[G.R. No. 119602. October 6, 2000] WILDVALLEY SHIPPING CO., LTD. petitioner, vs.

COURT OF APPEALS and PHILIPPINE PRESIDENT LINES INC., respondents. DECISION BUENA, J.: This is a petition for review on certiorari seeking to set aside the decision of the Court of Appeals which reversed the decision of the lower court in CA-G.R. CV No. 36821, entitled "Wildvalley Shipping Co., Ltd., plaintiffappellant, versus Philippine President Lines, Inc., defendant-appellant." The antecedent facts of the case are as follows: Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine President Lines, Inc., private respondent herein, arrived in Puerto Ordaz, Venezuela, to load iron ore. Upon the completion of the loading and when the vessel was ready to leave port, Mr. Ezzar del Valle Solarzano Vasquez, an official pilot of Venezuela, was designated by the harbour authorities in Puerto Ordaz to navigate the Philippine Roxas through the Orinoco River.[1] He was asked to pilot the said vessel on February 11, 1988[2] boarding it that night at 11:00 p.m.[3] The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the bridge together with the pilot (Vasquez), the vessel's third mate (then the officer on watch), and a helmsman when the vessel left the port[4] at 1:40 a.m. on February 12, 1988.[5] Captain Colon left the bridge when the vessel was under way.[6] The Philippine Roxas experienced some vibrations when it entered the San Roque Channel at mile 172.[7] The vessel proceeded on its way, with the pilot assuring the watch officer that the vibration was a result of the shallowness of the channel.[8] Between mile 158 and 157, the vessel again experienced some vibrations.[9] These occurred at 4:12 a.m.[10] It was then that the watch officer called the master to the bridge.[11] The master (captain) checked the position of the vessel[12] and verified that it was in the centre of the channel.[13] He then went to confirm, or set down, the position of the vessel on the chart. [14] He ordered Simplicio A. Monis, Chief Officer of the President Roxas, to check all the double bottom tanks.[15] At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,[16] thus obstructing the ingress and egress of vessels. As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner Wildvalley Shipping Company, Ltd., was unable to sail out of Puerto Ordaz on that day. Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial Court of Manila, Branch III against Philippine President Lines, Inc. and Pioneer Insurance Company (the underwriter/insurer of Philippine Roxas) for damages in the form of unearned profits, and interest thereon amounting to US $400,000.00 plus attorney's fees, costs, and expenses of litigation. The complaint against Pioneer Insurance Company was dismissed in an Order dated November 7, 1988.[17] At the pre-trial conference, the parties agreed on the following facts: "1. The jurisdictional facts, as specified in their respective pleadings; "2. That defendant PPL was the owner of the vessel Philippine Roxas at the time of the incident; "3. That defendant Pioneer Insurance was the insurance underwriter for defendant PPL;

"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel Malandrinon, whose passage was obstructed by the vessel Philippine Roxas at Puerto Ordaz, Venezuela, as specified in par. 4, page 2 of the complaint; "5. That on February 12, 1988, while the Philippine Roxas was navigating the channel at Puerto Ordaz, the said vessel grounded and as a result, obstructed navigation at the channel; "6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel; "7. That at the time of the incident, the vessel, Philippine Roxas, was under the command of the pilot Ezzar Solarzano, assigned by the government thereat, but plaintiff claims that it is under the command of the master; "8. The plaintiff filed a case in Middleburg, Holland which is related to the present case; "9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by the defendant PPL; "10. The Orinoco River is 150 miles long and it takes approximately 12 hours to navigate out of the said river; "11. That no security for the plaintiff's claim was given until after the Philippine Collier was arrested; and "12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship Mutual Underwriters Ltd."[18] The trial court rendered its decision on October 16, 1991 in favor of the petitioner, Wildvalley Shipping Co., Ltd. The dispositive portion thereof reads as follows: "WHEREFORE, judgment is rendered for the plaintiff, ordering defendant Philippine President Lines, Inc. to pay to the plaintiff the sum of U.S. $259,243.43, as actual and compensatory damages, and U.S. $162,031.53, as expenses incurred abroad for its foreign lawyers, plus additional sum of U.S. $22,000.00, as and for attorney's fees of plaintiff's local lawyer, and to pay the cost of this suit. "Defendant's counterclaim is dismissed for lack of merit. "SO ORDERED."[19] Both parties appealed: the petitioner appealing the non-award of interest with the private respondent questioning the decision on the merits of the case. After the requisite pleadings had been filed, the Court of Appeals came out with its questioned decision dated June 14, 1994,[20] the dispositive portion of which reads as follows: "WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is hereby rendered reversing the Decision of the lower court. Plaintiff-appellant's Complaint is dismissed and it is ordered to pay defendant-appellant the amount of Three Hundred Twenty-three Thousand, Forty-two Pesos and Fifty-three Centavos (P323,042.53) as and for attorney's fees plus cost of suit. Plaintiff-appellant's appeal is DISMISSED. "SO ORDERED."[21] Petitioner filed a motion for reconsideration[22] but the same was denied for lack of merit in the resolution dated March 29, 1995.[23]

Hence, this petition. The petitioner assigns the following errors to the court a quo: 1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT UNDER PHILIPPINE LAW NO FAULT OR NEGLIGENCE CAN BE ATTRIBUTED TO THE MASTER NOR THE OWNER OF THE "PHILIPPINE ROXAS" FOR THE GROUNDING OF SAID VESSEL RESULTING IN THE BLOCKAGE OF THE RIO ORINOCO; 2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE FINDINGS OF FACTS OF THE TRIAL COURT CONTRARY TO EVIDENCE; 3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE "PHILIPPINE ROXAS" IS SEAWORTHY; 4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING VENEZUELAN LAW DESPITE THE FACT THAT THE SAME HAS BEEN SUBSTANTIALLY PROVED IN THE TRIAL COURT WITHOUT ANY OBJECTION FROM PRIVATE RESPONDENT, AND WHOSE OBJECTION WAS INTERPOSED BELATEDLY ON APPEAL; 5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AWARDING ATTORNEY'S FEES AND COSTS TO PRIVATE RESPONDENT WITHOUT ANY FAIR OR REASONABLE BASIS WHATSOEVER; 6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT PETITIONER'S CAUSE IS MERITORIOUS HENCE, PETITIONER SHOULD BE ENTITLED TO ATTORNEY'S FEES, COSTS AND INTEREST. The petition is without merit. The primary issue to be determined is whether or not Venezuelan law is applicable to the case at bar. It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.[24] A distinction is to be made as to the manner of proving a written and an unwritten law. The former falls under Section 24, Rule 132 of the Rules of Court, as amended, the entire provision of which is quoted hereunder. Where the foreign law sought to be proved is "unwritten," the oral testimony of expert witnesses is admissible, as are printed and published books of reports of decisions of the courts of the country concerned if proved to be commonly admitted in such courts.[25] Section 24 of Rule 132 of the Rules of Court, as amended, provides: "Sec. 24. Proof of official record. -- The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office." (Underscoring supplied) The court has interpreted Section 25 (now Section 24) to include competent evidence like the testimony of a witness to prove the existence of a written foreign law.[26] In the noted case of Willamette Iron & Steel Works vs. Muzzal,[27] it was held that: " Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the year 1918 under oath, quoted verbatim section 322 of the California Civil Code and stated that said section was in force at the time the

obligations of defendant to the plaintiff were incurred, i.e. on November 5, 1928 and December 22, 1928. This evidence sufficiently established the fact that the section in question was the law of the State of California on the above dates. A reading of sections 300 and 301 of our Code of Civil Procedure will convince one that these sections do not exclude the presentation of other competent evidence to prove the existence of a foreign law. "`The foreign law is a matter of fact You ask the witness what the law is; he may, from his recollection, or on producing and referring to books, say what it is.' (Lord Campbell concurring in an opinion of Lord Chief Justice Denman in a well-known English case where a witness was called upon to prove the Roman laws of marriage and was permitted to testify, though he referred to a book containing the decrees of the Council of Trent as controlling, Jones on Evidence, Second Edition, Volume 4, pages 3148-3152.) x x x. We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant Harbor Master and Chief of Pilots at Puerto Ordaz, Venezuela,[28] to testify on the existence of the Reglamento General de la Ley de Pilotaje (pilotage law of Venezuela)[29] and the Reglamento Para la Zona de Pilotaje No 1 del Orinoco (rules governing the navigation of the Orinoco River). Captain Monzon has held the aforementioned posts for eight years.[30] As such he is in charge of designating the pilots for maneuvering and navigating the Orinoco River. He is also in charge of the documents that come into the office of the harbour masters.[31] Nevertheless, we take note that these written laws were not proven in the manner provided by Section 24 of Rule 132 of the Rules of Court. The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial[32]of the Republic of Venezuela. A photocopy of the Gaceta Oficial was presented in evidence as an official publication of the Republic of Venezuela. The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published in a book issued by the Ministerio de Comunicaciones of Venezuela.[33] Only a photocopy of the said rules was likewise presented as evidence. Both of these documents are considered in Philippine jurisprudence to be public documents for they are the written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers of Venezuela.[34] For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1) It must be attested by the officer having legal custody of the records or by his deputy; and (2) It must be accompanied by a certificate by a secretary of the embassy or legation, consul general, consul, vice consular or consular agent or foreign service officer, and with the seal of his office.[35] The latter requirement is not a mere technicality but is intended to justify the giving of full faith and credit to the genuineness of a document in a foreign country.[36] It is not enough that the Gaceta Oficial, or a book published by the Ministerio de Comunicaciones of Venezuela, was presented as evidence with Captain Monzon attesting it. It is also required by Section 24 of Rule 132 of the Rules of Court that a certificate that Captain Monzon, who attested the documents, is the officer who had legal custody of those records made by a secretary of the embassy or legation, consul general, consul, vice consul or consular agent or by any officer in the foreign service of the Philippines stationed in Venezuela, and authenticated by the seal of his office accompanying the copy of the public document. No such certificate could be found in the records of the case. With respect to proof of written laws, parol proof is objectionable, for the written law itself is the best evidence. According to the weight of authority, when a foreign statute is involved, the best evidence rule requires that it be proved by a duly authenticated copy of the statute.[37] At this juncture, we have to point out that the Venezuelan law was not pleaded before the lower court. A foreign law is considered to be pleaded if there is an allegation in the pleading about the existence of the foreign law, its import and legal consequence on the event or transaction in issue.[38] A review of the Complaint[39] revealed that it was never alleged or invoked despite the fact that the grounding of the M/V Philippine Roxas occurred within the territorial jurisdiction of Venezuela.

We reiterate that under the rules of private international law, a foreign law must be properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of a foreign country, or state, will be presumed to be the same as our own local or domestic law and this is known as processual presumption.[40] Having cleared this point, we now proceed to a thorough study of the errors assigned by the petitioner. Petitioner alleges that there was negligence on the part of the private respondent that would warrant the award of damages. There being no contractual obligation, the private respondent is obliged to give only the diligence required of a good father of a family in accordance with the provisions of Article 1173 of the New Civil Code, thus: Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. The diligence of a good father of a family requires only that diligence which an ordinary prudent man would exercise with regard to his own property. This we have found private respondent to have exercised when the vessel sailed only after the "main engine, machineries, and other auxiliaries" were checked and found to be in good running condition;[41] when the master left a competent officer, the officer on watch on the bridge with a pilot who is experienced in navigating the Orinoco River; when the master ordered the inspection of the vessel's double bottom tanks when the vibrations occurred anew.[42] The Philippine rules on pilotage, embodied in Philippine Ports Authority Administrative Order No. 03-85, otherwise known as the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports enunciate the duties and responsibilities of a master of a vessel and its pilot, among other things. The pertinent provisions of the said administrative order governing these persons are quoted hereunder: Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory pilotage grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his negligence or fault. He can be absolved from liability if the accident is caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to prevent or minimize the damage. The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the order or command of the Harbor Pilot on board. In such event, any damage caused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shall be the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse against said Master. Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in appropriate proceedings in the light of the facts and circumstances of each particular case. x x x Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The duties and responsibilities of the Harbor Pilot shall be as follows: x x x

f) A pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out his order." The Code of Commerce likewise provides for the obligations expected of a captain of a vessel, to wit: Art. 612. The following obligations shall be inherent in the office of captain: x x x "7. To be on deck on reaching land and to take command on entering and leaving ports, canals, roadsteads, and rivers, unless there is a pilot on board discharging his duties. x x x. The law is very explicit. The master remains the overall commander of the vessel even when there is a pilot on board. He remains in control of the ship as he can still perform the duties conferred upon him by law[43] despite the presence of a pilot who is temporarily in charge of the vessel. It is not required of him to be on the bridge while the vessel is being navigated by a pilot. However, Section 8 of PPA Administrative Order No. 03-85, provides: Sec. 8. Compulsory Pilotage Service - For entering a harbor and anchoring thereat, or passing through rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. xxx. The Orinoco River being a compulsory pilotage channel necessitated the engaging of a pilot who was presumed to be knowledgeable of every shoal, bank, deep and shallow ends of the river. In his deposition, pilot Ezzar Solarzano Vasquez testified that he is an official pilot in the Harbour at Port Ordaz, Venezuela,[44] and that he had been a pilot for twelve (12) years.[45] He also had experience in navigating the waters of the Orinoco River.[46] The law does provide that the master can countermand or overrule the order or command of the harbor pilot on board. The master of the Philippine Roxas deemed it best not to order him (the pilot) to stop the vessel,[47] mayhap, because the latter had assured him that they were navigating normally before the grounding of the vessel.[48] Moreover, the pilot had admitted that on account of his experience he was very familiar with the configuration of the river as well as the course headings, and that he does not even refer to river charts when navigating the Orinoco River.[49] Based on these declarations, it comes as no surprise to us that the master chose not to regain control of the ship. Admitting his limited knowledge of the Orinoco River, Captain Colon relied on the knowledge and experience of pilot Vasquez to guide the vessel safely. Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different class from ordinary employees, for they assume to have a skill and a knowledge of navigation in the particular waters over which their licenses extend superior to that of the master; pilots are bound to use due diligence and reasonable care and skill. A pilot's ordinary skill is in proportion to the pilot's responsibilities, and implies a knowledge and observance of the usual rules of navigation, acquaintance with the waters piloted in their ordinary condition, and nautical skill in avoiding all known obstructions. The character of the skill and knowledge required of a pilot in charge of a vessel on the rivers of a country is very different from that which enables a navigator to carry a vessel safely in the ocean. On the ocean, a knowledge of the rules of navigation, with charts that disclose the places of hidden rocks, dangerous shores, or other dangers of the way, are the main elements of a pilot's knowledge and skill. But the pilot of a river vessel, like the harbor pilot, is selected for the individual's personal knowledge of the topography through which the vessel is steered."[50]

We find that the grounding of the vessel is attributable to the pilot. When the vibrations were first felt the watch officer asked him what was going on, and pilot Vasquez replied that "(they) were in the middle of the channel and that the vibration was as (sic) a result of the shallowness of the channel."[51] Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine Roxas as well as other vessels on the Orinoco River due to his knowledge of the same. In his experience as a pilot, he should have been aware of the portions which are shallow and which are not. His failure to determine the depth of the said river and his decision to plod on his set course, in all probability, caused damage to the vessel. Thus, we hold him as negligent and liable for its grounding. In the case of Homer Ramsdell Transportation Company vs. La Compagnie Generale Transatlantique, 182 U.S. 406, it was held that: x x x The master of a ship, and the owner also, is liable for any injury done by the negligence of the crew employed in the ship. The same doctrine will apply to the case of a pilot employed by the master or owner, by whose negligence any injury happens to a third person or his property: as, for example, by a collision with another ship, occasioned by his negligence. And it will make no difference in the case that the pilot, if any is employed, is required to be a licensed pilot; provided the master is at liberty to take a pilot, or not, at his pleasure, for in such a case the master acts voluntarily, although he is necessarily required to select from a particular class. On the other hand, if it is compulsive upon the master to take a pilot, and, a fortiori, if he is bound to do so under penalty, then, and in such case, neither he nor the owner will be liable for injuries occasioned by the negligence of the pilot; for in such a case the pilot cannot be deemed properly the servant of the master or the owner, but is forced upon them, and the maxim Qui facit per alium facit per se does not apply." (Underscoring supplied) Anent the river passage plan, we find that, while there was none,[52] the voyage has been sufficiently planned and monitored as shown by the following actions undertaken by the pilot, Ezzar Solarzano Vasquez, to wit:contacting the radio marina via VHF for information regarding the channel, river traffic,[53] soundings of the river, depth of the river, bulletin on the buoys.[54] The officer on watch also monitored the voyage.[55] vessel. We, therefore, do not find the absence of a river passage plan to be the cause for the grounding of the

"A Well, judging on this particular vessel, and also basing on the class record of the vessel, wherein recommendations were made on the top side tank, and it was given sufficient time to be repaired, it means that the vessel is fit to travel even with those defects on the ship. "COURT What do you mean by that? You explain. The vessel is fit to travel even with defects? Is that what you mean? Explain. "WITNESS "A Yes, your Honor. Because the class society which register (sic) is the third party looking into the condition of the vessel and as far as their record states, the vessel was class or maintained, and she is fit to travel during that voyage." x x x "ATTY. MISA Before we proceed to other matter, will you kindly tell us what is (sic) the 'class +100A1 Strengthened for Ore Cargoes', mean? "WITNESS "A Plus 100A1 means that the vessel was built according to Lloyd's rules and she is capable of carrying ore bulk cargoes, but she is particularly capable of carrying Ore Cargoes with No. 2 and No. 8 holds empty. x x x "COURT The vessel is classed, meaning? "A Meaning she is fit to travel, your Honor, or seaworthy."[58] It is not required that the vessel must be perfect. To be seaworthy, a ship must be reasonably fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy.[59] As further evidence that the vessel was seaworthy, we quote the deposition of pilot Vasquez: "Q Was there any instance when your orders or directions were not complied with because of the inability of the vessel to do so? "A No. "Q. Was the vessel able to respond to all your commands and orders? "A. The vessel was navigating normally.[60] Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an accident report wherein he stated that on February 11, 1988, he checked and prepared the main engine, machineries and all other auxiliaries and found them all to be in good running condition and ready for maneuvering. That same day the main engine, bridge and engine telegraph and steering gear motor were also tested.[61]Engineer Mata also prepared the fuel for consumption for maneuvering and checked the engine generators.[62] Finally, we find the award of attorneys fee justified. Article 2208 of the New Civil Code provides that:

The doctrine of res ipsa loquitur does not apply to the case at bar because the circumstances surrounding the injury do not clearly indicate negligence on the part of the private respondent. For the said doctrine to apply, the following conditions must be met: (1) the accident was of such character as to warrant an inference that it would not have happened except for defendant's negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.[56] As has already been held above, there was a temporary shift of control over the ship from the master of the vessel to the pilot on a compulsory pilotage channel. Thus, two of the requisites necessary for the doctrine to apply, i.e., negligence and control, to render the respondent liable, are absent. As to the claim that the ship was unseaworthy, we hold that it is not. The Lloyds Register of Shipping confirmed the vessels seaworthiness in a Confirmation of Class issued on February 16, 1988 by finding that "the above named ship (Philippine Roxas) maintained the class "+100A1 Strengthened for Ore Cargoes, Nos. 2 and 8 Holds may be empty (CC) and +LMC" from 31/12/87 up until the time of casualty on or about 12/2/88."[57] The same would not have been issued had not the vessel been built according to the standards set by Lloyd's. Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus: "Q Now, in your opinion, as a surveyor, did top side tank have any bearing at all to the seaworthiness of the vessel?

"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: x x x "(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. x x x Due to the unfounded filing of this case, the private respondent was unjustifiably forced to litigate, thus the award of attorneys fees was proper. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the decision of the Court of Appeals in CA G.R. CV No. 36821 is AFFIRMED. [G.R. No. 109773. March 30, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELBERTO BASE, accused-appellant. DECISION YNARES-SANTIAGO, J.: In the early morning of February 8, 1990, a group of men arrived at the residence of Julianito Luna y Tagle, Barangay Captain of Namunga, Rosario, Batangas. One of two men who introduced themselves as policemen allegedly looking for a certain Hernandez suddenly shot Julianito in the head with a .45 caliber pistol and immediately after, they sped away in an owner-type jeep. Slxsc Accused-appellant Elberto Base was among those identified on board the jeep and, together with Conrado Guno, Frederick Lazaro and Eduardo Patrocinio, were indicted for Murder with Direct Assault Upon a Person in Authority in a Second Amended Information[1] alleging that That on or about the 8th day of February 1990, at about 7:00 oclock in the morning, in Barangay Namunga, Municipality of Rosario, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, armed with a caliber .38 revolver and .45 caliber pistol, conspiring and confederating together, acting in common accord and mutually helping one another, with treachery and evident premeditation and by means of a motor vehicle which is a top down owner type jeep colored green with Plate No. UV-CFU-178, and without justifiable cause, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said .45 caliber pistol, suddenly and without warning, one Julianito Luna y Tagle known to them to be an elected Barangay Captain (Punong Barangay) of the said Municipality while in the performance of his official duties or on the occasion thereof, or in connection therewith, thereby inflicting upon the latter [a] gun shot wound, 1x1 cm., left temporal region, 2 cm. above the left ear, entry with contusion collar, inwards, upwards and backwards, with exit at right occipital region and with avulsion of brain, complete fracture of skull, which directly caused his death. Contrary to law. Upon arraignment, accused Elberto Base and Conrado Guno pleaded not guilty[2] to the crime charged. Frederick Lazaro and Eduardo Patrocinio have remained at large.

