[G.R. No. 132319. May 12, 2000] PEOPLE vs. FERNANDO MADARANG y MAGNO, accused-appellant. PUNO, J.

: HTML What distinguishes man from beast is his intellect. Man's action is guided and controlled by his mind. Law is designed for rational beings as it is based on our inherent sense of right which is inseparable from reason. Thus, when man's reasoning is so distorted by disease that he is totally incapable of distinguishing right from wrong, he loses responsibility before the law. In the case at bar, we are asked to resolve whether or not the accused, invoking insanity, can claim exemption from liability for the crime he committed. Accused FERNANDO MADARANG y MAGNO was charged with parricide for killing his wife LILIA MADARANG in an Information [1] which reads: "That on or about September 3, 1993, at Poblacion, municipality of Infante, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with evident premeditation and treachery, armed with a bladed weapon, did then and there, wilfully, unlawfully and feloniously attack and stab LILIA M. MADARANG, his legitimate wife, inflicting upon her stab wound 4 1/2 inches by 1 1/2 inch(es)long and 3/16 of an inch wide, located just below the left clavicle 1 3/4 inch(es) lateral to the supra-sternal notch, and plowed along the interpace slightly coursing upward and posteriorly and stab wound 1 inch in length, gaping and 3 1/2 inch(es) deep, located at the right arm at its medial aspect, coursing upwards and medially towards the apex of the right axilla which caused her instantaneous death, to the damage and prejudice of the heirs of Lilia M. Madarang." "Contrary to Art. 246 of the Revised Penal Code." At the arraignment, the accused refused to enter a plea. Pursuant to the Rules, the trial court entered a "not guilty" plea for him. At the initial hearing of the case on May 5, 1994, the accused's counsel manifested that his client had been observed behaving in an abnormal manner inside the provincial jail. Thus, the Court called the accused to the stand but he refused to answer any of the questions propounded by the court. Hence, on the same date, the Court issued an Order[2] directing the transfer of the accused to the National Center for Mental Health (NCMH) for psychiatric evaluation to determine his fitness to stand trial. CODES The initial examination of the accused at the NCMH revealed that he was suffering from a form of psychosis known as schizophrenia. The accused was detained at the hospital and was administered medication for his illness. On June 19, 1996, after more than two (2) years of confinement, the accused was discharged from the NCMH and recommitted to the provincial jail as he was already found fit to face the charges against him.[3] At the resumption of the hearing, a reverse trial was conducted. The accused proceeded to adduce evidence on his claim of insanity at the time he committed the offense. As culled from the testimonies of the accused, his mother-in-law AVELINA MIRADOR, and his daughter LILIFER MADARANG, the following facts were established: The accused and Lilia Mirador were legally married and their union was blessed with seven (7) children. The accused worked as a seaman for sixteen (16) years. He was employed in a United States ship until 1972. In 1973, he worked as a seaman in Germany and stayed there for nine (9) years, or until 1982. Thereafter, he returned to his family in Infanta, Pangasinan, and started a hardware store business. His venture however failed. Worse, he lost his entire fortune due to cockfighting.[4] In the latter part of July 1993, the accused, his wife Lilia and their children were forced to stay in the house of Avelina Mirador as the accused could no longer support his family. Moreover, Lilia was then already heavy with their eight child and was about to give birth.[5] On September 3, 1993, at about 5:00 p.m., the accused and Lilia had a squabble. The accused was jealous of another man and was accusing Lilia of infidelity. In the heat of the fight and in the presence of their children, the accused stabbed Lilia, resulting in her untimely demise.[6]

AVELINA MIRADOR was then in the pigpen when she heard the children of the accused shouting and crying inside her house. She called out to them and asked what was wrong. She received no reply. Her nephew barged into the house and brought out the children one at a time, leaving the accused with Lilia. While passing by Avelina, her nephew warned her: "You better run." Avelina then saw the accused emerge from the house holding a bolo. She scampered for safety.[7] yacats She declared that during the period that the accused and his family stayed in her house, she did not notice anything peculiar in accused's behavior that would suggest that he was suffering from any mental illness. Neither did she know of any reason why the accused killed his wife as she never saw the two engage in any argument while they were living with her.[8] The accused declared that he has absolutely no recollection of the stabbing incident. He could not remember where he was on that fateful day. He did not know the whereabouts of his wife. It was only during one of the hearings when his mother-in-law showed him a picture of his wife in a coffin that he learned about her death. He, however, was not aware of the cause of her demise. He claimed that he did not know whether he suffered from any mental illness and did not remember being confined at the NCMH for treatment.[9] DR. WILSON S. TIBAYAN, a resident doctor of the National Center for Mental Health (NCMH), declared that the accused was committed to the NCMH on July 4, 1994 upon order of the court. The NCMH conducted three (3) medical and psychiatric evaluations of the accused during his confinement therein. Based on the first medical report, dated August 2, 1994,[10] the accused was found to be suffering from insanity or psychosis, classified as schizophrenia. Dr. Tibayan explained that schizophrenia is a mental abnormality characterized by impaired fundamental reasoning, delusions, hallucinations, preoccupation with one's thoughts, poor self-care, insight and judgment, and impaired cognitive, social and occupational functions. The patient may be incapable of distinguishing right from wrong or know what he is doing. He may become destructive or have a propensity to attack any one if his hallucinations were violent.[11] A schizophrenic, however, may have lucid intervals during which he may be able to distinguish right from wrong.[12] Dr. Tibayan opined that the accused's mental illness may have begun even prior to his admission to the NCMH and it was highly possible that he was already suffering from schizophrenia prior to his commission of the crime.[13] By December 21, 1994, as per the second medical report, the accused was still suffering from schizophrenia. After one and a half years of confinement, the third psychiatric evaluation of the accused,dated May 27, 1996,[14] showed that his mental condition considerably improved due to continuous medication. The accused was recommended to be discharged from the NCMH and recommitted to jail to stand trial.[15] olanski The trial court convicted the accused as his evidence failed to refute the presumption of sanity at the time he committed the offense. The dispositive portion of the Decision reads: "WHEREFORE, in view of all the foregoing facts and circumstances of this case, this Court is of the view that accused Fernando Madarang is of sound mind at the time of the commission of the offense and that he failed to rebut by convincing proof the evidence on record against him to exempt him from criminal liablity. And since the death penalty was suspended or abolished at the time of the commission of the offense, this Court hereby sentences the accused FERNANDO MADARANG y MAGNO to suffer the penalty of reclusion perpetua and to pay the heirs of the victim the amount of Fifty Thousand (P50,000.00) Pesos. "SO ORDERED."[16] Hence this appeal. The appellant insists that at the time he stabbed his wife, he was completely deprived of intelligence, making his criminal act involuntary. His unstable state of mind could allegedly be deduced from the following: First. He had no recollection of the stabbing incident. Hence, he was completely unaware of his acts that fateful day and must have committed the crime without the least discernment.

Second. His behavior at the time of the stabbing proved he was then afflicted with schizophrenia. He cited the testimony of Dr. Tibayan that a schizophrenic may go into extremes -- he may be violent and destructive, or very silent and self-focused. The appellant exhibited his violent tendencies on that fateful day. He killed his wife and Avelina and her nephew were so frightened that they ran away at the sight of him holding a bolo. He did not seem to recognize anybody and could have turned to anyone and inflicted further injury. He avers that this is peculiar only to persons who are mentally deranged for a sane person who just committed a crime would have appeared remorseful and repentant after realizing that what he did was wrong. Third. The appellant also relies on Dr. Tibayan's opinion that there was a high possibility that he was already suffering from insanity prior to his commission of the crime on September 3, 1993 .[17] The defense posits that his mental illness may have been caused by his loss of fortune. His hardware business, which he started through 16 years of working as a seaman, went bankrupt. He ended up virtually dependent on his mother-in-law for his family's support and all these may have been beyond his capacity to handle. haideem The appellant further contends that the fact that he and his wife never engaged in a fight prior to that fateful day should be considered. The marked change in his behavior when he uncharacteristically quarreled with his wife on that day and suddenly turned violent on her confirms that he was mentally disturbed when he committed the crime. Lastly, the appellant urges that he had no motive to kill Lilia who was scheduled to give birth to their eighth child three (3) days prior to the killing. Unless overpowered by something beyond his control, nobody in his right mind would kill his wife who was carrying his child. Jealousy, the appellant posits, is not a sufficient reason to kill a pregnant spouse. We find these arguments without merit. In all civilized nations, an act done by a person in a state of insanity cannot be punished as an offense. The insanity defense is rooted on the basic moral assumption of criminal law. Man is naturally endowed with the faculties of understanding and free will. The consent of the will is that which renders human actions laudable or culpable. Hence, where there is a defect of the understanding, there can be no free act of the will. An insane accused is not morally blameworthy and should not be legally punished. No purpose of criminal law is served by punishing an insane accused because by reason of his mental state, he would have no control over his behavior and cannot be deterred from similar behavior in the future.[18] A number of tests evolved to determine insanity under the law. In Anglo-American jurisprudence, the traditional test is the M'Naghten rule of 1843 which states that "to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." The M'Naghten rule is a cognitive measure of insanity as the accused is required to know two things: the nature and quality of the act, and that the act was wrong. This rule has been criticized for its ambiguity. It was debated whether the word "wrong" referred to moral or legal wrong. The importance of the distinction was illustrated by Stephen[19] as follows: A kills B knowing that he is killing B and it is illegal to kill B but under an insane delusion that God has commanded him to kill B to obtain the salvation of the human race. A's act is a crime if the word "wrong" means illegal but it is not a crime if the word "wrong" means morally wrong. The word "know" was also assailed as it referred solely to intellectual reason and excluded affective or emotional knowledge. It was pointed out that the accused may know in his mind what he is doing but may have no grasp of the effect or consequences of his actions.[20] MNaghten was condemned as based on an obsolete and misleading concept of the nature of insanity as insanity does not only affect the intellectual faculties but also affects the whole personality of the patient, including his will and emotions. It was argued that reason is only one of the elements of a personality and does not solely determine man's conduct.[21] kirsten Subsequently, M'Naghten was refined by the "irresistible impulse" test which means that "assuming defendant's knowledge of the nature and quality of his act and knowledge that the act is wrong, if, by reason of disease of the mind, defendant has been deprived of or lost the power of his will which would enable him to prevent himself from doing the act, then he cannot be found guilty." Thus, even if the accused knew that what he was doing was wrong, he would be acquitted by reason of insanity if his mental illness kept him from controlling his conduct or resisting the impulse to commit the crime. This rule rests on the assumption that there are mental illnesses that impair volition or self-control, even while there is cognition or knowledge of what is right and wrong. [22] This test was likewise criticized on the following grounds: (1) the "impulse" requirement is too restrictive as it covers only impulsive acts; (2) the "irresistible" requirement is also restrictive as it requires absolute impairment of the freedom of the will which cases are very rare; (3) it will not serve the purpose of criminal law to deter criminals as the will to resist commission of the crime will not be encouraged, and; (4) it is difficult to prove whether the act was the result of an insane, irresistible impulse.[23]

Then came the Durham "product" test in 1954 which postulated that "an accused is not criminally responsible if his unlawful act was the product of mental disease or defect."[24] Critics of this test argued that it gave too much protection to the accused. It placed the prosecution in a difficult position of proving accused's sanity beyond reasonable doubt as a mere testimony of a psychiatrist that accused's act was the result of a mental disease leaves the judge with no choice but to accept it as a fact. The case thus becomes completely dependent on the testimonies of experts.[25] Then came the ALI "substantial capacity" test, integrated by the American Law Institute (ALI) in its Model Penal Code Test, which improved on the M'Naghten and irresistible impulse tests. The new rule stated that a person is not responsible for his criminal act if, as a result of the mental disease or defect, he lacks substantial capacity to appreciate the criminality of his act or to conform his conduct to the requirements of the law.[26] Still, this test has been criticized for its use of ambiguous words like "substantial capacity" and "appreciate" as there would be differences in expert testimonies whether the accused's degree of awareness was sufficient. [27] Objections were also made to the exclusion of psychopaths or persons whose abnormalities are manifested only by repeated criminal conduct. Critics observed that psychopaths cannot be deterred and thus undeserving of punishment.[28] barth In 1984, however, the U.S. Congress repudiated this test in favor of the M'Naghten style statutory formulation. It enacted the Comprehensive Crime Control Act which made the appreciation test the law applicable in all federal courts. The test is similar to M'Naghten as it relies on the cognitive test. The accused is not required to prove lack of control as in the ALI test. The appreciation test shifted the burden of proof to the defense, limited the scope of expert testimony, eliminated the defense of diminished capacity and provided for commitment of accused found to be insane.[29] In the Philippines, the courts have established a more stringent criterion for insanity to be exempting as it is required that there must be a complete deprivation of intelligence in committing the act, i.e., the accused is deprived of reason; he acted without the least discernment because there is a complete absence of the power to discern, or that there is a total deprivation of the will. Mere abnormality of the mental faculties will not exclude imputability.[30] The issue of insanity is a question of fact for insanity is a condition of the mind, not susceptible of the usual means of proof. As no man can know what is going on in the mind of another, the state or condition of a person's mind can only be measured and judged by his behavior. Establishing the insanity of an accused requires opinion testimony which may be given by a witness who is intimately acquainted with the accused, by a witness who has rational basis to conclude that the accused was insane based on the witness' own perception of the accused, or by a witness who is qualified as an expert, such as a psychiatrist.[31] The testimony or proof of the accused's insanity must relate to the time preceding or coetaneous with the commission of the offense with which he is charged.[32] Jksm In the case at bar, the appellant was diagnosed to be suffering from schizophrenia when he was committed to the NCMH months after he killed his wife. Medical books describe schizophrenia as a chronic mental disorder characterized by inability to distinguish between fantasy and reality and often accompanied by hallucinations and delusions. Formerly called dementia pracecox, it is the most common form of psychosis.[33] Symptomatically, schizophrenic reactions are recognizable through odd and bizarre behavior apparent in aloofness or periods of impulsive destructiveness and immature and exaggerated emotionality, often ambivalently directed. The interpersonal perceptions are distorted in the more serious states by delusions and hallucinations. In the most disorganized form of schizophrenic living, withdrawal into a fantasy life takes place and is associated with serious thought disorder and profound habit deterioration in which the usual social customs are disregarded.[34] During the initial stage, the common early symptom is aloofness, a withdrawal behind barriers of loneliness, hopelessness, hatred and fear. Frequently, the patient would seem preoccupied and dreamy and may appear "faraway." He does not empathize with the feelings of others and manifests little concern about the realities of life situations. The schizophrenic suffers from a feeling of rejection and an intolerable lack of self-respect. He withdraws from emotional involvement with other people to protect himself from painful relationships. There is shallowness of affect, a paucity of emotional responsiveness and a loss of spontaneity. Frequently, he becomes neglectful of personal care and cleanliness.[35] A variety of subjective experiences, associated with or influenced by mounting anxiety and fears precede the earliest behavioral changes and oddities. He becomes aware of increasing tension and confusion and becomes distracted in conversation manifested by his inability to maintain a train of thought in his conversations. Outwardly, this will be noticed as blocks or breaks in conversations. The schizophrenic may not speak or respond appropriately to his companions. He may look fixedly away, or he may appear to stare, as he does not regularly blink his eyes in his attempt to hold his attention.[36] None of the witnesses presented by the appellant declared that he exhibited any of the myriad symptoms associated with schizophrenia immediately before or simultaneous with the stabbing incident. To be sure, the record is bereft of even a single account of abnormal or bizarre behavior on the part of the appellant prior to that fateful day. Although Dr. Tibayan opined that there is a high possibility that the appellant was already suffering from schizophrenia at the time of the stabbing, he also declared

that schizophrenics have lucid intervals during which they are capable of distinguishing right from wrong.[37] Hence the importance of adducing proof to show that the appellant was not in his lucid interval at the time he committed the offense. Although the appellant was diagnosed with schizophrenia a few months after the stabbing incident, the evidence of insanity after the fact of commission of the offense may be accorded weight only if there is also proof of abnormal behavior immediately before or simultaneous to the commission of the crime. Evidence on the alleged insanity must refer to the time preceding the act under prosecution or to the very moment of its execution.[38] Chiefx In the case at bar, we find the evidence adduced by the defense insufficient to establish his claim of insanity at the time he killed his wife. There is a dearth of evidence on record to show that the appellant was completely of unsound mind prior to or coetaneous with the commission of the crime. The arguments advanced by the appellant to prove his insanity are speculative and non-sequitur. For one, his claim that he has absolutely no recollection of the stabbing incident amounts to a mere general denial that can be made with facility. The fact that Avelina and her nephew were frightened at the sight of the appellant holding a bolo after he killed his wife does not, by any stretch of imagination, prove that the appellant has lost his grip on reality on that occasion. Neither is the appellant's seemingly non-repentant attitude immediately after he stabbed his wife an indicium of his alleged insanity. Even criminals of stable mental condition take this nonremorseful stance. Similarly, that the appellant and his wife were never seen quarreling prior to that fateful day does not by itself prove the appellant's unstable mental condition. Neither can it be said that jealousy is not a sufficient reason to kill a pregnant spouse. Our jurisprudence is replete with cases where lives had been terminated for the flimsiest reason. The appellant attributes his loss of sanity to the fact that he lost his business and became totally dependent on his mother-in-law for support. We find this, however, purely speculative and unsupported by record. To be sure, there was no showing of any odd or bizarre behavior on the part of the appellant after he lost his fortune and prior to his commission of the crime that may be symptomatic of his mental illness. In fact, the appellant's mother-in-law declared that during the time that she knew the appellant and while he lived in her house, she did not notice anything irregular or abnormal in the appellant's behavior that could have suggested that he was suffering from any mental illness. An accused invoking the insanity defense pleads not guilty by reason thereof. He admits committing the crime but claims that he is not guilty because he was insane at the time of its commission. Hence, the accused is tried on the issue of sanity alone and if found to be sane, a judgment of conviction is rendered without any trial on the issue of guilt as he had already admitted committing the crime.[39] As the appellant, in the case at bar, failed to establish by convincing evidence his alleged insanity at the time he killed his wife, we are constrained to affirm his conviction. IN VIEW WHEREOF, the Decision of the trial court convicting the appellant of the crime of parricide is AFFIRMED in toto. [G.R. No. 133985. July 10, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO ALIVIANO, accused-appellant. DE LEON, JR., J.: Before us on appeal is the Decision[1] of the Regional Trial Court of Cebu City, Branch 15, convicting herein appellant, Leoncio Aliviano y Yburan, of the crime of rape. The appellant, Leoncio Y. Aliviano, stands charged with the crime of rape as defined and penalized under Article 335 of the Revised Penal Code, as amended, in an information that reads: That on or about the 21st day of March, 1996, at about 9:00 oclock in the evening, in the city of Cebu, Philippines, and within the jurisdiction of the Honorable Court, the said accused, armed with a knife, with the use of force and intimidation upon the person of Ivy Maquiling, who was then a minor (being) more than 7 years of age, with deliberate intent, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the said Ivy Maquiling, against her will. CONTRARY TO LAW. Upon being arraigned on December 22, 1997, the appellant, assisted by counsel, pleaded "Not guilty" to the information in this case. Thereafter, trial on the merits ensued.

