in pursuance of the summary nature of the action. [27] After the lapse of the one year period, the remedies of the party dispossessed of a parcel of land is to file either an accion publiciana which is a plenary action to recover the right of possession or an accion reinvindicatoria which is an action to recover ownership as well as for the recovery of possession. [28]Consequently, since respondents cause of action for forcible entry has prescribed, the Municipal Trial Court was without jurisdiction to hear and decide the subject ejectment case. In view of the conclusions we have thus reached, it is unnecessary to pass upon the other issues raised in the petition. WHEREFORE, the instant petition is hereby GRANTED. The challenged Decision of the Court of Appeals dated May 30, 1997 in CA-G.R. SP No. 37346 is REVERSED and SET ASIDE. The complaint for forcible entry is DISMISSED without prejudice to the filing of the appropriate action in the Regional Trial Court of Bulacan. No pronouncement as to costs. SO ORDERED. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN CASTILLO y LUMAYRO, accused-appellant. DECISION PUNO, J.: JPUNO With the passage of Republic Act No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or homicide is now considered, not as a separate crime, but merely a special aggravating circumstance. In the case at bar, appellant JULIAN CASTILLO y LUMAYRO was charged with Murder and Illegal Possession of Firearms in two (2) separate Informations, thus: Criminal Case No. 45708: "That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, armed with a handgun, with deliberate intent and without justifiable motive, with evident premeditation, by means of treachery and with a decided purpose to kill, did then and there wilfully, unlawfully and criminally shoot, hit and wound Rogelio Abawag with the said gun, with which herein accused was then provided at the time, thereby causing upon said Rogelio Abawag bullet wounds on vital parts of his body, which caused his instantaneous death. "CONTRARY TO LAW."[1] Criminal Case No. 45709: HTML "That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, with deliberate intent and without justifiable motive, have in his possession and control one (1) Homemade .38 caliber revolver without serial number (and) three (3) live ammunitions without the authority and permit to possess or carry the same. "CONTRARY TO LAW."[2] The scene of the crime was the then on-going construction site of Gaisano Building in Lapaz, Iloilo City. On November 14, 1995, at about 8 a.m., ROBERTO LUSTICA, a construction worker, was on the last rung of the stairs on the third floor of the Gaisano building when he saw his coworker ROGELIO ABAWAG being closely pursued by accused JULIAN CASTILLO, a lead man in the same construction site. During the chase, the accused pointed a gun at Abawag and shot him. Abawag, then about a half meter away from the accused, fell on his knees beside a pile of hollow blocks.[3] FRANKLIN ACASO, a mason working on the third floor of the Gaisano building, heard the first shot. Initially, he did not pay attention to it as he thought that the sound came from one of their construction equipments. Seconds later, he heard a second shot and a person screaming: "Ouch, that is enough!" When he looked towards the direction of the sound, he saw the accused in front of Abawag, about a meter away, pointing a .38 caliber revolver at the latter. Abawag was then leaning on a pile of hollow blocks, pleading for mercy. The accused shot Abawag a third time despite the latter's imploration. The accused then fled, leaving Abawag lifeless.[4] The management of Gaisano reported the shooting incident to the police authorities who immediately rushed to the scene of the crime. JUN LIM, alias "Akoy," brother-in-law of the victim and also a construction worker at the Gaisano, volunteered to go with the police and assist them in locating the accused. yacats The police, accompanied by Akoy, proceeded to Port San Pedro where they saw the accused on board a vessel bound for Cebu. When they boarded the vessel, Akoy positively identified the accused to the police as the assailant. The accused attempted to escape when the police identified themselves but the police caught up with him. Upon inquiry, the accused denied complicity in the killing of Abawag. The police found in his possession a .38 caliber handmade revolver, three (3) empty shells and three (3) live ammunitions. Further inquiry revealed that the accused owned the gun but had no license to possess it. The police then took the accused into custody and charged him for the murder of Abawag and for illegal possession of firearm.[5] The self-defense theory hoisted by the accused who testified solely for the defense was not given credence by the trial court. Thus, he was convicted of Homicide, as the prosecution failed to prove the alleged qualifying circumstances of evident premeditation and treachery, and of Illegal Possession of Firearm, aggravated by homicide. The trial court disposed as follows: "WHEREFORE, premises considered and finding the accused guilty of the crimes of homicide and illegal possession of firearm aggravated by homicide beyond the shadow of the doubt, he is hereby sentenced as follows: "1) For the crime of homicide, he is sentenced to an indeterminate penalty of imprisonment of Twelve (12) years of prision mayor, as minimum, to Seventeen (17) years and Four (4) months of reclusion temporal, as maximum; "2) For illegal possession of firearm which is aggravated by homicide, he is sentenced to a penalty of death; "3) To pay the family of his victim P50,000.00 as indemnity and another P50,000.00 as moral damages; and "4) To pay the cost. "SO ORDERED."[6] (emphasis supplied) On automatic review by this Court, appellant impugns solely his conviction for illegal possession of firearm for which he was sentenced to the supreme penalty of death. Prefatorily, we stress that although the appellant himself does not refute the findings of the trial court regarding the homicide aspect of the case, the Court nevertheless made a thorough examination of the entire records of the case, including the appellant's conviction for homicide, based on the settled principle that an appeal in criminal cases opens the entire case for review. Our evaluation leads us to conclude that the trial court's ruling on the homicide aspect is clearly supported by the records. Thus, we shall concentrate on the appellant's lone assignment of error with respect to his conviction for the crime of illegal possession of firearm. olanski