Trial thereafter ensued after which the court a quo rendered judgment, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, the Court finds accused Elberto Base guilty beyond reasonable doubt of Murder, and he is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the deceased 50,000.00 for the death of Julianito Luna; the total sum of P40,000.00 as actual damages; and the amount of P100,000.00, by way of moral damages. It appearing that accused Elberto Base is a detention prisoner, the preventive imprisonment he had undergone should be taken into consideration in the computation of his sentence. Sclaw And for failure on the part of the prosecution to prove the guilt of accused Conrado Guno beyond reasonable doubt of the charge against him in the Information, he is hereby ACQUITTED. SO ORDERED.[3] Dissatisfied, accused Elberto Base interposed this appeal alleging that I THE COURT ERRED IN CONVICTING ACCUSED-APPELLANT ELBERTO BASE OF THE CRIME OF MURDER ON THE BASIS OF HIS ALLEGED EXTRA-JUDICIAL CONFESSION DESPITE ITS INADMISSIBILITY. II THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF [THE] CRIME OF MURDER. The prosecutions version of the incident adopted the trial courts factual narration of what transpired thus: xxx around 7:00 oclock in the morning of February 8, 1990 three men arrived in the residence of Julianito Luna in Namunga, Rosario, Batangas. One was identified to be called Apple who knocked at the door and the person who accompanied his two other companions. After Apple left, Julianito Luna who was the Barangay Captain of the place together with his wife and son Arvin went out and Julianito Luna talked with the two men who introduced themselves as policemen and were looking for one Hernandez. Julianito told the two men that he did not know the man they were looking for and told Arvin to accompany the two men to one Ka Prado. At that juncture the man armed with a .45 pistol shot Julianito once hitting the latter on his head and Julianito sprawled on the ground. After the shooting the two men ran towards their top down owner jeep colored green parked on the National Highway in front of the residence of Julianito Luna and thereafter sped away towards the direction of the Poblacion of Ibaan, Batangas. Sclex

Julianito Luna was rushed to a local hospital in Rosario, Batangas who was given first aid and at a time when he was about to be brought to Manila, he expired due to a gun shot wound, 1 x 1 cm. left temporal region, 2 cm. above the left ear, entry with contusion collar, inwards, upwards and backwards, with exit at right occipital region and with avulsion of brain complete fracture of skull, which directly caused his death. Early reports having reached the 217th PC Co. in Masaya, Rosario, Batangas a team of PC and Police elements was immediately dispatched to track down the assassins of Julianito Luna and in due time the motor vehicle of the assassins was recovered in the premises of the house of Mrs. Amelia Quizon in Barangay Lodlod, Lipa City already parked but without the assassins. The motor vehicle was brought to the camp of the 217th PC Co., but was immediately returned to the place based upon a notion that the assassins would come back to the place to recover the same vehicle. As expected, not long thereafter Elberto Base one of the accused arrived in the premises of the house of Mrs. Amelia Quizon in order to recover the top down owner type jeep and it was then when he was collared by a team of PC soldiers who were all in civilian clothes and brought to the camp together with the motor vehicle. In the camp in a line-up of several people Elberto Base was positively identified by Amelia Quizon as one of the passengers of the jeep who parked the jeep in her premises and also the person who tried to recover the jeep when he was finally collared by the PC soldiers. What made her so remember Base is the scar on the face of the latter. It was also established that before the vehicle in question was brought to Lodlod, Lipa City by the assassins, the latter passed by the house of the brother of Leo Vale in San Jose, Batangas, and because the brother of Leo Vale was not there, Leo Vale was requested by the passengers of the jeep to accompany them to the house of the husband of Amelia Quizon in Lodlod, Lipa City, to which request Leo Vale acceded. And in a line-up of several people Leo Vale positively identified accused Elberto Base as one of the passengers of the jeep whom he accompanied to Lodlod, Lipa City, and which identification he reiterated when he testified in Court. He also identified the subject vehicle, which the passengers boarded and left in the premises of the residence of Amelia Quizon. Xlaw The owner of the jeep involved with Plate No. UV-CPU-170 which the assassins used was established to be that of Loreto Angeles of Paraaque, Metro Manila. It was established that on February 7, 1990 accused Frederick Lazaro known to him as a policemen of Paraaque together with accused Eduardo Patrocinio borrowed from him the said vehicle telling him that he was going to Carmen, Pangasinan, to which request he acceded and promising him to return said jeep the following day. While in the camp of the 217th PC Company Elberto Base executed a written Sworn Statement with the assistance and presence of Atty. Romeo Reyes of Rosario, Batangas, who testified in court, to the effect that he assisted the accused in the execution of his statement, by telling Elberto Base of his constitutional rights before said execution. He further testified that throughout the proceedings he was present and the accused read the contents of his statement before swearing to the truth of the same.

A perusal of the statement of Elberto Base shows that he was well aware of the intended plot to kill Julianito Luna, by admitting that a week before the killing he was with the assassins surveiling the residence of Julianito Luna. He also admitted to be with accused Frederick Lazaro and Patrocinio when the jeep in question was borrowed by the two and was with accused Lazaro and Patrocinio when they left Kalayaan, Pasay City in proceeding to San Juan, Batangas that day when Julianito Luna was shot. Accused Base also admitted that he was left on a shed in Ibaan, Batangas when Frederick Lazaro and Patrocinio returned to Rosario and when they came back, he was fetched and was with them in going to San Jose, Batangas in the house of one June Vale and later on in Barangay Lodlod, Lipa City where they left the jeep in the premises of the house of Amelia Quizon. And finally Base admitted in his statement that he was told to recover the jeep in Lodlod, Lipa City. Accused-appellant denied having anything to do with the fatal shooting of the victim and alleges, in sum, that he was tortured to admit the crime. As culled from his testimony, at around 5:00 to 6:00 p.m. in the afternoon of February 8, 1990, he had just disembarked at the bus stop at Mataas na Lupa, Lipa City after visiting his uncle Mauro Espina, his sister-in-law Perla Ronquillo and Opring Espina in Maricaban, Pasay City.[4] From there, he intended to proceed on board a jeepney to the terminal near the market in Lipa City.[5] Xsc However, he never reached his destination because he was picked up by three armed men in civilian clothes who told him to come along with them as they would ask him some questions. [6] He was brought to Lodlod, Lipa City at the house of Amelia Quizon.[7] Upon their arrival at Quizons place, a gun was poked at accused -appellant and he was ordered to lie down facing the ground.[8] As he lay thus, he was trussed up at the neck, bound hand and foot with abaca rope with his hands tied behind his back.[9] He was then loaded on a top down jeep and brought to the 217th PC Company Detachment in Rosario, Batangas.[10] Upon their arrival at the PC Detachment, accused-appellant was brought to the CAFGU barracks and there he was mauled, pounded with gun barrels and gun butts[11] by fifteen (15) persons[12] and forced to admit to the shooting of the victim.[13] As a result of the mauling, his lips bled and he broke a tooth.[14] To underscore just how tightly his captors bound him, accused-appellant likewise showed the court a quo a scar on his left arm allegedly caused by the tying of the rope.[15] As his lips bled because of the beating, accused wiped it across the leg of his trousers pointing to a dark stain on the left leg of his pants he was wearing in court[16] which was allegedly caused by brushing his bloodied lips thereon.[17] After wiping his bloodied mouth, the physical abuse continued despite accuseds entreaties and protestations as to why he was being beaten up.[18] He even informed them that he was a Barangay Council member, to no avail.[19] After he was manhandled, he was interrogated by Sgt. Romulo Mercado who sat by a typewriter and took down his statements.[20] Accused-appellant, however, claimed that although Sgt. Mercado asked him questions, the latter did not take down accuseds real answers and instead the said investigator typed what he wanted to type therein.[21] Accused further testified that he was not given any opportunity to read in whole or in part the typewritten statement [22] and that it was only upon arrraignment that he came to know that the written statement taken from him which he was forced to sign was actually a confession.[23] Scmis With regard to the manner in which the custodial interrogation was conducted and the Sworn Statement [24] was executed, accused-appellant testified that his pleas to his interrogators that they observe his constitutional rights went unheeded.[25] He likewise claimed that although the sworn statement bore the attesting signature of Atty. Romeo Reyes, he neither knew nor saw Atty. Reyes at the 217th PC Detachment on February 8,

1990.[26] Accused-appellant denied thet he knew his co-accused Conrado Guno, Frederick Lazaro and Eduardo Patrocinio.[27] He likewise denied knowing Leo Valle and Erlinda Angeles.[28] The crux of accused-appellants appeal hinges on the admissibility of the Sworn Statement dated February 8, 1990. In challenging its probative value, he insists in sum that the document is inadmissible in evidence because it was executed in violation of his constitutional rights, firstly his right to counsel of his own choice. We disagree. Section 12, Article III of the Constitution embodies the mandatory safeguards afforded a person under investigation for the commission of a crime and the concomitant duty of the State and its agencies to enforce such mandate. It declares that: SEC. 12. (1). Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (1).....No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (2).....Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. Missc (3).....The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. Numerous decisions[29] of this Court rule that for an extrajudicial confession to be admissible, it must be: 1.] voluntary; 2.] made with the assistance of competent and independent counsel; 3.] express; and 4.] in writing.[30] The mantle of protection afforded by the above quoted constitutional provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody. [31] The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere running through menacing police interrogation procedures where the potentiality for compulsion, physical or psychological is forcefully apparent.[32] However, the rule is not intended as a deterrent to the accused from confessing guilt if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue.[33] It must be remembered in this regard that while the right to counsel is immutable, the option to secure the services of counsel de parte is not absolute.[34] Indeed The phrase "competent and independent" and "preferably of his own choice"were explicit details which were added upon the persistence of human rights lawyers in the 1986 Constitutional Commission who pointed out cases where, during the martial law period,

the lawyers made available to the detainee would be one appointed by the military and therefore beholden to the military.[35] Sc xxx............................xxx............................xxx Withal, the word "preferably" under Section 12 [1], Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter. While the initial choice in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the formers appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer.[36] Verily, to be an effective counsel "[a] lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false.[37] The counsel, however, should never prevent an accused from freely and voluntarily telling the truth."[38] A circumspect scrutiny of the records leaves this Court unconvinced of accused-appellants claim that he was not adequately assisted by counsel during his custodial interrogation. Noteworthy are the following excerpts of the testimony of the interrogating officer, Sgt. Romulo Mercado: ATTY. CRESCINI: Q......Now, in connection with your investigation of the death of Julianito Luna, do you remember if you ever investigated a person, a certain person in the name of Elberto Base y Malasmas? WITNESS: A......Yes, sir. Misspped Q......Now, do you recall if he gave a written statement ? A......Yes, sir. Q......Yes, but that written statement which the accused Elberto Base gave you, will you be able to recognize it ? A......Yes, sir.

Q......I am showing you the original of a written statement consisting of four pages, and found in the possession of the public prosecutor, please go over this written statement and tell us if you recognize it ? WITNESS: A......I was the one who took this that is why I know the affidavit. Q......It would appear from the face of this statement on page one and again on page 4 that Elberto Base was assisted by a lawyer in the person of Atty. Romeo T. Reyes, is that correct ? A......Yes, sir. xxx............................xxx............................xxx ATTY. CRESCINI : Q......All these statements appears to be in question and answer form, please tell the court who propounded those questions ? WITNESS : A......Yes, sir. Q......and the answers appearing there, whose answers were those ? A......Those were the answers of Elberto Malasmas, (sic) sir. xxx............................xxx............................xxx Q......The questions and answer[s] appears to be in Filipino. Before you reduce[d] the statement in writing, did you explain or ascertain from him what language or dialect he was conversant most? Scslx WITNESS : A......Yes, sir. Q......What language did he prefer to be asked of him ? A......Tagalog, sir. xxx............................xxx............................xxx

Q......Let me invite your attention to the question appearing on page 2, "Narito si Atty. Romeo T. Reyes na maari naming ibigay sa iyo. Nais mo ba na asistihna ka niya ?" Did you ask him that question ? A......Yes, sir. Q......And the aswer here appearing is "Opo." Who gave that answer ? A......Elberto, sir.

ATTY. CRESCINI: Q......The first page also purports to show that you have read and explain[ed] to the affiant Elberto Base y Malasmas his contitutional rights. Did you actually read that to him? WITNESS: A......Yes, sir. Q......Now there appears on page 3 marked as Exhibit "B-2" this last question, the last question, "Nakahanda ka bang lagdaan at sumpaan ang salaysay na ito?" This is continued to page 4, did you really ask him that question ? A......Yes, sir. Q......And the answer is here is "Opo". Who gave that answer ? A......Elberto Base, sir. xxx............................xxx............................xxx ATTY. CRESCINI : Mesm Q......I will now address your attention to the signature appearing on page 1 above the typewritten name Elberto Base y Malasmas and below the information regarding his constitutional rights and second signature purports to be that of Elberto Base y Malasmas also on page 1 and after he was offered the servies of Atty. Romeo t. Reyes and after he has also expressed his consent to be assisted by Atty. Reyes, whose signature[s] are those both legibly reading Elberto Base?

A......Those are the signatures of Elberto Base, sir. xxx............................xxx........................................................xxx

A......He was in front of us, I and Atty. Reyes when he affixed his signature. Q......Did he sign it voluntarily?

ATTY. CRESCINI: A......Yes, sir. Q......Why do you know that those signatures marked in evidence as Exhibits "V-6", "V-7" and "V-8" are the signatures of Elberto Base? WITNESS: A......I was present when he affixed his signatures, sir. Q......During the entire investigation you were conducting of the witness Base, was Atty. Reyes whom you delegated to assist Elberto Base present? WITNESS: A......He was there, sir. Q......I will invite your attention to the signature appearing on page one above the typewritten name Romeo T. Reyes, opposite that of Elberto Base, as well as another signature on the last page, below the phrase, "assisted by" and above the typewritten name Atty. Romeo T. Reyes. Whose signatures are those ? A......Those are the signatures of Atty. Reyes. Q......Why do you say so? A......When he signed that, we were facing each other. xxx............................xxx............................xxx ATTY. CRESCINI: Q......Before Elberto Base signed his statement marked as Exhibits "V" to "V-3" respectively, did you give him the opportunity to read the same? WITNESS: Slx A......Yes, sir. Q......And after reading it out, did he sign his statement? Q......Now, Mr. Witness, you are the investigator who conducted an investigation on Elberto Base, is that correct? A......Yes, sir. Q......How long have you been an investigator? A......More or less eight years, sir. ATTY. HERMOSO : Q......And approximately, before February 8, 1990, do you rmember how many investgations have you conducted ? WITNESS : A......I cannot remember anymore, sir. Q......About one hundred Mr. Witness ? A......Less, sir. Q......Now, in your investigation conducted Mr. Witness, would you agree with me that it is your procedure that before proceeding with the investigation, you usually reduced into writing the rights of the accused to be investigated ? Sppedx Q......This statement purports to have been subscribed and sworn to before Captain Edmon Zaide, Administering Officer on February 8, 1990. Do you know that as a fact? A......I know that, sir. Q......Why do you know that ? A......Because Capt. Zaide was also there. We were facing each other."[39] Sgt. Mercado remained steadfast and unwavering with regard to the regularity in the conduct of the investigation despite repeated attempts of defense counsel to throw him off track on cross examination:

A......Yes, sir. Q......And as a matter of fact, the right[s] were also reduced to into writing when you investigated Elberto Base, correct? A......Yes, sir. Q......Now, Mr. Witness, so you would agree with me that before you started to investigate Mr. Elberto Base, those rights of the accused were already reduced into writing? A......No, sir. Q......So when did you reduce that (sic) rights into writing ? WITNESS : A......When he was in front of me, sir. Q......Now, Mr. Witness, I noticed that in your investigation conducted on Elberto Base, there is already a name of a certain Atty. Romeo T. Reyes. Do you know this Atty. Romeo T. Reyes? On the top portion of that investigation you conducted on Elberto Base ? A......Yes, sir. Q......How long have you known him? A......More or less seven months, sir. Q......And you know Atty. Reyes very well ?

Q......So you will admit that you do not know that well Atty. Romeo T. Reyes ? A......I know him very well but I do not know his first name. Q......Alright, I noticed that before you conducted the investigation on Elberto Base, the name Atty. Romeo T. Reyes was already typewritten on the top portion of your sworn statement. Is that correct ? A......When he was in front of me and I was typing that investigation, that was the time I put the name Atty. Romeo T. Reyes. Q......So you will agree with me that even before you started the investigation of Elberto Base, Atty. Reyes name was already indicated at the start of the salaysay? ATTY. CRESCINI : Objection, Your Honor. Misleading. Already answered. COURT : Sustained. ATTY. HERMOSO: Q......You will agree with me that before you reduced the rights of the accused into writing, during the custodial investigation the name Romeo T. Reyes was already placed on the sworn statement? ATTY. CRESCINI:

A......Yes, sir. Same objection. Q......Now, Mr. Witness, I noticed that there is a superimposition of the name Romeo T. Reyes on the name printed as Conrado Reyes. Will you please explain the significance of that written name Romeo T. Reyes on the printed name Conrado T. Reyes? WITNESS : ATTY. HERMOSO: A......It was superimposed because I thought he was Atty. Conrado Reyes. Jospped ATTY. HERMOSO : Q......Now, Mr. Witness, I noticed that there were several signatures on this Exhibit "V" for the prosecution marked as Exhibits "V-6", "V-7", V-9" on page 1 and on Exhibit "V-3" submarkings "V-8", "V-10" and "V-11" and "V-12", now will you please see for yourself these markings. Now, these signatures COURT: Sustained.

marked as "V-5", "V-6", "V-7" and "V-9" and "V-10", "V-11" and "V-12" were affixed by the respective names appearing therein simultaneously ? WITNESS: Manikx A......Yes, sir. Q......And these persons signed or affixed their signatures after this statement of Elberto base was typewritten, is it not, Mr. Witness? A......Yes, sir. COURT: Q......Where was this statement taken? A......In our headquarters, sir.

Q......But did he inform you [of] the name of his lawyer whom he wanted to represent him? Nexold A......No, sir. Q......How did the name of Atty. Reyes come into the picture? A......Because we know that said statement will not be acceptable in court if the accused is to be investigated and is not assisted by a lawyer, that is why we have Atty. Reyes called and presented him to the witness if he will accept Atty. Reyes. COURT: Q......And did the accused accept the services of Atty. Reyes when you told him that? A......Yes, sir. Q......Did Atty. Reyes first confer with the accused ?

Q......Where was that? A......Yes, sir. A......At Barangay Masaya, Rosario, Batangas. Q......During all the time ? Q......And Atty. Reyes happened to be there? A......We have him called (sic). Q......Did you call Atty. Reyes before you investigated this Base ? A......Yes, sir. COURT: Q......At the time that you inform[ed] the accused of his constitutional rights particularly his right to be assisted by counsel, did you personally inform him that before you investigate him, he has the right to be assisted by counsel of his choice ? WITNESS : Proceed. A......Yes, sir. ATTY. HERMOSO: Q......And did he inform you that he will be assisted by counsel ? A......He told me he could not secure a services (sic) of a lawyer during that time. Q......You will admit Mr. Witness that Atty. Reyes name came into the picture because of your knowledge that this statement A......Yes, sir. Q......Was there an occasion when Atty. Reyes would advise the accused not to answer any question that you profounded ? A......I cannot remember, sir. Q......Is there any occasion when the witness first ask[ed] the opinion of Atty. Reyes whether he should answer the question or not ? A......Yes, sir. COURT:

would not be acceptable to court (sic) if the accused is not assisted by counsel is it not ? WITNESS : Misox A......Yes,sir. If he is a suspect. Q......So, did I get you right Mr. Witness that the assistance of Atty. Romeo T. Reyes is through your insistence and not thru the request of the accused ? ATTY. CRESCINI : Objection, Your honor. There is no showing of insistence on the part of the witness. It assumes a fact not testified. COURT : Reform your question.

ATTY. CRESCINI: Objection answered. ATTY. HERMOSO : This is only question. Sppedjo COURT : Reform and make it clear. ATTY. HERMOSO : Q......According to you a while ago, it is upon your initiative that Atty. Romeo T. Reyes went to the 217th PC Company to assist the accused ? WITNESS : a follow-up Your Honor. Already

ATTY. HERMOSO : Q......Do I get you right Mr. Witness that Atty. Romeo T. Reyes name was brought to the 217th PC Company to assist the accused Elberto Base because of your knowledge that this statement is not acceptable to court if not assisted by [a] lawyer? ATTY. CRESCINI : Objection answered. COURT : Q......It was upon your initiative and not the accused that the services of Atty. Reyes [was secured] to assist him in your investigation? WITNESS: A......Yes, sir. ATTY. HERMOSO : Q......So it is not the accused, would you agree with me, it was you who requested ? Even more revealing on the voluntariness in the taking of accused-appellants statement is the following testimony of Atty. Romeo T. Reyes who was with the accused and assisted him during the taking thereof: ATTY. CRESCINI : Q......Now, on that date, sometime at about 8:00 in the evening, do you recall having been requested to assist to (sic) a person under custodial investigation? Your Honor. Already A......I called for him. I was not yet sure if he will assist the accused because he was not sure if the accused will commit and the accused consented. Q......Did the accused consented (sic) ? A......He consented. Q......Now, Mr. Witness, what was the condition, body and mind of the accused at the time he was being investigated ? A......He was in good condition, sir. Q......Are you sure of that ? A......Yes, sir.[40]

A......Yes, sir. Q......And can you recall the name of that person whom you assisted ? A......I think Elberto Base. Q......And if you see that person and having so requested, did you accommodate the request to assist him? A......Yes, sir. Q......Who in particular requested you to give assistance to Elberto Base? Maniks A......I was made to understand that I was invited by the company commander of the 217th PC Company in Barangay Namunga, Rosario, Batangas and the invitation was extended by a policeman and two (2) PC soldiers whose name I can no longer recall. Q......But you can recall the name of the company commander of the 217th PC Company? A......Well, I understand he is no longer the executive officer who attended me and brought me to the place where Base was. I cant recall the name. Q......Did you go to the 217th PC Company? A......Yes, sir. Q......Were you able to see that person, Elberto Base? A......Yes, sir. Q......Where in particular did you see him? A......He was at the investigation room at the time I arrived.