The evidence of the prosecution shows that Miraflor Maquiling and her younger sister, Ivy, were watching television on the second floor of the house of the appellant on March 21, 1996 at around 9:00 oclock in the evening. The wife of the appellant , Corazon Aliviano, and her granddaughter Liezel, were likewise watching the television. Sometime later, Miraflor directed Ivy to go to their house and find out if their mother, Isidra, who is a vegetable vendor, had arrived from the market.[2] Ivy had just descended from the stairs when the appellant suddenly pulled her into his room. Once they were inside the room, the appellant undressed her and himself. Then he dragged her into the mosquito net after having switched off the light inside the room. Appellant forced himself on Ivy by inserting his penis into her vagina while swinging his buttocks. Apparently not contented, the appellant subsequently inserted his finger into her vagina.[3] Ivy felt excruciating pain in her private part during the occasion. However, she could not move nor shout for help inasmuch as her mouth was covered by the right hand of the appellant while his left hand was holding a knife pointed at her neck. After consummating the act, the appellant put on Ivys panty, her pair of shorts and her t-shirt.[4] Thereafter, Ivy proceeded directly upstairs to join her sister, Miraflor, who was still watching the television. Miraflor noticed her disheveled appearance and pale lips prompting her to ask Ivy what took her so long. [5] Ivy kept mum on her harrowing experience inasmuch as, according to her, she was threatened by the appellant with death, including her family, should she divulge what he did to her.[6] On March 22, 1996, Ivy recalled having taken a bath and had changed her panty twice since her private part was bleeding.[7] On March 23, 1996, at around 8:00 oclock in the morning, Ivys brother, Nonoy, noticed her panty that was smeared with blood. Upon having confronted by her sister, Miraflor, Ivy confided that she was raped by the appellant in the evening of March 21, 1996.[8] On the same day, Miraflor reported to her mother what the appellant did to her sister. Isidra was extremely distressed by what happened to her youngest daughter, Ivy. However, she was afraid to confront the appellant about it for the reason that the appellant is a known toughie in the neighborhood. On many occasions, she had seen the appellant sharpened his bolo and boasted that "it was sharp enough to kill a man". She also felt helpless from the threats of the appellant as she is separated from her husband and their four (4) children were left under her care.[9] Isidra finally mustered enough courage when the appellant was detained in jail on September 19, 1997 on the charge of having allegedly attempted to hack his wife to death. On October 3, 1997, Isidra accompanied Ivy to the police in Cebu City to lodge a complaint for the crime of rape against the appellant.[10] Ivy was investigated by PO1 Gay Inting Rodriguez of the Cebu City Police, before whom she narrated how she was raped by the appellant in the evening of March 21, 1996.[11] She underwent pelvic examination that was conducted by a certain Dr. Norma Cataos, M.D. at the Cebu City Medical Center in Cebu City. Dr. Aster Khosravibabadi, M.D., who is a colleague of Dr. Norma Cataos at the department of Obstetrics and Gynecology in the Cebu City Medical Center, was authorized by the head of the said department to interpret the results of the pelvic examination appearing in the medical certificate[12] for the reason that Dr. Cataos had transferred to Mindanao and could not be contacted. After having identified the signature of Dr. Norma Cataos, M.D., which appears at the bottom of the medical certificate, Dr. Khosravibabadi testified that the patient, Ivy Maquiling, suffered multiple hymenal lacerations and the introitus, or the opening of her vagina, admits the tip of the small finger. The multiple hymenal lacerations may have been caused by the forcible penetration of a blunt object which could be a penis or a finger. That the vaginal opening admits the tip of the small finger is attributed to the fact that the patient may have been uncooperative, or due to fear during the examination that normally causes spasm or constriction of the muscles around the vaginal opening.[13] Appellant Leoncio Aliviano denied the charge of rape against him in the information. Leoncio testified that he was fetched in his house by the mother of the alleged victim, Isidra Maquiling, and a certain Kulas Azor in the morning of March 20, 1996. Kulas son, Joel, had been allegedly paralyzed for sometime, and his (appellant) neighbor, Isidra, who is a relative of Kulas, requested the appellant to administer treatment on Joel being a "manghihilot". They left Mambaling, Cebu City at around 7:00 oclock in the morning and reached the house of Kulas in Barangay Punay, Aloguinsan, Cebu, at around 9:00 oclock in the morning of the same day. Leoncio allegedly remained in Aloguinsan, Cebu for four (4) straight days treating Joel of his illness and went home only on March 24, 1996.[14]

Leoncio revealed in court that he underwent vasectomy operation sometime in 1981 that was conducted by a certain Dr. Alberca and that from 1992 up to the present, he could no longer manage to have an erection.[15] He could not recall any motive that may have impelled the private complainant and her mother to lodge a complaint for rape against him except that he had scolded Ivy once for pushing his granddaughter Liezel and for having taken some of his things in the house.[16] Corazon Aliviano, wife of the appellant, testified that she and the family of the private complainant are in good terms even up to the present being neighbors in Colbita, Mambaling, Cebu City. Ivy and her elder siblings namely: Virgilio, Nolan and Miraflor, used to frequent their house to watch television.[17] On March 21, 1996, at around 9:00 oclock in the evening, Corazon was inside their house toget her with her daughter Melanie, her granddaughter Liezel, and the sisters Ivy and Miraflor who were watching the television. However, her husband, Leoncio, was not present inasmuch as he had gone to Aloguinsan, Cebu on March 20, 1996 to treat a paralyzed patient. He returned home only on March 24, 1996.[18] Corazon opined that the Maquilings might have been offended when she got mad at Ivy for quarrelling with her granddaughter, Liezel. She stated that Isidra never confronted her regarding the charge of rape that her husband allegedly committed against her daughter. She is not also aware of the threats allegedly made by her husband on Ivy and her mother.[19] Upon being recalled to the witness stand on March 31, 1998, Corazon stated that she went to the house of Kulas Azor in Aloguinsan, Cebu to request the latter and his son, Joel, to testify and corroborate the alibi of the appellant in this case. However, Corazon alleged that they refused for the reason that Isidra, who is their relative, allegedly talked to them against acceding to her request.[20] After analyzing the evidence, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, premises all considered, the Court finds accused Leoncio Aliviano GUILTY beyond reasonable doubt of the crime of RAPE as defined and penalized by Article 335 of the Revised Penal Code in relation to R.A. 7610 and R.A. 7659 and he is hereby sentenced to suffer the penalty of reclusion perpetua with accessory penalties provided for by law and to pay the victim Ivy Maquiling the sum of P50,000.00 as moral damages and to pay the costs of this suit. SO ORDERED. In his appeal, the appellant raised the following assignment of errors: I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES. II THE TRIAL COURT ERRED IN NOT APPRECIATING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED. After a thorough review of the evidence on record, this Court finds no cogent reason to depart from the ruling of the trial court finding the appellant guilty of the crime of rape. In the review of rape cases, this Court is almost invariably guided by three (3) principles, to wit: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and (3) the evidence for the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense.[21] Proceeding from the said principles, We agree with the trial courts evaluation, and give credence to the testimony of the private complainant as agai nst that of the appellant.

The private complainant in this case, Ivy Maquiling, is a young woman of tender age. Ivy was merely nine (9) years old when she testified in court in February 1998, and claimed that she was raped by the appellant on March 21, 1996 when she was exactly seven (7) years, six (6) months and thirteen (13) days old, having been born on September 8, 1988.[22] Considering the age of the private complainant, it would be highly improbable for a girl of her age to fabricate a charge so humiliating to herself and to her family had she not been truly subjected to the painful experience of sexual abuse.[23] Indeed, no woman, much less a child of such tender age, would willingly submit herself to the rigors, the humiliation and the stigma attendant upon the prosecution of rape, if she were not motivated by an earnest desire to put the culprit behind bars.[24] The appellant, Leoncio Aliviano, failed to impute any improper motive except to surmise that Ivy and her mother might have been slighted when he scolded the former for pushing his granddaughter and for having taken some of his things in his house. Apart from being a mere speculation, the same is far too shallow to deserve even a scant consideration by this Court. On the other hand, Ivy was admittedly very close to Leoncio whom she fondly addressed "Lolo". In fact, Corazon, the wife of Leoncio testified in court that their families remain in good terms being neighbors in Colbita, Mambaling, Cebu City. It is elemental that where there is no showing that the private complainant was impelled by any improper motive in making the accusation against the accused, her complaint is entitled to full faith and credence.[25] Notably, the testimony of Ivy stands free from any serious or material contradictions that may detract from her credibility. The same is characterized by the trial court as honest and straightforward. Hence, it is established that the appellant, Leoncio Aliviano, suddenly pulled the private complainant, Ivy Maquiling, into his room at the ground floor of his house when Ivy was on her way to find out if her mother had arrived from the market. Once inside the room, Leoncio undressed Ivy and himself. After switching off the light inside the room, he dragged her into the mosquito net and raped her. Leoncio inserted his penis into her vagina and simultaneously swung his buttocks. Ivy felt excruciating pain in her private part. However, she could not shout for help for the reason that Leoncio covered her mouth with his right hand while his left hand was holding a knife that was pointed at her neck. Subsequently, appellant inserted his finger into Ivys vagina. Thereafter, Leoncio warned Ivy not to tell anyone about the incident otherwise, he would kill her and her entire family. Appellant states that, contrary to Miraflors testimony, Ivy could not recall having practiced how to dance with her sister o n March 23, 1996 at around 8:00 oclock in the morning during which time, Ivy allegedly confided to Miraflor that she was raped by Leoncio in the evening of March 21, 1996. Leoncio likewise states that while Isidra claimed that she was informed of the crime by Miraflor only in the morning of March 23, 1996, Ivy testified that she had already informed her mother about it on March 22, 1996. The appellant may not successfully impugn the credibility of the private complainant based on minor inconsistencies in her testimony that do not even touch on the essential elements of the crime. Minor lapses are to be expected when a person is recounting details of a traumatic experience too painful to recall.[26] The delay in reporting the crime to the police authorities does not undermine the charge of rape against the appellant considering that said delay was satisfactorily explained by the mother of the private complainant. [27] Isidra explained during the trial of this case that she was afraid that Leoncio, a notorious toughie in the neighborhood, might make good his threats of death to her family and herself. No less than the appellants own wife, Corazon, admitted that Leoncio had wild temp erament whenever he was drank. On many occasions, Isidra could see Leoncio sharpening his bolo and boasted that the same was sharp enough to kill a man. Although she felt distressed by what had befallen her youngest daughter, Isidra suffered in silence as she felt helpless being separated from her husband. She finally mustered enough courage when Leoncio was detained in jail on September 19, 1997 for having attempted to hack his wife to death with his bolo. Besides, this Court is not unaware that no mother would sacrifice her own daughter, a child of tender years at that, and subject her to the rigors and humiliation of a public trial for rape if she were not motivated by an honest desire to have her daughters transgressor punished accordingly.[28] The appellant next assails the admissibility of the medical certificate for the reason that Dr. Norma Cataos, who prepared the document, was not presented for its identification. He contends that Dr. Aster Khosravibabadi, who identified and interpreted the findings in the medical certificate in court, is not even the official custodian of the document. Concededly, the subject medical certificate cannot be given any probative value. It is settled that since a medical certificate involves an opinion of one who must first be established as an expert witness, it could not be given weight nor credit unless the doctor who issued it be presented in court to show his qualifications.[29] In any case, We have already ruled that a medical certificate is not indispensable to prove the commission of rape.[30] It is merely corroborative evidence. In this case, the lone testimony of the victim, Ivy Maquiling, which is credible and free from serious and material contradictions, is sufficient to warrant the conviction of the appellant.[31]

In addition, the appellant claimed that he underwent vasectomy operation sometime in 1981, and that he could no longer manage to have an erection since 1992. However, the appellant failed to present in court any medical certificate to that effect; much less Dr. Alberca, who allegedly performed the operation in 1981. Impotence, as a defense in a prosecution for rape, is both physical and medical question that should be satisfactorily established with the aid of an expert and competent testimony. Lastly, the defense of alibi by the appellant is unavailing in this case. The same was not corroborated by any disinterested and credible witness. The wife of the appellant hardly made any difference on the inherent weakness of his defense of alibi in view of the biased nature of her testimony. Besides, this Court has consistently held that where the accused was positively identified by the victim herself who harbored no ill motive against the accused, such as in the present case, the defense of alibi must fail.[32] In view of the foregoing, the appellant, Leoncio Aliviano, is liable for the crime of rape under Article 335 of the Revised Penal Code, as amended. Article 335 of the Revised Penal Code, as amended by Section 11, of R.A. 7659, provides: Art. 335. When and how rape is committed.- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1.....when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity of affinity within the third civil degree, or the common-law-spouse of the parent of the victim. 2.....when the victim is under the custody of the police or military authorities. 3.....when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4.....when the victim is a religious or a child below seven (7) years old.

5.....when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease . 6.....when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7.....When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. It appears that the appellant used a knife to threaten his victim on the occasion of the commission of the crime of rape. Hence, the imposable penalty in accordance with Article 335 of the Revised Penal Code, as amended, is reclusion perpetua to death. There being no proof of any aggravating or mitigating circumstance, or any of the qualifying circumstances mentioned in Section 11 of R. A. 7659, the imposable penalty in this case of simple rape is reclusion perpetua. It has been the policy of the Court to award outrightly an amount not exceeding P50,000.00 to rape victims which relates to or can be categorized as actual or compensatory damages.[33] In addition, moral damages may be awarded to victims of rape notwithstanding the absence of proof as basis for its award.[34] WHEREFORE, the appealed decision of the Regional Trial Court of Cebu City, Branch 15, convicting the appellant, Leoncio Y. Aliviano, of the crime of rape is AFFIRMED. Appellant Leoncio Aliviano is hereby sentenced to suffer the penalty of reclusion perpetua, and to pay the private complainant the amount of P50,000.00 by way of actual or compensatory damages in addition to the amount of P50,000.00 as moral damages. [G.R. No. 127195. August 25, 1999] MARSAMAN MANNING AGENCY, INC. and DIAMANTIDES MARITIME, INC., petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and WILFREDO T. CAJERAS, respondents. BELLOSILLO, J.: MARSAMAN MANNING AGENCY, INC. (MARSAMAN) and its foreign principal DIAMANTIDES MARITIME, INC. (DIAMANTIDES) assail the Decision of public respondent National Labor Relations Commission dated 16 September 1996 as well as its Resolution dated 12 November 1996 affirming the Labor Arbiter's decision finding them guilty of illegal dismissal and ordering them to pay respondent Wilfredo T. Cajeras salaries corresponding to the unexpired portion of his employment contract, plus attorney's fees. Private respondent Wilfredo T. Cajeras was hired by petitioner MARSAMAN, the local manning agent of petitioner DIAMANTIDES, as Chief Cook Steward on the MV Prigipos, owned and operated by DIAMANTIDES, for a contract period of ten (10) months with a monthly salary of US$600.00, evidenced by a contract between the parties dated 15 June 1995. Cajeras started work on 8 August 1995 but less than two (2) months later, or on 28 September 1995, he was repatriated to the Philippines allegedly by mutual consent. On 17 November 1995 private respondent Cajeras filed a complaint for illegal dismissal against petitioners with the NLRC National Capital Region Arbitration Branch alleging that he was dismissed illegally, denying that his repatriation was by mutual consent, and asking for his unpaid wages, overtime pay, damages, and attorneys fees.[1] Cajeras alleged that he was assigned not only as Chief Cook Steward but also as assistant cook and messman in addition to performing various inventory and requisition jobs. Because of his additional assignments he began to feel sick just a little over a month on the job constraining him to request for medical attention. He was refused at first by Capt. Kouvakas Alekos, master of the MV Prigipos, who just ordered him to continue working. However a day after the ships arrival at the port of Rotterdam, Holland, on 26 September 1995 Capt. Alekos relented and had him examined at the Medical Center for Seamen. However, the examining physician, Dr. Wden Hoed, neither apprised private respondent about the diagnosis nor issued the requested medical certificate allegedly because he himself would forward the results to private respondents superiors. Upon returning to the vessel, private respondent was unceremoniously ordered to prepare for immediate repatriation the following day as he was said to be suffering from a disease of unknown origin. On 28 September 1995 he was handed his Seaman's Service Record Book with the following entry: "Cause of discharge - Mutual Consent."[2] Private respondent promptly objected to the entry but was not able to do anything more as he was immediately ushered to a waiting taxi which transported him to the Amsterdam Airport for the return flight to Manila. After his arrival in Manila on 29 September 1995 Cajeras complained to MARSAMAN but to no avail.[3] MARSAMAN and DIAMANTIDES, on the other hand, denied the imputation of illegal dismissal. They alleged that Cajeras approached Capt. Alekos on 26 September 1995 and informed the latter that he could not sleep at night because he felt something crawling