P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by Republic Act 8294. Aside from lowering the penalty for said crime, R.A. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance.[7] This amendment has two (2) implications: first, the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but merely as a special aggravating circumstance;second, as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one penalty shall be imposed on the accused.[8] Prescinding therefrom, and considering that the provisions of the amendatory law are favorable to herein appellant, the new law should be retroactively applied in the case at bar. [9] It was thus error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of the case, the crime for which the appellant may be charged is homicide, aggravated by illegal possession of firearm, the correct denomination for the crime, and not illegal possession of firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which aggravates the crime of homicide under the amendatory law. The appellant anchors his present appeal on the assertion that his conviction was unwarranted as no proof was adduced by the prosecution that he was not licensed to possess the subject firearm. In their Manifestation and Motion in lieu of Appellee's Brief, the Solicitor General joined cause with the appellant.[10] haideem We agree. Two (2) requisites are necessary to establish illegal possession of firearms: first, the existence of the subject firearm, and second, the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence. The onus probandi of establishing these elements as alleged in the Information lies with the prosecution. [11] The first element -- the existence of the firearm -- was indubitably established by the prosecution. Prosecution eyewitness Acaso saw appellant shoot the victim thrice with a .38 caliber revolver. [12]Appellant himself admitted that he did not turn over the gun to the security guards in the building after the shooting.[13] The same gun was recovered from the appellant and offered in evidence by the prosecution. However, no proof was adduced by the prosecution to establish the second element of the crime, i.e., that the appellant was not licensed to possess the firearm. This negative fact constitutes an essential element of the crime as mere possession, by itself, is not an offense. The lack of a license or permit should have been proved either by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the subject firearm[14] or that the type of firearm involved can be lawfully possessed only by certain military personnel.[15] Indeed, if the means of proving a negative fact is equally within the control of each party, the burden of proof is on the party averring said negative fact. As the Information alleged that the appellant possessed an unlicensed gun, the prosecution is duty-bound to prove this allegation. It is the prosecution who has the burden of establishing beyond reasonable doubt all the elements of the crime charged, consistent with the basic principle that an accused is presumed innocent until proven guilty.[16] Thus, if the non-existence of some fact is a constituent element of the crime, the onus is upon the State to prove this negative allegation of non-existence.[17] kirsten Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun recovered from his possession, his admission will not relieve the prosecution of its duty to establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In People vs. Solayao,[18] we expounded on this doctrine, thus: "x x x (b)y its very nature, an 'admission is the mere acknowledgement of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt.' In other words, it is a statement by defendan t of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to au thorize conviction. From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged. "Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: 'An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.' "Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license." (emphasis supplied) CODES Additionally, as pointed out by both the appellant and the Solicitor General, the extrajudicial admission was made without the benefit of counsel. Thus, we hold that the appellant may only be held liable for the crime of simple homicide under Article 249 of the Revised Penal Code. We come now to the penalty. The crime of homicide is penalized by reclusion temporal.[19] There being no aggravating or mitigating circumstance attendant to the commission of the crime, the penalty of reclusion temporal shall be imposed in its medium period, i.e., from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor, i.e., from six (6) years and one (1) day to twelve (12) years, as minimum, to reclusion temporal in its medium period of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, as maximum. IN VIEW OF THE FOREGOING, the assailed Decision is MODIFIED. Appellant Julian Castillo y Lumayro is found guilty of Homicide. He is sentenced to imprisonment of from nine (9) years and four (4) months of prision mayor as minimum to sixteen (16) years, five (5) months and nine (9) days of reclusion temporal as maximum. However, the civil indemnity and moral damages awarded by the trial court to the heirs of the victim in the total amount of one hundred thousand (P100,000.00) pesos are affirmed. SO ORDERED. ALFREDO CHING, petitioner, vs. HON. COURT OF APPEALS, HON. ZOSIMO Z. ANGELES, RTC - BR. 58, MAKATI, METRO MANILA, PEOPLE OF THE PHILIPPINES AND ALLIED BANKING CORPORATION, respondents. DECISION BUENA, J.: Confronting the Court in this instant petition for review on certiorari under Rule 45 is the task of resolving the issue of whether the pendency of a civil action for damages and declaration of nullity of documents, specifically trust receipts, warrants the suspension of criminal proceedings instituted for violation of Article 315 1(b) of the Revised Penal Code, in relation to P.D. 115, otherwise known as the "Trust Receipts Law".xl-aw Petitioner Alfredo Ching challenges before us the decision[1] of the Court of Appeals promulgated on 27 January 1993 in CA G.R. SP No. 28912, dismissing his "Petition for Certiorari and Prohibition with Prayer for Issuance of Temporary Restraining Order/ Preliminary Injunction", on the ground of lack of merit. Assailed similarly is the resolution[2] of the Court of Appeals dated 28 June 1993 denying petitioners motion for reconsideration. As borne by the records, the controversy arose from the following facts: On 04 February 1992,[3] petitioner was charged before the Regional Trial Court of Makati (RTC- Makati), Branch 58, with four counts of estafa punishable under Article 315 par. 1(b) of the Revised Penal Code, in relation to Presidential Decree 115, otherwise known as the "Trust Receipts Law". The four separate informations[4] which were couched in similar language except for the date, subject goods and amount thereof, charged herein petitioner in this wise:

"That on or about the (18th day of May 1981; 3rd day of June 1981; 24th day of June 1981 and 24th day of June 1981), in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused having executed a trust receipt agreement in favor of Allied Banking Corporation in consideration of the receipt by the said accused of goods described as 12 Containers (200 M/T) Magtar Brand Dolomites; 18 Containers (Zoom M/T) Magtar Brand Dolomites; High Fired Refractory Sliding Nozzle Bricks; and High Fired Refractory Sliding Nozzle Bricks for which there is now due the sum of (P 278, 917.80; P 419,719.20; P 387, 551. 95; and P389, 085.14 respectiv ely) under the terms of which the accused agreed to sell the same for cash with the express obligation to remit to the complainant bank the proceeds of the sale and/or to turn over the goods, if not sold, on demand, but the accused, once in possession of said goods, far from complying with his obligation and with grave abuse of confidence, did then and there, willfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the said goods and/or the proceeds of the sale thereof, and despite repeated demands, failed and refused and still fails and refuses, to account for and/or remit the proceeds of sale thereof to the Allied Banking Corporation to the damage and prejudice of the said complainant bank in the aforementioned amount of ( P 278,917.80; P 419,719.20; P 387,551.95; and P 389,085.14)." x-sc On 10 February 1992, an "Omnibus Motion[5] to Strike Out Information, or in the Alternative to Require Public Prosecutor to Conduct Preliminary Investigation, and to Suspend in the Meantime Further Proceedings in these Cases," was filed by the petitioner. In an order dated 13 February 1992, the Regional Trial Court of Makati, Branch 58, acting on the omnibus motion, required the prosecutors office to conduct a preliminary investigation and suspended further proceedings in the criminal cases. On 05 March 1992, petitioner Ching, together with Philippine Blooming Mills Co. Inc., filed a case[6] before the Regional Trial Court of Manila (RTCManila), Branch 53, for declaration of nullity of documents and for damages docketed as Civil Case No. 92-60600, entitled "Philippine Blooming Mills, Inc. et. al. vs. Allied Banking Corporation." On 07 August 1992, Ching filed a petition[7] before the RTC-Makati, Branch 58, for the suspension of the criminal proceedings on the ground of prejudicial question in a civil action. The prosecution then filed an opposition to the petition for suspension, against which opposition, herein petitioner filed a reply.[8] On 26 August 1992, the RTC-Makati issued an order[9] which denied the petition for suspension and scheduled the arraignment and pre-trial of the criminal cases. As a result, petitioner moved to reconsider[10] the order to which the prosecution filed an opposition. In an order[11] dated 04 September 1992, the RTC-Makati, before which the criminal cases are pending, denied petitioner's motion for reconsideration and set the criminal cases for arraignment and pre-trial. Aggrieved by these orders[12] of the lower court in the criminal cases, petitioner brought before the Court of Appeals a petition for certiorari and prohibition which sought to declare the nullity of the aforementioned orders and to prohibit the RTC-Makati from conducting further proceedings in the criminal cases. In denying the petition,[13] the Court of Appeals, in CA G.R. SP No. 28912, ruled: "X X X Civil Case No. 90-60600 pending before the Manila Regional Trial Court seeking(sic) the declaration of nullity of the trust receipts in question is not a prejudicial question to Criminal Case Nos. 92-0934 to 37 pending before the respondent court charging the petitioner with four counts of violation of Article 315, par. 1(b), RPC, in relation to PD 115 as to warrant the suspension of the proceedings in the latter X X X." Sc Consequently, petitioner filed a motion for reconsideration of the decision which the appellate court denied for lack of merit, via a resolution[14] dated 28 June 1993. Notwithstanding the decision rendered by the Court of Appeals, the RTC-Manila, Branch 53 in an order dated 19 November 1993 in Civil Case No. 9260600, admitted petitioners amended complaint[15] which, inter alia, prayed the court for a judgment: "X X X "1. Declaring the Trust Receipts, annexes D, F, H and J hereof, null and void, or otherwise annulling the same, for failure to express the true intent and agreement of the parties; "2. Declaring the transaction subject hereof as one of pure and simple loan without any trust receipt agreement and/or not one involving a trust receipt, and accordingly declaring all the documents annexed hereto as mere loan documents XXX"(emphasis ours) In its amended answer,[16] herein private respondent Allied Banking Corporation submitted in riposte that the transaction applied for was a "letter of credit/trust receipt accommodation" and not a "pure and simple loan with the trust receipts as mere additional or side documents", as asserted by herein petitioner in its amended complaint.[17] Through the expediency of Rule 45, petitioner seeks the intervention of this Court and prays: "After due consideration, to render judgment reversing the decision and resolution, Annexes A and B hereof, respectively, and ordering the suspension of Criminal Cases (sic) Nos. 92-0934 to 92-0937, inclusive, entitled "People of the Philippines vs. Alfredo Ching" pending before Branch 58 of the Regional Trial Court of Makati, Metro Manila, until final determination of Civil Case No. 92-600 entitled Philippine Blooming Mills Co. Inc. and Alfredo Ching vs. Allied Banking Corporation" pending before Branch 53 of the Regional Trial Court of Manila." The instant petition is bereft of merit. We agree with the findings of the trial court, as affirmed by the Court of Appeals, that no prejudicial question exists in the present case. Scmis As defined, a prejudicial question is one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal.[18] It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.[19] It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case.[20] More simply, for the court to appreciate the pendency of a prejudicial question, the law,[21] in no uncertain terms, requires the concurrence of two essential requisites, to wit: a) The civil action involves an issue similar or intimately related to the issue raised in the criminal action; and b) The resolution of such issue determines whether or not the criminal action may proceed. Verily, under the prevailing circumstances, the alleged prejudicial question in the civil case for declaration of nullity of documents and for damages, does not juris et de jure determine the guilt or innocence of the accused in the criminal action for estafa. Assuming arguendo that the court hearing the civil aspect of the case adjudicates that the transaction entered into between the parties was not a trust receipt agreement, nonetheless the guilt of the accused could still be established and his culpability under penal laws determined by other evidence. To put it differently, even on the assumption that the documents are declared null, it does not ipso facto follow that such declaration of nullity shall exonerate the accused from criminal prosecution and liability. Accordingly, the prosecution may adduce evidence to prove the criminal liability of the accused for estafa, specifically under Article 315 1(b) of the Revised Penal Code which explicitly provides that said crime is committed: Missc "X X X (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property."