A......Mr. Base is the one wearing a maong type shirt. Q......About what time in the evening of February 8, 1990 did they go to you when you went to the headquarters to assist him? Oldmisox A......The team that invited me arrived past 7:30 in the evening, after having our supper. Q......Were you able to talk to him? A......Yes, sir. Q......What about? A......Well, I told him about the gravity of the offense of which he is being investigated and also I informed him of his constitutional right. Q......From whom in particular did you come to know about the matter and gravity of his offense? A......The incident that took place was a public knowledge in Rosario and I was apprised of the facts and circumstances surrounding the commission of the offense and I informed Mr. Base that you are being investigated of a very grave offense. Q......In what language did you confer with Mr. Base more particularly as far as advising him of his constitutional right is concerned? A......In Tagalog, sir. Manikan Q......And after so advising him about the gravity of the offense for which he is being investigated as well as his constitutional right, what did Mr. Base tell you? A......Well, he insists that he is willing to give a voluntary statement. Q......And did he in fact give a statement?

Q......If you see him again, will you be able to identify him? A......Yes, sir. A......Yes, sir. Q......Were you present during the taking of his statement? Q......Will you look inside this Courtroom and point to him if he is present? A......Yes, sir.

Q......Do you know if after the taking of the statement if Mr. Base is given the opportunity to read such written statement? A......Yes, sir. Q......I am showing to you the original of the statement that purports to be the written statement of Elberto Base consisting of four (4) pages, and may I invite your attention to a signature appearing above the typewritten name Atty. Romeo Reyes, do you recognize that signature? A......Yes, sir. Q......Whose signature is that? A......That is my signature, sir. ATTY. CRISCINI: Scncm May I place on record that the witness has identified Exh. "B-9". May I also invite your attention to an initial appearing on the left hand margin at the bottom of page 2. Whose initial is that? A......That is my initial, sir. Q......How about this initial on page 3 at the left bottom portion, whose initial is that? A......That is my initial. Q......And finally, I address your attention to the last page to the signature appearing above the typewritten name, Romeo Reyes, whose signature is that? A......That is my signature. Q......Do you know why you were required by the investigator to affix your signatures on each and all pages? A......Yes, sir. Q......Why? A......Just to show that I was present when the statement on each and every page were taken.

Q......I address your attention to the signatures appearing on page 2 above the typewritten name Elberto Base marked as Exhibits "B-6" and "B-7", so you know whose signatures are those? A......Yes, sir. Q......Whose signatures are those? A......Those are the signatures of Elberto Base. Q......May I also invite your attention to the signature appearing on the fourth page marked as Exh. "B-8" above the typewritten name Elberto Base, whose signature is that? A......That is the signature of Elberto Base. Q......Why do you know that Exhibits "B-6", "B-7" and "B-8" are the signatures of the accused? A......I was present when those signatures were affixed by Elberto Base. Ncmmis Q......It also appears that this statement was sworn to on February 8, 1990 before Capt. Eduardo Zayde, were you present when this was sworn to? A......Yes, sir. Q......Now, let us go back to the taking of the statement. How did Elberto Base give this statement? A......He gave it in the vernacular. Q......And the manner in which he gave this statement? A......Casual manner. Q......Was it voluntary? A......Voluntary. Q......The very first portion of this statement, Exh. "B", started with a narration by the investigator for some of the constitutional rights of Elberto Base. Were you present when this was done? A......Yes, sir.

Q......And all the answers, was in the vernacular, were these given by Elberto? A......Yes, sir. ATTY. CRISCINI: That will be all, Your Honor, just two additional questions. Q......Testifying before this Honorable Court in his defense, the accused Elberto Base alleged not only that he was not assisted by lawyer, that no lawyer was presented and he also manifested that he was in the investigation room and even in the course thereof he was maltreated and that his lips were wounded, he had a broken tooth and a broken bone at the back. Now, in the course of your staying at the 217th PC Company, he said you arrived at around 7:00 until the conclusion of his statement, did you notice any maltreatment of this accused Elberto Base? A......I dont (sic) notice anything. Q......Up to what time did you stay there Atty. Reyes at the headquarters of the PC? Ncm A......I stayed there past 12:00 oclock. Q......From that time of your arrival sometime at 7:20 in the evening until your departure at past 12:00 oclock did you notice any force exerted or applied on the person of Elberto Base in the course of the investigation? A......There is no force exerted against Base. Q......Did you notice any injury in (sic) his person? A......I did not notice any injury, sir.[41] Like Sgt. Mercado, Atty. Reyes remained constant and steadfast despite intense grilling by defense counsel on cross-examination: ATTY. HERMOSO : Q......Alright, you said on February 8, 1990 at around 7:30 p.m. a team from the 217th PC Company came to your house, is that correct ? A......Yes, sir.

Q......How many persons came to your house then? A......I think more than five (5). Q. .....You cannot say even the number of these persons who came to your house ? A......I cannot because 7:30 was dark and it was a black out during that time they arrived. Q......And these persons who came to your house, did you allow them to enter your house ? A......Yes, sir. Q......How many persons ? A......I think three (3). Q......Do you know these persons who entered your house ? A......I can no longer remember the name, but I am very sure there was one (1) policeman who was with them. xxx............................xxx........................................................xxx Q......Now, the moment these three (3) perosns entered your house, what was their purpose in going to your house, did they inform you what was their purpose in going to your house? Sdaamiso A......Yes, sir. Q......What ? A......They extended to me an invitation to go to the camp of the 217th PC Co. in Barangay Namunga, Rosario, Batangas. Q......So, the three policemen, what do you mean by extended to you an invitation? A......I was told that the company commander is requesting my presence. Q......Now, before this incident happened, before you were invited to the 217th PC Co. do you already know this incident?

A......Yes, sir, they informed me. Q......Before you were informed by these policemen who came to your house are you aware already of this incident of the killing of Julianito Luna? A......Yes, sir. Q......Since when have you been aware of this incident, Mr. Witness? A......Since the very morning, that was the news already in town. xxx............................xxx............................xxx ATTY. HERMOSO: Q......You went with them to the 217th PC Company?

Q......Now, Mr. Witness, who introduced you to Mr. Elberto Base? A......The company commander, whose name I forgot and Capt. Zayde the investigating officer. Q......And where was that introduction made? A......In the investigation room. Q......Who were present in the investigation room? A......Mr. Base, Capt. Zayde and a PC officer also who is in front of the typewriter. Q......What was that person doing in front of the typewriter? A......Well, he was then ready to take the statement of Mr. Base. Q......Do you know this person who is in front of the typewriter?

A......Yes, sir. A......Ya, yes. Q......What vehicle did you use going to that headquarters? A......P.C. vehicle. xxx............................xxx............................xxx ATTY. HERMOSO : Q......Now, what happened when you arrived at the 217th PC Company? Scsdaad A......I was introduced to Elberto Base. Q......What happened after the introduction? A......Well, I was told, that Elberto Base will give a voluntary statement. I asked the investigating officer in the person of Captain Zayde, if I can be allowed to talk to Elberto Base before the actual taking of his statement. Q......So, Mr. Witness, when you said that you be allowed to talk with Mr. Base before the actual taking of the statement, when you arrived there, there was no statement yet taken? A......No statement yet. Q......What is the name, Mr. Witness? A......A certain Sgt. Mercado. Q......How about you, do you know if he knows you, this Sgt. Mercado? A......Before the incident, I dont think so. Q......Now, this Sgt. Mercado, is not included in the person who fetched you in your house? A......I could not remember. SupremaX Q......Now, when you requested that you first talk with Mr. Elberto Base, were your request granted? A......Yes, sir. Q......Where did you talk with Mr. Elberto Base? A......Well, inside the investigation room also.

Q......And inside the investigation room aside from you and Mr. Elberto Base while you were talking thereat, was there any person inside? A......Capt. Zayde was out in the room. Q......How about the person who was typing? A......He was still there. Q......Aside from the person who was in front of the typewriter, was there another person inside the investigation room? A......There was none. Q......And the accused while he was in the investigation room not in handcuffs? A......He was not handcuff (sic).

ATTY. CRESCINI: Objection, if your Honor, please, the witness did not fix the period at exactly 8:30, he said around 8:30. So its in that neighborhood. It would be or should be around 8:30. COURT: To the best of your recollection, at about what time did the investigator I am referring to Sgt. Mercado, start taking down the written statement of Elberto Base? A......Sir, in my presence? Q......In your presence? A......It was past 8:00 oclock already, sir.

Q......Now, you said that you arrived there at 8:30 in the evening of February 8, 1990, and according to you the investigation officer have (sic) not yet taken the statement of Elberto Base, is that correct? A......Actually there were papers already in the typewriter and I requested him to start all over again. Q......And who was that person you informed to start all over again? A......Sgt. Mercado. Q......And did he start all over again? Sdaad A......Yes, sir, after I have conferred with Mr. Elberto Base. Q......I am showing to you this alleged Extra-Judicial Statement which was taken on February 8, 1990, at 217th PC Company at around 8:00 p.m. in the presence of Atty. Romeo Reyes. Would you kindly tell this Honorable Court if your statement a while ago that your request from Sgt. Mercado to start all over again was followed? A......Yes, sir. Q......So, actually the start of the giving of the statement of the accused Elberto Base commenced after 8:30?

Q......Can you not give a more specific time considering your previous testimony that you arrived in the camp at around 8:30 in the evening? A......Maybe past 8:30, Your Honor. Q......You are not certain? A......I am not very sure of the time, Your Honor. Q......When the investigation started taking down the statement of Elberto Base in your presence, you did not consult your watch to determine what time the investigation started? A......I did not, Your Honor, but I am very sure now that because of my conference that I have with Elberto Base the actual taking of the statement took place about 8:30 to 9:00 oclock in the evening. COURT: Juris So you are not certain as to the exact time? A......I am very certain, Your Honor.

Q......And that was per your previous declaration 8:30 in the evening?..... A......Yes, sir. Q......After arriving in the camp you hate (sic) to talk with the commanding officer and Capt. Zayde? A......Yes, sir. Q......And only after such conference were you introduced with accused Elberto Base? A......Conference with himself.

A......Yes, sir, I introduced myself. Q......That you were requested by Capt. Zayde to help you in the investigation? A......Thats not exactly (sic). Scjuris Q......You said, that is not exactly, what was the exact words? (sic) A......I could not recall exactly the words that I used but I told him that I was requested to assist you in the conduct of the investigation. COURT:

Q......With Capt. Zayde and the commanding officer? What else did you tell him? A......I have no conference with Capt. Zayde with Elberto Base, only. Q......By conference, I meant that you talk (sic) with the commanding officer and Capt. Zayde before you had your conference with the accused? A......Yes, sir. Q......And for how long did your conference with the accused last? A......About 20 minutes, sir. Q......It was only after the conference with the accused that his statement was taken again? A......Yes, sir. Q......The rights that you told him you explained to him? ATTY. HERMOSO: A......Yes, sir. Now, Mr. Witness, you said you were able to talk with Mr. Base after he was introduced to you? A......Yes, sir. Q......And the first thing you utter (sic) when he was introduced to you, is that, I am Atty. Reyes? xxx............................xxx............................xxx Q......Are those the rights that you explained to him? A......And that his statement that will be given will be used against him. That is all that I informed the accused, Your Honor. A......After saying that he is willing to make use of my assistance, I informed him of his constitutional rights and after I have informed him I asked him if he is still willing to give a free and voluntary statement. Q......You said that you informed him of his constitutional rights, what constitutional rights did you inform the accused? A......That he is still presumed to be innocent, that he is entitled to a lawyer of his own choice and that it is his right to remain silent. A......And I told him if he has a counsel of his own. And he said, none. I further asked him if he is willing to be assisted by counsel in the giving of his statement consider- (sic) the gravity of the offense for which he is being investigated. Q......Any further statement that you gave?

Q......Now, I noticed in this alleged Extra-Judicial investigation, Mr. Witness, that there was an erasure in the name Conrado Reyes, do you have a hand in the changing of your name in the first name, Mr. Witness? Jurissc A......Yes, sir, this is my correction. Q......You requested correction of your name after it was already typewritten? A......Yes, sir. ATTY. HERMOSO: I think that would be all for the witness, Your Honor. COURT: You said that you informed the accused of his right to remain silent, will you demonstrate to the Court how you explained that right of the accused to Elberto Base? A......Yes, sir, I told him in the vernacular that, "Ikaw ay puedeng huwag magsalita at sumagot sa mga katanungang (sic) ng investigador dito sa imbistigasyong ito hanggang sa ikaw ay huwag na (sic) magbigay ng salaysay sapagkat ito ay maaring gamitin laban sa iyo." Q......Thats how you explained to the accused? A......Yes, Your Honor, on that particular right to remain silent. Q......For how many minutes did the investigation last? A......I think its almost three (3) hours. Q......In the course of the investigation, when a particular question is asked to the accused, you, as a counsel, during that proceedings, did you at any particular moment advise your client not to answer that question because it will be very detrimental to him? A......There are times before the actual taking of the statement, I interviewed Mr. Base and after narrating to me the incident I told him if that will be the substance of his testimony to be given to the investigator and he told me, yes. And on the basis of that

assurance, will (sic) I allow him to answer questions within the context of the narration that he gave to me, although there are times when I have to caution him during our conference that this is dangerous. There are statements that are dangerous and I cautioned him to beware. Sppedsc Q......You have not yet answered my question. Repeat the question. Q......In the course of the investigation, when a particular question is asked to the accused, you, as a counsel, during that proceedings, did you at any particular moment advise your client not to answer that question because it will be very detrimental to him? A......I cautioned him to think first before he answer (sic). Q......But your observation was not included in the investigation conducted by the investigator? A......It was not included. Q......You did not request that this advice to the accused be given to the accused? A......I did not, Your Honor. Q......After the statement of the accused was taken then by the investigator, you and the accused together read the statement again? A......Yes, Your Honor. Q......Read the statement for the first time? A......Yes, Your Honor. Q......And did you discuss this written statement to the accused before he signed it? A......Yes, sir. Q......And you advise him not to sign the statement? A......Well, I told him if he is still willing to sign the statement. Q......You did not answer the question of the court?

A......I did not advise him to sign.[42] The foregoing testimonial excerpts vividly shows that Atty. Reyes participation during the custodial investigation of accused was anything but perfunctory. Much less could it be argued that he was remiss in his duties to assist the accused. On the contrary, they in fact underscore his active participation in the proceedings. Calrspped To support his claim that his sworn statement was irregularly taken, accused-appellant further insists that the same was obtained through force and paints a graphic picture of torture at the hands of fifteen persons who repeatedly beat him up with gun barrels and butts[43] as a result of which he allegedly lost a tooth and sustained contusions, a busted mouth and broken bones at his back.[44] We remain unpersuaded. For all accused-appellants protestations to the contrary, his tale of coercion and torture in the hands of his interrogators taxes credulity vis--vis his testimonial declarations that despite supposedly being severely mauled and sustaining injuries as a result thereof he did not: 1.] complain to the senior officer of his interrogators about how he was treated during his custodial investigation;[45] 2.] tell his wife of his injuries when she arrived the next day nor did he ask her to take him to a hospital for treatment;[46] 3.] inform his lawyer of the alleged injuries he sustained at the hands of his interrogators although he had several opportunities to do so;[47] 4.] inform his lawyer that he was forced to sign the sworn statement;[48] 5.] present any medical certificate to prove the existence of his alleged injuries. Topping accused-appellants incredible tale of torture is his almost two-year silence on the incident which only came to light when he testified in court.[49] Accused-appellant explains away these lapses as the products of his fear of his interrogators.[50] However, his failure to speak up and disclose his fear at the earliest opportunity subjects to serious doubt the reality and substance of that supposed fear.[51] Along the same vein, accusedappellants unsupported claims of physical abuse in the hands of his interrogators simply ring hollow in the absence of other proof to corroborate them. Indeed Sccalr " bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient in view of the standing rule enunciated in the cases of People v. Mada-I Santalani;[52] People v. Balane;[53] and People v. Villanueva,[54] that where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these were considered by this Court as factors indicating voluntariness."[55] Going by accused-appellants account, the Court likewise finds it odd for accused -appellants interrogators who picked him up for questioning as he disembarked from a bus at Mataas na Lupa, Lipa City[56]to take a detour by first bringing him to Lodlod, Lipa City at the house of Amelia Quizon [57] where he was bound hand and foot at gun point,[58] loaded on a top down jeep and then brought to the 217th PC Detachment in Rosario, Batangas[59] instead of being forthwith taken to the PC Camp for questioning after being apprehended at the bus stop. Settled is the rule that evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself.[60] Suffice it to state in this regard that such circumstances narrated by accused-appellant only tends to underscore the incongruity of his tale of torture. Calrsc A circumspect scrutiny of accused-appellants Sinumpaang Salaysay[61] clearly shows how he and his co-accused planned the killing of the deceased as well as the sequence of events before and after the occurrence of the incident. These events could not have been supplied either any of those interviewed by the peace officers or by the peace officers themselves because the said statement is replete with details which only one who has an intricate knowledge thereof can supply.[62] Verily

"It remains only to note that the extrajudicial statements of Romeo Jabil and Rufo Llenarasas are replete with details and they corroborate and complement each other so substantially that it is very difficult to suppose that the statements had been merely derived from the creative imagination of the police officers involved. The confessions, in other words, have the ring of truth about them."[63] When, as in this case, "[a]n extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a high order because of the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and conscience.[64] The defense has the burden of proving that it was extracted by means of force, duress, promise or reward." [65] Unfortunately for accused-appellant, he failed to overcome the overwhelming prosecution evidence to the contrary. Section 3, Rule 133 of the Rules of Court provides that "[a]n extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti." In this case the prosecution presented other evidence to prove the two elements of corpus delicti, to wit: a.] a certain result has been proven, i.e. a man has died; and 2.] some person is criminally responsible.[66] In this case, it is indubitable that a crime has been committed and that the other pieces of prosecution evidence clearly show that accused-appellant had conspired with the other accused to commit the crime.[67] In fact, he was seen by the prosecution witnesses in the company of his other co-accused. Furthermore, Atty. Romeo T. Reyes and the interrogator, Sgt. Romulo Mercado, testified to the voluntariness of his confession. In this regard, it must be stressed that the aforementioned rule merely requires that there should be some other evidence " tending to show the commission of the crime apart from the confession."[68] Scedp All told, an overall scrutiny of the records of this case leads us to no other conclusion but the correctness of the trial court in holding that the accused-appellant and his co-accused committed murder. What remains to be determined is whether the elements of the crime have been established. Conspiracy is alleged in the information charging the accused-appellant of the crime. Conspiracy " exists when two or more persons come to an agreement conerning the commission of a felony and decide to commit it. Direct proof is not essential, for conspiracy may be inferred from the acts of the accused prior to, during or subsequent to the incident. Such acts must point to a joint purpose, concert of action or community of interest. Hence, the victim need not be actually hit by each of the conspirators for the act of one of them is deemed the act of all."[69] A perusal of the Sinumpaang Salaysay[70] would readily show accused-appellants complicity in the slaying of the victim. In the sworn statement, he narrated that a week before the killing, he was with the assassins in conducting a surveillance of the victims residence.[71] He also declared that he was with Frederick Lazaro and Eduardo Patrocinio when the jeep with Plate Number CFU-178 was borrowed by the two accused[72] and that he was with them when they left Pasay City bound for San Juan, Batangas, the day the victim was shot. [73] He likewise averred that he was left on a shed in Ibaan, Batangas when Lazaro and Patrocinio returned to Rosario, Batangas and that he was with them when they went to the house of Jun Vale at San Jose, Batangas; [74] from there they proceeded to Lodlod, Lipa City where they left the jeep in the premises of Amelia Quizons house.[75] Finally, accused-appellant admitted that he was told to recover the jeep in Lodlod, Lipa City on the day he was arrested.[76] The one-week interval when accused-appellant and his co-conspirators first cased the victims house up to the actual date of the killing underscores the presence of evident premeditation. For this aggravating circumstance to be considered, there must be proof of the following elements thereof, i.e., 1.] the time the offenders determined to commit the crime; 2.] an act manifestly indicating that they clung to their determination; and 3.] a sufficient lapse of time between determination and execution to allow reflection upon the consequences of the act.[77] Sdjad

Treachery is also alleged in the information indicting the accused. There is treachery "[w]hen the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make."[78] The essence of alevosia is the swift and unexected attack on the unarmed victim without the slightest provocation on the victims part.[79] The fact that treachery may be shown if the victim is attacked from behind does not mean it can not also be appreciated if the attack is frontally launched.[80] Even a frontal attack can be treacherous when it is sudden and the victim is unarmed.[81] In this case, the suddenness of the shooting without the slightest provocation from the victim who was unarmed and had no opportunity to defend himself, clearly qualified the crime with treachery.[82] At the time the crime was committed on February 8, 1990, murder was punishable by reclusion temporal in its maximum period to death. Considering the presence of two aggravating circumstances with no mitigating circumstance, the maximum penalty of death would be imposable under Article 63 of the Revised Penal Code. However, since the offense was committed during the suspension of the imposition of the death penalty and prior to its reimposition under Republic Act No. 7659,[83] the imposable penalty is reclusion perpetua.[84] This penalty is single and indivisible, thus, it shall be imposed regardless of any attending aggravating or mitigating circumstances.[85] The sum of Fifty Thousand (P50,000.00) Pesos awarded by the court a quo as civil indemnity ex delicto, without further need of proof of damage, is proper as it follows prevailing jurisprudence and is in line with the policy of the Court.[86] With regard to actual damages, the trial court found that the wife of the victim spent Twenty Five Thousand (P25,000.00) Pesos for food and drinks during the deceaseds ten -day wake; Ten Thousand (P10,000.00) Pesos for funeral services and transportation expenses of Five Thousand (P5,000.00) Pesos.[87] Since accused-appellant does not question this finding of the trial court, he is liable to private complainants in the said amount as actual damages.[88] Misact This Court, however, can not sustain the award of moral damages in the absence of sufficient evidence to support it.[89] It is elementary that for moral damages to be properly adjudicated in criminal offenses resulting in physical injuries, there must be a factual basis for the award thereof.[90] WHEREFORE, with the sole MODIFICATION that the award of One Hundred Thousand (P100,000.00) Pesos by way of moral damages be DELETED, the Decision appealed from is hereby AFFIRMED in all other respects. [G.R. No. 144656. May 9, 2002] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRICO VALLEJO Y SAMARTINO, accused-appellant. DECISION PER CURIAM: This is an appeal from the decision[1] of the Regional Trial Court, Branch 88, Cavite City, sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old child, Daisy Diolola, in Rosario, Cavite on July 10, 1999. The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide alleged: That on or about the 10th day of July 1999 , in Barangay Ligtong I, Municipality of Rosario, Province of Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named accused, with lewd design, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child against the latters will and while raping the said victim, said accused strangled her to death.