over his body. Furthermore, Cajeras reportedly declared that he could no longer perform his duties and requested for repatriation. The following paragraph in the vessel's Deck Log was allegedly entered by Capt. Alekos, to wit: Cajeras approached me and he told me that he cannot sleep at night and that he feels something crawling on his body and he declared that he can no longer perform his duties and he must be repatriated.[4] Private respondent was then sent to the Medical Center for Seamen at Rotterdam where he was examined by Dr. Wden Hoed whose diagnosis appeared in a Medical Report as paranoia and other mental problems. [5]Consequently, upon Dr. Hoeds recommendation, Cajeras was repatriated to the Philippines on 28 September 1995. On 29 January 1996 Labor Arbiter Ernesto S. Dinopol resolved the dispute in favor of private respondent Cajeras ruling that the latter's discharge from the MV Prigipos allegedly by mutual consent was not proved by convincing evidence. The entry made by Capt. Alekos in the Deck Log was dismissed as of little probative value because it was a mere unilateral act unsupported by any document showing mutual consent of Capt. Alekos, as master of the MV Prigipos, and Cajeras to the premature termination of the overseas employment contract as required by Sec. H of the Standard Employment Contract Governing the Employment of all Filipino Seamen on Board Ocean-Going Vessels. Dr. Hoeds diagnosis that private respondent was suffering from paranoia and other mental problems was likewise dismissed as being of little evidentiary value because it was not supported by evidence on how the paranoia was contracted, in what stage it was, and how it affected respondent's functions as Chief Cook Steward which, on the contrary, was even rated Very Good in respondent's Service Record Book. Thus, the Labor Arbiter disposed of the case as follows: WHEREFORE, judgment is hereby rendered declaring the repatriation and dismissal of complaint Wilfredo T. Cajeras as illegal and ordering respondents Marsaman Manning Agency, Inc. and Diamantides Maritime, Inc. to jointly and severally pay complainant the sum of USD 5,100.00 or its peso equivalent at the time of payment plus USD 510.00 as 10% attorneys fees it appearing that complainant h ad to engage the service of counsel to protect his interest in the prosecution of this case. The claims for nonpayment of wages and overtime pay are dismissed for having been withdrawn (Minutes, December 18, 1995). The claims for damages are likewise dismissed for lack of merit, since no evidence was presented to show that bad faith characterized the dismissal.[6] Petitioners appealed to the NLRC.[7] On 16 September 1996 the NLRC affirmed the appealed findings and conclusions of the Labor Arbiter.[8] The NLRC subscribed to the view that Cajeras repatriation by alleged mutual consent was not prov ed by petitioners, especially after noting that private respondent did not actually sign his Seamans Service Record Book to signify his assent to the repa triation as alleged by petitioners. The entry made by Capt. Alekos in the Deck Log was not considered reliable proof that private respondent agreed to his repatriation because no opportunity was given the latter to contest the entry which was against his interest. Similarly, the Medical Report issued by Dr. Hoed of Holland was dismissed as being of dubious value since it contained only a sweeping statement of the supposed ailment of Cajeras without any elaboration on the factual basis thereof. Petitioners' motion for reconsideration was denied by the NLRC in its Resolution dated 12 November 1996. [9] Hence, this petition contending that the NLRC committed grave abuse of discretion: (a) in not according full faith and credit to the official entry by Capt. Alekos in the vessels Deck Log conformably with the rulings in Haverton Shipping Ltd. v. NLRC[10] and Wallem Maritime Services, Inc. v. NLRC;[11] (b) in not appreciating the Medical Report issued by Dr. Wden Hoed as conclusive evidence that respondent Cajeras was suffering from paranoia and other mental problems; (c) in affirming the award of attorneys fees despite the fact that Cajeras' claim for exemplary damages was denied for lack of merit; and, (d) in ordering a monetary award beyond the maximum of three (3) months salary for every year of service set by RA 8042. We deny the petition. In the Contract of Employment[12] entered into with private respondent, petitioners convenanted strict and faithful compliance with the terms and conditions of the Standard Employment Contract approved by the POEA/DOLE[13] which provides: 1. The employment of the seaman shall cease upon expiration of the contract period indicated in the Crew Contract unless the Master and the Seaman, by mutual consent, in writing, agree to an early termination x x x x (underscoring ours). Clearly, under the foregoing, the employment of a Filipino seaman may be terminated prior to the expiration of the stipulated period provided that the master and the seaman (a) mutually consent thereto and (b) reduce their consent in writing.

In the instant case, petitioners do not deny the fact that they have fallen short of the requirement. No document exists whereby Capt. Alekos and private respondent reduced to writing their alleged mutual consent to the termination of their employment contract. Instead, petitioners presented the vessel's Deck Log wherein an entry unilaterally made by Capt. Alekos purported to show that private respondent himself asked for his repatriation. However, the NLRC correctly dismissed its evidentiary value. For one thing, it is a unilateral act which is vehemently denied by private respondent. Secondly, the entry in no way satisfies the requirement of a bilateral documentation to prove early termination of an overseas employment contract by mutual consent required by the Standard Employment Contract. Hence, since the latter sets the minimum terms and conditions of employment for the protection of Filipino seamen subject only to the adoption of better terms and conditions over and above the minimum standards,[14] the NLRC could not be accused of grave abuse of discretion in not accepting anything less. However petitioners contend that the entry should be considered prima facie evidence that respondent himself requested his repatriation conformably with the rulings in Haverton Shipping Ltd. v. NLRC[15] and Abacast Shipping and Management Agency, Inc. v. NLRC.[16] Indeed, Haverton says that a vessels log book is prima facie evidence of the facts stated therein as they are official entries made by a person in the performance of a duty required by law. However, this jurisprudential principle does not apply to win the case for petitioners. In Wallem Maritime Services, Inc. v. NLRC[17] the Haverton ruling was not given unqualified application because the log book presented therein was a mere typewritten collation of excerpts from what could be the log book.[18] The Court reasoned that since the log book was the only piece of evidence presented to prove just cause for the termination of respondent therein, the log book had to be duly identified and authenticated lest an injustice would result from a blind adoption of its contents which were but prima facie evidence of the incidents stated therein. In the instant case, the disputed entry in the Deck Log was neither authenticated nor supported by credible evidence. Although petitioners claim that Cajeras signed his Seamans Service Record Book to signify his conformity to the repatriation, the NLRC found the allegation to be actually untrue since no signature of private respondent appeared in the Record Book. Neither could the Medical Report prepared by Dr. Hoed be considered corroborative and conclusive evidence that private respondent was suffering from paranoia and other mental problems, supposedly just causes for his repatriation. Firstly, absolutely no evidence, not even an allegation, was offered to enlighten the NLRC or this Court as to Dr. Hoed's qualifications to diagnose mental illnesses. It is a matter of judicial notice that there are various specializations in medical science and that a general practitioner is not competent to diagnose any and all kinds of illnesses and diseases. Hence, the findings of doctors who are not proven experts are not binding on this Court.[19]Secondly, the Medical Report prepared by Dr. Hoed contained only a general statement that private respondent was suffering from paranoia and other mental problems without providing the details on how the diagnosis was arrived at or in what stage the illness was. If Dr. Hoed indeed competently examined private respondent then he would have been able to discuss at length the circumstances and precedents of his diagnosis. Petitioners cannot rely on the presumption of regularity in the performance of official duties to make the Medical Report acceptable because the presumption applies only to public officers from the highest to the lowest in the service of the Government, departments, bureaus, offices, and/or its political subdivisions,[20] which Dr. Wden Hoed was not shown to be. Furthermore, neither did petitioners prove that private respondent was incompetent or continuously incapacitated for the duties for which he was employed by reason of his alleged mental state. On the contrary his ability as Chief Cook Steward, up to the very moment of his repatriation, was rated Very Good in his Seamans Service Record Book as correctly observed by public respondent. Considering all the foregoing we cannot ascribe grave abuse of discretion on the part of the NLRC in ruling that petitioners failed to prove just cause for the termination of private respondent's overseas employment. Grave abuse of discretion is committed only when the judgment is rendered in a capricious, whimsical, arbitrary or despotic manner, which is not true in the present case.[21] With respect to attorneys fees, suffice it to say that in actions for recovery of wages or where an employee was forced to litigate and thus incurred expenses to protect his rights and interests, a maximum award of ten percent (10%) of the monetary award by way of attorneys fees is legally and morally justifiable under Art. 111 of the Labor Code,[22] Sec. 8, Rule VIII, Book III of its Implementing Rules,[23] and par. 7, Art. 2208[24] of the Civil Code.[25]The case of Albenson Enterprises Corporation v. Court of Appeals[26] cited by petitioners in arguing against the award of attorneys fees is clearly not applicable, being a civil action for damages which deals with only one of the eleven (11) instances when attorneys fees could be recovered under Art. 2208 of the Civil Code. Lastly, on the amount of salaries due private respondent, the rule has always been that an illegally dismissed worker whose employment is for a fixed period is entitled to payment of his salaries corresponding to the unexpired portion of his employment.[27] However on 15 July 1995, RA 8042 otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995 took effect, Sec. 10 of which provides: Sec. 10. In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salaries for the

unexpired portion of the employment contract or for three (3) months for every year of the unexpired term whichever is less (underscoring ours). The Labor Arbiter, rationalizing that the aforesaid law did not apply since it became effective only one (1) month after respondent's overseas employment contract was entered into on 15 June 1995, simply awarded private respondent his salaries corresponding to the unexpired portion of his employment contract, i.e., for 8.6 months. The NLRC affirmed the award and the Office of the Solicitor General (OSG) fully agreed. But petitioners now insist that Sec. 10, RA 8042 is applicable because although private respondents contract of employment w as entered into before the law became effective his alleged cause of action, i.e., his repatriation on 28 September 1995 without just, valid or authorized cause, occurred when the law was already in effect. Petitioners' purpose in so arguing is to invoke the law in justifying a lesser monetary award to private respondent, i.e., salaries for three (3) months only pursuant to the last portion of Sec. 10 as opposed to the salaries for 8.6 months awarded by the Labor Arbiter and affirmed by the NLRC. We agree with petitioners that Sec. 10, RA 8042, applies in the case of private respondent and to all overseas contract workers dismissed on or after its effectivity on 15 July 1995 in the same way that Sec. 34, [28] RA 6715,[29] is made applicable to locally employed workers dismissed on or after 21 March 1989.[30] However, we cannot subscribe to the view that private respondent is entitled to three (3) months salary only. A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words for every year of the unexpired term which follows the words salaries x x x for three months. To follow petitioners thinking that private respondent is entitled to three (3) months salary only simply because it is the les ser amount is to completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect [31] since the lawmaking body is presumed to know the meaning of the words employed in the statue and to have used them advisedly. [32] Ut res magis valeat quam pereat.[33] WHEREFORE, the questioned Decision and Resolution dated 16 September 1996 and 12 November 1996, respectively, of public respondent National Labor Relations Commission are AFFIRMED. Petitioners MARSAMAN MANNING AGENCY, INC., and DIAMANTIDES MARITIME, INC., are ordered, jointly and severally, to pay private respondent WILFREDO T. CAJERAS his salaries for the unexpired portion of his employment contract or USD$5,100.00, reimburse the latter's placement fee with twelve percent (12%) interest per annum conformably with Sec. 10 of RA 8042, as well as attorney's fees of ten percent (10%) of the total monetary award. Costs against petitioners. [G.R. No. 132607. May 5, 1999] CEBU SHIPYARD AND ENGINEERING WORKS, INC., petitioner, vs. WILLIAM LINES, INC. and PRUDENTIAL GUARANTEE and ASSURANCE COMPANY, INC.,respondents. PURISIMA, J.: At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court seeking a reversal of the decision of the Court of Appeals[1] which affirmed the decision of the trial court of origin finding the petitioner herein, Cebu Shipyard and Engineering Works, Inc. (CSEW) negligent and liable for damages to the private respondent, William Lines, Inc., and to the insurer, Prudential Guarantee Assurance Company, Inc. The antecedent facts that matter are as follows: Cebu Shipyard and Engineering Works, Inc. (CSEW) is a domestic corporation engaged in the business of dry-docking and repairing of marine vessels while the private respondent, Prudential Guarantee and Assurance, Inc. (Prudential), also a domestic corporation is in the non-life insurance business. William Lines, Inc. (plaintiff below) is in the shipping business. It was the owner of M/V Manila City, a luxury passenger-cargo vessel, which caught fire and sank on February 16, 1991. At the time of the unfortunate occurrence sued upon, subject vessel was insured with Prudential for P45,000,000.00 pesos for hull and machinery. The Hull Policy included an Additional Perils (INCHMAREE) C lause covering loss of or damage to the vessel through the negligence of, among others, ship repairmen. The Policy provided as follows: Subject to the conditions of this Policy, this insurance also covers loss of or damage to Vessel directly caused by th e following: xxx

Negligence of Charterers and/or Repairers, provided such Charterers and/or Repairers are not an Assured hereunder. xxx provided such loss or damage has not resulted from want of due diligence by the Assured, the Owners or Managers of the Vessel, of any of them. Masters, Officers, Crew or Pilots are not to be considered Owners within the meaning of this Clause should they hold shares in the Vessel.[2] Petitioner CSEW was also insured by Prudential for third party liability under a Shiprepairers Legal Liability Insurance Policy. The policy was for P10 million only, under the limited liability clause, to wit: 7. Limit of Liability The limit of liability under this insurance, in respect of any one accident or series of accidents, arising out of one occurrence, shall be [P10 million], including liability for costs and expense which are either: (a) incurred with the written consent of the underwriters hereon; or (b) awarded against the Assured.[3] On February 5, 1991, William Lines, Inc. brought its vessel, M/V Manila City, to the Cebu Shipyard in Lapulapu City for annual drydocking and repair. On February 6, 1991, an arrival conference was held between representatives of William Lines, Inc. and CSEW to discuss the work to be undertaken on the M/V Manila City. The contracts, denominated as Work Orders, were signed thereafter, with the following stipulations: 10. The Contractor shall replace at its own work and at its own cost any work or material which can be shown to be defective and which is communicated in writing within one (1) month of redelivery of the vessel or if the vessel was not in the Contractors Possession, the withdrawal of the Contractors workmen, or at its option to pay a sum equal to the cost of such replacement at its own works. These conditions shall apply to any such replacements. 11. Save as provided in Clause 10, the Contractor shall not be under any liability to the Customer either in contract or for delict or quasidelict or otherwise except for negligence and such liability shall itself be subject to the following overriding limitations and exceptions, namely: (a) The total liability of the Contractor to the Customer (over and above the liability to replace under Clause 10) or of any sub-contractor shall be limited in respect of any defect or event (and a series of accidents arising out of the same defect or event shall constitute one defect or event) to the sum of Pesos Philippine Currency One Million only. (b) In no circumstance whatsoever shall the liability of the Contractor or any Sub-Contractor include any sum in respect of loss of profit or loss of use of the vessel or damages consequential on such loss of use. x x x

20. The insurance on the vessel should be maintained by the customer and/or owner of the vessel during the period the contract is in effect.[4]

While the M/V Manila City was undergoing dry-docking and repairs within the premises of CSEW, the master, officers and crew of M/V Manila City stayed in the vessel, using their cabins as living quarters. Other employees hired by William Lines to do repairs and maintenance work on the vessel were also present during the dry-docking. On February 16, 1991, after subject vessel was transferred to the docking quay, it caught fire and sank, resulting to its eventual total loss. On February 21, 1991, William Lines, Inc. filed a complaint for damages against CSEW, alleging that the fire which broke out in M/V Manila City was caused by CSEWs negligence and lack of care. On July 15, 1991 was filed an Amended Complaint impleading Prudential as co-plaintiff, after the latter had paid William Lines, Inc. the value of the hull and machinery insurance on the M/V Manila City. As a result of such payment Prudential was subrogated to the claim of P45 million, representing the value of the said insurance it paid. On June 10, 1994, the trial court a quo came out with a judgment against CSEW, disposing as follows: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant, ordering the latter: 1. To pay unto plaintiff Prudential Guarantee and Assurance, Inc., the subrogee, the amount of Forty-five Million (P45 million) Pesos, with interest at the legal rate until full payment is made; 2. To pay unto plaintiff, William Lines, Inc., the amount of Fifty-six Million Seven Hundred Fifteen Thousand (P56,715,000.00) Pesos representing loss of income of M/V MANILA CITY, with interest at the legal rate until full payment is made; 3. To pay unto plaintiff, William Lines, Inc. the amount of Eleven Million (P11 million) as payment, in addition to what it received from the insurance company to fully cover the injury or loss, in order to replace the M/V MANILA CITY, with interest at the legal rate until full payment is made; 4. To pay unto plaintiff, William Lines, Inc. the sum of Nine Hundred Twenty-Seven Thousand Thirty-nine (P927,039.00) Pesos for the loss of fuel and lub (sic) oil on board the vessel when she was completely gutted by fire at defendant, Cebu Shipyards quay, with interest at the legal rate until full payment is made; 5. To pay unto plaintiff, William Lines, Inc. the sum of Three Million Fifty-four Thousand Six Hundred Seventy-seven Pesos and Ninety-five centavos (P3,054,677.95) as payment for the spare parts and materials used in the M/V MANILA CITY during dry-docking with interest at the legal rate until full payment is made; 6. To pay unto plaintiff William Lines, Inc. the sum of Five Hundred Thousand (P500,000.00) Pesos in moral damages; 7. To pay unto plaintiff, William Lines, Inc. the amount of Ten Million (P10,000,000.00) Pesos in attorneys fees; and to pay the costs of this suit. CSEW (defendant below) appealed the aforesaid decision to the Court of Appeals. During the pendency of the appeal, CSEW and William Lines presented a Joint Motion for Partial Dismissal with prejudice, on the basis of the amicable settlement inked between Cebu Shipyard and William Lines only. On July 31, 1996, the Court of Appeals ordered the partial dismissal of the case insofar as CSEW and William Lines were concerned. On September 3, 1997, the Court of Appeals affirmed the appealed decision of the trial court, ruling thus: WHEREFORE, the judgment of the lower court ordering the defendant, Cebu Shipyard and Engineering Works, Inc. to pay the plaintiff Prudential Guarantee and Assurance, Inc., the subrogee, the sum of P45 Million, with interest at the legal rate until full payment is made, as contained in the decision of Civil Case No. CEB-9935 is hereby AFFIRMED.