Applying the foregoing principles, the criminal liability of the accused for violation of Article 315 1(b) of the Revised Penal Code, may still be shown through the presentation of evidence to the effect that: (a) the accused received the subject goods in trust or under the obligation to sell the same and to remit the proceeds thereof to Allied Banking Corporation, or to return the goods, if not sold; (b) that accused Ching misappropriated or converted the goods and/or the proceeds of the sale; (c) that accused Ching performed such acts with abuse of confidence to the damage and prejudice of Allied Banking Corporation; and (d) that demand was made by the bank to herein petitioner. Presidential Decree 115, otherwise known as the "Trust Receipts Law", specifically Section 13 thereof, provides: "The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three hundred fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and fifteen, as amended, otherwise known as the Revised Penal Code." We must stress though, that an act violative of a trust receipt agreement is only one mode of committing estafa under the abovementioned provision of the Revised Penal Code. Stated differently, a violation of a trust receipt arrangement is not the sole basis for incurring liability under Article 315 1(b) of the Code. In Jimenez vs. Averia,[22] where the accused was likewise charged with estafa, this Court had occasion to rule that a civil case contesting the validity of a certain receipt is not a prejudicial question that would warrant the suspension of criminal proceedings for estafa. In the abovementioned case, a criminal charge for estafa was filed in the Court of First Instance of Cavite against the two accused. The information alleged that the accused, having received the amount of P20,000.00 from Manuel Jimenez for the purchase of a fishing boat, with the obligation on the part of the former to return the money in case the boat was not purchased, misappropriated the said amount to the damage and prejudice of Jimenez.[23] Misspped Before arraignment, the accused filed a civil case contesting the validity of a certain receipt signed by them. In the receipt, the accused acknowledged having received the aforesaid sum, in addition to the amount of P240.00 as agents commission. The complaint, however, allege d that the accused never received any amount from Jimenez and that the signatures on the questioned receipt were secured by means of fraud, deceit and intimidation. In ruling out the existence of prejudicial question, we declared: "X X X It will be readily seen that the alleged prejudicial question is not determinative of the guilt or innocence of the parties charged with estafa, because even on the assumption that the execution of the receipt whose annulment they sought in the civil case was vitiated by fraud, duress or intimidation, their guilt could still be established by other evidence showing, to the degree required by law, that they had actually received from the complainant the sum of P20,000.00 with which to buy for him a fishing boat, and that, instead of doing so, they misappropriated the money and refused or otherwise failed to return it to him upon demand. X X X "Spped Furthermore, petitioner submits that the truth or falsity of the parties respective claims as regards the true nature of the transactions and of the documents, shall have to be first determined by the Regional Trial Court of Manila, which is the court hearing the civil case. While this may be true, it is no less true that the Supreme Court may, on certain exceptional instances, resolve the merits of a case on the basis of the records and other evidence before it, most especially when the resolution of these issues would best serve the ends of justice and promote the speedy disposition of cases. Thus, considering the peculiar circumstances attendant in the instant case, this Court sees the cogency to exercise its plenary power: "It is a rule of procedure for the Supreme Court to strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if a case or the determination of an issue in a case is remanded to the trial court only to have its decision raised again to the Court of Appeals and from there to the Supreme Court (citing Board of Commissioners vs. Judge Joselito de la Rosa and Judge Capulong, G.R. Nos. 95122-23). "We have laid down the rule that the remand of the case or of an issue to the lower court for further reception of evidence is not necessary where the Court is in position to resolve the dispute based on the records before it and particularly where the ends of justice would not be subserved by the remand thereof (Escudero vs. Dulay, 158 SCRA 69). Moreover, the Supreme Court is clothed with ample authority to review matters, even those not raised on appeal if it finds that their consideration is necessary in arriving at a just disposition of the case."[24] On many occasions, the Court, in the public interest and for the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case.[25] Inexorably, the records would show that petitioner signed and executed an application and agreement for a commercial letter of credit to finance the purchase of imported goods. Likewise, it is undisputed that petitioner signed and executed trust receipt documents in favor of private respondent Allied Banking Corporation. Josp-ped In its amended complaint, however, which notably was filed only after the Court of Appeals rendered its assailed decision, petitioner urges that the transaction entered into between the parties was one of "pure loan without any trust receipt agreement". According to petitioner, the trust receipt documents were intended merely as "additional or side documents cov ering the said loan" contrary to petitioners allegation in his original complaint that the trust receipts were executed as collateral or security. We do not agree. As Mr. Justice Story succinctly puts it: "Naked statements must be entitled to little weight when the parties hold better evidence behind the scenes."[26] Hence, with affirmance, we quote the findings of the Court of Appeals: "The concept in which petitioner signed the trust receipts, that is whether he signed the trust receipts as such trust receipts or as a mere evidence of a pure and simple loan transaction is not decisive because precisely, a trust receipt is a security agreement of an indebtedness." Contrary to petitioners assertions and in view of jurisprudence established in this juri sdiction, a trust receipt is not merely an additional or side document to a principal contract, which in the instant case is alleged by petitioner to be a pure and simple loan. As elucidated in Samo vs. People,[27] a trust receipt is considered a security transaction intended to aid in financing importers and retail dealers who do not have sufficient funds or resources to finance the importation or purchase of merchandise, and who may not be able to acquire credit except through utilization, as collateral, of the merchandise imported or purchased.