CONTRARY TO LAW.[2] Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilty to the crime charged, whereupon trial ensued. Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victims mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorneys Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria -Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of the victim. The victims mother, Ma. Nida Diolola, testified that at around 1:00 oclock in the afternoon of July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their neighbors house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her lessons. Aimees house, where accused-appellant was also staying, is about four to five meters away from Daisys house. Ma. Nida saw her daughter go to the house of her tutor. She was wearing pink short pants and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant. They were looking for a book which accused-appellant could copy to make a drawing or a poster that Daisy would submit to her teacher. After finding the book, Daisy and accusedappellant went back to the latters house. When Ma. Nida woke up at about 5:30 oclock after an afternoon nap, she noticed that Daisy was not yet home. She started looking for her daughter and proceeded to the house of Aimee, Daisys tutor. Aimees mother told Ma. Nida that Daisy was not there and that Aimee was not able to help Daisy with her lessons because Aimee was not feeling well as she had her menstrual period. Ma. Nida looked for Daisy in her brothers and sisters houses, but she was not there, either. At about 7:00 oclock that evening, Ma. Nida went back to her neighbors house, and there saw accused-appellant, who told her that Daisy had gone to her classmates house to borrow a book. But, when Ma. Nida went there, she was told that Daisy had not been there. Ma. Nida went to the dike and was told that they saw Daisy playing at about 3:30 oclock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was playing in front of her house that afternoon and even watched television in her house, but that Daisy later left with accused-appellant. Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturday, until the early morning of the following day, June 11, 1999, a Sunday, but their search proved fruitless. Then, at about 10:00 oclock in the morning of June 11, 1999, she was informed that the dead body of her daughter was found tied to the root of an aroma tree by the river after the compuerta by a certain Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario police. The other barangay officers fetched accused-appellant from his house and took him to the barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico Vallejo as the probable suspect since he was with the victim when she was last seen alive.[3] Another witness, Jessiemin Mataverde, testified that at around 3:00 oclock in the aftern oon of that day, she saw Daisy playing with other children outside her house. She asked Daisy and her playmates to stop playing as their noise was keeping Jessiemins one-year old baby awake. Daisy relented and watched television instead from the door of Jessiemins house. About five minutes later, accused-appellant came to the house and told Daisy something, as a result of which she went with him and the two proceeded towards the compuerta. Jessiemin testified that at around 5:00 oclock that afternoon, while she and her daughter were in front of a store across the street from her house, accused-appellant arrived to buy a stick of Marlboro cigarette. Accusedappellant had only his basketball shorts on and was just holding his shirt. They noticed both his shorts and his shirt were wet. After lighting his cigarette, accused-appellant left.[4] Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 oclock in the afternoon of July 10, 1999, while she and her husband and children were walking towards the compuerta near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who said that it was a good day for catching milkfish (bangus). For this reason, according to this witness, they decided to get some fishing implements. She said they met accused-appellant Gerrico Vallejo near the seashore and noticed that he was uneasy and looked troubled. Charito said that accused-appellant did not even greet them, which was unusual. She also testified that accused-appellants shorts and shirt (sando) were wet, but his face and hair were not.[5]

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz, Jr. responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they arrived, Daisys body was already in the barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie Quinto was fishing near the compuerta when he accidentally hit the body of Daisy, which was in the mud and tied to the root of an aroma tree. Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and Esting, were also taken into custody because they were seen with accused-appellant in front of the store in the late afternoon of July 10 1999. Later, however, the two were released. Based on the statements of Jessiemin Mataverde and Charito Paras-Yepes, the policemen went to the house of accused-appellant at about 4:00 oclock in the afternoon of July 11, 1999 and recovered the white basketball shirt, with the name Samartino and No. 13 printed at the back, and the violet basketball shorts, with the number 9 printed on it, worn by accused-appellant the day before. The shirt and shorts, which were bloodstained, were turned over to the NBI for laboratory examination.[6] Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 oclock in the evening of July 11, 1999, he conducted a physical examination of accused-appellant. His findings[7] showed the following: PHYSICAL FINDINGS: Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms. Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm. Lacerations, left ring finger, posterior aspect, 0.3 cm. (Living Case No. BMP-9902, p. 101, records) At about 10:00 oclock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmortem findings:[8] Body in early stage of postmortem decomposition characterized by foul odor, eyes a nd tongue protruding, bloating of the face and blister formation. Washerwomans hands and feet. Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect. Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms. Fracture, tracheal rings. Hemorrhages, interstitial, neck, underneath, nailmarks. Petechial hemorrhages, subendocardial, subpleural.

Brain and other visceral organs are congested. Stomach, contains rice and other food particles. CAUSE OF DEATH: -Asphyxia by Manual Strangulation. GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 oclock positions, edges with blood clots. [Autopsy Report No. BTNO-99-152] Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murder at past 10:00 oclock in the evening of June 11, 1999. The mayor said he immediately proceeded to the municipal jail, where accused-appellant was detained, and talked to the latter. Accused-appellant at first denied having anything to do with the killing and rape of the child. The mayor said he told accused-appellant that he could not help him if he did not tell the truth. At that point, accused-appellant started crying and told the mayor that he killed the victim by strangling her. Accused-appellant claimed that he was under the influence of drugs. The mayor asked accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and took him to the police station about 11:00 oclock that evening.[9] Atty. Lupo Leyva corroborated Mayor Abutans testimony. He said that upon arriving at the police station, he asked accused-appellant if he wanted his services as counsel in the investigation. After accused-appellant assented, Atty. Leyva testified that he sort of discouraged the former from making statements as anything he said could be used against him. But, as accused-appellant was willing to be investigated, Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the investigator, informed accused-appellant of his constitutional rights to remain silent and to be assisted by counsel and warned him that any answer he gave could and might be used against him in a court of law. PO2 Garcia asked questions from accused-appellant, who gave his answers in the presence of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read it and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication that accused-appellant had been maltreated by the police. In his sworn statement (Exh. M), accused-appellant confessed to killing the victim by strangling her to death, but denied having molested her.[10] Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples from accused-appellant in his office for laboratory examination to determine his blood type. Likewise, the basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the victims clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario, Cavite police for the purpose of determining the presence of human blood and its groups.[11] The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong to Group O. The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches Grizzlies in front and SAMARTINO at the back; (2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small Hello Kitty T-shirt with reddish brown stains; (4) one (1) cut pink short pants with reddish brown stains; (5) one (1) cut dirty white small panty with reddish brown stains, were all positive for the presen ce of human blood showing the reactions of Group A.[12] Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accusedappellant during which the latter admitted that he had raped and later killed the victim by strangulation and stated that he was willing to accept the punishment that would be meted out on him because of the grievous offense he had committed. Mr. Buan observed that accused-appellant was remorseful and was crying when he made the confession in the presence of SPO1 Amoranto at the NBI laboratory.[13] When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 13, 1999 in Cavite City, accused-appellant had with him a handwritten confession which he had executed inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant admitted not only that he killed the victim but that he had before that raped her. Accused-appellant said he laid down the victim on a grassy area near the dike. He claimed that she did not resist when he removed her undergarments but that when he tried to insert his

penis into the victims vagina, she struggled and resisted. Accused-appellant said he panicked and killed the child. He then dumped her body in the shallow river near the compuerta and went home.[14] Atty. Sikat Agbunag, a lawyer from the Public Attorneys Office, testified that at noon of July 13, 1999, while she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant and some policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his confession. Atty. Agbunag read the document, informed accused-appellant of his constitutional rights, and warned him that the document could be used against him and that he could be convicted of the case against him, but, according to her, accusedappellant said that he had freely and voluntarily executed the document because he was bothered by his conscience. Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to the document and swore to it before Prosecutor Itoc.[15] At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan took buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair samples from the parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the DNA Laboratory of the NBI for examination. Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected by Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy contained the DNA profiles of accused-appellant and the victim.[16] The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee Vallejo. Their testimonies show that at about 1:00 oclock in the afternoon of July 10, 1999, accused -appellant, Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came to ask accused-appellant to draw her school project. After making the request, Daisy left.[17] Accusedappellant did not immediately make the drawing because he was watching television. Accused-appellant said that he finished the drawing at about 3:00 oclock in the afternoon and gave it to the victims aunt, Glory. He then returned home to watch television again. He claimed he did not go out of the house until 7:00 oclock in the evening when he saw Ma. Nida, who was looking for her daughter. Accused-appellant said he told her that he had not seen Daisy. After that, accused-appellant said he went to the pilapil and talked with some friends, and, at about 8:00 oclock that evening, he went home. At 9:00 oclock in the morning of July 11, 1999, barangay officials fetched accused -appellant from his house and took him to the barangay hall, where he was asked about the disappearance of Daisy. He claimed that he did not know anything about it. Accused-appellant was allowed to go home, but, at 11:00 oclock that morning, policemen came and invited him to the police headquarters for questioning. His mother went with him to the police station. There, accused-appellant was asked whether he had something to do with the rape and killing of Daisy. He denied knowledge of the crime. At 4:00 oclock that afternoon, accused-appellant accompanied the police to his house to get the basketball shorts and shirt he was wearing the day before, which were placed together with other dirty clothes at the back of their house. According to accused-appellant, the police forced him to admit that he had raped and killed Daisy and that he admitted having committed the crime to stop them from beating him up. Accused-appellant claimed the police even burned his penis with a lighted cigarette and pricked it with a needle. Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the investigation room of the police station and told him that they would help him if he told the truth. Atty. Leyva asked him whether he wanted him to be his counsel, and accused-appellant said he answered in the affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-appellant claimed that, although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was because the police had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that he had been tortured because the policemen were around and he was afraid of them. It appears that the family of accused-appellant transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by residents of their barangay. [18] According to accused-appellant, Mayor Abutan and Atty. Leyva were not present when he gave his confession to the police and signed the same. Accused-appellant claims that although Exhibit N was in his own handwriting, he merely copied the contents thereof from a pattern given to him by the police.[19]

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense charged. The dispositive portion of its decision reads: WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the Information, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is directed to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages. SO ORDERED.[20] Hence this appeal. Accused-appellant contends that: I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED -APPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION. II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME WAS OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL ASSISTANCE. We find accused-appellants contentions to be without merit. First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial evidence is presented by the prosecution to prove beyond reasonable doubt that the accused committed the crime.[21] In rape with homicide, the evidence against an accused is more often than not circumstantial. This is because the nature of the crime, where only the victim and the rapist would have been present at the time of its commission, makes the prosecution of the offense particularly difficult since the victim could no longer testify against the perpetrator. Resort to circumstantial evidence is inevitable and to demand direct evidence proving the modality of the offense and the identity of the perpetrator is unreasonable.[22] Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction if: (a) (b) (c) there is more than one circumstance; the facts from which the inferences are derived are proven; and the combination of all circumstances is such as to produce conviction beyond reasonable doubt.[23]

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of accused-appellant: 1. The victim went to Aimee Vallejos house, where accused-appellant was residing, at 1:00 oclock in the afternoon of July 10, 1999, for tutoring. 2. At around 2:00 oclock in the afternoon, accused-appellant and Daisy went together to the latters house to get a book from which the former could copy Daisys school project. After getting the book, they proceeded to accused-appellants residence.

3. From accused-appellants house, Daisy then went to the house of Jessiemin Mataverde where she watched television. Accused-appellant thereafter arrived and whispered something to Daisy, and the latter went with him towards the compuerta. 4. At about 4:30 oclock in the afternoon, the spouses Iluminado and Charito Yepes saw accused appellant coming out of the compuerta, with his clothes, basketball shorts, and t -shirt wet, although his face and hair were not. According to these witnesses, he looked pale, uneasy, and troubled (balisa). He kept looking around and did not even greet them as was his custom to do so. 5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with dynamite) was docked by the seashore. 6. A little before 5:00 oclock in the afternoon, Jessiemin Mataverde also saw accused -appellant buying a Marlboro cigarette from a store. Jessiemen also noticed that accused-appellants clothes were wet but not his face nor his hair. 7. By 5:30 oclock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by accused-appellant that Daisy had gone to her classmate Rosarios house. The information proved to be false. 8. Daisys body was found tied to an aroma tree at the part of the river near the compuerta. 9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused by the thorns of an aroma tree. 10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on accused-appellants clothes and on Daisys clothes were found positive of human blood type A. Accused-appellant has blood type O. The vaginal swabs from Daisys body contained her DNA profile as well as that of accused-appellant.

Accused-appellant also questions the validity of the method by which his bloodstained clothes were recovered. According to accused-appellant, the policemen questioned him as to the clothes he wore the day before. Thereafter, they took him to his house and accused-appellant accompanied them to the back of the house where dirty clothes were kept.[27] There is no showing, however, that accused-appellant was coerced or forced into producing the garments. Indeed, that the accused-appellant voluntarily brought out the clothes sought by the police becomes more convincing when considered together with his confessions. A consented warrantless search is an exception to the proscription in Section 2 of Article III of the Constitution. As we have held, the consent of the owner of the house to the search effectively removes any badge of illegality.[28] The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accused-appellant. He argues that the prosecution failed to show that all the samples submitted for DNA testing were not contaminated, considering that these specimens were already soaked in smirchy waters before they were submitted to the laboratory. DNA is an organic substance found in a persons cells which contains his or her genetic code. Except for identical twins, each persons DNA profile is distinct and unique.[29] When a crime is committed, material is collected from the scene of the crime or from the victims body for the suspects DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the suspect and the victim.[30] The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample.[31] The samples collected are subjected to various chemical processes to establish their profile.[32]The test may yield three possible results: 1) The samples are different and therefore must have originated from different sources (exclusion). This conclusion is absolute and requires no further analysis or discussion; 2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types (inconclusive). This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; or 3) The samples are similar, and could have originated from the same source (inclusion).[33] In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the Similarity.[34] In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the smears taken from the victim as well as the strands of hair and nails taken from her tested negative for the presence of human DNA,[35] because, as Ms. Viloria-Magsipoc explained: PROSECUTOR LU: Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim and of the accused gave negative results for the presence of human DNA. Why is it so? What is the reason for this when there are still bloodstains on the clothing? A: After this Honorable Court issued an Order for DNA analysis, serological methods were already conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he also knew of this case, and we also interviewed the mother who came over to the laboratory one time on how was the state of the specimens when they were found out. We found that these specimens were soaked in smirchy water before they were submitted to the laboratory. The state of the specimens prior to the DNA analysis could have hampered the preservation of any DNA that could have been there before. So when serological methods were done on these specimens, Mr. Byron could have taken

11. 12.

Accused-appellant contends that the bloodstains found on his garments were not proven to have been that of the victim as the victims blood type was not determined. The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both accused-appellants and the victims clothing yielded bloodstains of the same blood type A.[24] Even if there was no direct determination as to what blood type the victim had, it can reasonably be inferred that the victim was blood type A since she sustained contused abrasions all over her body which would necessarily p roduce the bloodstains on her clothing.[25] That it was the victims blood which predominantly registered in the examination was explained by Mr. Buan, thus:[26] ATTY. ESPIRITU Q: But you will agree with me that more probably than not, if a crime is being committed, and it results in a bloody death, it is very possible that the blood of the victim and the blood of the assailant might mix in that particular item like the t-shirt, shorts or pants? A: It is possible when there is a huge amount of blood coming from the victim and the suspect, Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one which will register. For example, if there is more blood coming from the victim, that blood will be the one to register, on occasions when the two blood mix. Q: But in these specimens number 1 to 5, it is very clear now that only type A and no type O blood was found? A: Yes, sir.

such portion or stains that were only amenable for serological method and were not enough for DNA analysis already. So negative results were found on the clothings that were submitted which were specimens no. 1 to 5 in my report, Sir. Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim also proved negative for human DNA, why is it so? A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the slide was very, very dry and could have chipped off. I already informed Dr. Vertido about it and he confirmed the state of the specimen. And I told him that maybe it would be the swab that could help us in this case, Sir. And so upon examination, the smears geared negative results and the swabs gave positive results, Sir. Q: How about specimen no. 7, the hair and nails taken from the victim, why did they show negative results for DNA? A: The hair samples were cut hair. This means that the hair did not contain any root. So any hair that is above the skin or the epidermis of ones skin would give negative results as the hair shaft is negative for DNA. And then the nails did not contain any subcutaneous cells that would be amenable for DNA analysis also, Sir. Q: So its the inadequacy of the specimens that were the reason for this negative result, not the inadequacy of the examination or the instruments used? A: Yes, Sir. Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the samples had been contaminated, which accounted for the negative results of their examination. But the vaginal swabs taken from the victim yielded positive for the presence of human DNA. Upon analysis by the experts, they showed the DNA profile of accused-appellant:[36] PROSECUTOR LU: Q: So based on your findings, can we say conclusively that the DNA profile of the accused in this case was found in the vaginal swabs taken from the victim? A: Yes, Sir. Q: That is very definite and conclusive? A: Yes, Sir." In conclusion, we hold that the totality of the evidence points to no other conclusion than that accusedappellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court. [37] This is how it is in this case. Second. Accused-appellant challenges the validity of the oral and written confessions presented as evidence against him. He alleges that the oral confessions were inadmissible in evidence for being hearsay, while the extrajudicial confessions were obtained through force and intimidation. The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) coerced confessions, the product of third degree methods such as torture, force, violence, threat, and intimidation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements, given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same section.[38] Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NBI Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights as these were made by one already under custodial investigation to persons in authority without the presence of counsel. With respect to the oral confessions, Atty. Leyva testified:[39] PROSECUTOR LU: Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him? A: Yes, Sir. Q: Did you ask him whether he really wants you to represent or assist him as a lawyer during that investigation? A: I did, as a matter of fact, I asked him whether he would like me to represent him in that investigation, Sir. Q: And what was his answer? A: He said yes. Q: After agreeing to retain you as his counsel, what else did you talk about? A: I told him that in the investigation, whatever he will state may be used against him, so its a sort of discouraging him from making any statement to the police, Sir. Upon cross-examination, Atty. Leyva testified as follows:[40] Q: You stated that you personally read this recital of the constitutional rights of the accused? A: Yes, Sir. Q: But it will appear in this recital of constitutional rights that you did not inform the accused that the statement that he will be giving might be used against him in a court of justice? A: I did that, Sir. Q: But it does not appear in this statement? PROSECUTOR LU The best evidence will be the statement, your Honor. ATTY ESPIRITU The only thing that is stated here is that Maaaring gamitin pabor o laban sa iyo. COURT Let the witness answer.