With the denial of its motion for reconsideration by the Court of Appeals Resolution dated February 13, 1998, CSEW found its way to this court via the present petition, contending that: I. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT CSEW HAD MANAGEMENT AND SUPERVISORY CONTROL OF THE M/V MANILA CITY AT THE TIME THE FIRE BROKE OUT. II. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN APPLYING THE DOCTRINE OF RES IPSA LOQUITUR AGAINST CSEW. III. THE COURT OF APPEALS RULING HOLDING CSEW NEGLIGENT AND THEREBY LIABLE FOR THE LOSS OF THE M/V MANILA CITY IS BASED ON FINDINGS OF FACT NOT SUPPORTED BY EVIDENCE. IV. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING CSEW S EXPERT EVIDENCE AS INADMISSIBLE OR OF NO PROBATIVE VALUE. V. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT PRUDENTIAL HAS THE RIGHT OF SUBROGATION AGAINST ITS OWN INSURED. VI. ASSUMING ARGUENDO THAT PRUDENTIAL HAS THE RIGHT OF SUBROGATION AND THAT CSEW WAS NEGLIGENT IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE SHIPREPAIR CONTRACTS, THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN HOLDING THAT THE CONTRACTUAL PROVISIONS LIMITING CSEWS LIABILITY FOR NEGLIGENCE TO A MAXIMUM OF P1 MILLION IS NOT VALID, CONTRARY TO THE APPLICABLE RULINGS OF THIS HONORABLE COURT. Petitioners version of the events that led to the fire runs as follows: On February 13, 1991, the CSEW completed the drydocking of M/V Manila City at its grave dock. It was then transferred to the docking quay of CSEW where the remaining repair to be done was the replating of the top of Water Ballast Tank No. 12 (Tank Top No. 12) which was subcontracted by CSEW to JNB General Services. Tank Top No. 12 was at the rear section of the vessel, on level with the flooring of the crew cabins located on the vessels second deck. At around seven o clock in the morning of February 16, 1991, the JNB workers trimmed and cleaned the tank top framing which involved minor hotworks (welding/cutting works). The said work was completed at about 10:00 a. m. The JNB workers then proceeded to rig the steel plates, after which they had their lunch break. The rigging was resumed at 1:00 p.m. While in the process of rigging the second steel plate, the JNB workers noticed smoke coming from the passageway along the crew cabins. When one of the workers, Mr. Casas, proceeded to the passageway to ascertain the origin of the smoke, he noticed that smoke was gathering on the ceiling of the passageway but did not see any fire as the crew cabins on either side of the passageway were locked. He immediately sought out the proprietor of JNB, Mr. Buenavista, and the Safety Officer of CSEW, Mr. Aves, who sounded the fire alarm. CSEWs fire brigade immediately responded as well as the other fire fighting units in Metro Cebu. However, there were no WLI representative, officer or crew to guide the firemen inside the vessel. Despite the combined efforts of the firemen of the Lapulapu City Fire Department, Mandaue Fire Department, Cordova Fire Department, Emergency Rescue Unit Foundation, and fire brigade of CSEW, the fire was not controlled until 2:00 a.m. of the following day, February 17, 1991. On the early morning of February 17, 1991, gusty winds rekindled the flames on the vessel and fire again broke out. Then the huge amounts of water pumped into the vessel, coupled with the strong current, caused the vessel to tilt until it capsized and sank

When M/V Manila City capsized, steel and angle bars were noticed to have been newly welded along the port side of the hull of the vessel, at the level of the crew cabins. William Lines did not previously apply for a permit to do hotworks on the said portion of the ship as it should have done pursuant to its work order with CSEW.[5] Respondent Prudential, on the other hand, theorized that the fire broke out in the following manner : At around eleven o clock in the morning of February 16, 1991, the Chief Mate of M/V Manila City was inspecting the various works being done by CSEW on the vessel, when he saw that some workers of CSEW were cropping out steel plates on Tank Top No. 12 using acetylene, oxygen and welding torch. He also observed that the rubber insulation wire coming out of the air-conditioning unit was already burning, prompting him to scold the workers. At 2:45 in the afternoon of the same day, witnesses saw smoke coming from Tank No. 12. The vessels reeferman reported such occurence to the Chief Mate who immediately assembled the crew members to put out the fire. When it was too hot for them to stay on board and seeing that the fire cannot be controlled, the vessels crew were forced to withdraw from CSEWs docking quay. In the morning of February 17, 1991, M/V Manila City sank. As the vessel was insured with Prudential Guarantee, William Lines filed a claim for constructive total loss, and after a thorough investigation of the surrounding circumstances of the tragedy, Prudential Guarantee found the said insurance claim to be meritorious and issued a check in favor of William Lines in the amount of P45 million pesos representing the total value of M/V Manila Citys hull and machinery insurance.[6] The petition is unmeritorious. Petitioner CSEW faults the Court of Appeals for adjudging it negligent and liable for damages to the respondents, William Lines, Inc., and Prudential for the loss of M/V Manila City. It is petitioners submission that the finding of negligence by the Court of Appeals is not supported by the evidence on record, and contrary to what the Court of Appeals found, petitioner did not have management and control over M/V Manila City. Although it was brought to the premises of CSEW for annual repair, William Lines, Inc. retained control over the vessel as the ship captain remained in command and the ships crew were still present. While it imposed certain rules and regulations on William Lines, it was in the exercise of due diligence and not an indication of CSEWs exclusive control over subject vessel. Thus, C SEW maintains that it did not have exclusive control over the M/V Manila City and the trial court and the Court of Appeals erred in applying the doctrine of res ipsa loquitur. Time and again, this Court had occasion to reiterate the well-established rule that factual findings by the Court of Appeals are conclusive on the parties and are not reviewable by this Court. They are entitled to great weight and respect, even finality, especially when, as in this case, the Court of Appeals affirmed the factual findings arrived at by the trial court. [7] When supported by sufficient evidence, findings of fact by the Court of Appeals affirming those of the trial court, are not to be disturbed on appeal. The rationale behind this doctrine is that review of the findings of fact of the Court of Appeals is not a function that the Supreme Court normally undertakes.[8] Here, the Court of Appeals and the Cebu Regional Trial Court of origin are agreed that the fire which caused the total loss of subject M/V Manila City was due to the negligence of the employees and workers of CSEW. Both courts found that the M/V Manila City was under the custody and control of petitioner CSEW, when the ill-fated vessel caught fire. The decisions of both the lower court and the Court of Appeals set forth clearly the evidence sustaining their finding of actionable negligence on the part of CSEW. This factual finding is accorded great weight and is conclusive on the parties. The court discerns no basis for disturbing such finding firmly anchored on enough evidence. As held in the case of Roblett Industrial Construction Corporation vs. Court of Appeals, in the absence of any showing that the trial court failed to appreciate facts and circumstances of weight and substance that would have altered its conclusion, no compelling reason exists for the Court to impinge upon matters more appropriately within its province.[9] Furthermore, in petitions for review on certiorari, only questions of law may be put into issue. Questions of fact cannot be entertained. The finding of negligence by the Court of Appeals is a question which this Court cannot look into as it would entail going into factual matters on which the finding of negligence was based. Such an approach cannot be allowed by this Court in the absence of clear showing that the case falls under any of the exceptions[10] to the well-established principle. The finding by the trial court and the Court of Appeals that M/V Manila City caught fire and sank by reason of the negligence of the workers of CSEW, when the said vessel was under the exclusive custody and control of CSEW is accordingly upheld. Under the circumstances of the case, the doctrine of res ipsa loquitur applies. For the doctrine of res ipsa loquitur to apply to a given situation, the

following conditions must concur: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; and (2) that the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence. The facts and evidence on record reveal the concurrence of said conditions in the case under scrutiny. First, the fire that occurred and consumed M/V Manila City would not have happened in the ordinary course of things if reasonable care and diligence had been exercised. In other words, some negligence must have occurred. Second, the agency charged with negligence, as found by the trial court and the Court of Appeals and as shown by the records, is the herein petitioner, Cebu Shipyard and Engineering Works, Inc., which had control over subject vessel when it was docked for annual repairs. So also, as found by the regional trial court, other responsible causes, including the conduct of the plaintiff, and third persons, are sufficiently eliminated by the evidence.[11] What is more, in the present case the trial court found direct evidence to prove that the workers and/or employees of CSEW were remiss in their duty of exercising due diligence in the care of subject vessel. The direct evidence substantiates the conclusion that CSEW was really negligent. Thus, even without applying the doctrine of res ipsa loquitur, in light of the direct evidence on record, the ineluctable conclusion is that the petitioner, Cebu Shipyard and Engineering Works, Inc., was negligent and consequently liable for damages to the respondent, William Lines, Inc. Neither is there tenability in the contention of petitioner that the Court of Appeals erroneously ruled on the inadmissibility of the expert testimonies it (petitioner) introduced on the probable cause and origin of the fire. Petitioner maintains that the Court of Appeals erred in disregarding the testimonies of the fire experts, Messrs. David Grey and Gregory Michael Southeard, who testified on the probable origin of the fire in M/V Manila City. Petitioner avers that since the said fire experts were one in their opinion that the fire did not originate in the area of Tank Top No. 12 where the JNB workers were doing hotworks but on the crew accommodation cabins on the portside No. 2 deck, the trial court and the Court of Appeals should have given weight to such finding based on the testimonies of fire experts; petitioner argues. But courts are not bound by the testimonies of expert witnesses. Although they may have probative value, reception in evidence of expert testimonies is within the discretion of the court. Section 49, Rule 130 of the Revised Rules of Court, provides: SEC. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. The word may signifies that the use of opinion of an expert witness as evidence is a prerogative of the courts. It is never mandatory for judges to give substantial weight to expert testimonies. If from the facts and evidence on record, a conclusion is readily ascertainable, there is no need for the judge to resort to expert opinion evidence. In the case under consideration, the testimonies of the fire experts were not the only available evidence on the probable cause and origin of the fire. There were witnesses who were actually on board the vessel when the fire occurred. Between the testimonies of the fire experts who merely based their findings and opinions on interviews and the testimonies of those present during the fire, the latter are of more probative value. Verily, the trial court and the Court of Appeals did not err in giving more weight to said testimonies. On the issue of subrogation, petitioner contends that Prudential is not entitled to be subrogated to the rights of William Lines, Inc., theorizing that (1) the fire which gutted M/V Manila City was an excluded risk and (2) it is a co-assured under the Marine Hull Insurance Policy. It is petitioners submission that the loss of M/V Manila City or damage thereto is expressly excluded from the coverage of t he insurance because the same resulted from want of due diligence by the Assured, Owners or Managers which is not included in the risks insured against. Again, this theory of petitioner is bereft of any factual or legal basis. It proceeds from a wrong premise that the fire which gutted subject vessel was caused by the negligence of the employees of William Lines, Inc. To repeat, the issue of who between the parties was negligent has already been resolved against Cebu Shipyard and Engineering Works, Inc. Upon proof of payment by Prudential to William Lines, Inc., the former was subrogated to the right of the latter to indemnification from CSEW. As aptly ruled by the Court of Appeals, the law on the matter is succinct and clear, to wit: Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury.[12]

Thus, when Prudential, after due verification of the merit and validity of the insurance claim of William Lines, Inc., paid the latter the total amount covered by its insurance policy, it was subrogated to the right of the latter to recover the insured loss from the liable party, CSEW. Petitioner theorizes further that there can be no right of subrogation as it is deemed a co-assured under the subject insurance policy. To buttress its stance that it is a co-assured, petitioner placed reliance on Clause 20 of of the Work Order which states: 20. The insurance on the vessel should be maintained by the customer and/or owner of the vessel during the period the contract is in effect.[13] According to petitioner, under the aforecited clause, William Lines, Inc., agreed to assume the risk of loss of the vessel while under drydock or repair and to such extent, it is benefited and effectively constituted as a co-assured under the policy. This theory of petitioner is devoid of sustainable merit. Clause 20 of the Work Order in question is clear in the sense that it requires William Lines to maintain insurance on the vessel during the period of dry-docking or repair. Concededly, such a stipulation works to the benefit of CSEW as the shiprepairer. However, the fact that CSEW benefits from the said stipulation does not automatically make it as a coassured of William Lines. The intention of the parties to make each other a co-assured under an insurance policy is to be gleaned principally from the insurance contract or policy itself and not from any other contract or agreement because the insurance policy denominates the assured and the beneficiaries of the insurance. The hull and machinery insurance procured by William Lines, Inc. from Prudential named only William Lines, Inc. as the assured. There was no manifestation of any intention of William Lines, Inc. to constitute CSEW as a coassured under subject policy. It is axiomatic that when the terms of a contract are clear its stipulations control.[14] Thus, when the insurance policy involved named only William Lines, Inc. as the assured thereunder, the claim of CSEW that it is a co-assured is unfounded. Then too, in the Additional Perils Clause of the same Marine Insurance Policy, it is provided that: Subject to the conditions of this Policy, this insurance also covers loss of or damage to vessel directly caused by the following: xxx Negligence of Charterers and/or Repairers, provided such Charterers and/or Repairers are not an Assured hereunder.[15] (emphasis supplied) As correctly pointed out by respondent Prudential, if CSEW were deemed a co-assured under the policy, it would nullify any claim of William Lines, Inc. from Prudential for any loss or damage caused by the negligence of CSEW. Certainly, no shipowner would agree to make a shiprepairer a co-assured under such insurance policy; otherwise, any claim for loss or damage under the policy would be invalidated. Such result could not have been intended by William Lines, Inc. Finally, CSEW argues that even assuming that it was negligent and therefore liable to William Lines, Inc., by stipulation in the Contract or Work Order its liability is limited to One Million (P1,000,000.00) Pesos only, and Prudential a mere subrogee of William Lines, Inc., should only be entitled to collect the sum stipulated in the said contract. Although in this jurisdiction, contracts of adhesion have been consistently upheld as valid per se; as binding as an ordinary contract, the Court recognizes instances when reliance on such contracts cannot be favored especially where the facts and circumstances warrant that subject stipulations be disregarded.[16] Thus, in ruling on the validity and applicability of the stipulation limiting the liability of CSEW for negligence to One Million (P1,000,000.00) Pesos only, the facts and circumstances vis-a-vis the nature of the provision sought to be enforced should be considered, bearing in mind the principles of equity and fair play. It is worthy to note that M/V Manila City was insured with Prudential for Forty Five Million (P45,000,000.00) Pesos. To determine the validity and sustainability of the claim of William Lines, Inc., for a total loss, Prudential conducted its own inquiry. Upon thorough investigation by its hull surveyor, M/V Manila City was found to be beyond economical salvage and repair. [17] The evaluation of the average adjuster also reported a constructive total loss.[18]The said claim of William Lines, Inc., was then found to be valid and compensable such that Prudential paid the latter the total value of its insurance claim. Furthermore, it was ascertained that the replacement cost of the vessel (the price of a vessel similar to M/V Manila City), amounts to Fifty-five Million (P55,000,000.00) Pesos.[19]

Considering the aforestated circumstances, let alone the fact that negligence on the part of petitioner has been sufficiently proven, it would indeed be unfair and inequitable to limit the liability of petitioner to One Million Pesos only. As aptly held by the t rial court, it is rather unconscionable if not overstrained. To allow CSEW to limit its liability to One Million Pesos notwithstanding the fact that the total loss suffered by the assured and paid for by Prudential amounted to Forty Five Million (P45,000,000.00) Pesos would sanction the exercise of a degree of diligence short of what is ordinarily required because, then, it would not be difficult for petitioner to escape liability by the simple expedient of paying an amount very much lower than the actual damage or loss suffered by William Lines, Inc. WHEREFORE, for want of merit, the petition is hereby DENIED and the decision, dated September 3, 1997, and Resolution, dated February 13, 1998, of the Court of Appeals AFFIRMED. No pronouncement as to costs. SO ORDERED. [G.R. No. 75908. October 22, 1999] FEDERICO O. BORROMEO, LOURDES O. BORROMEO and FEDERICO O. BORROMEO, INC, petitioners vs. AMANCIO SUN and the COURT OF APPEALS,respondents. PURISIMA, J.: At bar is a Petition for review on Certiorari under Rule 45 of the Revised Rules of Court seeking to set aside the Resolution of the then Intermediate Appellate Court[1], dated March 13, 1986, in AC-G.R. CV NO. 67988, which reversed its earlier Decision dated February 12, 1985, setting aside the Decision of the former Court of the First Instance of Rizal, Branch X, in Civil Case No. 19466. The antecedent facts are as follows: Private respondent Amancio Sun brought before the then Court of the First Instance of Rizal, Branch X, an action against Lourdes O. Borromeo (in her capacity as corporate secretary), Federico O. Borromeo and Federico O. Borromeo (F.O.B.), Inc., to compel the transfer to his name in the books of F.O.B., Inc., 23,223 shares of stock registered in the name of Federico O. Borromeo, as evidenced by a Deed of Assignment dated January 16, 1974. Private respondent averred[2] that all the shares of stock of F.O.B. Inc. registered in the name of Federico O. Borromeo belong to him, as the said shares were placed in the name of Federico O. Borromeo only to give the latter personality and importance i n the business world.[3] According to the private respondent, on January 16, 1974 Federico O. Borromeo executed in his favor a Deed of Assignment with respect to the said 23,223 shares of stock. On the other hand, petitioner Federico O. Borromeo disclaimed any participation in the execution of the Deed of Assignment, theorizing that his supposed signature thereon was forged. After trial, the lower court of origin came out with a decision declaring the questioned signature on subject Deed of Assignment, dated January 16, 1974, as the genuine signature of Federico O. Borromeo; ratiocinating thus: After considering the testimonies of the two expert witnesses for the parties and after a careful and judicious study and analysis of the questioned signature as compared to the standard signatures, the Court is not in a position to declare that the questioned signature in Exh. A is a forgery. On the other hand, the Court is of the opinion that the questioned signature is the real signature of Federico O. Borromeo between the years 1954 to 1957 but definitely is not his signature in 1974 for by then he has changed his signature. Consequently, to the mind of the Court Exhibit A was signed by defendant Federico O. Borromeo between the years 1954 to 1957 although the words in the blank were filled at a much later date.[4] On appeal by petitioners, the Court of Appeals adjudged as forgery the controverted signature of Federico O. Borromeo; disposing as follows: WHEREFORE, the judgment of the Court a quo as to the second cause of action dated March 12, 1980 is hereby reversed and set aside and a new judgment is hereby rendered: 1. Ordering the dismissal of the complaint as to defendant-appellants; 2. Ordering plaintiff-appellee on appellants counterclaim to pay the latter:

a) P 20,000.00 as moral damages; b) P 10,000.00 as exemplary damages; c) P 10,000.00 as attorneys fees. 3. Ordering plaintiff-appellee to pay the costs.[5] On March 29, 1985, Amancio Sun interposed a motion for reconsideration of the said decision, contending that Segundo Tabayoyong, petitioners expert witness, is not a credible witness as found and concluded in the following disposition by this Court in Cesar vs. Sandigan Bayan[6]: The testimony of Mr. Segundo Tabayoyong on March 5, 1980, part of which is cited on pages 19-23 of the petition, shows admissions which are summarized by the petitioner as follows: He never finished any degree in Criminology. Neither did he obtain any degree in physics or chemistry. He was a mere trainee in the NBI laboratory. He said he had gone abroad only once-to Argentina which, according to him is the only one country in the world that gives this degree (?) People go there where they obtain this sort of degree (?) where they are authorized t o practice (sic) examination of questioned documents. His civil service eligibility was second grade (general clerical). His present position had to be re-classified confidential in order to qualify him to it. He never passed any Board Examination. He has never authored any book on the subject on which he claimed to be an expert. Well, he did write a so -called pamphlet pretentiously called Fundamentals of Questioned Documents Examination and Forgery Detection. In that pamphlet, he mentioned some references (some) are Americans and one I think is a British, sir, like in the case of Dr. Wilson Harrison, a British (he repeated with emphasis). Many of the theories contained in his pamphlet were lifted body and soul from those references, on e of them being Albert Osborn. His pamphlet has neither quotations nor footnotes, although he was too aware of the crime committed by many an author called plagiarism. But that did not deter him, nor bother him in the least. He has never been a member of any professional organization of experts in his supposed field of expertise, because he said there is none locally. Neither is he on an international level.[7] Acting on the aforesaid motion for reconsideration, the Court of Appeals reconsidered its decision of February 12, 1985 aforementioned. Thereafter, the parties agreed to have subject Deed of Assignment examined by the Philippine Constabulary (PC) Crime Laboratory, which submitted a Report on January 9, 1986, the pertinent portion of which, stated: 1. Comparative examination and analysis of the questioned and the standard signature reveal significant similarities in the freedom of movement, good quality of lines, skills and individual handwriting characteristics. 2. By process of interpolation the questioned signature fits in and can be bracketed in time with the standard signatures written in the years between 1956 to 1959. Microscopic examination of the ink used in the questioned signature and the standard signature in document dated 30 July 1959 marked Exh. E indicate gallotanic ink. xxx 1. The questioned signature FEDERICO O. BORROMEO marked Q appearing in the original Deed of Assignment dated 1 6 January 1974 and the submitted standard signatures of Federico O. Borromeo marked S -1 to S-49 inclusive were written BY ONE AND THE SAME PERSON. 2. The questioned signature FEDERICO O. BORROMEO marked Q COULD HAVE BEEN SIGNED IN THE YEARS BETWEEN 1950-1957.[8] After hearing the arguments the lawyers of record advanced on the said Report of the PC Crime Laboratory, the Court of Appe als resolved:

"xxx 1) to ADMIT the Report dated Jan. 9, 1986 of the PC Crime Laboratory on the Deed of Assignment in evidence, without prejudice to the parties assailing the credibility of said Report; 2) to GIVE both parties a non-extendible period of FIVE (5) DAYS from February 27, 1986, within which to file simultaneous memoranda.[9] On March 13, 1986, the Court of Appeals reversed its decision of February 12, 1985, which affirmed in toto the decision of the trial court of origin; resolving thus: WHEREFORE, finding the Motion for Reconsideration meritorious, We hereby set aside our Decision, dated February 12, 1985 and in its stead a new judgment is hereby rendered affirming in toto the decision of the trial Court, dated March 12, 1980, without pronouncement as to costs. SO ORDERED.[10] Therefrom, petitioners found their way to this court via the present Petition; theorizing that: I. THE RESPONDENT COURT ERRED IN HOLDING THAT WHEN PETITIONER AGREED TO THE SUGGESTION OF RESPONDENT COURT TO HAVE THE QUESTIONED DOCUMENT EXAMINED BY THE PC CRIME LABORATORY THEY COULD NO LONGER QUESTION THE COMPETENCY OF THE DOCUMENT. II THE COURT OF APPEALS ERRED IN HOLDING THAT THE QUESTIONED DOCUMENT WAS SIGNED IN 1954 BUT WAS DATED IN 1974. III THE COURT OF APPEALS ERRED IN HOLDING THAT THE SIGNATURE OF FEDERICO O. BORROMEO IN THE DEED OF ASSIGNMENT (EXHIBIT A ) IS A GENUINE SIGNATURE CIRCA 1954-1957. The Petition is barren of merit. Well-settled is the rule that factual finding of the Court of Appeals are conclusive on the parties and not reviewable by the Sup reme Court and they carry even more weight when the Court of Appeals affirms the factual findings of the trial court. [11] In the present case, the trial court found that the signature in question is the genuine signature of Federico O. Borromeo between the years 1954 to 1957 although the words in the blank space of the document in question were written on a much later date. The same conclusion was arrived at by the Court of Appeals on the basis of the Report of the PC crime Laboratory corroborating the findings of Col. Jose Fernandez that the signature under controversy is genuine. It is significant to note that Mr. Tabayoyong, petitioners expert witness, limited his comparison of the questioned signatur e with the 1974 standard signature of Federico O. Borromeo. No comparison of the subject signature with the 1950 - 1957 standard signature was ever made by Mr. Tabayoyong despite his awareness that the expert witness of private respondent, Col. Jose Fernandez, made a comparison of said signatures and notwithstanding his (Tabayoyongs) access to such signatures as they were all submitted to the lower Court. As correctly ratiocinated[12] by the Court of origin, the only conceivable reason why Mr. Tabayoyong avoided making such a comparison must have been, that even to the naked eye, the questioned signature affixed to the Deed of Assignment, dated January 16, 1974, is strikingly similar to the 1950 to 1954 standard signature of Federico O. Borromeo, such that if a comparison thereof was made by Mr. Tabayoyong, he would have found the questioned signature genuine.

That the Deed of Assignment is dated January 16, 1974 while the questioned signature was found to be circa 1954-1957, and not that of 1974, is of no moment. It does not necessarily mean, that the deed is a forgery. Pertinent records reveal that the subject Deed of Assignment is embodied in a blank form for the assignment of shares with authority to transfer such shares in the books of the corporation. It was clearly intended to be signed in blank to facilitate the assignment of shares from one person to another at any future time. This is similar to Section 14 of the Negotiable Instruments Law where the blanks may be filled up by the holder, the signing in blank being with the assumed authority to do so. Indeed, as the shares were registered in the name of Federico O. Borromeo just to give him personality and standing in the business community, private respondent had to have a counter evidence of ownership of the shares involve. Thus the execution of the deed of assignment in blank, to be filled up whenever needed. The same explains the discrepancy between the date of the deed of assignment and the date when the signature was affixed thereto. While it is true that the 1974 standard signature of Federico O. Borromeo is to the naked eye dissimilar to his questioned signature circa 1954-1957, which could have been caused by sheer lapse of time, Col. Jose Fernandez, respondents expert witness, found the said signatures similar to each other after subjecting the same to stereomicroscopic examination and analysis because the intrinsic and natural characteristic of Federico O. Borromeos handwriting were present in all the exemplar signatures used by both Segundo Tabayoyong and Col. Jose Fernandez. It is therefore beyond cavil that the findings of the Court of origin affirmed by the Court of Appeals on the basis of the corroborative findings of the Philippine Constabulary Crime Laboratory confirmed the genuineness of the signature of Federico O. Borromeo in the Deed of Assignment dated January 16, 1974. Petitioners, however, question the Report of the document examiner on the gr ound that they were not given an opportunity to cross-examine the Philippine Constabulary document examiner; arguing that they never waived their right to question the competency of the examiner concerned. While the Court finds merit in the contention of petitioners, that they did not actually waived their right to crossexamine on any aspect of subject Report of the Philippine Constabulary Crime Laboratory, the Court discerns no proper basis for deviating from the findings of the Court of Appeals on the matter. It is worthy to stress that courts may place whatever weight due on the testimony of an expert witness.[13] Conformably, in giving credence and probative value to the said Report of the Philippine Constabulary Crime Laboratory, corroborating the findings of the trial Court, the Court of Appeals merely exercised its discretion. There being no grave abuse in the exercise of such judicial discretion, the findings by the Court of Appeals should not be disturbed on appeal. Premises studiedly considered, the Court is of the irresistible conclusion, and so holds, that the respondent court erred not in affirming the decision of the Regional Trial Court a quo in Civil Case No. 19466. WHEREFORE, the Petition is DISMISSED for lack of merit and the assailed Resolution, dated March 13, 1986, AFFIRMED. No pronouncement as to costs. G.R. No. 98196 January 31, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELEUTERIO ADONIS alias "TANDANG," accused-appellant. FELICIANO, J.: Eleuterio Adonis appeals from the judgment of the trial court finding him guilty of murder. He was charged with murder in an information which reads as follows: That on or about the 10th day of June 1985 in the municipality of Dulag, Leyte, Philippines, and within the jurisdiction of the honorable court, the abovenamed accused, with deliberate intent to kill, with treacherous and evident premeditation, did then and there, willfully, unlawfully and feloniously attacked, assaulted, stabbed, and hacked, Benedicto Basas with a bladed weapon known as "pisao"which the accused had provided himself, thereby hitting and inflicting on the latter a fatal wound that caused the instant death of Benedicto Basas. Contrary to law. 1

At arraignment, Adonis pleaded not guilty. After trial, the court found him guilty beyond reasonable doubt of murder and sentenced him to reclusion perpetua and to pay P30,000.00 to the heirs of the victim Benedicto Basas. The judgment was based on factual findings outlined by the trial court as follows. At about 7:00 pm on 10 June 1985, after Benedicto Basas had finished his dinner in his home, he went down to their front yard together with his wife and son. Benedicto sat on a bench with his back against the street. His wife and 14-year old son also sat down, one somewhat to the right and the other somewhat to the left of Benedicto, but both facing Benedicto. The accused Eleuterio Adonis, also known as "Tandang," suddenly appeared behind Benedicto Basas and stabbed the latter once with a knife known as "pisao," killing him. Benedicto stood up and then fell down. Thereafter, Eleuterio ran away from the shocked wife and son of his victim. For his part, the accused Eleuterio invoked self-defense 2 and controverted the version of the prosecution witnesses. Eleuterio testified that while he and Bienvenido Arguta were passing by the house of Benedicto Basas, the latter suddenly hacked at him with a bolo but that he was not hit. Eleuterio retaliated by stabbing Benedicto with a knife, inflicting a single though mortal wound on the deceased. Eleuterio claimed that Benedicto had stood in front of his house, intoxicated and challenging passersby to a fight moments before his death. In his appeal, Eleuterio assigned the following as supposed errors of the trial court: 1. The trial court erred in choosing the version of the prosecution over the version of the defense on the basis of speculation, conjecture, and suspicion; 2. the trial court erred in not acquitting the accused-appellant on the ground of reasonable doubt. 3 After careful examination of the evidence on record, we find that appellant Eleuterio did not succeed in substantiating the above claimed errors. The well-entrenched doctrine in this jurisdiction is that when the accused invokes self-defense, he has the burden of proving the elements of that defense by clear and convincing evidence. To do so, he must rely on the strength of his own evidence and not on the weakness of the prosecution's. 4 For implicit in self-defense claimed by appellant Adonis is the admission that he had in fact killed Benedicto Basas; hence, even if the evidence for the prosecution were weak, it could not be disbelieved after the accused had owned the killing. Appellant failed to discharge his burden. The evidence presented to show unlawful aggression on the part of the victim and thus clearly inadequate. Defense witnesses asserted that the deceased Basas was armed when he was killed, but their testimonies were at best inconsistent with each other. Appellant Eleuterio Adonis 5 and Uldarico Gobangco 6 testified that Basas was armed with a bolo when he was challenging passers by to a fight moments before his death. On cross-examination, however, Gobangco backed off from this claim: Atty. Martines (cross-examination): Q. On that particular incident, was he drunk? Uldarico Gobangco: A. He was drunk. Q. Was he armed with a bolo? A. He had none I was not able to see. 7

This inconsistency does not merely deal with a minor detail. That Basas was armed on that occasion is crucial in establishing the fundamental requisite of self-defense: that Basas had exercised unlawful aggression against appellant. Adonis himself, of course, claimed that a bolo was used by Benedicto Basas in attacking him; his claim was, effectively, bereft of corroboration. There are other contradictions in the testimonies submitted for the defense which, while not as critical nonetheless cloud the credibility of the defense witnesses. Appellant Adonis testified that he went to his farm with his cousin Bienvenido Arguta at around 5:00 p.m. on June 10, 1985. 8 This conflicted with Arguta's assertion that he met accused at about 7:99 pm of June 10, 1985. 9 Appellant also stated that the road by the house of Basas where the crime took place was the only route to appellant's ricefield. 10 This is contrary to Arguta's statement that there were actually other routes to Eleuterio's ricefield. 11 Defense witness Gobangco testified that deceased Basas had announced "I will kill you!" when he attacked appellant. 12 But Arguta testified that he (alleged) attack of Basas on appellant was not preceded by any exchange of words. 13 The defense also presented evidence to prove the bad moral character and quarrelsome disposition of the deceased. Barangay Captain Uldarico Gobangco testified that "whenever the victim got drunk, he would challenge anybody to a fight and that he was also [known] to steal a carabao." 14 The Barangay Captain also stated that, per the notebook where the customarily recorded all incidents occurring in their barangay, a complaint for theft had been lodged against the deceased Basas. The trial court, however, noted that the statements of the Barangay Captain Gobangco that the deceased had habitually challenged other people to a fight whenever he was drunk found no support in his own notebook. The testimony of the Barangay Captain was given neither credence nor weight by the trial court. While the accused may prove the bad moral character of the victim, the proof must be of his general reputation in the community and not merely of isolated and specific acts. 15 Thus, the mere allegation that a complaint for theft had been filed against the victim cannot establish his general reputation. Besides, there was no showing that Basas was ever convicted of that charge, assuming it had ever been filed. Moreover, as the trial court held, no evidentiary value can be attributed to the Barangay Captain's notebook. That notebook can hardly be considered an official record, for record-keeping is vested in the Barangay Secretary and not in the Barangay Captain. Moreover, an incomplete record, especially one with blank or torn pages allowing the inclusion or deletion of certain matters, lacks reliability; its contents are open to the suspicion that they are reflective not of all actual events, but only of those which the recorder, for reasons of his own, wanted to record. Even if it had been proved by competent evidence that the deceased was of a quarrelsome disposition, such evidence would only have established a probability that he had indeed started an unlawful assault on Eleuterio. 16This probability cannot overcome the positive statement of the prosecution witnesses during trial that the accused-appellant had assaulted Basas without any provocation. 17 It is well to recall that whether or not appellant acted in self-defense is essentially a question of fact. 18 The trial court judge, having seen and heard the witnesses during the trial, is necessarily in a better position than an appellate court to evaluate and weigh their testimonies. In the absence of any showing that the trial court failed to appreciate facts and circumstances that would have altered its conclusion, its factual findings must be accorded respect. We find no adequate reason to disturb the conclusion of the trial court that the appellant had not acted in legitimate self-defense. Upon the other-hand, the evidence presented by the prosecution did show beyond reasonable doubt the guilt of appellant. Rosalina Basas, wife of deceased Benedicto, and their son Jovencio, positively identified accused-appellant Eleuterio Adonis as the person who had, without provocation, stabbed Basas to death. Jovencio Basas testified thus: Atty. Martinez: (Direct Examination) Q. What were you doing on that evening in question? Jovencio Basas: A. After we ate our supper, my mother, my father and I went down.

Q. To what place, you said "down"? A. To our porch, because we had just finished eating and we were there to breathe fresh air. Q. While you, your father and your mother were in the front yard on that evening in question, was there anything unusual that happened? A. Yes, my father (Benedicto Basas) was stabbed. Q. Who stabbed your father? A. Eleuterio Adonis, alias Tandang. Q. Do you know what kind of weapon was used in the stabbing of your father? A. Yes, sir, a pisao. Q. How many times was your father stabbed by the accused? A. Only once. Q. And after the accused stabbed your father once hitting him on the back, what did he do? A. He stood up, after standing, he fell to the ground. Q. You are referring to your father? A. Yes. Q. How about the accused, what did he do? A. He ran away. Q. Was there any light in your front yard when this incident happened? A. Yes, there was a home-made lamp which was placed on a stand. 19 Jovencio Basas stuck to his testimony under cross-examination: Atty. Canete: (Cross Examination) Q. When you saw the accused for the first time, you saw that he was already armed with a small bolo without a scabbard, correct?

Jovencio Basas: A. He immediately drew a pisao from his side and used it in stabbing my father? Q. When the accused drew that small bolo, was that the first time you saw the accused while he was about two meters away from your father? A. When I saw him, he immediately drew his pisao from his side and stabbed my father immediately. xxx xxx xxx

A. Yes, he was hit on his back. Q. Do you remember how many times was your husband stabbed by the accused? A. Only once. Q. After your husband was stabbed once and was hit at the back by the accused, what did the accused do? A. He ran away. Q. Was there any light in your front yard when the incident happened?

Q. Did you not shout to your father to give him a warning when you saw the accused draw his bolo? A. I could not shout because when he appeared he immediately stabbed my father, I could not shout anymore. 20 Rosalinda Basas, reiterating the gist of Jovencio's testimony, was just as forthright. She stated: Atty. Martinez: (Direct Examination) Q. After you had eaten your supper, where did you go? Rosalinda Basas: A. We went down the house to the front yard to breathe fresh air. Q. While you, your husband and your son were in the front yard of your house which is situated in Brgy. Baluntuhan, Dulag, Leyte, was there any unusual incident that happened? A. Yes, sir. Q. What happened? A. My husband was stabbed by Eleuterio Adonis. Q. What weapon was used by Eleuterio Adonis in stabbing your husband? A. A "pisao". xxx xxx xxx Q. Was your husband hit when he was stabbed by the accused with that "pisao"? United States Court of Appeals,Ninth Circuit.