Further, a trust receipt is a document in which is expressed a security transaction whereunder the lender, having no prior title in the goods on which the lien is to be given and not having possession which remains in the borrower, lends his money to the borrower on security of the goods which the borrower is privileged to sell clear of the lien with an agreement to pay all or part of the proceeds of the sale to the lender.[28] It is a security agreement pursuant to which a bank acquires a "security interest" in the goods. It secures an indebtedness and there can be no such thing as security interest that secures no obligation.[29] Clearly, a trust receipt partakes the nature of a security transaction. It could never be a mere additional or side document as alleged by petitioner. Otherwise, a party to a trust receipt agreement could easily renege on its obligations thereunder, thus undermining the importance and defeating with impunity the purpose of such an indispensable tool in commercial transactions. Spp-edjo Of equal importance is the fact that in his complaint in Civil Case No. 92-60600, dated 05 March 1992, petitioner alleged that the trust receipts were executed and intended as collateral or security. Pursuant to the rules, such particular allegation in the complaint is tantamount to a judicial admission on the part of petitioner Ching to which he must be bound. Thus, the Court of Appeals in its resolution dated 28 June 1993, correctly observed: "It was petitioner himself who acknowledged the trust receipts as mere collateral and security for the payment of the loan but kept on insisting that the real and true transaction was one of pure loan. X X X" "In his present motion, the petitioner alleges that the trust receipts are evidence of a pure loan or that the same were additional or side documents that actually stood as promissory notes and not a collateral or security agreement. He cannot assume a position inconsistent with his previous allegations in his civil complaint that the trust receipts were intended as mere collateral or security X X X." Perhaps, realizing such flaw, petitioner, in a complete turn around, filed a motion to admit amended complaint before the RTC-Manila. Among others, the amended complaint alleged that the trust receipts stood as additional or side documents, the real transaction between the parties being that of a pure loan without any trust receipt agreement. In an order dated 19 November 1993, the RTC-Manila, Branch 53, admitted the amended complaint. Accordingly, with the lower courts admission of the amended complaint, the judicial admission made in the original complaint was, in effect, superseded. Mi-so Under the Rules, pleadings superseded or amended disappear from the record, lose their status as pleadings and cease to be judicial admissions. While they may nonetheless be utilized against the pleader as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. If not offered in evidence, the admission contained therein will not be considered.[30] Consequently, the original complaint, having been amended, 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.[31] 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.[32] Thus, in the instant case, the original complaint is deemed superseded by the amended complaint. Corollarily, the judicial admissions in the original complaint are considered abandoned. Nonetheless, we must stress that the actuations of petitioner, as sanctioned by the RTC-Manila, Branch 53 through its order admitting the amended complaint, demands stern rebuke from this Court. Certainly, this Court is not unwary of the tactics employed by the petitioner specifically in filing the amended complaint only after the promulgation of the assailed decision of the Court of Appeals. It bears noting that a lapse of almost eighteen months (from March 1992 to September 1993), from the filing of the original complaint to the filing of the amended complaint, is too lengthy a time sufficient to enkindle suspicion and enflame doubts as to the true intentions of petitioner regarding the early disposition of the pending cases. Ne-xold Although the granting of leave to file amended pleadings is a matter peculiarly within the sound discretion of the trial court and such discretion would not normally be disturbed on appeal, it is also well to mention that this rule is relaxed when evident abuse thereof is apparent.[33] Hence, in certain instances we ruled that amendments are not proper and should be denied when delay would arise,[34] or when the amendments would result in a change of cause of action or defense or change the theory of the case,[35] or would be inconsistent with the allegations in the original complaint.[36] Applying the foregoing rules, petitioner, by filing the amended complaint, in effect, altered the theory of his case. Likewise, the allegations embodied in the amended complaint are inconsistent with that of the original complaint inasmuch as in the latter, petitioner alleged that the trust receipts were intended as mere collateral or security, the principal transaction being one of pure loan. Yet, in the amended complaint, petitioner argued that the said trust receipts were executed as additional or side documents, the transaction being strictly one of pure loan without any trust receipt arrangement. Obviously these allegations are in discord in relation to each other and therefore cannot stand in harmony. These circumstances, taken as a whole, lead this Court to doubt the genuine purpose of petitioner in filing the amended complaint. Again, we view petitioners actuations with abhorrence and displeasure. Man-ikx Moreover, petitioner contends that the transaction between Philippine Blooming Mills (PBM) and private respondent Allied Banking Corporation does not fall under the category of a trust receipt arrangement claiming that the goods were not to be sold but were to be used, consumed and destroyed by the importer PBM. To our mind, petitioners contention is a stealthy attempt to circumvent the principle enunciated in the case of Allied Banki ng Corporation vs. Ordonez,[37] thus: "X X X In an attempt to escape criminal liability, private respondent claims P.D. 115 covers goods which are ultimately destined for sale and not goods for use in manufacture. But the wording of Section 13 covers failure to turn over the proceeds of the sale of