A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the truth. The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan,[41] it is also confirmed by accused-appellant who testified as follows:[42] ATTY. ESPIRITU: Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are supposed to have executed and signed? A: Yes, Sir. Q: What did Atty. Leyva tell you? A: That they are allowing me to exercise my constitutional right to reveal or narrate all what I know about this case, Sir. Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement? A: Yes, Sir. Q: And did he tell you that what you would be giving is an extra-judicial confession? A: Yes, Sir. Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the statements he was to make as well as the written confessions he was to execute. Neither can he question the qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. Indeed, counsel should not prevent an accused from freely and voluntarily telling the truth.[43] Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Leyva before the latter acted as his defense counsel.[44] And counsel who is provided by the investigators is deemed engaged by the accused where the latter never raised any objection against the formers appointment during the course of the investigation but, on the contrary, thereafter subscribed to the veracity of his statement before the swearing officer.[45]Contrary to the assertions of accused-appellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of Mayor Renato Abutan.[46] Accused-appellant contends that the rulings in People vs. Andan[47] and People vs. Mantung[48] do not apply to this case. We disagree. The facts of these cases and that of the case at bar are similar. In all these cases, the accused made extrajudicial confessions to the municipal mayor freely and voluntarily. In all of them, the extrajudicial confessions were held admissible in evidence, being the spontaneous, free, and voluntary admissions of the guilt of the accused. We note further that the testimony of Mayor Abutan was never objected to by the defense. Indeed, the mayors questions to accused-appellant were not in the nature of an interrogation, but rather an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan testified:[49] PROSECUTOR LU: Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell you? A: At first he said that he did not do that. That was the first thing he told me. Then I told him that I will not be able to help him if he will not tell me the truth. Q: And what was the reply of the accused? A: He had been silent for a minute. Then we talked about the incident, Sir. xxx

Q: And what exactly did he tell you about the incident? A: I asked him, Were you under the influence of drugs at that time? Q: What else did he tell you? A: I told him, What reason pushed you to do that thing? x x x Q: Please tell us in tagalog, the exact words that the accused used in telling you what happened. A: He told me that he saw the child as if she was headless at that time. That is why he strangled the child, Sir. (Ang sabi niya po sa kin, nakita niya raw yung bata na parang walang ulo na naglalakad. Kaya po sinakal niya.) xxx COURT: Q: When you told the accused that you will help him, what kind of help were you thinking at that time? A: I told him that if he will tell the truth, I could help give him legal counsel. Q: And what was the answer of the accused? A: Yes, he will tell me the truth, Your Honor. In People vs. Mantung,[50] this Court said: Never was it raised during the trial that Mantungs admission during the press conference was coerced or made under duress. As the records show, accused-appellant voluntarily made the statements in response to Mayor Marquez question as to whether he killed the pawnshop employees. Mantung answered in the affirmative and even proceeded to explain that he killed the victims because they made him eat pork. These circumstances hardly indicate that Mantung felt compelled to own up to the crime. Besides, he could have chosen to remain silent or to do deny altogether any participation in the robbery and killings but he did not; thus accused-appellant sealed his own fate. As held inPeople v. Montiero, a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. And in People vs. Andan, it was explained: Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not prevent him from freely and voluntarily telling the truth.[51] For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byron Buan is admissible. Accused-appellant would have this Court exclude this confession on the ground that it was uncounselled and that Mr. Buan, who initiated the conversation with accused-appellant, was part of the NBI. The issue concerning the sufficiency of the assistance given by Atty. Leyva has already been discussed. On the other hand, the questions put by Mr. Buan to accused-appellant were asked out of mere personal curiosity and clearly not as part of his tasks. As Buan testified:[52] PROSECUTOR LU: Q: What was the subject of your conversation with him? xxx

A: It is customary when we examine the accused. During the examination, we talk to them for me to add knowledge on the case, Sir. Q: What did you talk about during your conversation? A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir. Q: And what was the reply of the accused? A: He said yes, Sir. Q: What else did you ask the accused? A: I remember that while asking him, he was crying as if feeling remorse on the killing, Sir. .... Q: And it was you who initiated the conversation? A: Yes, Sir. Q: Do you usually do that? A: Yes, Sir. We usually do that. Q: Is that part of your procedure? A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any information either on the victim or from the suspect will help me personally. Its not an SOP, Sir. The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is, therefore, admissible as evidence. Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the ground that these were extracted from him by means of torture, beatings, and threats to his life. The bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient. The standing rule is that where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these will be considered as indicating voluntariness. [53] Indeed, extrajudicial confessions are presumed to be voluntary, and, in the absence of conclusive evidence showing that the declarants consent in executing the same has been vitiated, the confession will be sustained.[54] Accused-appellants claim that he was tortured and subjected to beatings by policemen in order to extract the said confession from him is unsupported by any proof:[55] ATTY. ESPIRITU: Q: Did they further interrogate you? A: Yes, sir. Q: What else did they ask you? A: They were asking me the project, Sir. Q: What else? A: That is the only thing, Sir. Q: Who was doing the questioning? xxx

A: The investigator, Sir. Q: How many were they inside that room? A: Five, Sir. Q: They are all policemen? A: Yes, Sir. xxx xxx

Q: Until what time did they keep you inside that room? A: Up to 11:00 in the evening, Sir. Q: Between 10:30 in the morning up to 11:00 oclock in the evening, what did you do there? A: They were interrogating and forcing me to admit something, Sir. Q: In what way did they force you to admit something? A: They were mauling me, Sir. Q: The 5 of them? A: Yes, Sir. Q: The 5 of them remained inside that room with you throughout the questioning? A: Yes, Sir. Q: In what way did they hurt you? A: They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir. Q: Who did these things to you? A: Mercado, Sir. Q: Who is this Mercado? A: EPZA policemen, Sir. Q: Did the other policemen help in doing these things to you? A: No, Sir. Q: Were you asked to undress or you were forced to do that? A: They forced me to remove my clothes, Sir. Q: In what way did they force you to remove your clothes? A: They were asking me to take off the pants which I was wearing at the time, Sir. Q: Did they do anything to you to force you to remove your pants? A: Yes, Sir. Q: What? A: They boxed me, Sir.

Q: What else, if any? A: They hit me with a piece of wood, Sir. Q: What did you feel when your private part was burned with a cigarette butt? A: It was painful, Sir. Q: In what part of your body were you pricked by a needle? A: At my private part, Sir. These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in the municipal hall from 10:00 oclock in the morning until 11:00 oclock that night of July 10, 1999, during which time he was boxed, tortured, and hit with a piece of wood by policemen to make him admit to the crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00 oclock in the evening of the same day. While the results show that accused-appellant did sustain injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified:[56] PROSECUTOR LU: Q: What were your findings when you conducted the physical examination of the suspect? A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and I also found hematoma on the left ring finger, posterior aspect and at the same time, a laceration on the left ring finger. xxx xxx xxx

Article 266-B of the Revised Penal Code provides that When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.[59] Therefore, no other penalty can be imposed on accusedappellant. WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and directing him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby AFFIRMED. In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this decision, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. [G.R. No. 112229. March 18, 1997] RAYMOND PE LIM, petitioner, vs. COURT OF APPEALS, JOANNA ROSE C. PE LIM, Minor represented by her Natural Mother and Guardian, MARIBEL CRUZ y TAYAG, respondents. DECISION ROMERO, J.: All too often, immature men who allow their emotions to hold sway over their rational minds come to grief when their passions cool off, but not before inflicting irreparable psychic and spiritual damage on their victims and the fruits of their wanton acts. As they sow the proverbial "wild oats," they are heedless of the dire consequences they heap on their heads. When the inevitable confrontation explodes and they are helpless to extricate themselves from the messy situation arising from their wrongdoing, eventually they invoke the help of the courts as their final arbiter. Before us is one of those cases where a man woos a maid, succeeds in seducing and impregnating her, only to disclaim the paternity of the child when made to account for his misdeeds. DNA,[1] being a relatively new science, it has not as yet been accorded official recognition by our courts. Paternity will still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father. This petition for review on certiorari sprang from a complaint filed by Maribel Cruz for child support on behalf of her daughter, private respondent Joanna Rose C. Pe Lim, against petitioner Raymond Pe Lim who, Maribel claims, is Joanna's father. Maribel's story unfolds, thus: Maribel was sixteen years old in 1978 and a part-time student. She also worked as a receptionist at Tonight's Club and Resthouse along Roxas Blvd., Manila. She met petitioner during her first night on the job. Petitioner wooed her and Maribel reciprocated his love. They soon lived together, with petitioner paying the rentals in a succession of apartments in Cubao, Quezon City, Tambo, Paraaque and Makati, Metro Manila. Maribel left for Japan in July 1981, already pregnant, and returned to Manila in October of the same year. The couple never married because petitioner claimed that he was not financially stable. On January 17, 1982, Maribel gave birth to their daughter at the Cardinal Santos Memorial Hospital. The bills for Maribel's three-day confinement at the hospital were paid for by Raymond and he also caused the registration of the name Joanna Rose C. Pe Lim on the child's birth certificate. After Joanna Rose's birth, the love affair between Maribel and petitioner continued.

Q: In your findings, it appears that the accused in this case suffered certain physical injuries on his person like this abrasion on the thigh, right anterior lateral aspect lower third of the knee, what could have caused this injury? A: Abrasions are usually caused when the skin comes in contact with a rough surface, Sir. Hematoma are usually caused by a blunt instrument or object and laceration is the forcible contact of the skin from that blunt object. Q: I am particularly interested in your findings hematoma on the left ring finger, posterior aspect and laceration left ring finger posterior aspect, what could have caused those injuries on the accused? A: My opinion to these hematoma and laceration found on the said left ring finger was that it was caused by a bite, Sir. If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found more than mere abrasions and hematoma on his left finger. Dr. Vertidos findings are more consistent with the theory that accused-appellant sustained physical injuries as a result of the struggle made by the victim during the commission of the rape in the compuerta. At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all reasonable doubt. The prosecution witnesses presented a mosaic of circumstances showing accused-appellants guilt. Their testimonies rule out the possibility that the crime was the handiwork of some other evil mind. These witnesses have not been shown to have been motivated by ill will against accused-appellant. On the other hand, no other witness not related to accused-appellant was ever called to corroborate his claim. The defense presented only accused-appellants sister, Aimee Vallejo, to corroborate his story. We have held time and again that alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons.[57] It is well settled that alibi is the weakest of all defenses as it is easy to contrive and difficult to disprove. For this reason, this Court looks with caution upon the defense of alibi, especially when, as in this case, it is corroborated only by relatives or friends of the accused.[58]

Towards the latter part of 1983, Maribel noted that petitioner's feelings toward her started to wane. He subsequently abandoned her and Joanna Rose. Maribel tried to support herself by accepting various jobs and with occasional help from relatives, but it was never enough. She asked petitioner for support but, despite promises to do so, it was never given. Maribel then filed a complaint against petitioner before the Regional Trial Court of Manila for support. Petitioner, on the other hand, has a different version: He claims that in 1978, he went to Tonight's Club and Resthouse along Roxas Boulevard, Manila to relax after a hard day's work. There he met Maribel, a pretty and aggressive hospitality girl. Raymond observed that while she had a pleasing personality, she seemed to be quite experienced because she started to kiss him on the cheeks and neck, whispering to him that they could go anywhere and rest. Raymond declined to take Maribel up on her offer saying that he only wanted someone to talk to. They became friends after that first meeting, and while he often saw her, there was no intimacy between them. He did admit giving Maribel sizeable tips because she confided in him that she needed money. Raymond alleged that he was not Maribel's only customer at the club. In 1980, she left for Japan to work as an entertainer. In 1981, she returned to Manila pregnant, and appealed to Raymond for help because she claimed that she could not face her relatives in her condition. Raymond got her an apartment and paid its rentals until she gave birth to a baby girl on January 17, 1982. Raymond admits paying the hospital bills but claims that Maribel was supposed to pay him back for it. When she failed to do so, Raymond stopped seeing her. Raymond denies being the father of Maribel's child, claiming that they were only friends and nothing more. The trial court rendered a decision on June 10, 1971, the dispositive portion of which states: "WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant ordering herein defendant, Raymond Pe Lim to give support to his natural daughter, minor Joanna Rose Pe Lim in the amount of Ten Thousand Pesos (P10,000.00). Philippine Currency, per month for the support, maintenance, education and well-being of said child, the same to be paid on or before the 5th day of each month and monthly thereafter starting June, 1991, until the said minor Joanna Rose Pe Lim, shall have reached the age of majority. The defendant is further ordered to pay the plaintiff the sum of Seven Thousand Five Hundred (P7,500.00) Pesos, Philippine Currency, for attorney's fees and other litigation expenses. No costs. SO ORDERED." Petitioner then elevated his case to the Court of Appeals which affirmed the trial court's findings. Petitioner now argues before the Court that there is no clear and convincing evidence on record to show that there was actual cohabitation between him and Maribel. In fact, petitioner infers that Maribel became pregnant only when she went to Japan. In short, he denies that he is the father of Joanna Rose. He further questions the awarded support of P10,000.00 per month, saying that the same is beyond his means, considering that he has a family to support. We find no merit in this petition. In Alberto v. Court of Appeals,[2] we said: "When a putative father manifests openly through words and deeds his recognition of a child, the courts can do no less than confirm said acknowledgment. As the immortal bard Shakespeare perspicaciously said: 'Let your own discretion be your tutor; suit the action to the word, the word to the action."

The evidence in the instant case shows that petitioner considered himself to be the father of Joanna Rose as shown by the hand-written letter he wrote to Maribel: "Hi Love, I wrote you this letter because I would like to erase from your mind the thought of why I can not ever [sic] you marriage right now is because I have no longer love or care for both Joanna & you. Last night when we talked things over, I was in a stage wherein everything was happening so fast that I was running out of time & works (sic) to make you understand me through this letter I would like to explain my side in a more detailed way and I hope you could understand. You know love, the main root of the problem of why marriage is impossible for us right now is not what my parents or my family circle will say about you, but the financial side of it. Okay, let say I did marry you right now disregarding my financial stability. Sooner or later they will come to know of it and I am sure that they will not consent it. I have no alternative but to leave them & to stick it up with you. This is where the financial side comes in. I can't allow myself walking away from my family making them think that I can stand on my own two feet but the truth of the matter is not and seeing both of you suffer for only one stupid mistake which is I was not yet financially ready to face the consequence. My plan is that if you could only stick it out with me until I am ready to face whatever consequence that might occur during our life or relation as husband and wife. You have already tried it before, why can't you stress it a little longer. In return, I promise to be a loving & caring husband & father to both of you. Love, I really don't want you to be taken away from me by anyone, whether he be single or married. This is the reason why I am still trying to convince you. But if you really have decided things up and really determined to push through with it. I guess I just have to respect your decision. Just remember I wish you the best of luck and take extra-care of yourself & Joanna. Remember, if the time comes when things get rough for you and you have no one to turn to, don't hesitate to call on me. I am very much willing to be at your side to help you. I love you very much! Love, Raymond" (Underscoring supplied by Raymond himself) From the tenor of the letter and the statements petitioner made therein it is clear that, contrary to his vehement assertion that he and Maribel were just friends, they were actually lovers. In an earlier letter, this time sent to Maribel while she was in Japan, petitioner lovingly told her to take care of herself because of her "situation," obviously referring to the state of pregnancy of Maribel: "Aug. 11, 1981 Hi Love, Do you know how glad I was to receive a letter from you yesterday? At least now I'm a little bit at ease to know that everything is fine with you.

Love, in your letter you seem so much concern (sic) about my situation once here. I really appreciate it, but please don't give too much thought about it because I'm physically o.k. here. The important thing is that don't think too much and have a lot of rest during your spare time especially in the situation you're in now. If you are feeling homesick just go out with your friends and try to enjoy yourself to the fullest while you are there Love, you said in your letter that you regret very much your going there & wishes (sic) that you have not left anymore. I understand your feelings to what had happened after you told me about it in the telephone. xxx xxx xxx

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused. DECISION BELLOSILLO, J.: On 3 April 1990 this Court in People v. Orita [1] finally did away with frustrated rape[2] and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts.[3] The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage. But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labiaor the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape. Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused - a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia? On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death,[5] hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659.[6] As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then

Love, I miss you so much that I always re-read those letters you had send me very often. At night I always think of you and the times we're together before going to sleep. xxx xxx xxx" (Underscoring supplied)

It was only after petitioner separated from Maribel that he started to deny paternity of Joanna Rose. Until he got married to another woman, he did not object to being identified as Joanna Rose's father as disclosed in the Certificate of Live Birth. The evidence on record reveals that he even got a copy of the said Certificate when Joanna Rose started schooling, as shown by a receipt in his name from the San Juan Municipal Office. His belated denial cannot outweigh the totality of the cogent evidence which establishes beyond reasonable doubt that petitioner is indeed the father of Joanna Rose.[3] Under Article 175 of the Family Code, illegitimate filiation may be established in the same way and on the same evidence as legitimate children. Article 172 of the Family Code states: "The filiation of legitimate children is established by any of the following: '(1) The record of birth appearing in the civil register or a final judgment; or

'(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.' "In the absence of the foregoing evidence, the legitimate filiation shall be proved by: '(1) '(2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a).'"

This article adopts the rule in Article 283 of the Civil Code that filiation may be proven by "any evidence or proof that the defendant is his father."[4] Petitioner has never controverted the evidence on record. His love letters to Maribel vowing to be a good father to Joanna Rose; pictures of himself on various occasions cuddling Joanna Rose and the Certificate of Live Birth say it all. Accordingly, his suit must fail. WHEREFORE, the petition is DISMISSED and the decision of the Court of Appeals is hereby AFFIRMED. Costs against petitioner. [G.R. No. 129433. March 30, 2000]

busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7]prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused, " P - t ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused. [8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her.[9] He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor. Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victimP50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthels younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthels private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthels vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below

seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge.[10]But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the attackers penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva,[12] or that the penis of the accused touched the middle part of her vagina.[13] Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victims vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape.[14] As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora.[15] Jurisprudence dictates that the labia majora must be entered for rape to be consummated,[16] and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ,"[17] but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion." A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primos penis was able to penetrate Crysthels vagina however slight. Even if we grantarguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her childrens room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus: Q: How was Primo holding your daughter? A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim).

It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primos penis supposedly reaching Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazons sight, not to discount the fact that Primos right hand was allegedly holding his penis thereby blocking it from Corazons view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contactwas at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act. We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazons presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ? A: No, sir.[20] This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primos penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration,[21] obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. [23] On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the child's own assertion that she resisted Primos advances by putting her legs close together;[24] consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding

of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible.[26] None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death. Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim.[27] In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labialthreshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are present in the instant case, hence, the accused should be punished only for it. The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower isreclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio. [G.R. No. 131592-93. February 15, 2000] 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 co-worker 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 defendant 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 authorize 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. [G.R. No. 127761. April 28, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO R. PASCUAL, accused-appellant. DECISION DE LEON, JR., J.: Before us on appeal is the Decision[1] of the Regional Trial Court of Roxas, Isabela, Branch 23, finding appellant Pedro Pascual y Reboca guilty of the crime of murder, in Criminal Case No. Br. 23-636, for the killing of Dr. Maximino P. Picio, Jr. Spped The appellant, Pedro R. Pascual, and a certain John Doe were charged with the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, as amended, in an amended Information dated July 13, 1995, which reads: Misspped That on or about the 14th day of March, 1995, in the municipality of San Manuel, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, together with John Doe, whose real identity is still to be determined, conspiring, confederating together and helping one another, with evident premeditation and treachery, did then and there, willfully, unlawfully and feloniously, with intent to kill, suddenly and unexpectedly and without giving him chance to defend himself, assault, attack and shoot for several times with short firearms one Dr. Maximino P. Picio, Jr., who as a result thereof, suffered multiple gunshot wounds on the different parts of his body which directly caused his death. CONTRARY TO LAW.[2] Upon being arraigned on July 13, 1995, appellant Pedro Pascual, assisted by his counsel, entered the plea of "Not guilty". Thereafter, trial on the merits ensued. The evidence adduced by the prosecution shows that the victim, Dr. Maximino Picio, Jr., was the Municipal Health Officer of San Manuel, Isabela. On March 14, 1995 at around 7:00 oclock in the evening, Dr. Picio went to the house of Marissa Robles who served as a midwife in the Rural Health Unit of San Manuel from January 26, 1994

until her services were terminated on August 5, 1994 by Municipal Mayor Reynaldo P. Abesamis of San Manuel, Isabela. While at the house of Marissa, Dr. Picio discussed with her certain matters concerning the Rural Health Unit of San Manuel.[3] At around 9:00 oclock in the evening, Dr. Picio decided to go home. He was accompanied by Marissa outside the house where his motor vehicle was parked at the roadside. After boarding his vehicle, and while he was about to leave, two (2) unidentified persons who were armed with short firearms suddenly appeared and walked toward Dr. Picio and Marissa. Alarmed, Marissa called the attention of the unsuspecting Dr. Picio that the "enemies" were coming ("May dumarating na kalaban").[4] One of the unidentified men shoved Marissa and at the same time told her to get out of the way.[5] Immediately thereafter, the two unidentified men started firing their guns at Dr. Picio even as the latter pleaded to them in Ilocano not to shoot for the reason that they were friends ("Saan kayo agkaskasta, agkakadua tayo.") Apparently determined to kill their victim, the assailants pulled Dr. Picio out of his vehicle and continued to shoot him several times as he laid helpless on the ground. The two assailants left only after the victim was already dead.[6] Prosecution eyewitness Marissa Robles recognized the assailants due to the electric light in front of the house generated by the Isabela Electric Company (ISELCO) and the light emanating from the headlights of the vehicle of Dr. Picio. There was also a moon that evening when the shooting incident happened.[7] Upon the arrest of appellant Pedro Pascual on the following day, March 15, 1995, Marissa pointed to him as one of the two assailants [8] whom she described as small, with white complexion and sporting a brushed-up hair. She also described the other assailant as tall, dark and slender.[9] The said prosecution eyewitness disclosed that she had seen the appellant about one (1) week prior to the shooting incident in the Rural Health Unit of San Manuel, Isabela when the appellant arrived in the morning and stayed there briefly before he left the place.[10] Dr. Bernardo Layugan, Municipal Health Officer of Roxas, Isabela conducted the post mortem examination on the body of the victim on March 16, 1995. His findings as to the cause of death of the victim are contained in the Post Mortem Certificate of Death,[11] to wit: 1. Gunshot wound inlet left upper lip; 2. Gunshot wound inlet chin; 3. Gunshot wound anterior sternal portion; 4. Gunshot wound inlet right armpit; and 5. Gunshot wound anterior abdominal portion. Missc Rosalinda S. Picio, wife of the late Dr. Maximino Picio, Jr., testified on the civil aspect of the case. She stated that they spent around P 300,000.00 for the wake and funeral service. She also declared that her late husband used to receive a monthly salary of P13,000.00 as municipal health officer in addition to the P 240,000.00 annual income he used to earn in his farming and grains business.[12] On the other hand, appellant Pedro Pascual denied that he killed Dr. Maximino Picio, Jr. Appellant Pascual testified that he was released on recognizance from the provincial jail of Isabela on March 3, 1995 after being detained there for almost three (3) years as a suspect in an ambush that took place sometime in 1990 and for his past activities as a former member of the New Peoples Army (NPA). On March 8, 1994, his services as carpenter were hired by his kumpadre, Fernando Agaloos, in the construction of the house of a certain Napoleon Velasco. He worked in the construction until he was arrested by the police on March 15, 1995 in connection with the killing of Dr. Maximino Picio, Jr.[13] Appellant Pascual claimed that he stayed in his house in Barangay Eden, San Manuel, Isabela during the entire evening of March 14, 1995. At around 7:00 oclock in the evening of the said date his neighbors, Guillermo Velasco and Santiago Casticon, arrived in his house. Shortly thereafter, another neighbor, Elmer Velasco, also arrived. Among other matters, they talked about his life as a detention prisoner in the provincial jail. After his visitors had left at past 10:00 oclock in the evening, Pascual went to sleep.[14]