A. There was a home-made lamp in our porch. 21 We agree with the trial court that the element of treachery was adequately proved. The attack delivered by appellant Eleuterio was sudden, without warning of any kind. One thrust of the "pisao" on the unprotected back of Benedicto Basas, then unarmed and peacefully digesting his evening meal, was all that was necessary. Eleuterio promptly ran away, before the wife and son of the victim could recover from the shock of seeing Benedicto suddenly stand up and then crumple to the ground. The speed and dispatch with which the deed was done argues clearly that the mode of attack had been devised and sought rather than improvised at the spur of the moment. We conclude that the trial court erred only in awarding an indemnity to the heirs of the victim in the amount of Thirty Thousand Pesos (P30,00.00). The amount awarded should have been Fifty Thousand Pesos (P50,000.00).22 WHEREFORE, the decision of the trial court finding appellant Eleuterio Adonis guilty of murder and sentencing him to reclusion perpetua is hereby AFFIRMED, with the sole modification that he shall pay the heirs of Benedicto Basas an indemnity of Fifty Thousand Pesos (P50,000.00)

William DAUBERT, Joyce Daubert, individually and as Guardians Ad Litem for Jason Daubert, a minor; Anita De Young, individually, and as Guardian Ad Litem for Eric Schuller, Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS, INC., a Delaware corporation, Defendant-Appellee. No. 90-55397. Argued and Submitted March 22, 1994. -- January 04, 1995 Before: KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,District Judge.* Michael H. Gottesman, Georgetown Univ. Law Center, Washington, DC, Kenneth J. Chesebro, Cambridge, MA, Mary F. Gillick, Luce, Forward, Hamilton & Scripps, San Diego, CA, and Barry J. Nace, Paulson, Nace, Norwin & Sellinger, Washington, DC, for the plaintiffs-appellants. Charles Fried, Cambridge, MA, Hall R. Marston, George E. Berry, Dickson, Carlson & Campillo, Santa Monica, CA, and Joel I. Klein, and Richard G. Taranto, Washington, DC, for the defendant-appellee. On remand from the United States Supreme Court, we undertake the task of ensuring that an expert's testim ony both rests on a reliable foundation and is relevant to the task at hand. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469 (1993). I

A. Background Two minors brought suit against Merrell Dow Pharmaceuticals, claiming they suffered limb reduction birth defects1 because their mothers had taken Bendectin, a drug prescribed for morning sickness to about 17.5 million pregnant women in the United States between 1957 and 1982. See Resp't's Br. on Writ of Cert. at 2; Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1350 (6th Cir.1992). This

News, No. P80-45 (Oct. 7, 1980).

Every published study here and abroad-and there have been many-concludes that Bendectin is not a In fact, apart from the small but determined group of scientists testifying on behalf of the

teratogen. Turpin, 959 F.2d at 1353-56.

Bendectin plaintiffs in this and many other cases, there doesn't appear to be a single scientist who has concluded that Bendectin causes limb reduction defects. It is largely because the opinions proffered by plaintiffs' experts run counter to the substantial consensus in the scientific community that we affirmed the district court's grant of summary judgment the last time the case appeared before us. Daubert v. Merrell Dow

appeal deals with an evidentiary question: whether certain expert scientific testimony is admissible to prove that Bendectin caused the plaintiffs' birth defects. For the most part, we don't know how birth defects come about. mother has taken Bendectin. We do know they occur in 2-3% of births, whether or not the expectant

Pharmaceuticals, Inc., 951 F.2d 1128, 1131 (9th Cir.1992). The standard for admissibility of expert testimony in this circuit at the time was the so-called Frye test: Scientific evidence was admissible if it was based on a scientific technique generally accepted as reliable within the scientific community. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).2 We found that the district court properly applied this standard, and affirmed. The Supreme Court reversed, holding that Frye was superseded by Federal Rule of Evidence 702, 509 U.S. at ---, 113 S.Ct. at 2794, and remanded for us to consider the admissibility of plaintiffs' expert testimony under this new standard. B. Procedural Issues First, however, we address plaintiffs' argument that we should simply remand the case so the district court can make the initial determination of admissibility under the new standard announced by the Supreme Court. There is certainly something to be said for this position, as the Not knowing the mechanism whereby a particular agent causes a particular effect is not always fatal to a plaintiff's claim. Causation can district court is charged with making the initial determination whether to admit evidence. In the peculiar circumstances of this case, See Jose F. Cordero & Godfrey P. Oakley, Jr., Drug Exposure During Pregnancy: Some Epidemiologic Limb defects are even rarer, occurring in fewer than one

Considerations, 26 Clinical Obstetrics & Gynecology 418, 424-25 (June 1983). birth out of every 1000. Turpin, 959 F.2d at 1353.

But scientists simply do not know how teratogens (chemicals known to cause limb

reduction defects) do their damage: They cannot reconstruct the biological chain of events that leads from an expectant mother's ingestion of a teratogenic substance to the stunted development of a baby's limbs. Nor do they know what it is about teratogens that causes them to have this effect. No doubt, someday we will have this knowledge, and then we will be able to tell precisely whether and how Bendectin (or any other suspected teratogen) interferes with limb development; in the current state of scientific knowledge, however, we are ignorant.

be proved even when we don't know precisely how the damage occurred, if there is sufficiently compelling proof that the agent must have caused the damage somehow. One method of proving causation in these circumstances is to use statistical evidence. If 50 people who eat at a restaurant one evening come down with food poisoning during the night, we can infer that the restaurant's food probably contained something unwholesome, even if none of the dishes is available for analysis. This inference is based on the fact that, in our health-

however, we have determined that the interests of justice and judicial economy will best be served by deciding those issues that are properly before us and, in the process, offering guidance on the application of the Daubert standard in this circuit. The district court already made a determination as to admissibility, albeit under a different standard than we apply on remand, and granted summary judgment based on its exclusion of plaintiffs' expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F.Supp. 570, 575-76 (S.D.Cal.1989). A grant of summary judgment may be sustained on any basis supported by the record, Leonard v.

conscious society, it is highly unlikely that 50 people who have nothing in common except that they ate at the same restaurant would get food poisoning from independent sources. It is by such means that plaintiffs here seek to establish that Bendectin is responsible for their injuries. They rely on the testimony of three groups of scientific experts. One group proposes to testify that there is a statistical link between the ingestion of Bendectin during These experts have not themselves conducted epidemiological (human statistical) studies on the

Clark, 12 F.3d 885, 889 (9th Cir.1993), so we shall consider whether the district court's grant of summary judgment can be sustained under the new standard announced by the Supreme Court. Our review here is, of course, very narrow: We will affirm the summary judgment

only if, as a matter of law, the proffered evidence would have to be excluded at trial. The district court's power is far broader; were we to conclude that the expert testimony is not per se inadmissible, the district court on remand would nevertheless have discretion to reject it under Rule 403 or 702. Daubert, 509 U.S. at ----, 113 S.Ct. at 2798. discretion standard. One other procedural matter detains us. According to plaintiffs, they weren't required to come forward with any evidence to survive Such a ruling would be reviewed under the deferential abuse of

pregnancy and limb reduction defects.

effects of Bendectin; rather, they have reanalyzed studies published by other scientists, none of whom reported a statistical association between Bendectin and birth defects. Other experts proffered by plaintiffs propose to testify that Bendectin causes limb reduction defects in humans because it causes such defects in laboratory animals. A third group of experts sees a link between Bendectin and birth defects because Bendectin has a chemical structure that is similar to other drugs suspected of causing birth defects. The opinions proffered by plaintiffs' experts do not, to understate the point, reflect the consensus within the scientific community. The

summary judgment because the affidavit of Merrell's expert was itself inadmissible under Daubert; the burden thus never shifted to plaintiffs to demonstrate a genuine issue as to causation. Plaintiffs not only fail to mention the many other exhibits offered by Merrell, they also Because plaintiffs bear the ultimate burden of proof on causation,

FDA-an agency not known for its promiscuity in approving drugs-continues to approve Bendectin for use by pregnant women because available data do not demonstrate an association between birth defects and Bendectin. U.S. Department of Health and Human Services

misunderstand the moving party's burden on summary judgment.

Merrell had only to point to the absence of a genuine issue of material fact; it wasn't required to produce any evidence at all. See Maffei v.

Northern Insulation of New York, 12 F.3d 892, 899 (9th Cir.1993). Thus, the admissibility of Merrell's expert's affidavit is beside the point; the question is whether plaintiffs adduced enough admissible evidence to create a genuine issue of material fact as to whether Bendectin caused their injuries. See Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1071-72 (6th Cir.1993). It is to that question we now turn. II A. Brave New World Federal judges ruling on the admissibility of expert scientific testimony face a far more complex and daunting task in a post-Daubert world than before. The judge's task under Frye is relatively simple: to determine whether the method employed by the experts is generally

B. Deus ex Machina The Supreme Court's opinion in Daubert focuses closely on the language of Fed.R.Evid. 702, which permits opinion testimony by experts as to matters amounting to scientific knowledge. The Court recognized, however, that knowledge in this context does not mean absolute certainty. 509 U.S. at ----, 113 S.Ct. at 2795. Rather, the Court said, in order to qualify as scientific knowledge, an inference or

assertion must be derived by the scientific method. Id. Elsewhere in its opinion, the Court noted that Rule 702 is satisfied where the proffered testimony is based on scientifically valid principles. Id. at ----, 113 S.Ct. at 2799. experts say, but what basis they have for saying it. Which raises the question: How do we figure out whether scientists have derived their findings through the scientific method or whether their testimony is based on scientifically valid principles? Each expert proffered by the plaintiffs assures us that he has utiliz[ed] the type of data that is generally and reasonably relied upon by scientists in the relevant field, see, e.g., Newman Aff. at 5, and that he has utilized the methods and methodology that would generally and reasonably be accepted by people who deal in these matters, see, e.g., Gross Aff. at 5. The Court held, however, that federal judges perform a gatekeeping role, Daubert, 509 U.S. at ----, 113 S.Ct. at 2798; to do so they must satisfy themselves that scientific evidence meets a certain standard of reliability before it is admitted. This means that the expert's Our task, then, is to analyze not what the

accepted in the scientific community. Solomon, 753 F.2d at 1526. Under Daubert, we must engage in a difficult, two-part analysis. First, we must determine nothing less than whether the experts' testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science. 509 U.S. at ----, ----, 113 S.Ct. at 2795, 2797. Second, we must ensure that the proposed expert testimony is relevant to the task at hand, id. at ----, 113 S.Ct. at 2797, i.e., that it logically advances a material aspect of the proposing party's case. requirement. Id. at ----, 113 S.Ct. at 2796. The first prong of Daubert puts federal judges in an uncomfortable position. The question of admissibility only arises if it is first established that the individuals whose testimony is being proffered are experts in a particular scientific field; here, for example, the Supreme Court waxed eloquent on the impressive qualifications of plaintiffs' experts. Id. at ---- n. 2, 113 S.Ct. at 2791 n. 2. Yet something doesn't The Supreme Court referred to this second prong of the analysis as the fit

bald assurance of validity is not enough. Rather, the party presenting the expert must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology. While declining to set forth a definitive checklist or test, id. at ----, 113 S.Ct. at 2796, the Court did list several factors federal judges can consider in determining whether to admit expert scientific testimony under Fed.R.Evid. 702: whether the theory or technique employed by the expert is generally accepted in the scientific community; whether it's been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable. Id. at ----, 113 S.Ct. at 2796-97.3 We read these factors as illustrative rather than exhaustive; similarly, we do not deem each of them to be equally applicable (or applicable at all) in every case.4 Rather, we read the Supreme Court as instructing us to determine whether the analysis undergirding the experts' testimony falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions. One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in But in determining whether proposed expert testimony amounts to good science, we may not

become scientific knowledge just because it's uttered by a scientist; nor can an expert's self-serving assertion that his conclusions were derived by the scientific method be deemed conclusive, else the Supreme Court's opinion could have ended with footnote two. As we

read the Supreme Court's teaching in Daubert, therefore, though we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts' proposed testimony amounts to scientific knowledge, constitutes good science, and was derived by the scientific method. The task before us is more daunting still when the dispute concerns matters at the very cutting edge of scientific research, where fact meets theory and certainty dissolves into probability. As the record in this case illustrates, scientists often have vigorous and sincere

disagreements as to what research methodology is proper, what should be accepted as sufficient proof for the existen ce of a fact, and whether information derived by a particular method can tell us anything useful about the subject under study. Our responsibility, then, unless we badly misread the Supreme Court's opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and w hat is not good science, and occasionally to reject such expert testimony because it was not derived by the scientific method. Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.

court merely as an eleemosynary gesture.

ignore the fact that a scientist's normal workplace is the lab or the field, not the courtroom or the lawyer's office.5 That an expert testifies based on research he has conducted independent of the litigation provides important, objective proof that the research comports with the dictates of good science. See Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom 206-09 For one thing, experts whose findings flow from

(1991) (describing how the prevalent practice of expert-shopping leads to bad science).

existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert

prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party's interests. Then, too, independent research carries its own indicia of reliability, as it is conducted, so to speak, in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. Finally, there is usually a limited

702.10 Where such evidence is unavailable, the proponent of expert scientific testimony may attempt to satisfy its burden through the testimony of its own experts. For such a showing to be sufficient, the experts must explain precisely how they went about reaching their

conclusions and point to some objective source-a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like-to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in their field. See United States v. Rincon, 28 F.3d 921, 924 (9th Cir.1994) (research must be described in sufficient detail that the district court [can] determine if the research was scientifically valid).11 Plaintiffs have made no such showing. As noted above, plaintiffs rely entirely on the experts' unadorned assertions that the methodology

number of scientists actively conducting research on the very subject that is germane to a particular case, which provides a natural constraint on parties' ability to shop for experts who will come to the desired conclusion. That the testimony proffered by an expert is

based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were derived by the scientific method. We have examined carefully the affidavits proffered by plaintiffs' experts, as well as the testimony from prior trials that plaintiffs have introduced in support of that testimony, and find that none of the experts based his testimony on preexisting or independent research. While plaintiffs' scientists are all experts in their respective fields, none claims to have studied the effect of Bendectin on limb reduction defects before being hired to testify in this or related cases. If the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on scientifically valid principles. One means of showing this is by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication.6 Huber, Galileo's Revenge at 209 (suggesting that [t]he ultimate test of [a scientific expert's] integrity is her readines s to

they employed comports with standard scientific procedures. testimony of these experts in other cases.

In support of these assertions, plaintiffs offer only the trial and deposition

While these materials indicate that plaintiffs' experts have relied on animal studies, chemical

structure analyses and epidemiological data, they neither explain the methodology the experts followed to reach their conclusions nor point to any external source to validate that methodology. We've been presented with only the experts' qualifications, their conclusions and their assurances of reliability. Under Daubert, that's not enough. This is especially true of Dr. Palmer-the only expert willing to testify that Bendectin did cause the limb defects in each of the children. Palmer Aff. at 8. In support of this conclusion, Dr. Palmer asserts only that Bendectin is a teratogen and that he has examined the

plaintiffs' medical records, which apparently reveal the timing of their mothers' ingestion of the drug. Dr. Palmer offers no tested or testable theory to explain how, from this limited information, he was able to eliminate all other potential causes of birth defects, nor does he explain how he alone can state as a fact that Bendectin caused plaintiffs' injuries. We therefore agree with the Sixth Circuit's observation that Dr.

publish and be damned). Peer review and publication do not, of course, guarantee that the conclusions reached are correct; much published scientific research is greeted with intense skepticism and is not borne out by further research. But the test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology. See n. 11 infra. That the research is accepted for publication in a reputable scientific journal after being subjected to the usual rigors of peer review is a significant indication that it is taken seriously by other scientists, i.e., that it meets at least the minimal criteria of good science. Daubert, 509 U.S. at ----, 113 S.Ct. at 2797 ([S]crutiny of the scientific community is a component of good science.). If nothing else, peer review and publication increase the likelihood that substantive flaws in 2797.7

Palmer does not testify on the basis of the collective view of his scientific discipline, nor does he take issue with his peers and explain the grounds for his differences. Indeed, no understandable scientific basis is stated. Personal opinion, not science, is testifying here.

Turpin, 959 F.2d at 1360. For this reason, Dr. Palmer's testimony is inadmissible as a matter of law under Rule 702. The failure to make any objective showing as to admissibility under the first prong of Rule 702 would also fatally undermine the testimony of plaintiffs' other experts, but for the peculiar posture of this case. Plaintiffs submitted their experts' affidavits while Frye was the law of the

methodology will be detected. Daubert, 509 U.S. at ----, 113 S.Ct. at

circuit and, although they've not requested an opportunity to augment their experts' affidavits in light of Daubert, the interests of justice would be disserved by precluding plaintiffs from doing so. Given the opportunity to augment their original showing of admissibility, plaintiffs

Bendectin litigation has been pending in the courts for over a decade, yet the only review the plaintiffs' experts' work has received has been by judges and juries, and the only place their theories and studies have been published is in the pages of federal and state reporters.8 None of the plaintiffs' experts has published his work on Bendectin in a scientific journal or solicited formal review by his colleagues. Despite the many years the controversy has been brewing, no one in the scientific community-except defendant's experts-has deemed these studies worthy of verification, refutation or even comment. community that what's going on here is not science at all, but litigation.9 It's as if there were a tacit understanding within the scientific

might be able to show that the methodology adopted by some of their experts is based on sound scientific principles.

For instance,

plaintiffs' epidemiologists might validate their reanalyses by explaining why they chose only certain of the data that was available, or the experts relying on animal studies might point to some authority for extrapolating human causation from teratogenicity in animals.12 Were this the only question before us, we would be inclined to remand to give plaintiffs an opportunity to submit additional proof that the scientific testimony they proffer was derived by the scientific method. Daubert, however, establishes two prongs to the Rule 702 admissibility inquiry. See pp. 1315-16 supra. We therefore consider whether the testimony satisfies the second prong of Rule 702:

Establishing that an expert's proffered testimony grows out of pre-litigation research or that the expert's research has been subjected to peer review are the two principal ways the proponent of expert testimony can show that the evidence satisfies the first prong of Rule

Would plaintiffs' proffered scientific evidence assist the trier of fact to determine a fact in issue? Fed.R.Evid. 702.