the entrusted goods, or to return said goods if unsold or disposed of in accordance with the terms of the trust receipts. Private respondent claims that at the time of PBMs application for the issuance of the LCs, it was not represented to the petitioner that the items were intended for sale, hence, there wa s no deceit resulting in a violation of the trust receipts which would constitute a criminal liability. Again we cannot uphold this contention. The non-payment of the amount covered by a trust receipt is an act violative of the entrustees obligation to pay. There is no reason why the law should not apply to all transactions covered by trust receipts, except those expressly excluded (68 Am. Jur. 125). "The Court takes judicial notice of customary banking and business practices where trust receipts are used for importation of heavy equipment, machineries and supplies used in manufacturing operations. We are perplexed by the statements in the assailed DOJ resolution that the goods

subject of the instant case are outside the ambit of the provisions of PD 115 albeit covered by trust receipt agreements ( 17 February 1988 resolution) and that not all transactions covered by trust receipts may be considered as trust receipt transactions defined and penalized under P.D. 115 (11 January 1988 resolution). A construction should be avoided when it affords an opportunity to defeat compliance with the terms of a statute. Manik-s xxx......xxx......xxx "The penal provision of P.D. 115 encompasses any act violative of an obligation covered by the trust receipt; it is not limited to transactions in goods which are to be sold (retailed), reshipped, stored or processed as a component of a product ultimately sold." An examination of P.D. 115 shows the growing importance of trust receipts in Philippine business, the need to provide for the rights and obligations of parties to a trust receipt transaction, the study of the problems involved and the action by monetary authorities, and the necessity of regulating the enforcement of rights arising from default or violations of trust receipt agreements. The legislative intent to meet a pressing need is clearly expressed.[38] In fine, we reiterate that the civil action for declaration of nullity of documents and for damages does not constitute a prejudicial question to the criminal cases for estafa filed against petitioner Ching. WHEREFORE, premises considered, the assailed decision and resolution of the Court of Appeals are hereby AFFIRMED and the instant petition is DISMISSED for lack of merit. Accordingly, the Regional Trial Court of Makati, Branch 58, is hereby directed to proceed with the hearing and trial on the merits of Criminal Case Nos. 92-0934 to 92-0937, inclusive, and to expedite proceedings therein, without prejudice to the right of the accused to due process. SO ORDERED. NOBIO SARDANE, petitioner, vs. THE COURT OF APPEALS and ROMEO J. ACOJEDO, respondents. Y.G. Villaruz & Associates for petitioner. Pelagio R. Lachica for private respondent. REGALADO, J.: The extensive discussion and exhaustive disquisition in the decision 1 of the respondent Court 2 should have written finis to this case without further recourse to Us. The assignment of errors and arguments raised in the respondent Court by herein private respondent, as the petitioner therein, having been correctly and justifiedly sustained by said court without any reversible error in its conclusions, the present petition must fail. The assailed decision details the facts and proceedings which spawned the present controversy as follows: Petitioner brought an action in the City Court of Dipolog for collection of a sum of P5,217.25 based on promissory notes executed by the herein private respondent Nobio Sardane in favor of the herein petitioner. Petitioner bases his right to collect on Exhibits B, C, D, E, F, and G executed on different dates and signed by private respondent Nobio Sardane. Exhibit B is a printed promissory note involving Pl,117.25 and dated May 13, 1972. Exhibit C is likewise a printed promissory note and denotes on its face that the sum loaned was Pl,400.00. Exhibit D is also a printed promissory note dated May 31, 1977 involving an amount of P100.00. Exhibit E is what is commonly known to the layman as 'vale' which reads: 'Good for: two hundred pesos (Sgd) Nobio Sardane'. Exhibit F is stated in the following tenor: 'Received from Mr. Romeo Acojedo the sum Pesos: Two Thousand Two Hundred (P2,200.00) ONLY, to be paid on or before December 25, 1975. (Sgd) Nobio Sardane.' Exhibit G and H are both vales' involving the same amount of one hundred pesos, and dated August 25, 1972 and September 12, 1972 respectively. It has been established in the trial court that on many occasions, the petitioner demanded the payment of the total amount of P5,217.25. The failure of the private respondent to pay the said amount prompted the petitioner to seek the services of lawyer who made a letter (Exhibit 1) formally demanding the return of the sum loaned. Because of the failure of the private respondent to heed the demands extrajudicially made by the petitioner, the latter was constrained to bring an action for collection of sum of money. During the scheduled day for trial, private respondent failed to appear and to file an answer. On motion by the petitioner, the City Court of Dipolog issued an order dated May 18, 1976 declaring the private respondent in default and allowed the petitioner to present his evidence ex-parte. Based on petitioner's evidence, the City Court of Dipolog rendered judgment by default in favor of the petitioner. Private respondent filed a motion to lift the order of default which was granted by the City Court in an order dated May 24, 1976, taking into consideration that the answer was filed within two hours after the hearing of the evidence presented ex-parte by the petitioner. After the trial on the merits, the City Court of Dipolog rendered its decision on September 14, 1976, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is hereby rendered in favor of the plaintiff and against the defendant as follows: (a) Ordering the defendant to pay unto the plaintiff the sum of Five Thousand Two Hundred Seventeen Pesos and Twenty-five centavos (P5,217.25) plus legal interest to commence from April 23, 1976 when this case was filed in court; and (b) Ordering the defendant to pay the plaintiff the sum of P200.00 as attorney's fee and to pay the cost of this proceeding. 