On the following morning of March 15, 1995, appellant Pascual reported for work in the construction site of the house of Napoleon Velasco. However, he failed to return in the afternoon of the same date inasmuch as he was arrested by the police when he returned to his house from work to take his lunch. Scmis Upon his arrest, appellant Pedro Pascual was immediately brought by Police Senior Inspector Dionisio Borromeo to the PNP Crime Laboratory Service in Santiago City, Isabela for paraffin examination to determine the presence of gunpowder residue (nitrates) on the hands of the appellant. Boiled wax was poured on his hands.[15] The result of the paraffin examination however, did not show the presence of any gunpowder residue on the hands of the appellant.[16] The appellant denied that he knew Dr. Maximino Picio, Jr. as the Rural Health Officer of San Manuel, Isabela. He also denied having gone to the Rural Health Unit of San Manuel, Isabela one (1) week before Dr. Picio was killed. Defense witnesses Elmer Velasco, Guillermo Velasco and Santiago Casticon corroborated the testimony of appellant Pedro Pascual. The said defense witnesses respectively testified, in substance, that they were in the house of appellant Pascual between 7:00 oclock to 10:00 oclock in the evening of March 14, 1995 to welcome him who had been away from their barangay for almost three (3) years; and that they talked about the life of the appellant as a detention prisoner in the Isabela provincial jail. They claimed that the appellant did not leave his house where they all stayed that evening.[17] After analyzing the evidence, the trial court rendered its Decision the dispositive portion of which reads, to wit: AS A CONSEQUENCE OF ALL THE FOREGOING, the Court finds accused Pedro Pascual guilty beyond reasonable doubt of the crime of murder provided for and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the penalty of reclusion perpetua, to indemnify the heirs of the victim the sum of P 300,000.00, the amount spent for the coffin, wake and burial of the victim, P 50,000.00 for life, without however subsidiary imprisonment in case of insolvency, and to pay the cost. Considering that the other accused has not been apprehended, let this case be archived to be revived upon apprehension of said accused and/or upon motion of the public prosecutor. SO ORDERED.[18] In his appeal, appellant Pedro Pascual interposed the following assignments of error: I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNCORROBORATED TESTIMONY OF MARISSA ROBLES THAT SHE SAW THE COMMISSION OF THE CRIME AND RECOGNIZED THE ACCUSED-APPELLANT AS ONE OF THE KILLERS OF DR. MAXIMINO PICIO, JR. II THE TRIAL COURT ERRED IN REJECTING THE TESTIMONIES OF THE ACCUSEDAPPELLANT AND WITNESSES ELMER VELASCO, GUILLERMO VELASCO AND SANTIAGO CASTICON ON THE GROUND THAT THEIR TESTIMONIES ARE "TOO GOOD TO BE TRUE". Sc

III THE TRIAL COURT ERRED IN NOT GIVING ANY EVIDENTIARY VALUE TO THE RESULTS OF THE PARAFFIN TEST ON ACCUSED-APPELLANT. IV THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANT WAS ONE OF THE KILLERS OF THE VICTIM.[19] Appellant Pedro Pascual expressed grave doubt over the presence of Marissa Robles at the scene of the crime. He stated that Marissa, who is a young and single lady from the barrio, should have had enough time talking with the late Dr. Maximino Picio, Jr. for two (2) hours and so it was not necessary for her to still accompany him outside her house at such an unholy hour in the evening. Appellant also stated that if Marissa were indeed present at the crime scene, then she could have been hit by bullets or she could have even been killed by the assailants knowing that she was a potential witness against them. The appellant further stated that even on the assumption that Marissa was beside the victim at the time the shooting incident occurred, her uncorroborated identification of the appellant allegedly because the scene of the crime was well-lighted is unreliable; and that the suddenness of the attack could not have afforded her the time, calmness and presence of mind to recognize the assailants. Moreover, appellant Pascual opines that it was unlikely for prosecution witness Marissa Robles to have been at the Rural Health Unit of San Manuel, Isabela and saw him one (1) week prior to the shooting incident on March 14, 1995 inasmuch as she had been separated from the service as early as August 5, 1994; and that Marissa failed to disclose the purpose of her alleged visit therein and to explain how and why she had particularly noticed and recognized him. Xsc In addition, the appellant pointed out that the paraffin test conducted on his hands at the PNP in Santiago City yielded negative results. According to him while gunpowder traces or nitrates can be removed by acetic acid or the ordinary vinegar, there was no showing that he knew of such fact, and that he used vinegar to remove gunpowder traces from his hands. Article 248 of the Revised Penal Code, as amended, provides: Article 248. Murder.- Any person who not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. After a careful review of the record, we find that the decision of the trial court finding the appellant guilty of the crime of murder is amply supported by the evidence. That the victim, Dr. Maximino Picio, Jr., died of multiple gunshot wounds in the evening of March 14, 1995 in front of the house of Marissa Robles in Barangay Villanueva, San Manuel, Isabela is not disputed. Appellant Pedro Pascual claimed that the lower court erred in giving credence to the uncorroborated testimony of prosecution eyewitness Marissa Robles while rejecting his alibi which was corroborated by his neighbors, namely: Elmer Velasco, Guillermo Velasco and Santiago Casticon. It should be emphasized however, that credibility does not go with numbers.[20] The testimony of a single witness is sufficient to support a conviction even in a charge of murder where it is positive and credible.[21] The participation of appellant Pedro Pascual in the killing of Dr. Maximino Picio, Jr. was duly established by the testimony of prosecution eyewitness Marissa Robles. During the trial Marissa positively identified and pinpointed appellant Pascual, whom she earlier described to the police authorities as small, with white complexion and sporting a brushed-up hair, as one of the two assailants of Dr. Picio. Marissa testified that she had spotted the appellant and his companion who were both carrying short firearms while they were walking toward Dr. Picio, prompting her to warn him of the approaching enemies ("May dumarating na kalaban"). Appellant Pedro Pascual even ordered Marissa to get out of the way as the latter was directly beside Dr. Picio who was then about to leave. Dr. Picio pleaded to the assailants not to shoot him inasmuch as they were friends, but to no avail. She had actually witnessed the shooting of the victim as well as recognized the two assailants due to the electric lights in front of her house being generated by the ISELCO and the illumination from the headlights of the victims vehicle which were already switched on. In addition, there was a moon on that evening when the shooting incident happened. Xlaw The testimony of Marissa was found by the lower court to be more credible, straightforward and worthy of belief.[22] On the other hand, appellant did not present proof to show that she was biased. There is also no evidence from which it can be inferred that the said prosecution eyewitness was motivated by any ill-will in testifying against him. If at all, the arguments advanced by the appellant in his attempt to cast doubt on the credibility of the said prosecution eyewitness are based mainly on conjectures that cannot prevail over the positive identification by the said eyewitness that the appellant was one of the two perpetrators of the crime. It is not difficult to imagine why Marissa remained unscathed during the shooting incident. The facts clearly show that she was not the object of the criminal act. That Marissas services in the Rural Health Unit of San Manuel, Isabela had been severed as early as August 5, 1994 does not run counter to her claim that she saw the appellant one (1) week before Dr. Picio was killed on March 14, 1995. The records of this case disclose that Marissa continued to visit Dr. Picio at the Rural Health Center in San Manuel, Isabela despite her severance from the service; a fact which prompted Mayor Reynaldo P. Abesamis, M.D., Municipal Mayor of San Manuel, Isabela, to issue a written order dated February 23, 1995 addressed to Dr. Maximino Picio, Jr. to bar Marissa Robles from the said office, otherwise he "will be constrained to institute drastic action." [23] In any case, it is a settled rule that the Supreme Court will not interfere with the findings and judgment of the trial court in determining the credibility of witnesses, unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.[24] Besides, appellant failed to show that it was physically impossible for him to be present at the place where the crime was committed at the time of commission thereof.[25] Pascual claims that he was in his house in Barangay Eden, San Manuel, Isabela when the killing of Dr. Picio in Barangay Villanueva, San Manuel, Isabela took place. It should be noted that the distance between the two barangays is only about three (3) kilometers. They are

connected by an irrigation road that can easily be negotiated by a motorized vehicle or even on foot.[26] Consequently, the defense of alibi by the appellant must fail. Sclex Appellant Pascual likewise faults the trial court for not according evidentiary weight to the result of the paraffin test per the Report issued by the police crime laboratory in Santiago City, Isabela that shows appellant negative of any gunpowder residue (nitrates) on both his hands. It is a well-settled rule that a negative paraffin test result is not a conclusive proof that one has not fired a gun, because it is possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the hands are bathed in perspiration or washed afterwards.[27] Additionally, defense witness Leonora Camurao, forensic chemist at the PNP Crime Laboratory, Camp Adduru, Tuguegarao, Cagayan specifically stated that gunpowder or nitrates can be removed with the use of acetic acid or vinegar.[28] The lower court correctly found that treachery attended the shooting to death of the victim. The requisites for appreciating treachery (alevosia) in the commission of the crime of murder are: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) appellant consciously and deliberately adopted the particular means, methods or forms of the attack employed by him.[29] From the eyewitness account of Marissa Robles, appellant Pascual and his companion who were both armed with short firearms approached Dr. Picio when the latter was inside his vehicle and about to leave. Dr. Picio became aware of their presence only after he was warned by Marissa. Immediately thereafter, appellant and his companion shot Dr. Picio several times despite his plea to spare his life. Sclaw It appears clear that the assailants purposely sought the opportunity so that their unarmed victim was not in a position to defend himself when they simultaneously shot him to death several times. The fact that Marissa called the attention of Dr. Picio upon noticing the approaching assailants did not negate the finding of treachery for the reason that treachery may still be appreciated even when the victim was forewarned of the danger to his person.[30] The essence of treachery is the suddenness and unexpectedness of the assault without the slightest provocation on the part of the person attacked.[31] The qualifying circumstance of evident premeditation, however, does not obtain in the case at bench. The elements of evident premeditation are: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that he clung to his determination; and (3) a sufficient lapse of time between determination and execution to allow himself time to reflect upon the consequences of his act.[32] The evidence adduced by the prosecution does not prove any of the said elements. Korte The lower court correctly imposed the penalty of reclusion perpetua on the appellant in view of the absence of any aggravating and mitigating circumstance. In view of the death of the victim, Dr. Maximino P. Picio, Jr., his forced heirs are entitled to P50,000.00 representing civil indemnity ex delicto. They are also entitled to P50,000.00 by way of moral damages inasmuch as the widow of the victim, Rosalinda S. Picio, testified on how she felt over the loss of her husband.[33] Additionally, the appellant is liable to pay to the heirs of the victim damages for loss of earning capacity of the deceased. However, actual damages may not be awarded in view of the absence of competent evidence to support the same. Rtcspped It appears that Dr. Maximino Picio, Jr. was 64[34] years old at the time of his death on March 14, 1995. Her widow testified that he used to receive a monthly salary of P13,000.00 as Municipal Health Officer of San Manuel, Isabela. In accordance with the American Expectancy Table of Mortality which was adopted by the Court,[35] the loss of earning capacity shall be computed as follows: Sdaadsc Net Earning Capacity (X) = Life Expectancy x (Gross Annual Income Living Expenses e.g. 50% of annual gross income) = 2 (80-64) x (156,000.00-78,000.00)

3 = 10.667 x 78,000.00 = P 832,026.00 WHEREFORE, the Decision of the Regional Trial Court of Roxas, Isabela, Branch 23, convicting appellant Pedro R. Pascual of the crime of murder and imposing the penalty of reclusion perpetua is hereby AFFIRMED subject to the MODIFICATION that the civil liability of the appellant in favor of the forced heirs of the victim shall be as follows: P50,000.00 representing civil indemnity ex delicto; P50,000.00 by way of moral damages; and P832,026.00 as damages for the loss of earning capacity of the deceased victim, Dr. Maximino P. Picio, Jr. [G.R. No. 118078. July 15, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR VILLANUEVA, accused-appellant. DECISION FRANCISCO, J.: The five (5) accused namely Reynaldo Bartolata alias Tilo, Oscar Villanueva, Johnny Sola alias Tangane, Dagoy Sola and Bobong Sola[1] were charged with the crime of illegal possession of firearms allegedly committed as follows: That on or about April 13, 1993, in the afternoon thereof, at Sitio Toquip, Barangay Jagnaan, Municipality of San Jacinto, Province of Masbate, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, did then and there willfully, unlawfully and feloniously have in their possession and control three (3) lantakas and one (1) sumpak, without first having obtained the necessary permit and license from the competent authority.[2] Of the five accused mentioned above, only Reynaldo Bartolata and Oscar Villanueva were apprehended by the police authorities while the Sola brothers, Johnny, Dagoy and Bobong are at large up to the present. [3] At the arraignment, Bartolata and Villanueva pleaded not guilty to the crime charged against them. Trial ensued during which the prosecution presented SPO4 Pascual Delavin, Bgy. Captain Jose Nuez, and Bgy. Tanod Chief Gomez Samson as witnesses. From their testimonies may be culled the following factual antecedents of the instant case: Sometime in March of 1993, Jose Nuez, the Barangay Captain of Danao, San Jacinto, Masbate made a report to the Chief/Station Commander of the Philippine National Police (PNP) of San Jacinto, Masbate regarding the presence of persons who were seen carrying arms and roaming around the vicinity of Danao.[4] On April 13, 1993, the Station Commander of the PNP ordered a team of six (6) policemen headed by SPO4 Pascual Delavin to proceed to Barangay Danao to verify the said report.[5] When they reached Barangay Danao, SPO4 Delavin requested Barangay Tanod Gomez Samson to guide them around the area as the Barangay Captain was then in Masbate.[6] Not finding the malefactors in Danao, they moved on to Sitio Toquip in the neighboring Barangay of Jagna-an. Along the trail to Sitio Toquip, they encountered the five (5) accused who were all armed. Bartolata, Villanueva and Johnny Sola were each carrying a homemade gun, locally known as lantaka [7] while Dagoy Sola was armed with a shorter homemade gun locally known as sumpak,[8] and recovered from Bobong Sola was a bolo. When asked to surrender, accused Bartolata and Villanueva laid down their arms and surrendered to the team of SPO4 Delavin, but the other accused immediately fled the scene of the crime and were able to evade apprehension.[9] In their defense, accused Villanueva and Bartolata denied the charges against them and pleaded their respective alibis. According to Villanueva, he was at their farm in Sitio Toquip on April 13, 1993, at around 3:00 oclock in the afternoon when a certain Toti Almoradie arrived and asked him of the whereabouts of the Sola brothers.[10] Later, seven (7) policemen also arrived and inquired about the location of the house of Bartolata. He

informed the policemen that the house of Bartolata was situated in Danao, San Jacinto, Masbate. The policemen then requested him to accompany them to the house of Bartolata in Danao. Upon reaching the house of Bartolata, the policemen started firing their guns, and from a distance of about eight (8) arms length, Villanueva saw that the policemen had tied Bartolatas hands behind his back and that one of them, later identified as Patrolman Relente boxed Bartolata. Thereafter, the policemen ordered both Villanueva and Bartolata to go with them to San Jacinto. On the way to San Jacinto, the group passed by a house and one of the policemen asked Villanueva who the owner of the said house was. When Villanueva replied that it is his house, the policemen showed him three (3) lantakas and a sumpak[11] and told him: Maybe you own these guns because we took them from your house.[12] Villanueva persistently denied ownership of the guns. However, during cross-examination, he pointed out that the homemade guns could have been left in his house by Johnny Sola without his knowledge as his house was often left unoccupied.[13] For his part, accused Bartolata claimed that on the said date and time of the incident he was with his wife, Josefa Villanueva, in their house in Sitio Toquip in Barangay Jagna-an, San Jacinto, Masbate. He was roofing their house when Toti Almoradie and Patrolman Relente arrived. The two went upstairs and Relente allegedly tied Bartolatas hands behind his back then boxed and even kicked him. On the other hand, Toti took the bolo which Bartolata was using in roofing the house and gave the same to Relente. The mauling of Bartolata continued despite Josefas pleas for Relente to stop beating her husband.[14] The latter lost consciousness and when he came to he was already in the house of Oscar Villanueva who was also picked up by the police.[15] On July 27, 1994, Branch 50 of the Regional Trial Court of San Jacinto, Masbate rendered a decision finding both accused Reynaldo Bartolata and Oscar Villanueva guilty of Illegal Possession of Firearms penalized under Section 1 of P.D. No. 1866.[16] In convicting the accused, the trial court relied on the time honored doctrine that positive identification of the accused and positive testimonies as in the instant case should prevail over the formers alibi and denials of the commission of the crime for which they are charged since great weight is generally accorded to the positive testimony of the prosecution witnesses than the accuseds denial.[17] Giving full faith and credit to the testimonies of the prosecution witnesses, the trial court likewise cited the failure of the defense to ascribe to the former any improper or ulterior motive for testifying against the accused.[18] Furthermore, while the trial court found the prosecution witnesses to be consistent and credible in their testimonies that the accused were caught in flagrante delicto,[19] it noted that the testimonies of the defense witnesses are inconsistent, incredible and not worthy of belief.[20] Accused Bartolata died after the promulgation of the decision in the trial court, hence only accused Villanueva was able to interpose this appeal before us raising the following lone assignment of error: THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF ILLEGAL POSSESSION OF FIREARMS (VIOL. OF P.D. 1866) DESPITE THE INCREDIBLE TESTIMONIES OF THE PROSECUTION WITNESSES AND THE INADMISSIBLE EVIDENCE AGAINST HIM, BEING THE FRUIT OF ILLEGAL SEARCH AND SEIZURE.[21] In seeking to uphold the conviction of Villanueva, the Office of the Solicitor General (OSG) countered with its arguments that: (1) Findings of the trial court on credibility of witnesses are given great weight by appellate courts,[22] and (2) The arrest of the appellant in flagrante delicto was lawful under Section 5 [a] of Rule 113 of the Rules of Court.[23] After a careful review of the records of this case, we find the evidence presented by the prosecution to be insufficient to convict accused-appellant Oscar Villanueva of the crime of illegal possession of firearm. In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same.[24] The latter is a negative fact which constitutes an essential ingredient of the offense of illegal possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond reasonable doubt.[25] It is this duty that the prosecution has miserably failed to discharge in the case at bench. We searched the records for any evidence, either testimonial or documentary, to prove the non-possession by the accused-appellant of the requisite license or permit and found none. The prosecution had apparently omitted presenting this very vital piece of evidence, and the trial court, either by inadvertence or ignorance, gave it nary a thought and proceeded to convict the accused. It is this very same fatal

flaw that led us to reverse the conviction of Nilo Solayao for possession of a 49-inch long homemade firearm, locally known as latong, in the case of People vs. Solayao.[26] We said there that: while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned. Putting it differently, when a negative is averred in a pleading, or a plaintiffs case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative.[27] As we have previously held, the testimony of a representative of, or a certification from the PNP Firearms and Explosives Unit that the accused-appellant was not a licensee of the said firearm would have sufficed to prove beyond reasonable doubt the second element of the crime of illegal possession. The foregoing cannot be dispensed with and its absence renders the accused-appellants conviction erroneous.[28] In view of the foregoing, we deem it unnecessary to delve into the merits of the accused-appellants assignment of error and the OSGs arguments in rebuttal of the same. WHEREFORE, the assailed decision of the court a quo is REVERSED and SET ASIDE. Accused-appellant Oscar Villanueva is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention. [G.R. No. 115686. December 2, 1996] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO MALABAGO y VILLAESPIN, accused-appellant. DECISION PUNO, J.: This is an automatic review of the decision of the Regional Trial Court of Dipolog City, Branch 10 which imposed the penalty of death on accused-appellant, Pedro Malabago y Villaespin, in Criminal Case No. 6598, viz: WHEREFORE, the court finds accused Pedro Malabago guilty beyond reasonable doubt of the crime of PARRICIDE as defined and penalized under Article 246 of the Revised Penal Code. With reluctance and a heavy heart therefore, inspired by the personal feeling and view of the undersigned with respect to the wisdom of the penalty of death for any crime, the court finds itself with no other alternative but to impose the penalty provided for by the express mandate of the law which is now restored under Republic Act No. 7659. The accused (Pedro Malabago y Villaespin) is hereby sentenced to DEATH for the terrible crime he has committed and, to indemnify the heirs of the victim in the sum of P50,000.00 conformable to the recent jurisprudence on the matter (People v. Sison, 189 SCRA 643). Cost de oficio. SO ORDERED DIPOLOG CITY, Philippines, this 10th day of May 1994. (Sgd.)