3 Therein defendant Sardane appealed to the Court of First Instance of Zamboanga del Norte which reversed the decision of the lower court by dismissing the complaint and ordered the plaintiff-appellee Acojedo to pay said defendant-appellant P500.00 each for actual damages, moral damages, exemplary damages and attorney's fees, as well as the costs of suit. Plaintiff-appellee then sought the review of said decision by petition to the respondent Court. The assignment of errors in said petition for review can be capsulized into two decisive issues, firstly, whether the oral testimony for the therein private respondent Sardane that a partnership existed between him and therein petitioner Acojedo are admissible to vary the meaning of the abovementioned promissory notes; and, secondly, whether because of the failure of therein petitioner to cross-examine therein private respondent on his sur-rebuttal testimony, there was a waiver of the presumption accorded in favor of said petitioner by Section 8, Rule 8 of the Rules of Court. On the first issue, the then Court of First Instance held that "the pleadings of the parties herein put in issue the imperfection or ambiguity of the documents in question", hence "the appellant can avail of the parol evidence rule to prove his side of the case, that is, the said amount taken by him from appellee is or was not his personal debt to appellee, but expenses of the partnership between him and appellee." Consequently, said trial court concluded that the promissory notes involved were merely receipts for the contributions to said partnership and, therefore, upheld the claim that there was ambiguity in the promissory notes, hence parol evidence was allowable to vary or contradict the terms of the represented loan contract. The parol evidence rule in Rule 130 provides: 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) Where a mistake or imperfection of the writing or its failure to express the 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. As correctly pointed out by the respondent Court the exceptions to the rule do not apply in this case as there is no ambiguity in the writings in question, thus: In the case at bar, Exhibits B, C, and D are printed promissory notes containing a promise to pay a sum certain in money, payable on demand and the promise to bear the costs of litigation in the event of the private respondent's failure to pay the amount loaned when demanded extrajudicially. Likewise, the vales denote that the private respondent is obliged to return the sum loaned to him by the petitioner. On their face, nothing appears to be vague or ambigous, for the terms of the promissory notes clearly show that it was incumbent upon the private respondent to pay the amount

involved in the promissory notes if and when the petitioner demands the same. It was clearly the intent of the parties to enter into a contract of loan for how could an educated man like the private respondent be deceived to sign a promissory note yet intending to make such a writing to be mere receipts of the petitioner's supposed contribution to the alleged partnership existing between the parties? It has been established in the trial court that, the private respondent has been engaged in business for quite a long period of time--as owner of the Sardane Trucking Service, entering into contracts with the government for the construction of wharfs and seawall; and a member of the City Council of Dapitan (TSN, July 20, 1976, pp. 57-58).<re||an1w> It indeed puzzles us how the private respondent could have been misled into signing a document containing terms which he did not mean them to be. ... xxx xxx xxx The private respondent admitted during the cross-examination made by petitioner's counsel that he was the one who was responsible for the printing of Exhibits B, C, and D (TSN, July 28, 1976, p. 64). How could he purportedly rely on such a flimsy pretext that the promissory notes were receipts of the petitioner's contribution? 4 The Court of Appeals held, and We agree, that even if evidence aliunde other than the promissory notes may be admitted to alter the meaning conveyed thereby, still the evidence is insufficient to prove that a partnership existed between the private parties hereto. As manager of the basnig Sarcado naturally some degree of control over the operations and maintenance thereof had to be exercised by herein petitioner. The fact that he had received 50% of the net profits does not conclusively establish that he was a partner of the private respondent herein. Article 1769(4) of the Civil Code is explicit that while the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, no such inference shall be drawn if such profits were received in payment as wages of an employee. Furthermore, herein petitioner had no voice in the management of the affairs of the basnig. Under similar facts, this Court in the early case of Fortis vs. Gutierrez Hermanos, 5 in denying the claim of the plaintiff therein that he was a partner in the business of the defendant, declared: This contention cannot be sustained. It was a mere contract of employment. The plaintiff had no voice nor vote in the management of the affairs of the company. The fact that the compensation received by him was to be determined with reference to the profits made by the defendant in their business did not in any sense make him a partner therein. ... The same rule was reiterated in Bastida vs. Menzi & Co., Inc., et al. 6 which involved the same factual and legal milieu. There are other considerations noted by respondent Court which negate herein petitioner's pretension that he was a partner and not a mere employee indebted to the present private respondent. Thus, in an action for damages filed by herein private respondent against the North Zamboanga Timber Co., Inc. arising from the operations of the business, herein petitioner did not ask to be joined as a party plaintiff. Also, although he contends that herein private respondent is the treasurer of the alleged partnership, yet it is the latter who is demanding an accounting. The advertence of the Court of First Instance to the fact that the casco bears the name of herein petitioner disregards the finding of the respondent Court that it was just a concession since it was he who obtained the engine used in the Sardaco from the Department of Local Government and Community Development. Further, the use by the parties of the pronoun "our" in referring to "our basnig, our catch", "our deposit", or "our boseros" was merely indicative of the camaraderie and not evidentiary of a partnership, between them. The foregoing factual findings, which belie the further claim that the aforesaid promissory notes do not express the true intent and agreement of the parties, are binding on Us since there is no showing that they fall within the exceptions to the rule limiting the scope of appellate review herein to questions of law. On the second issue, the pertinent rule on actionable documents in Rule 8, for ready reference, reads: Sec. 8. How to contest genuineness of such documents.When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but this provision does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for the inspection of the original instrument is refused. The record shows that herein petitioner did not deny under oath in his answer the authenticity and due execution of the promissory notes which had been duly pleaded and attached to the complaint, thereby admitting their genuineness and due execution. Even in the trial court, he did not at all question the fact that he signed said promissory notes and that the same were genuine. Instead, he presented parol evidence to vary the import of the promissory notes by alleging that they were mere receipts of his contribution to the alleged partnership. His arguments on this score reflect a misapprehension of the rule on parol evidence as distinguished from the rule on actionable documents. As the respondent Court correctly explained to herein petitioner, what he presented in the trial Court was testimonial evidence that the promissory notes were receipts of his supposed contributions to the alleged partnership which testimony, in the light of Section 7, Rule 130, could not be admitted to vary or alter the explicit meaning conveyed by said promissory notes. On the other hand, the presumed genuineness and due execution of said promissory notes were not affected, pursuant to the provisions of Section 8, Rule 8, since such aspects were not at all questioned but, on the contrary, were admitted by herein petitioner. Petitioner's invocation of the doctrines in Yu Chuck, et al. vs. Kong Li Po, 7 which was reiterated in Central Surety & Insurance Co. vs. C. N. Hodges, et al. 8 does not sustain his thesis that the herein private respondent had "waived the mantle of protection given him by Rule 8, Sec. 8". It is true that such implied admission of genuineness and due execution may be waived by a party but only if he acts in a manner indicative of either an express or tacit waiver thereof. Petitioner, however, either overlooked or ignored the fact that, as held in Yu Chuck, and the same is true in other cases of Identical factual settings, such a finding of waiver is proper where a case has been tried in complete disregard of the rule and the plaintiff having pleaded a document by copy, presents oral evidence to prove the due execution of the document and no objections are made to the defendant's evidence in refutation. This situation does not obtain in the present case hence said doctrine is obviously inapplicable. Neither did the failure of herein private respondent to cross-examine herein petitioner on the latter's sur-rebuttal testimony constitute a waiver of the aforesaid implied admission. As found by the respondent Court, said sur-rebuttal testimony consisted solely of the denial of the testimony of herein private respondent and no new or additional matter was introduced in that sur-rebuttal testimony to exonerate herein petitioner from his obligations under the aforesaid promissory notes. On the foregoing premises and considerations, the respondent Court correctly reversed and set aside the appealed decision of the Court of First Instance of Zamboanga del Norte and affirmed in full the decision of the City Court of Dipolog City in Civil Case No. A-1838, dated September 14, 1976. Belatedly, in his motion for reconsideration of said decision of the respondent Court, herein petitioner, as the private respondent therein, raised a third unresolved issue that the petition for review therein should have been dismissed for lack of jurisdiction since the lower Court's decision did not affirm in full the judgment of the City Court of Dipolog, and which he claimed was a sine qua non for such a petition under the law then in force. He raises the same point in his present appeal and We will waive the procedural technicalities in order to put this issue at rest. Parenthetically, in that same motion for reconsideration he had sought affirmative relief from the respondent Court praying that it sustain the decision of the trial Court, thereby invoking and submitting to its jurisdiction which he would now assail. Furthermore, the objection that he raises is actually not one of jurisdiction but of procedure. 9 At any rate, it will be noted that petitioner anchors his said objection on the provisions of Section 29, Republic Act 296 as amended by Republic Act 5433 effective September 9, 1968. Subsequently, the procedure for appeal to the Court of Appeals from decisions of the then courts of first instance in the exercise of their appellate jurisdiction over cases originating from the municipal courts was provided for by Republic Act 6031, amending Section 45 of the Judiciary Act effective August 4, 1969. The requirement for affirmance in full of the inferior court's decision was not adopted or reproduced in Republic Act 6031. Also, since Republic Act 6031 failed to provide for the procedure or mode of appeal in the cases therein contemplated, the Court of Appeals en banc provided thereof in its Resolution of August 12, 1971, by requiring a petition for review but which also did not require for its availability that the judgment of the court of first instance had affirmed in full that of the lower court. Said mode of appeal and the procedural requirements thereof governed the appeal taken in this case from the aforesaid Court of First Instance to the Court of Appeals in 1977. 10 Herein petitioner's plaint on this issue is, therefore, devoid of merit. WHEREFORE, the judgment of the respondent Court of Appeals is AFFIRMED, with costs against herein petitioner. SO ORDERED