WILFREDO C. OCHOTORENA Acting Presiding Judge1 In an information dated January 7, 1994, accused-appellant was charged with the crime of parricide committed as follows: That in the evening, on or about the 5th day of January 1994, at Barangay Gulayon, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and without any justifiable cause, did then and there wilfully, unlawfully and feloniously hack and strike with a bolo one Letecia R. Malabago, his lawfully wedded wife, hitting the latter on her face and neck, which caused the victims instantaneous death, to the damage and prejudice of the heirs of the victim, in the amount of P30,000.00 as death indemnity, and also moral and exemplary damages in the amounts to be established during the trial.2 The following facts were established by the prosecution: On January 5, 1994, at about 7:00 in the evening, Guillerma Romano, appellants mother-in-law, was tending her sari-sari store in Barangay Gulayon, Dipolog City. The Store and its premises were lit by a kerosene lamp and the fluorescent light from the adjoining house of Dodong Opulentisima. Guillermas daugther. Letecia Romano Malabago, arrived and sat on one of the benches outside the store. She had just come from selling some jackfruit. Allandel, Letecias fourteen-year old son, appeared and sat on the bench facing her. He listened to his mother and grandmother who were conversing. A few minutes later, accused-appellant came and interrupted his wife and mother-in-laws conversation. He and Letecia began arguing. Guillerma turned away but heard the couples altercation over money and appellants jealousy of someone. Suddenly, Guillerma heard a loud sound and she thought that appellant slapped Letecia on the face. Letecia cried out Agay! Looking out the store window, Guillerma saw Letecias face bloodied with a slash along her right ear. Appellant was facing Letecia, and with a bolo in his hand, struck her again, this time hitting the lower left side of her face, from the lips down to the neck. Letecia fell to the ground. Guillerma rushed towards her daughter and shouted for help.3 She was lifeless. Appellant fled to Dodong Opulentisimas house. Dodong Opulentisima later called the police. They came, fetched appellant and brought him to their station.4 On investigation, the police found a bloodied bolo in the pineapple plantation near appellants house.5 Letecia was found to have died of cardio-respiratory arrest; shock hemorrhage, massive; hack wounds, multiple.6 Accused-appellant pled not guilty to the crime. He claimed that on January 5, 1994, he was in the poblacion of Dipolog City. He alleged he did not know who hacked his wife and had no means of finding the culprit because he was placed in jail after her killing.7 He claimed through his son, Allandel, as defense witness, that Guillerma testified against him because she was against their marriage. He was then jobless.8 The proccedings show that Guillerma, together with her husband, catalino, and a ppellants and Letecias three children namely, Allandel, Aljun and Alex later signed as affidavit of desistance and moved to dismiss the case against him.9 The trial court upheld the prosecution and on May 10, 1994 convicted accused-appellant of parricide and sentenced him to death pursuant to republic Act No. 7659. Before us appellant assigns the following errors: I The sentence of death imposed by the trial court on the appellant is an unconstitutional penalty for being violative of fundamental human rights and is, thus, null and void. II

The judgment of conviction is null and void for having been rendered by a trial court ousted of jurisdiction because of the grave violations of the appellants rights to due process committed by no less that the presiding judge himself as shown by his conduct at trial. III Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant of parricide considering that the prosecution failed to prove his guilt beyond reasonable doubt as demonstrated by: (a) (b) (c) The prosecutions failure to prove the legitimate marital relation between appellant and the victim; The prosecutions failure to prove the fact and cause of death; The prosecutions failure to establish the chain of custody over the alleged instrument of death; IV Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant when it arbitrarily and selectively gave full weight and credence only to Guillerma Romanos inculpatory but inconsistent and inadmissible testimony and disregarded her exculpatory statements. V Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in peremptorily dismissing the appellants defense of alibi as inherently weak. VI Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in appreciating the existence of treachery as an aggravating and qualifying circumstance. VII Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in refusing to consider the mitigating circumstance of voluntary surrender in favor of the appellant, despite the prosecutions failure to contradict and challenge the appellants claim of this mitigator. VIII Assuming without conceding that it was not ousted of jurisdiction, the trial court nevertheless gravely erred in awarding civil indemnity arising from the death of Letecia Malabago considering that the prosecution failed to prove said death as a fact during trial.10 We affirm the trial courts findings with modification

The crime of parricide defined in Article 246 of the Revised Penal Code as amended by Republic Act 765911 states: Art. 246. Parricide. -- Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendants or other descendants, or the legitimate spouse of the accused.12 The key element in parricide is the relationship of the offender with the victim.13 In the case at parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate. However, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.14 Guillerma Romano testified on direct examination that: PROSECUTOR MAH: Q On January 5, 1994 at about 7:00 in the evening, can you still recall where you were at that particular time? A I was in my store. Q While you were in your store at that particular time and date, can you still remember if there was an unusual incident [that] happened? A Yes, sir. Q Please tell us what that incident was about? A At that moment, I heard a loud sound (paka). Q Did you investigate what that loud sound [was] all about? A I did not mind because they are husband and wife. Q What was that loud sound about? A I thought it was a slap on the face but she was nit by a bolo. Q What was that incident about? A There was an altercation between husband and wife. Q After the altercation between husband and wife, what happened? A I saw the hacking two times and I saw blood. Q Who was hacked? A My daugther Letecia was hacked by Pedro Malabago. xxx xxx x x x.15

A To file a complaint against Pedro malabago y Villaespin, 42 years old and a resident of Gulayon, Dipolog City, Q What is your complaint against said person? A He hacked to death my daughter who is his wife with the use of a bolo. Q How many times did the suspect hack his wife, Letecia R. Malabago? A Twice, hitting the victim on the right side of her face and on the neck resulting in her instanteneous death. xxx xxx x x x.16

Appellant did not object to Guillermas testimony and sworn statement that he and Letecia were husband and wife.17 Appellant himelf corroborated Guillermas testimony, to wit: COURT: (to the witness) Q You are Pedro Malabago, the accused herein? A Yes, sir. Q What is your relation to the late Letecia Romano Malabago? A She was my wife, your honor. Q You mean to say you were legally married to Letecia Romano Malabago? A Yes, sir. Q Who solemnized the marriages? A Mayor Barinaga, your honor. Q When? A In the year 1970, your honor. Q Who were the witnesses, could you still remember? A I can only remember Sergio Vidal, your honor. Q But then you were legally married by civil ceremony officiated by Mayor Barinaga? A Yes, your honor. xxx xxx x x x.18

The testimony of the accused that he was married to the deceased is an admission against his penal interest. It is a confirmation of the semper praesumitur matrimonio and the presumption that a man and a woman deporting themselves as husbands and wife have entered into a lawful contract of marriage.19 Appellant alleges that the prosecution failed to establish the fact and cause of Letecias death because Dr. Dominador Celemin, the City Health Officer who signed the death certificate, did not personally examine her cadaver.20 It is content that the consent of the death certificate issued by Dr. Celemin is hearsay.21 Letecias death certificate is not the only proof of her death. Guillerma, in her affidavit, stated that her daughter died as a result of the hack wounds.22 Called also as a hostile witness to the defense, she testified: COURT Q At the time, you actually saw the accused hacked (sic) the bolo to (sic) your daughter?

Guillerma Romanos testimony on direct examination affirmed the narration in her affidavit taken the day after the incident. The affidavit was adopted by the prosecution as its Exhibit A and it reads in part: Q What is your purpose in coming to the Office of the Investigator of the Dipolog City Police?

A Yes, you honor. Q In fact, you witnessed the blood oozing on the face of your daughter? A Yes, your honor. Q In other words, you actually saw the accused herein hack the bolo to your daughter, am I right? A Yes, your honor. Q And the cause of death of your daughter was hacking of Pedro Malabago? A Yes, your honor. Q I have observed a while ago while you were testifying, you were crying. Why? A Because of worries that Pedro had done to my daughter. Q You mean to say, you cried because your daughter was killed by her husband? A Yes, your honor. xxx xxx x x x.23

A judge is called upon to ascertain the truth of the controversy before him. He may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time 27 and clarify obscure and incomplete details after the witness had given direct testimony.28 After all, the judge is the arbiter and he ought to satisfy himself as to the respective merits of the claims of both parties in accord with the stringent demands of due process.29 In the case at bar, the trial judge had strong reasons to question the material witnesses who executed affidavits of desistance contradicting their previous stance. If to the mind of the parties, the trial judge was unduly interfering in their presentation of evidence, they were free to manifest their objection. They were likewise free to ask redirect questions from their witness after interrogation by the trial court. In the instant case, however, they never manifested that the questions of the trial judge had traversed the allowable parameters. Even assuming that some of the questions were incriminating, we cannot hold that the witnesses were compelled to incriminate themselves. The records show they answered the questions of the court freely and voluntarily and without any objection from their respective counsels. The prosecution evidence is based solely on the testimony of Guillerma Romano. Nonetheless, her testimony is clear, spontaneous and straightforward. Her inconsistencies are minor and inconsequential and they are not incongruous with her credibility.30 Her testimony was not eroded even when she was presented by the defense as a hostile witness. She admittedly signed the affidavit of desistance for the sake of her three grandchildren and this is understandable in light of the circumstances of the case. Allandel and his brothers pled that she withdraw the complaint because they did not want their father to be in prison.31 Deep in her heart, however, Guillerma wanted justice for her daughter and thus, she testified for the prosecution.32 The fact that she objected to her daughters marriage to appellant is too flimsy a reason to impel her to testify against the father of her grandchildren. We agree with the trial court that appellants defense of alibi is weak and unconvincing. Appellant was positively identified as the one who hacked his wife to death. Moreover, it was not physically impossible for him to be at the scene of the crime on that fateful evening. The poblacion of Dipolog City is merely four kilometers from Barangay Gulayon and this distance may be traversed within a few minutes by motorized vehicle.33 Be that as it may, we find that the trial court erred in appreciating the aggravating circumstance of treachery. For treachery to be present, two conditions must concur: (a) the employment of means of execution which would ensure the safety of the offender from defensive and rataliatory acts of the victim, giving the victim no opportunity to defend himself; and (b) the means, method and manner of execution were deliberately and consciously adopted by the offender.34 It is true that appellant hacked his wife who was then unarmed and had no opportunity to defend herself. However, the evidence does not show that appellant deliberately and consciously employed this particular mode of attack to ensure the killing of the victim. The unembroidered facts reveal that appellant hacked his wife in the midst of a sudden, unscripted heated argument. This precludes the idea that appellant priorly planned to kill his wife. Indeed, appellant was not carrying his bolo at that time. The bolo was hanging in its usual place on one of the posts of the sari-sari store.35 Treachery, to be appreciated, must spark an attack that is deliberate, sudden and unexpected not where it is prefaced by an unforeseen heated argument with the victim standing face to face with her assailant.36 The trial court also erred in disregarding the mitigating circumstance of voluntary surrender. In answer to questions by the trial court, appellant declared:

Appellant affirmed on cross examination that his wife died as a result of the hacking, thus: FISCAL MAH: (to the witness) Q Mr. Witness, you know Letecia Malabago because she was your wife? A Yes, sir. Q Where is she now? A She is already buried in the cemetery. Q You mean to say she is already dead? A Yes, sir. Q What was the cause of her death? A She was hacked, sir. Q Hacked by whom? A I do not know who hacked my wife. xxx xxx x x x.24

COURT: (to the witness) xxx xxx xxx

Accused-appellant also claims that the trial court showed partiality to the prosecution by unduly interfering in the presentation of evidence. By asking questions, the judge allegedly elicited prejudicial admissions from witnesses without affording appellants counsel the right to examine them on their answers to the court, in violation of appellants constitutional right to due process and right against self-incrimination.25 The records disclosed that the questions the trial judge propounded were made mainly to clarify what the prosecution and defense witnesses had testified on direct and cross examinations. The essential elements of the crime of parricide like appellantss marriage to Letecia, the cause of Letecias death and appellants participation therein were facts already established by the prosecution in its evidence in chief. Using his discretion, the trial judge questioned the witnesses to clear up obscurities in their testimonies ans sworn statements.26 The wise use of such discretion cannot be assailed as a specie of bias.

Q Do you have suspects as to the alleged killers of your wife? A I have no suspect, your honor. Q Because you denied killing your wife, you did not surrender to the police authorities? A I surrendered because I was accused of killing my wife. Q Immediately after the incident? A Yes, sir.

Q Was it placed in the police blotter that you surrendered? A Yes, sir. Q Will you give the name of the person or police officer to whom you surrendered? A I forgot the name, your honor. Q Are you telling the truth? A Yes, sir. xxx xxx x x x.37

reflected in his birth certificate.[3] However, when he testified in court, he stated that his name was Manuel Pruna; and in the minutes of the court proceedings, he signed the name Manuel Pruna. On 27 November 1995, upon the Motion to Put the Accused Under Psychiatric or Mental Examination[4] filed by PRUNAs counsel on the ground that he could not secure from PRUNA a coherent answer to even simple questions, the trial court ordered that the accused be brought to the National Mental Hospital in Mandaluyong City for psychiatric or mental examination.[5] Accordingly, the trial was suspended, and PRUNA was sent to the National Center for Mental Health (NCMH), Mandaluyong City. On 28 June 1996, the trial court received a telegram[6] from the NCMH stating that PRUNA was in fair condition. The NCMH later submitted to the trial court a report[7] on the psychiatric evaluation of PRUNA with a recommendation to put him back to jail for the resumption of court proceedings. The report also stated that PRUNA narrated that while he and his friends were under the bridge sniffing rugby and drinking alcohol, they saw a 3-year-old girl defecating in the river bank; that they called her; and, upon the order of his friends he placed her on his lap and attempted to caress her sensitive parts. Said report was not, however, offered in evidence by the prosecution or the defense. The prosecution presented five witnesses, whose testimonies can be summed up as follows: Jacqueline Gonzales, the mother of LIZETTE, testified that on 3 January 1995, at 9:30 a.m., she was fetching water from the artesian well located ten meters away from her house, while LIZETTE was defecating at the back of the house of their neighbor Gloria Tolentino. Jacqueline then carried her pail of water and went back to her house. Since LIZETTE was not home yet, Jacqueline headed toward the place where the former was moving her bowel. She looked for LIZETTE but did not find her. It was when Jacqueline was already returning to her house that she saw LIZETTE from behind -- red-faced, crying, and appeared to be very frightened. When asked where she came from, LIZETTE answered that she was brought by a certain Boy to the grassy area at the back of Glorias house where she was sexually molested (or kinantot in the Tagalog dialect). LIZETTE then pulled her mother and led her to the house of PRUNA, which was about eight meters away from their house. PRUNA, the only one known in their community as Boy, was not there. Jacqueline forthwith requested her mother-in-law to report the matter to the police, while Jacqueline and LIZETTE went to the Bataan Provincial Hospital.[8] Jacqueline further declared that at the time of the alleged rape, LIZETTE was 3 years old, but at the time Jacqueline testified on 17 October 1995, LIZETTE was 4 years old. LIZETTEs last birthday was on 19 April 1995.[9] LIZETTE testified that she knew PRUNA whom he called Boy. She pointed to him inside the courtroom. According to her, PRUNA laid her down in a grassy area and inserted his penis into her vagina. When the presiding judge asked her whether she knew that it is a sin to tell a lie, she answered in the affirmative.[10] Dr. Emelita Quiroz, an obstetrician and gynecologist at the Bataan Provincial Hospital, testified that on 3 January 1995, she conducted a complete physical examination on LIZETTE and took wet smear specimen from her vaginal wall through scraping. The specimen was sent to the laboratory for analysis by a medical technologist. Further, she requested a urinalysis for LIZETTE.[11] The Medico-Legal Report[12] prepared by Dr. Quiroz reveals the following findings: Essentially normal PE-Findings Infantile areola & nipples

Appellant testified that he voluntarily surrendered to the police when they fetched him at Dodong Opulentisimas house. The prosecution did not dispute appellants claim of voluntarily surrender. Guillerma herself testified that without any resistance, appellant went with the police when they fetched him at Dodongs house.38 Indeed, appellant did not escape after Dodong Opulentisima called the police. Instead, he voluntarily placed himself at the disposal of the police authorities. In the absence of an aggravating circumstance39 and the presence of a mitigating circumstance the penalty imposable to appellant is reclusion perpetua.40 Considering the death of the victim, a civil indemnity of P50,000.00 must be awarded to her heirs. In light of the above disquisitions, the Court need not resolve the alleged unconstitutionality of R.A. No. 7659, as amended. Nonetheless, the Court expresses its appreciation to the scholarly arguments of our amici curiae, Senator Arturo M. Tolentino and Fr. Joaquin G. Bernas, S.J., on the constitutional aspects of R.A. No. 7659, as amended. Death not being the lis mota of the instant case, the Court has to await for more appropriate case to pass upon the constitutionality of R.A. No. 7659, as amended. IN VIEW WHEREOF, the decision appealed from is affirmed with the modification that the penalty of death imposed by the Regional Trial court of Dipolog City, Branch 10 on accused-appellant Pedro Malabago y Villaespin in Criminal Case No. 6598 is reduced to reclusion perpetua. [G.R. No. 138471. October 10, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL PRUNA y RAMIREZ or ERMAN PRUNA y RAMIREZ, accused-appellant. DECISION DAVIDE, JR., C.J.: A rosebud that had been snuffed out of its fragrance long before it could even blossom into a flower. Such is the case of Lizette Arabelle Gonzales (hereafter LIZETTE), who had been defiled at a very tender age. She was at the time voiding her body waste at their neighbors backyard, but that did not deter herein appellant from imposing his lechery on her. Indeed, lust is no respecter of time and place.[1] On 27 January 1995, an information[2] for rape was filed against accused-appellant Manuel Pruna y Ramirez or Erman Pruna y Ramirez (hereafter PRUNA), the accusatory portion of which reads: That on or about January 3, 1995 at Sitio Tabing-ilog, Brgy. Panilao, Pilar, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the said accused thru force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, Lizette Arabelle Gonzales, a 3-year-old minor girl, against the will and consent of the latter, to her damage and prejudice. Upon motion of PRUNAs counsel, the Public Attorneys Office (PAO), the Information was amended changing the name of the accused from Manuel Pruna y Ramirez to Erman Pruna y Ramirez, which was the name

Flat breasts (-) hematoma (-) pubic hair Labia minora and majora well coaptated

Hymenal ring intact (+) hyperemia (-) laceration (Vaginal Opening) LABORATORY RESULT: WET SMEAR: KOH - Negative for T-Vaginalis

was thereafter brought to the Pilar Municipal Jail. There, the mother of the child threw at him the lid cover of a kettle. He was also asked by the police to take off his clothes and lie flat; then he was mauled. Thereafter, he was told to put his feet between the grills, and he was made to masturbate. Worse, his testes were burned with cigarette butts. Every night, he was asked to kneel on a chair and was hit with a 2x 2 piece of wood.[19] After trial, PRUNA was convicted by the trial court of the crime of rape in its qualified form and sentenced to suffer the supreme penalty of death and to indemnify the victim in the sum of P50,000, plus costs. [20] Hence, this automatic review. In his Appellants Brief,[21] PRUNA attributed to the trial court the following errors: I IN RELYING ON THE TESTIMONY OF JACQUELINE S. GONZALE S, THE MOTHER OF THE CHILD, THAT THE LATTER WAS THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED WHEN THE BEST EVIDENCE THEREFOR IS THE BIRTH CERTIFICATE OF THE CHILD. II IN RELYING ON THE HEARSAY TESTIMONY OF JACQUELINE S. GONZALES AS TO THE ALLEGED R APE OF HER CHILD. III IN ADMITTING AND RELYING ON THE TESTIMONY OF COMPLAINANT[ ] CHILD WHO WAS ONLY THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED EVEN AS SHE WAS ONLY FIVE (5)YEARS OLD WHEN SHE TESTIFIED. IV IN CONVICTING THE ACCUSED ON DUBIOUS EVIDENCE. The Office of the Solicitor General (hereafter OSG) seeks the affirmation of the trial courts decision with the modification that an additional award of P50,000 as moral damages be granted in favor of the offended party. As culled from the arguments of the parties, the issues to be resolved in this case are as follows: (1) (2) (3) (4) (5) Whether LIZETTE was a competent and credible witness considering that she was allegedly only 3 years old when the alleged rape occurred and 5 years old when she testified; Whether Jacquelines testimony as to the declarations of LIZETTE is hearsay; Whether the failure of the prosecution to present Gloria Tolentino as a witness is fatal; Whether appellants guilt has been proved beyond reasonable doubt; Whether the qualifying circumstance of minority has been duly proved as to justify the imposition of the death penalty.

NSS- Negative for fungi SPERM ANALYSIS -POSITIVE for sperm cells Gram staining-few, epithelial cells seen, no other microorganism URINALYSIS: WBC-0-2 Although not stated in the Medico-Legal Report of Dr. Quiroz, the urinalysis report[13] includes a positive finding for sperm cells. Dr. Quiroz explained that the presence of sperm cells in the vaginal canal signified that sexual intercourse and ejaculation had occurred on the person of the patient. There was no laceration; but there was hyperemia, which means reddening of the tissue around the vaginal opening. Among the causes of hyperemia is the insertion of a hard object like penis and finger.[14] Teresita Magtagnob, the medical technologist who conducted the laboratory examinations and prepared the corresponding reports,[15] testified that sperm cells were found in the wet smear specimen and urine taken from LIZETTE.[16] SPO2 Romeo D. Bunsoy, a member of the Philippine National Police assigned at the Pilar Municipal Station, testified that on 3 January 1995 the parent of the minor rape victim filed a complaint against PRUNA. He referred the matter to the desk officer to have it blottered. Upon his advise, the minor was brought to the hospital for examination. When they returned from the hospital, he took their statements. Later, he conducted an ocular inspection and investigation at the alleged place of the incident and caused the place to be photographed, which showed that the grasses were flattened. He inquired from the people in the neighborhood, and one of them answered that he saw the minor being brought by PRUNA to the place where the minor was found. When PRUNA was brought to their station by four barangay tanods of Panilao, Pilar, Bataan, SPO2 Bunsoy tried to converse with him, but the former did not give any reply.[17] On the part of the defense, Carlito Bondoc and PRUNA took the witness stand. Carlito testified that on 3 January 1995, he fetched water at the public artesian well together with Jacqueline. After having drawn water from the well, Jacqueline called her daughter, who was then defecating on the road near the river; and they both went home. After a while, the parents of LIZETTE shouted that their daughter was raped, and then they proceeded to the house of PRUNA and accused him of having raped the child. Carlito asserted that PRUNA could not have raped LIZETTE because he (PRUNA) was in his house from the time that LIZETTE was moving her bowel up to the time that her mother went to the house of PRUNA. Carlito knew that PRUNA was at home because the former was also in the latters house to have coffee. Carlito and the Sulit family thereafter brought PRUNA to the barangay hall. Since the barangay captain was not around, they brought PRUNA to the municipal building to prove that he was innocent.[18] PRUNA denied having raped LIZETTE. He claimed that in the morning of 3 January 1995, he was in his house preparing coffee for Carlito. After Carlito left, several men arrived and boxed him for reasons not known to him. Carlito and the latters friend then brought him to the barangay hall. There, LIZETTEs father boxed him. He RBC-3-7-/hpf epithelial cells few.

We shall resolve these issues in seriatim.

I. LIZETTEs Competency and Credibility as a Witness

Appellant disputes the competency of LIZETTE to testify by reason of her tender age. When LIZETTE was called to testify, his counsel interposed a vigorous objection to the admission of her testimony because of her tender age. The trial court noted the objection and allowed her to testify; thus: DIRECT EXAMINATION BY PROS. LUMABAS: Do you know Manuel Pruna? A Yes, sir.

ATTY. BALUYOT: On January 3, 1995, in the morning where were you? A I was in the grassy area, sir.

Q In that grassy area there were other children with you playing? A None, sir.

Q You were then removing[sic] your bowel, is it not? A Yes, sir.

Q How do you call Manuel Pruna? A Boy, sir.

Q Then while removing your bowel you saw your mother pass[ ] by, is it not? A Yes, sir.

Q Where is he? A PROS. LUMABAS: What did Manuel Pruna or Boy do to you? A Inihiga niya ako and inserted his penis to my vagina, sir. There, sir. (Witness pointing to a person wearing blue T-shirt, who when asked, gave his name as Manuel Pruna)

Q She was then carrying a pail to fetch some water, is it not? A Yes, sir.

Q The water from where she will fetch is [sic] a few meter[s] away from you, is it not? A ATTY. BALUYOT: Considering that the grassy place where you were then discharging your bowel is beside a street? A Yes, sir. Near, sir.

Q And in what place did he do this to you? A In the grassy area, sir.

Q After he inserted his penis to your vagina, what happened next? ATTY. BALUYOT: The witness for quite sometime could not answer the question. PROS. LUMABAS: I think that will be all for the witness.[22] After which, the defense counsel manifested that he would not cross-examine her and that he intended to file a motion for her disqualification as a witness.[23] The court then proceeded to ask her a few questions, thus: COURT : Do you know what will happen to a child if she is not telling the truth? A Sa lupa.

Q And you saw your mother bringing a pail of water towards your house after her pumping from the well, is it not? A Yes, sir.

Q When she passed by she likewise saw you, is it not? A Yes, sir.

Q Then how far were you from your house when you were discharging your bowel? Please demonstrate the distance? A Up to that door, sir.

Q From that position you were at the grass you could see your house, is it not? A Yes, sir.

Q Do you know that it is a sin to tell a lie? A Yes, sir.

Q Could you tell the Honorable Court how long did it take you to discharge your bowel? A For a short period of time, sir.

Q The witness is excused considering the manifestation of Atty. Baluyot that he will be filing a written motion for the striking out of the testimony of the witness considering her tender age.[24] No such motion is extant on the records. At the next hearing, the defense counsel cross-examined LIZETTE, as follows:

(Sandali lang po.)[25] As a general rule, when a witness takes the witness stand, the law, on ground of public policy, presumes that he is competent. The court cannot reject the witness in the absence of proof of his incompetency. The burden is, therefore, upon the party objecting to the competency of a witness to establish the ground of incompetency.[26]

Section 21 of Rule 130 of the Rules on Evidence enumerates the persons who are disqualified to be witnesses. Among those disqualified are [c]hildren whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating them truthfully. No precise minimum age can be fixed at which children shall be excluded from testifying. The intelligence, not the age, of a young child is the test of the competency as a witness.[27] It is settled that a child, regardless of age, can be a competent witness if he can perceive and, in perceiving, can make known his perception to others and that he is capable of relating truthfully the facts for which he is examined.[28] In determining the competency of a child witness, the court must consider his capacity (a) at the time the fact to be testified to occurred such that he could receive correct impressions thereof; (b) to comprehend the obligation of an oath; and (c) to relate those facts truly to the court at the time he is offered as a witness. [29] The examination should show that the child has some understanding of the punishment which may result from false swearing. The requisite appreciation of consequences is disclosed where the child states that he knows that it is wrong to tell a lie, and that he would be punished if he does so, or that he uses language which is equivalent to saying that he would be sent to hell for false swearing.[30] A child can be disqualified only if it can be shown that his mental maturity renders him incapable of perceiving facts respecting which he is being examined and of relating them truthfully.[31] The question of competency of a child-witness rests primarily in the sound discretion of the trial court. This is so because the trial judge sees the proposed witness and observes his manner of testifying, his apparent possession or lack of intelligence, as well as his understanding of the obligation of an oath.[32] Since many of the witness manners cannot be photographed into the record, the finding of the trial judge will not be disturbed or reversed unless from what is preserved it is clear that such finding was erroneous.[33] In this case, appellant questions the competency of LIZETTE as a witness solely on the ground of her age. He failed to discharge the burden of showing her mental immaturity. From the above-quoted testimony, it can be gleaned that LIZETTE had the capacity of observation, recollection, and communication[34] and that she could discern the consequence of telling a lie. We, therefore, sustain the trial court in admitting her testimony and according it great weight. We are not persuaded by appellants assertion that LIZETTE should not be allowed to testify two years after the alleged rape when the interplay of frail memory combines with the imagination of earlier years. It must be noted that it is a most natural reaction for victims of criminal violence to have a lasting impression of the manner in which the crime was committed and the identity of the person responsible therefor.[35] In a string of cases, we have said that the testimony of a rape victim who is of young or tender age is credible and deserves full credit,[36] especially where no motive is attributed to the victim that would make her testify falsely against the accused.[37] Indeed, a girl of such age as LIZETTE would not concoct a story of defloration; allow the examination of her private parts; and undergo the expense, trouble, inconvenience, and the trauma of a public trial unless she was in fact raped.[38]

examination.[39] If one therefore testifies to facts which he learned from a third person not sworn as a witness to those facts, his testimony is inadmissible as hearsay evidence.[40] The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony is presented is deprived of the right or opportunity to cross-examine the person to whom the statements are attributed.[41] Moreover, the court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them.[42] In the instant case, the declarant (LIZETTE) herself was sworn as a witness to the fact testified to by Jacqueline. The appellant even cross-examined her (LIZETTE). Moreover, the trial court had the opportunity to observe her manner of testifying. Hence, Jacquelines testimony on the incident related to her by her daughter cannot be disregarded as hearsay evidence. Even assuming that the aforementioned testimony of Jacqueline is hearsay, its non-admission would not save the day for the appellant. Such testimony is not indispensable, as it merely serves to corroborate LIZETTEs testimony that PRUNA laid her down in the grass and inserted his private organ into hers. As discussed earlier, LIZETTEs testimony, which was found to be credible by the trial court, is sufficient basis for conviction. At any rate, Jacquelines testimony is proof of the victims conduct immediately after the rape. It shows that LIZETTE immediately revealed to her mother the rape incident and the identity of her defiler. As will be discussed later, such conduct is one of the earmarks of the truth of the charge of rape.

III Non-Presentation of Gloria Tolentino as a Witness

Appellant harps on the prosecutions failure to put on the witness stand Gloria Tolentino, who was listed as a witness and executed an affidavit on 4 January 1995 that she saw the appellant carrying and bringing LIZETTE to a grassy area at the back of her house. It is undisputed that at the time the case was called for trial, Gloria had already moved out of her residence in Panilao, Pilar, Bataan, and could not be found anymore. In any event, as opined by the OSG, her intended testimony could be dispensed with, as it would only be corroborative of LIZETTEs testimony that Pruna brought her to a grassy area.

IV. Sufficiency of the Prosecutions Evidence Against Appellant

II. The Alleged Hearsay Testimony of Jacqueline Gonzales

When LIZETTE was put in the witness stand, she unhesitatingly identified PRUNA, their neighbor, as the one who defiled her. A rape victim can easily identify her assailant especially if he is known to her because during the rape, she is physically close to her assailant that enables her to have a good look at the latters physical features.[43] LIZETTE testified that on 3 January 1995 PRUNA, whom she called Boy, laid her in a grassy area and inserted his penis into her genitalia. When a girl or a woman says that she has been raped she says in effect all that is necessary to show that rape was truly committed.[44] She is not expected to remember all the ugly details of the outrage committed against her.[45] And when her testimony passes the test of credibility, the accused can be convicted on the basis thereof, for in most cases it is the only evidence that can be offered to establish his guilt.[46] Likewise, LIZETTEs mother testified that right after the incident LIZETTE disclosed what happened to her and readily identified PRUNA as the culprit. She even led her mother to the house of PRUNA. [47] Thereafter, the two went to the police authorities to report the incident, and then to the hospital for LIZETTEs medical examination. By and large, the medical evidence lends credence to LIZETTEs testimony that PRUNA inserted his penis into her vagina. The Medico-Legal Report shows that there was hyperemia or reddening of the vaginal opening of

Contrary to appellants contention, Jacquelines testimony that LIZETTE told her that appellant laid her in the grassy area and inserted his penis into her vagina is not covered by the hearsay evidence rule, which finds application when the declarant does not testify. This rule, as enunciated under Section 36, Rule 130 of the Rules on Evidence, provides that a witness can testify only to those facts which he knows of his personal knowledge except as otherwise provided in the Rules of Court. The term hearsay as used in the law on evidence, signifies evidence which is not founded upon the personal knowledge of the witness from whom it is elicited and which consequently does not depend wholly for its credibility and weight upon the confidence which the court may have in him; its value, if any, is measured by the credit to be given to some third person not sworn as a witness to that fact, and consequently not subject to cross-

LIZETTE. As opined by Dr. Quiroz, who was presented as an expert witness, hyperemia can be caused by the insertion of a hard object like penis and finger.[48] The presence of sperm cells in the vaginal canal and urine of LIZETTE is also a mute testimony of the sexual contact that further strengthens LIZETTEs claim of rape. This Court is not oblivious of the finding that no laceration was found in LIZETTEs organ despite the fact that she was examined immediately after she was raped. We have already ruled, however, that the absence of fresh lacerations does not preclude the finding of rape,[49] especially when the victim is of tender age.[50] Wellsettled is the rule that rape is consummated by the slightest penile penetration of the labia or pudendum of the female.[51] The presence of hyperemia in LIZETTEs vaginal opening and the existence of sperm cells in her vaginal canal and urine are clear indications that PRUNAs organ indeed touched the labia or pud endum of LIZETTE. In a nutshell, the following overwhelmingly establish the truth of the charge of rape: (a) the spontaneity of the identification by LIZETTE of PRUNA as the rapist; (b) her immediate revelation to her mother of the dastard act committed against her; (c) her act of leading her mother to appellants house right after the incident; (d) the prompt filing of the complaint before the authorities; (e) LIZETTEs submission to medical examination; (f) the hyperemia in her private part; and (g) the presence of sperm cells in her vaginal canal and urine. The trial court correctly disregarded the defense of alibi raised by the accused. We have consistently held that for alibi to prosper, it must be proved that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the crime scene. Just like denial, alibi is an inherently weak defense; and unless supported by clear and convincing evidence, the same cannot prevail over the positive declaration of the victim.[52] We have also held that when alibi is established only by the accused, his relatives, or close friends, the same should be treated with strictest scrutiny.[53] Carlito, who was admittedly a close friend of appellants parents, corroborated PRUNAs testimony that he (PRUNA) was in his house during the time that LIZETTE was raped. It is, however, an established fact that the place where the rape occurred was just a few meters away from the house of PRUNA. Thus, there was no physical impossibility for PRUNA to be in the grassy area to consummate the crime of rape. The defense, through Carlito, attempted to impute motive to Jacqueline in filing against PRUNA the charge of rape. According to him, LIZETTEs grandparents, the Sulits, wanted to buy the place of the PRUNA family, but the latter refused.[54] Aside from the fact that such testimony was not corroborated, said motive, if at all, is too flimsy to be even considered. No mother in her right mind would use her offspring as an engine of malice. She would not subject her child to the humiliation, disgrace, and even the stigma attendant to a prosecution for rape unless she is motivated by the desire to bring to justice the person responsible for her childs defilement.[55]

1. In People v. Vargas,[57] the testimonies of the victim and her aunt that the former was 10 years old at the time of the rape were not considered proof of her age for being hearsay. This Court also observed that the victim could easily be mistaken for a child below 12 years of age, and hence it was not correct to judge the victims age by her appearance. We held: The difference of two or three years in age may not always be readily apparent by mere physical manifestations or appearance. 2. In People v. Javier,[58] the victim was alleged to be 16 years old, and the accused did not contest her age. Ratiocinating that in this age of modernism, there is hardly any difference between a 16-year-old girl and an 18-year-old one insofar as physical features and attributes are concerned, this Court held that an independent proof of the actual age of a rape victim is vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in R.A. No. 7659. 3. In People v. Brigildo,[59] aside from the failure of the prosecution to present the offended partys birth certificate or other equally acceptable official document concerning her age, the testimonies on record were not clear as to her exact age. The victim declared that she was 11 years old when she testified in court a year after the incident, while her mother claimed that she was around 15 years old at the time of the commission of the crime. The informations even alleged a different age. Hence, this Court refused to appreciate the qualifying circumstance of minority because of the uncertainty regarding her age. 4. In People v. Tipay,[60] the offended party was alleged in the information to be under 16 years of age. No independent evidence was presented to prove it. This Court recognized that the minority of a victim who may be below the age of 10 is quite manifest and may be taken judicial notice of by the court. But when the victim is between the crucial years of 15 and 17 where minority may seem to be dubitable due to one's physical appearance, the prosecution should prove the fact of minority with certainty. The lack of objection on the part of the accused concerning the victims age does not excuse the prosecution from discharging its burden. 5. In People v. Cula,[61] the victim was alleged in the complaint to be 16 years old when the rape was committed, but no evidence at all was presented to prove her age. We held that the failure of the accused to deny such allegation cannot make up for the failure of the prosecution to prove with certainty the victims minority. Because of the lacuna in the prosecutions evidence, coupled with the trial courts failure to make a categorical finding of minority of the victim, we declined to consider the qualifying circumstance of minority. 6. In People v. Veloso,[62] the victim was alleged to be 9 years of age when she was raped. Citing People v. Vargas,[63] this Court refused to consider the testimonies of the victim and her father as sufficient proof of her age. 7. In People v. Pecayo,[64] the victim simply stated during the beginning of her direct examination that she was 14 years old and that she was born on 13 January 1983. We held that the victims casual testimony as to her age is not enough, and that the lack of denial on the part of the accused does not excuse the prosecution from proving her age through competent evidence such as a duly certified certificate of live birth, baptismal certificate, or some other authentic document showing her age. 8. In People v. Tundag,[65] the victim testified that she was 13 years of age when she was raped, but she did not know exactly when she was born. Unable to secure a copy of her birth certificate, the prosecution moved that judicial notice be taken of the fact that she was below 18 years old at the time of the rape. Despite the admission by the defense of such fact, this Court held that the age of the victim is not a matter of judicial notice, whether mandatory or discretionary. Under Section 3, Rule 129 of the Rules on Evidence, a hearing is required before such fact can be taken judicial notice of by courts. 9. In People v. Geraban,[66] the victims testimony was categorical in declaring that she was 15, but her mothers testimony regarding her age was not clear. We thus declared that the prosecution failed to discharge the burden of proving minority.

V. Sufficiency of Evidence of LIZETTEs Minority and Propriety of the Imposition of the Death Penalty

The commission of the crime of rape by PRUNA having been duly established by the prosecution, we now come to the question of the penalty to be meted upon him. Article 335, seventh paragraph, no. 4, of the Revised Penal Code, as amended by Republic Act No. 7659, provides that the death penalty shall be imposed if the crime of rape is committed against a child below seven (7) years old. We have held that in such a case the minority of the victim must be proved with equal certainty and clearness as the crime itself. The failure to sufficiently establish the victims age is fatal and consequently bars conviction for rape in its qualified form.[56] A persons age is best proved by the birth certificate. But is the presentation of the victims birth certificate a sine qua non requirement to prove her age for the appreciation of minority either as an element of the crime or as a qualifying circumstance? Recent jurisprudence has conflicting pronouncements. In the following cases, no birth certificate was presented and this Court ruled that the age of the victim was not duly proved by the prosecution:

10. In People v. Liban[67] and People v. Llandelar,[68] the only evidence adduced to prove the minority of the victims was the victims bare testimony that they were 10 and 16 years old, respectively. This Court held that while the declaration of a victim as to her age, being an exception to the hearsay proscription, would be admissible under the rule on pedigree, the question on the relative weight that may be accorded to it is another matter. The prosecution should present the victims birth certificate or, in lieu thereof, any other documentary evidence, like a baptismal certificate, school records, and documents of similar nature, or credible testimonial evidence that can help establish the age of the victim. Neither the obvious minority of the victim nor the absence any contrary assertion from the defense can exonerate the prosecution from its burden. Judicial notice of the issue of age without the requisite hearing under Section 3 of Rule 129 of the Rules on Evidence would not be sufficient compliance with the law. 11. In People v. Alvarado,[69] the victim testified that she was 14 years old at the time of the rape, and this was confirmed by the accused, who was victims father. The victims mother, however, testified as to her date of birth which showed that she was 13 years of age at the time of the commission of the crime. For this doubt as to the victims age, the accused was held guilty of simple rape only and meted the penalty of reclusion perpetua, and not death penalty. On the other hand, in the following cases, we ruled that the age of the rape victim was sufficiently established despite the failure of the prosecution to present the birth certificate of the offended party to prove her age: 1. In People v. Rafales,[70] the testimony of the victim and her mother that the former was only 10 years old when she was raped, which was not denied by the accused, was deemed sufficient to prove her age for the purpose of determining whether the accused could be held guilty of statutory rape, which is carnal knowledge of a woman below 12 years of age. 2. In People v. De la Cruz,[71] the testimony of the mother alone that her two daughters were both 14 years old at the time of the rape incidents was deemed sufficient because there was no reason to doubt the testimony of the mother, who had personal knowledge of the ages of her children. Moreover, said testimony was never challenged by the accused and stood unrebutted by any other evidence. 3. In People v. Bali-balita,[72] the victims testimony as to her age, which was corroborated by her half-sister, was deemed sufficient. We noted that the victim testified in court four months after the rape, and hence it was not difficult for the trial court to take judicial notice that she was under 18 years of age. 4. In People v. Velasco,[73] the minority of the victim was deemed established by (a) the complainant herself, who was held to be competent to testify on her age, as it constituted family tradition; (b) the open admission of the accused that the victim was a 12-year-old minor; and (c) the categorical finding of the trial court that she was a minor of a little over twelve years. 5. In People v. Remudo,[74] the trial court appreciated the qualifying circumstance of minority on the strength of (a) the offended partys testimony as to the date of her birth, which showed that she was 13 years old at the time of the rape, and (b) the admission of said date of birth by the accused who was the victims brother. 6. In People v. the only evidence presented by the prosecution to establish that the victim was below 7 years old at the time of the alleged rape was the victims own testimony. Although hearsay because she could not have personal knowledge of the date of her birth but could only acquire knowledge thereof from her parents or relatives, said testimony was held admissible for being an assertion of family tradition regarding pedigree. Her testimony and the accuseds admission that she was 5 years old during the commission of the crime were held sufficient to establish her age. LLanita[75]

7. In People v. Agustin,[76] the victims testimony that she was 14 years old at the time of the rape incidents, coupled with the express admission of her age by the accused who was her father, sufficiently proved her minority. 8. In People v. Esuela,[77] the testimony of the victims mother that the victim was 13 years of age at the time of the rape was held sufficient to establish minority for the reason that as a mother she was in the best position to know when she delivered her child. Also considered were the victims own testimony regarding her age, as well as the observation of the trial court that she could not have been more than 18 years old when she testified. In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused.[78] 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. The trial court should always make a categorical finding as to the age of the victim. In the present case, no birth certificate or any similar authentic document, such as a baptismal certificate of LIZETTE, was presented to prove her age. In imposing the death penalty, the trial court ratiocinated in this wise: In the instant case, the victim, Lizette Arabelle Gonzales, was a 3-year-old minor girl as alleged in the information and the defense did not contest her age and as a matter of fact was questioning her qualification to testify because of her tender age when she testified two (2) years later in Court. The victims Medico-Legal Certificate date[d] January 3, 1995 established the fact that at the time of the commission of the rape on January 3, 1995, the child was only 3 years old.[79] It thus appears that the trial courts finding that LIZETTE was 3 years old when she was raped was based on the Medico-Legal Report prepared by Dr. Quiroz, as well as on the fact that the defense did not contest her age and even questioned her qualification to testify because of her tender age.

However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was presented to establish LIZETTEs age. Her mother, Jacqueline, testified on 17 October 1995 as follows: Q. Now, on January 3, 1995 at about 9:30 in the morning, do you still recall where you were? A. Yes, sir. Q. Where were you at that particular date and time? A. I was fetching water from an artesian well beside the house of my neighbor, sir. Q. Where was this daughter of yours then when you were fetching water? A. My daughter was discharging her bowel who was then at the back of the house of our neighbor, sir. How old is your daughter Lizette Arabelle Gonzales? A. Three years old, sir. Q. At the time that she was discharging her bowel, how old [was] she? A. Three years old, sir. She is four years old now. Q. When was her last birthday? A. April 19, 1995, sir.[80] Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5 years old.[81] However, when the defense counsel asked her how old she was on 3 January 1995, or at the time of the rape, she replied that she was 5 years old. Upon further question as to the date she was born, she could not answer.[82] For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must be established with certainty that LIZETTE was below 7 years old at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.[83] In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence [84] in order that the qualifying circumstance of below seven (7) years old is appreciated against the appellant. The lack of objection on the part of the defense as to her age did not excuse the prosecution from discharging its burden. That the defense invoked LIZETTEs tender age for purposes of questioning her competency to testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot be imposed on him. However, conformably with no. 3(b) of the foregoing guidelines, the testimony of LIZETTEs mother that she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the penalty to be imposed on PRUNA should be reclusion perpetua, and not death penalty. As regards the civil liability of PRUNA, the indemnity in the amount of P50,000 awarded by the trial court is not sufficient. In accordance with recent jurisprudence, LIZETTE should also be awarded moral damages in the amount of P50,000 without need of pleading or proof because the mental, physical and psychological trauma suffered by her is too obvious.[85]

WHEREFORE, the decision of the Regional Trial Court, Branch 1, Balanga, Bataan, in Criminal Case No. 6044 is hereby AFFIRMED with the modification that accused Manuel Pruna y Ramirez or Erman Pruna y Ramirez is held guilty beyond reasonable doubt of statutory rape, and not qualified rape, and is sentenced to suffer reclusion perpetua and to pay the victim Lizette Arabelle Gonzales the sum of P50,000 as moral damages in addition to the indemnity of P50,000.