C. No Visible Means of Support In elucidating the second requirement of Rule 702, Daubert stressed the importance of the fit between the testimony and an issue in the case: Rule 702's helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. 509 U.S. at ----, 113 S.Ct. at 2796. Here, the pertinent inquiry is causation. In assessing whether the proffered expert testimony will

With the exception of Dr. Palmer, whose testimony is inadmissible under the first prong of the Rule 702 analysis, see p. 1319 supra,18 the remaining experts proffered by plaintiffs were equally unprepared to testify that Bendectin caused plaintiffs' injuries; they were willing to testify only that Bendectin is capable of causing birth defects. Crescitelli Aff. at 3, 8; Glasser Aff. at 6, 8; Gross Aff. at 9; Newman Aff. at 5, 9; Swan Aff. at 7. Plaintiffs argue these scientists use the words capable of causing meaning that it does cause. Tape of Oral Arg. Mar. 22, 1994. This is an But what

ambiguity of language If something is capable of causing damage in humans, it does.

assist the trier of fact in resolving this issue, we must look to the governing substantive standard, which in this case is supplied by California tort law. Plaintiffs do not attempt to show causation directly; instead, they rely on experts who present circumstantial proof of causation. Plaintiffs' experts testify that Bendectin is a teratogen because it causes birth defects when it is tested on animals, because it is similar in chemical structure to other suspected teratogens, and because statistical studies show that Bendectin use increases the risk of birth defects. Modern tort law permits such proof, but plaintiffs must nevertheless carry their traditional burden; they must prove that their injuries were the result of the accused cause and not some independent factor. In the case of birth defects, carrying this burden is made more difficult

plaintiffs must prove is not that Bendectin causes some birth defects, but that it caused their birth defects.

To show this, plaintiffs' experts

would have had to testify either that Bendectin actually caused plaintiffs' injuries (which they could not say) or that Bendectin more than doubled the likelihood of limb reduction birth defects (which they did not say). As the district court properly found below, the strongest inference to be drawn for plaintiffs based on the epidemiological evidence is that Bendectin could possibly have caused plaintiffs' injuries. 727 F.Supp. at 576. The same is true of the other testimony derived from

animal studies and chemical structure analyses-these experts testify to a possibility rather than a probability. Turpin, 959 F.2d at 1360. Plaintiffs do not quantify this possibility, or otherwise indicate how their conclusions about causation should be weighted, even though the substantive legal standard has always required proof of causation by a preponderance of the evidence. 19 Unlike these experts' explanation of their methodology, this is not a shortcoming that could be corrected on remand; plaintiffs' experts could augment their affidavits with independent proof that their methods were sound, but to augment the substantive testimony as to causation would require the experts to change their conclusions altogether. Any such tailoring of the experts' conclusions would, at this stage of the proceedings, fatally

because we know that some defects-including limb reduction defects-occur even when expectant mothers do not take Bendectin, and that most birth defects occur for no known reason. California tort law requires plaintiffs to show not merely that Bendectin increased the likelihood of injury, but that it more likely than not caused their injuries. See Jones v. Ortho Pharmaceutical Corp., 163 Cal.App.3d 396, 403, 209 Cal.Rptr. 456 (1985). In terms of

statistical proof, this means that plaintiffs must establish not just that their mothers' ingestion of Bendectin increased somewhat the likelihood of birth defects, but that it more than doubled it-only then can it be said that Bendectin is more likely than not the source of their injury. Because the background rate of limb reduction defects is one per thousand births, plaintiffs must show that among children of

undermine any attempt to show that these findings were derived by the scientific method. Plaintiffs' experts must, therefore, stand by the conclusions they originally proffered, rendering their testimony inadmissible under the second prong of Fed.R.Evid. 702. Conclusion The district court's grant of summary judgment is AFFIRMED.

mothers who took Bendectin the incidence of such defects was more than two per thousand.13 None of plaintiffs' epidemiological experts claims that ingestion of Bendectin during pregnancy more than doubles the risk of birth defects.14 To evaluate the relationship between Bendectin and limb reduction defects, an epidemiologist would take a sample of the population and compare the frequency of birth defects in children whose mothers took Bendectin with the frequency of defects in children whose mothers did not. See DeLuca, 911 F.2d at 946. The ratio derived from this comparison would be an estimate of the relative risk associated with Bendectin. See generally Joseph L. Fleiss, Statistical Methods for Rates and Proportions (2d ed. 1981). For an [G.R. No. 125901. March 8, 2001] EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners, vs. COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents. QUISUMBING, J.: For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners. Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila. According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry. When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelitas house in Tondo, Manila, but did not find them there. Angelitas maid told Bienvenida that her employer went out for a stroll and told

epidemiological study to show causation under a preponderance standard, the relative risk of limb reduction defects arising from the epidemiological data will, at a minimum, have to exceed 2. DeLuca, 911 F.2d at 958.15 That is, the study must show that children whose mothers took Bendectin are more than twice as likely to develop limb reduction birth defects as children whose mothers did not.16 While plaintiffs' epidemiologists make vague assertions that there is a statistically significant relationship between Bendectin and birth defects, none states that the relative risk is greater than two. These studies thus would not be helpful, and indeed would only serve to confuse the jury, if offered to prove rather than refute causation. A relative risk of less than two may suggest teratogenicity, but it actually tends to disprove legal causation, as it shows that Bendectin does not double the likelihood of birth defects.17

Bienvenida to come back later. She returned to Angelitas house after three days, only to discover that Angelita had moved to another place. Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance. Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts. Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.[1] She avers that Angelita refused to return to her the boy despite her demand to do so. Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical records.[2] The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private part against the edge of a banca causing him excruciating pain and eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.[3] For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez.[4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989. On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.[5] The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed: WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof. Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez. SO ORDERED.[6] Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.[8] On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,[9] and disposed of the case, thus: IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein. SO ORDERED.[10]

Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging: I THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN. II THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE PETITION FOR HABEAS CORPUS AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.[11] In our view, the crucial issues for resolution are the following: (1) Whether or not habeas corpus is the proper remedy? (2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners? We shall discuss the two issues together since they are closely related. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.[12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.[13] It must be stressed too that inhabeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person. In this case, the minors identity is crucial in determining the propriety of the w rit sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minors biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.[14] Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor. True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court may scrutinize the evidence on the record to determine which findings should be preferred as more conformable to the evidentiary facts. A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr. First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted. Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring.

Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth. [16] Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a common-law wife.[17] This false entry puts to doubt the other data in said birth certificate. Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.[18] Needless to stress, the trial courts conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned. Fifth, Lourdes Vasquez testified that she assisted in Bienvenidas giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners. All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child. A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test[19] for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. [20] Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.[21] Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress. [22] Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues. WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent. G.R. No. 150224 May 19, 2004

On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through Kathylyns friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning.3 At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone in the house.4 Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. They saw appellant at the back of the house. They went inside the house through the back door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he was getting lumber to bring to the house of his mother.5 At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang.7 At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he had stacked, and that Isabel could use it. She noticed that appellants eyes were "reddish and sharp." Appellant asked her where her husband was as he had something important to tell him. Judilyns husband then arrived and appellant immediately left and went towards the back of the house of Isabel.8 In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body that was cold and rigid.9 Isabel moved her hand throughout the entire body. She found out that it was the naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel, Cion, called the police.10 At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel Dawangs house. Together w ith fellow police officers, Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds. The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p.m. The police discovered the victims panties, brassiere, denim pants, bag and sandals beside her naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel. When questioned by the police authorities, appellant denied any knowledge of Kathylynss death,11 however, he was placed under police custody. On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (Hes running away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilty."

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias "KAWIT", appellant. PER CURIAM: On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and costs of litigation.1 Appellant was charged with Rape with Homicide under the following Information: That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will. CONTRARY TO LAW.2 The facts are:

After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief, appellant assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS. II THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT. Appellants contentions are unmeritorious. The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This Court will not interfere with the 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.13 Well-entrenched is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judges assessment of credibility deserves the appellate courts highest respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.16 The weight of the prosecutions evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime.17 Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised, were found on the victims abdomen and back, causing a portion of her small intestines to spill out of her body.18 Rigor mortisof the vicitms body was complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion ofrigor mortis.19 In other words, the estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses. It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm indicating resistance to the appellants assault on her virtue.22 Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellants gene type. DNA is a molecule that encodes the genetic information in all living organisms.23 A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and

shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.25 DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body during the assault.27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.28 The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method. In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: 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.29 In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques.30 Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination.31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken from the victims vaginal canal.32 Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or nonexistence.34 Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Independently of the physical evidence of appellants semen found in the victims vaginal canal, the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998, appellants wife left the house because of their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband

of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victims vagina (Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended, such flight being indicative of guilt.35 Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36 In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution. This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion.37 The right against self- incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled that there was no violation of the right against self-incrimination. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused. It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel. Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law. This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented. Appellants twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawangs house during the time when th e crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time, especially in this case where the two places are located in the same barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach one house from the other. This fact severely weakens hisalibi. As to the second assignment of error, appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt. Appellants assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty. However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.44 Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the appellant running down the stairs of Isabels house and proceeding to the back of the same house.46 She also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school."47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmothers house on June 25, 1998.48 In addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our family."49 According to Judilyn, who was personally present during an argument between her aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your relatives x x x." 50 These statements were not contradicted by appellant. Thus, appellants motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred.51 Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victims lips by stabbing her repeatedly, thereby causing her untimely demise. The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidation, appellant killed the woman.52 However, in rape committed by close kin, such as the victims father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of violence and intimidation.54 The fact that the victims hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, suffices for conviction of rape.55 The strength and dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.56 In the case at bar, appellant is the husband of the victims aunt. He is seven years older than the victim Kathylyn Uba. Befo re he and his wife separated, appellant lived in the house of his mother-in-law, together with the victim and his wife. After the separation, appellant moved to the house of his parents, approximately one hundred (100) meters from his mother-in-laws house. Being a relative by affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim. Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the

death penalty, they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be lawfully imposed in the case at bar. As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances.60 WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED. Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. Costs de oficio. G.R. No. 176389 December 14, 2010

Daan Subdivision, the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi appeared the strongest since he claimed that he was then across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony. But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.3 On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde.4 The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister. On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,5 hence, the present appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence6 to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case. Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process. Issues Presented Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidence that would prove his innocence. In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are:

ANTONIO LEJANO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 176864 PEOPLE, Appellee, vs. HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants. ABAD, J.: Brief Background On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Paraaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre. Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.1 The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.2 The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong

1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and 2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the crime. The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission. The Right to Acquittal Due to Loss of DNA Evidence Webb claims, citing Brady v. Maryland,7 that he is entitled to outright acquittal on the ground of violation of his right to due process given the States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Ca rmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised about her credib ility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.8 If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland9 that he cites has long be overtaken by the decision in Arizona v. Youngblood,10 where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime. Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.11 They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. Now, to the merit of the case. Alfaros Story Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 a t around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio "Dong" Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990.

As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car. On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center. The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her cars headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived. Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the Ayala Alabang Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the evening ("bad trip "). Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said, "Ako ang susunod" and the others responded "Okay, okay." They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house shortly before midnight. Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout ("Pasabugin kaya natin ang transformer na ito"). But Alfaro shrugged off the idea, telling Fernandez, "Malakas lang ang tama mo." When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, "O sige, dito lang kami, magbabantay lang kami." Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it ("para daw walang ilaw"). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a womans voice ask, "Sino yan?" Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, "Okay ba?" After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said: "Ikaw na nga dito, maghanap ka ng susi." She asked him what key he wanted and he replied: "Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key. Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the masters bedroom from where the

noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed. Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, "Prepare an escape. Aalis na tayo." Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame. As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area. The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the "blaming session" took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, "Bakit naman pati yung bata?" Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone. At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, "Pera lang ang katapat nyan." Biong answered, "Okay lang." Webb spoke to his companions and told them, "We dont know each other. We havent seen each otherbaka maulit yan." Alfaro and Estrada left and they drove to her fathers house.12 1. The quality of the witness Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices. According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an "asset." She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the "Martilyo gang" that killed a police officer. Because of her talent, the task force gave her "very special treatment" and she became its "darling," allowed the privilege of spending nights in one of the rooms at the NBI offices. When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus: ATTY. ONGKIKO: Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court? xxxx

A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor. ATTY. ONGKIKO: Q. And what did you say? xxxx A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. xxxx Q. Atty. Sacaguing, were you able to interview this alleged witness? WITNESS SACAGUING: A. No, sir. ATTY. ONGKIKO: Q. Why not? WITNESS SACAGUING: A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify. ATTY. ONGKIKO: Q. All right, and what happened after that? WITNESS SACAGUING: A. She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong" COURT: How was that? WITNESS SACAGUING: A. "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan."

xxxx ATTY. ONGKIKO: Q. All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan?" WITNESS SACAGUING: A. I said, "hindi puwede yan, kasi hindi ka naman eye witness." ATTY. ONGKIKO: Q. And what was the reply of Ms. Alfaro? WITNESS SACAGUING: A. Hindi siya nakakibo, until she went away. (TSN, May 28, 1996, pp. 49-50, 58, 77-79) Quite significantly, Alfaro never refuted Sacaguings above testimony. 2. The suspicious details But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Secondly, the police had arrested some "akyat-bahay" group in Paraaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaros NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents. Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following: a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come.

b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house. And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work.lavvphil After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying. At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case.13 Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. 3. The quality of the testimony There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co -principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carme las house, only Webb, Lejano, Ventura, and Alfaro entered the house. Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the stre et light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs companions out on the street did not figure in a planned gang-rape of Carmela.

Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, wh at motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing C armela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela. Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see. Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look. Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies. 4. The supposed corroborations Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses: Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained14 and the presence of semen in Carmelas genitalia,15 indicating that she had been raped. Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the masters bedroom, the bag on the dining table, as well as the loud noise emanating from a televisio n set.16

White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going. But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her. Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly "cleaned up" Vizconde residence on Webbs orders. What is more, White did not notice Carmela arrive with he r mom before Alfaros first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaros testimony a bout the movements of the persons involved. Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,17White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaros testimony.1avvphi1 Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker. Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required.18 But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but n ot in recording the visit. Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers o ccupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.19 On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony. Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.20 She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood. Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms.

What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep. Among the accused, Webb presented the strongest alibi. And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit. Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.21 The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier? At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused. Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called "Bagyo," because he was a Paraaque politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an ongoing relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house. 5. The missing corroboration c. Details of U.S. sojourn There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated! For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony. But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal. What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life . Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals. a. The travel preparations

Webbs U.S. Alibi

Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money.22 Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets. Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.23 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.24 b. The two immigration checks The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808. 25 Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through.26 He was listed on the United Airlines Flights Passenger Manifest.27 On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,28 the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991,29 and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.30

In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.31 In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in the Philippines.32 In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.33 During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler34 and working at his cousin-in-laws pest control company.35 Webb presented the companys logbook showing the tasks he performed,36 his paycheck,37 his ID, and other employment papers. On June 14, 1991 he applied for a driver's license38 and wrote three letters to his friend Jennifer Cabrera.39 On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit.40 On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.41 Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car.42 To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle43 and a car plate "LEW WEBB."44 In using the car in the U.S., Webb even received traffic citations.45 On June 30, 1991 Webb, again accompanied by his father and Aragon,46 bought a bicycle at Orange Cycle Center.47 The Center issued Webb a receipt dated June 30, 1991.48 On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.49

Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez.50 There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards.51 In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house.52 He left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992. d. The second immigration checks As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.53 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,54 certified by Agnes Tabuena55 confirmed his return trip. When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webbs reentry.56 Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court. e. Alibi versus positive identification The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi can not stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated. But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing, "I saw him do it."? Mo st judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accuseds claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye. Rather, to be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI.

And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietlyjust so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood. Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end wh en they were practically strangers, also taxes incredulity. To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. f. A documented alibi To establish alibi, the accused must prove by positive, clear, and satisfactory evidence57 that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.58 The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions. The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,59 the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.60

The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webbs passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.61 The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus: While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request. The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NONIMMIGRANT visitors of the U.S..62 The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours. If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigration services regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the fear of the unknown that it planted in the lower courts minds. 7. Effect of Webbs alibi to others Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall. CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between teeth.

Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause. Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision. [G.R. No. 115984. February 29, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUFINO GAMER y MALIT, accused-appellant. HTML QUISUMBING, J.: On appeal is the decision dated April 8, 1994, of the Regional Trial Court of Angeles City, Branch 57,[1] convicting appellant of the crime of carnapping, imposing upon him the penalty of life imprisonment, and ordering him to pay private complainant the amount of P50,000.00 as indemnity, P14,000.00 as funeral expenses, P45,000.00 as cost of the burial lot and P40,000.00 for the value of the properties stolen. The facts, based on the records, are as follows: On September 25, 1989, at around 8:30 p.m., at the Villa Emilia Subdivision, Paralaya, Porac, Pampanga, Antonio Loremas and his wife, Corazon Nazal Loremas, were on their way home on board their owner-type stainless jeep. When the jeep slowed down to pass a hump, two (2) men went to each side of the jeep and announced a hold-up. Antonio stepped on the gas but one of the men shot him at the back. The jeep swerved to a stop. The two persons took away the spouses' money, clothing, assorted jewelries, imported and local cigarettes, car stereo and equalizer and tools, and drove off with the jeep in the direction of Angeles City. After the assailants fled, Corazon, with the help of passers-by, brought Antonio to the Angeles City Medical Center for medical treatment. Unfortunately, Antonio died that same night from the gunshot wound. The jeep was found abandoned the following day.[2] Both Porac Police and Angeles City Police conducted investigations of the carnapping incident without any progress. Corazon then sought the help of Sr. Inspector Carlos L. Flores, Jr., Chief of the Criminal Investigation Service (CIS), Angeles City. Acting on Corazon's complaint, the CIS conducted intelligence gathering operations. Some time in June 1992, Captain Flores ordered three CIS agents, namely, Galvez, Besana and Ganal, to "invite" appellant for questioning at the CIS Field Office in Diamond Subdivision, Balibago, Angeles City.[3] On June 17, 1992, at around 2:00 p.m., the CIS agents "picked up" appellant and his five year-old son while they were in front of a stall buying something.[4] Appellant and his son were made to board a car and then brought to CIS Field Office.[5] Appellant was investigated by the CIS until around 7:00 p.m.[6] At the same time, one Teodoro Siron, Jr., was also invited by the CIS Agents for questioning.[7] Thereafter, appellant and Siron, were placed in a police line-up where Corazon identified appellant as one of the carnappers.[8] That same afternoon, Corazon executed her sworn statement (Exhibit "B") before the CIS agents. Appellant was made to sign a sworn statement (Exhibit "C") identifying his drinking companions who allegedly took part in the carnapping. Siron did not execute any sworn statement. CODES The following day, appellant was brought before a public prosecutor for inquest. Thereafter, the public prosecutor issued a Resolution[9] finding a prima facie case against five (5) persons, three (3) of whom were at-large. The other two (2), appellant and Siron, were charged with carnapping with robbery and homicide under the following Information:[10]

"That on or about the 25th day of September, 1989, at about 8:45 o'clock in the evening at Villa Emilia Subdivision, barangay Manibaug, municipality of Porac, province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with the use of a .45 caliber gun, with intent of gain and by means of violence and intimidation on the person of the Spouses Antonio Loremas and Corazon Nazal, and without their consent, did then and there willfully, unlawfully and feloniously take, steal and carry away one (1) owner type-jeep bearing Plate No. CAV 218 and on the occasion thereof, shot and kill with a .45 caliber gun Antonio Loremas, the driver of the carnapped motor vehicle and carry away with them cash money in Philippine and U.S. currencies, assorted jewelries, clothings, imported and local cigarettes, stereo cassette, equalizer and tools with a total value of Forty Thousand Pesos (P40,000.00) belonging to said Spouses Antonio Loremas and Corazon Nazal, to the damage and prejudice of the said owner in the said sum of P40,000.00. All contrary to law, and with the aggravating circumstances that the said offense was committed at nighttime, evident premeditation, treachery and with the use of superior strength to facilitate the commission of the crime." Appellant and Siron filed separate Motions for Reinvestigation[11] with the trial court which granted[12] said Motions. As a result of the reinvestigation, the public prosecutor filed a Motion to Dismiss[13] as to accused Siron on the ground of insufficiency of evidence. The trial court granted[14] said motion. Hence, only appellant was tried for the crime of carnapping. Upon arraignment on January 5, 1993, appellant, assisted by counsel de parte, entered a plea of not guilty.[15] Trial ensued. yacats Private complainant Corazon Loremas, the widow of the victim, identified appellant as the one who boarded her side of the jeep, and pointed a gun at her.[16] Zenaida Nazal, private complainant's sister, likewise testified that she witness the crime from a distance of twenty (20) meters and saw appellant take part in the carnapping.[17] Sr. Inspector Carlos L. Flores, Jr., Chief of the 304th CIS in Balibago, Angeles City, testified that after intelligence gathering, he ordered his men to "invite" appellant for questioning at the CIS office.[18] SPO4 Reynaldo T. Galang took down the statements of the appellant and the private complainant.[19] SPO3 Ireneo C. Galvez testified that he was one of the operatives who extended the "invitation" to appellant.[20] For the defense, appellant vehemently denied any participation in the offense charged. Appellant contends that on September 25, 1989, at around 6:00 p.m., he was driving a truck loaded with sand and gravel to Manila accompanied by two helpers and his employer, Renato Simbillo, and that they returned to Pampanga at around 4:00 a.m. of the following day.[21] He further recounted that on July 17, 1992, he and his son were picked up by the CIS agents, forcibly boarded on a car, and brought to the CIS Field Office. There he was stripped naked, and handcuffed. His legs were tied, his mouth was stuffed with a wet rug, water was poured on his nose and hot liquid poured on his genitals.[22] Finally, he was coerced into signing a sworn statement[23] wherein he named the persons who allegedly took part in the carnapping.[24] Appellant denied being placed in a police line-up. Mr. Simbillo testified that on September 25, 1989, as early as 5:00 p.m., he was with appellant and two helpers preparing to deliver sand and gravel in Manila. They left Pampanga at around 6:00 p.m. and returned at around 5:00 a.m. the following day. He remembered the exact date because he heard a radio report about the Loremas carnapping on their way back to Pampanga.[25] Mr. Simbillo also testified that on June 17, 1992, appellant failed to report for work, and he later learned that appellant was picked up by the CIS and was detained at the Provincial Jail.[26] Teodoro Siron, Jr., testified that on June 17, 1992, he was also picked up by CIS agents and brought to the CIS Office for questioning. He saw appellant in the CIS Office "handcuffed and both feet padlocked, naked and blindfolded." Siron and appellant were made to confront each other for about five (5) minutes. They were puzzled as to why they were allegedly implicating each other in the carnapping incident. Siron also denied that he was placed in a police line-up with appellant.[27] On April 8, 1994, the trial court rendered a decision[28] finding appellant guilty as charged. The dispositive portion of the decision provides: olanski "WHEREFORE, premises considered, judgment is hereby rendered finding accused RUFINO GAMER GUILTY beyond reasonable doubt of the crime of Violation of Anti-Carnapping Act of 1972 as defined and penalized under

R.A. 6539 and hereby accordingly sentences him to Life Imprisonment and to indemnify complainant Corazon Loremas the amount of P50,000.00 as life indemnity; the amount of P14,000.00 as cost of funeral expenses, P45,000.00 as cost of the burial lot and the amount of P40,000.00 for the value of the properties stolen. With regard the other accused who are still unknown and have not properly been identified much less apprehended, send this case to the archives to be revived upon the apprehension of said accused. SO ORDERED." Hence, appellant now presents the following issues for resolution:[29] I. WHETHER THE TRIAL COURT DEPRIVED ACCUSED RUFINO M. GAMER OF HIS SUBSTANTIAL RIGHT TO DUE PROCESS BY ADMITTING THE EVIDENCE OF THE PROSECUTION THAT POINT TO THE IDENTITY OF THE SAID ACCUSED IN AN ALLEGED POLICE LINE-UP WITHOUT BEING AFFORDED HIS VITAL RIGHTS AND GUARANTEES AS PROVIDED FOR IN OUR CONSTITUTION. II. WHETHER THE TRIAL COURT IN RENDERING HIS JUDGMENT OF CONVICTION HAS FAILED TO OVERLOOK OR CONSIDERED CERTAIN ASPECT OF EVIDENCE BY THE ACCUSED THAT COULD HAVE SUBSTANTIALLY AFFECTED OR CHANGED THE CONCLUSION RENDERED IN THIS INSTANT CASE. III. WHETHER THE TRIAL COURT ACTED IN GRAVE ABUSE OF DISCRETION WHEN IN THE PREPARATION AND PRESENTATION OF FACTS IN THE DECISION, IT FOCUSED ONLY IN JUSTIFYING THE PROSECUTION EVIDENCE BUT DISREGARDING SOME SIGNIFICANT FACTS THAT MAY BE IMPORTANT TO THE ACCUSED'S CHANCE OF ACQUITTAL. In his brief, appellant decries the flagrant violation of his constitutional right against unreasonable seizures and his rights under custodial investigation. Appellant questions his identification by private complainant considering that no police line-up was conducted. Appellant also questions the credibility of Corazon's sister considering that she only surfaced during trial. Appellant further contends that the trial court erred in disregarding appellant's testimony of his ordeal in the hands of the CIS agents. haideem The Office of the Solicitor General, for the State, argues that as held by the trial court, the positive identification of the appellant by the prosecution witnesses must prevail over the appellant's defense of alibi and denial. The OSG recommends affirmance of the conviction and sentence imposed upon the appellant. The substantial issue here, in our view, involves the admissibility as well as sufficiency of the evidence to convict appellant. Appellant claims, and the prosecution admits, that he was arrested without a warrant on June 17, 1992. His arrest, however, cannot be justified under any of the circumstances allowing warrantless arrests under Section 5 of Rule 113 of the Rules on Criminal Procedure.[30] Hence, any evidence obtained in violation of appellant's rights under Section 2 of Article III of the 1987 Constitution [31] shall be inadmissible for any purpose and in any proceeding.[32] Granting that by entering a plea without first questioning the legality of his arrest, appellant is deemed to have waived any objection concerning his arrest,[33] the sworn statement (Exhibit "C") taken from appellant is clearly inadmissible for having been obtained in violation of his constitutional rights under custodial investigation. When appellant was invited to the CIS office, he was clearly placed under "custodial investigation" for there the questioning was never a "general inquiry into an unsolved crime" but already focused on appellant as a "particular suspect" in the Loremas carnapping.[34] At that very instance, appellant should have been afforded his rights under Section 12 (1) and (2) Article III of the 1987 Constitution.[35] Hence the sworn statement, which also contains mostly hearsay, should be thrown out for being patently inadmissible in evidence against him. It may be noted, further, that appellant was convicted by the trial court upon the identification of appellant made by Corazon Loremas and her sister, Zenaida Nazal, during the trial. As evidence, the value of the in-court identification, however, is here largely dependent upon an out-of-court identification made during an alleged police line-up. Both appellant and Siron, consistently denied that a line-up was conducted by the police, thus directly controverting the testimony of the prosecution's witnesses.

In People v. Verzosa,[36] the Court enumerated factors to be considered, following the totality of circumstances test, in order to resolve the admissibility of an out-of-court identification of suspects, viz: "...(1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure." These factors are pertinent to and applicable in this case. The totality test has been fashioned precisely to assure fairness as well as compliance with constitutional requirements of due process in regard to out-of-court identification. These cited factors must be considered to prevent the contamination of the integrity of in-court identifications better. In this case, the carnapping happened at 8:30 p.m., and the evidence does not disclose whether the locus criminis was sufficiently lighted for purposes of identification. In fact, while Corazon testified that the jeep was not lighted at the time of the incident,[37] her sister claimed that the jeep was in fact lighted, which enabled her to recognize appellant herein as one of the carnappers.[38] Although Corazon reported the incident to the Porac Police the following day, she did not furnish said policemen a description of the perpetrators of the crime.[39] Hence, the authenticity as well as accuracy of the present and future descriptions of the suspected assailants has been placed in doubt for lack of basis. Furthermore, the crime occurred some two (2) years and (8) months prior to the arrest of appellant. Because of this lapse of time, certain physical changes might have occurred in his physical appearance and other attributes already. Corazon also claimed that she viewed the police line-up through a jalousie window[40] while Capt. Flores testified that the persons in the police line-up were in full view of Corazon.[41] This and other contradictions in the testimony of prosecution witnesses weaken the reliability of the out-of-court identification of appellant. We are now constrained to agree that the in-court identification of the appellant made by private complainant and her sister could have been tainted by the out-of-court (police line-up) procedure, even if we grant, arguendo, that such line-up did take place. Jksm In addition, the trial court overlooked certain material inconsistencies in the testimony of the prosecution witnesses. Corazon wavered in identifying who actually shot her husband. Initially, she said it was the person near her husband who shot him.[42] Later on she said that she did not see who actually shot her husband[43] and that she merely heard the gun shot.[44] According to Corazon, there were only two (2) carnappers,[45] while her sister testified that there were about five (5) men, including appellant herein, who boarded the jeep.[46] In sum, the identification of appellant as one of the assailants could in no way be considered as positive and credible. Note that it is not merely any identification which would suffice for conviction of the accused. It must be positive identification made by a credible witness or witnesses, in order to attain the level of acceptability and credibility to sustain moral certainty concerning the person of the offender. Thus appellant's defense of alibi and denial gains considerable strength in the face of the unreliable identification of the alleged perpetrator of the crime.[47] Evidence against him is simply quite weak to hold him even for trial. The public prosecutor should have moved to dismiss the charges, as he did in favor of the co-accused, Teodoro Siron, Jr. The literal signification of the word "alibi"is"elsewhere"[48] and for alibi to prosper, the requisites of time and place[49] must be established by clear and convincing evidence.[50] Here, appellant and his employer, Renato Simbillo, testified that as early as 5:00 p.m.; they were preparing to leave for Manila, and at around 9:00 p.m., they were already somewhere in the vicinity of the Manila area unloading the sand and gravel.[51] That Mr. Simbillo is a friend and neighbor of the victim[52] persuades us that he has no possible motive to fabricate his testimony in favor of appellant. Chiefx Our criminal justice system stresses that the overriding consideration in a case is not whether the court doubts the innocence of the accused, but whether it entertains reasonable doubt as to his guilt.[53]Where the pieces of evidence against the appellant are insufficient to determine guilt with moral certainty, the appellant is entitled to an acquittal.[54] WHEREFORE, the assailed decision of the trial court is REVERSED and SET ASIDE. The appellant is hereby ACQUITTED for insufficiency of evidence and ordered released from confinement immediately unless he is held for any other lawful cause. No costs. [G.R. No. 135230. August 8, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE NAVALES y VILLAFLOR, accused-appellant. PANGANIBAN, J.:

Alibi cannot prevail over the positive identification of the accused by a credible witness. Moreover, the assessment of the credibility of witnesses and their testimonies is best undertaken by the trial judge, who had the unique opportunity to observe their conduct and demeanor on the stand.
The Case

Ronnie Navales y Villaflor appeals the July 6, 1998 Decision of the Regional Trial Court (RTC) of San Pedro, Laguna (Branch 31)[1] in Criminal Case No. 0681-SPL, in which he was found guilty of robbery with rape. In an Information dated February 16, 1998, Fourth Assistant Provincial Prosecutor Melchorito M.E. Lomarda charged appellant as follows:[2] That on or about September 2, 1997, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused with intent to gain did then and there willfully, unlawfully and feloniously with violence against and intimidation of persons at knifepoint divest, take, steal and carry away the sum of FIFTY PESOS (P50.00) Philippines Currency, from Maria Neilla T. Lllagas; that on the occasion of or by reason of said robbery the said accused did then and there willfully, unlawfully and feloniously, by means of force, violence, intimidation and threats have carnal knowledge of said Neilla T. Llagas against her will, to her damage and prejudice. With the assistance of Counsel de Oficio Manuel Ramirez, appellant entered a plea of not guilty when arraigned on March 16, 1998.[3] Trial proceeded in due course. Thereafter, the trial court promulgated its Decision, the decretal portion of which reads:[4] IN VIEW THEREOF, the Court finds that the prosecution represented by Assistant Provincial Prosecutor Melchorito Lomarda has duly established the guilt of the accused beyond reasonable doubt for the special complex crime of robbery with rape penalized under Article 294 of the Revised Penal Code, as amended. The Court finds too that the robbery was accompanied with rape and was committed with the use of a deadly weapon. WHEREFORE, the court hereby sentences accused Ronnie Navales y Villaflor to suffer the penalty of reclusion perpetua; to pay the private complainant the sums of P100,000.00 as civil indemnity,P100,000.00 as moral damages and P50.00 representing the money forcibly taken by accused from her. Costs against the accused. In view of the penalty imposed, the appeal was filed directly with this Court.[5]
The Facts Version of the Prosecution

In its Brief,[6] the Office of the Solicitor General narrated the facts in this wise:[7] On September 1, 1997, MA Neilla T. Llagas, 27 years old, married with two (2) children (p. 6, TSN, May 21, 1998) and employe e of Pocketbell in Ortigas, Pasig City, left their residence in San Pedro, Laguna at around 1:00 p.m. to report for work. Being a telecommunicator, she works on specific work shifts. On that day, she was assigned to the 4:00 p.m. to 12:00 midnight shift. She left the office at around 12:15 a.m. x x x. It was almost 1:00 a.m. when she got off at the highway in Barangay Landayan. (pp. 3-5, TSN, April 23, 1998). Neilla was alone as she walked towards the direction of their house. Her pace was somewhat slow because there were blisters on her feet. The area was sufficiently illuminated by the presence of lighted lampposts on the highway. On her way, she noticed a male stranger to her left who sat on a gutter right next to a lamppost. She did not mind the stranger and continued walking until she passed by him. When she was about ten (10) meters away from where the stranger was sitting, Neilla looked back and saw the man already in a standing position and [apparently] urinating. She continued to walk but she was again tempted to look back. She noted the distance between her and the stranger to have doubled to twenty (20) meters. Considering the distance that she had obtained, Neillas apprehension somewhat subsided. When she turned her head to look at the stranger once more, she was shocked to find that he was already on her left side. Although the strangers nearness completely frightened her, she was able to take note of his appearance: barefooted, wearing maong short pants and checkered shirt with a collar, and had almost the same height as hers (p. 6, id., May 25, 1998). As she

turned left, the stranger suddenly shifted to her right side and announced a hold-up while he poked a balisong at her. (pp. 6-11, TSN, April 23, 1998). Neilla chose not to panic and calmly told the criminal to just get her bag and spare her from any harm. However, he insisted that Neilla should go with him to some other place. Her refusal to give in to his demand prompted him to forcibly drag her to a grassy portion surrounding the basketball court in the village. She tried to shout but no voice came out from her mouth. (pp. 13-14, TSN, April 23, 1998) The grasses in the area were as high as three (3) feet that made it very difficult for somebody so situated as Neilla to receive help. Despite the kind of situation she was in, Neilla tried to fight her assailant. During the struggle, she was able to get hold of the bladed portion of the knife that her assailant was holding. She was told to let go of the knife but she refused prompting her assailant to box her jaw. The fist blow caused Neilla to fall down. While she was lying on her back, her assailant, who talked with Visayan accent, knelt down between her thighs as he searched her bag and took the P50.00 that he found inside. When she tried to sit down, he hit her right jaw again causing her to fall to her original position. Then, he told her that since she did not have enough money, he would just rape her instead. (pp. 14-18, TSN, April 23, 1998) Fearing for her life, Neilla remained where she was as her assailant unbuttoned her blouse and raised her brA The man then mashed her breast with one hand. Thereafter, he unzipped Neillas pants (made of soft material) and pulled it, together with her underwear, down to her ankle while her bleeding hands were across her chest to cover her bare breasts. Then, he inserted his organ into hers and made pumping motions for around three (3) minutes while pointing his balisong at the right side of her neck. (p. 19, TSN, April 23, 1998 and pp. 2-5, TSN, May 18, 1998) After the consummation of the odious act, the offender tied Neillas feet with her own pants and her hands with a cord and placed a handkerchief into her mouth. He left immediately thereafter. (p. 6, TSN, May 18, 1998) When she partly regained her composure, Neilla untied herself and wore her underwear. She opted to just carry her pants with her. Soon, she was running towards the direction of their house. She met her husband and some relatives at the corner near the entrance to their village. Upon learning of her ordeal, her husband and relatives accompanied her to the San Pedro Police Station to report the incident. Neilla returned to the place of the incident to point to the policemen the exact spot where she was robbed and raped. (pp. 9-10, TSN, May 18, 1998) On the basis of the description given by Neilla of her assailant, the authorities surmised that the culprit could be a worke r at the GLV Factory located inside the village (p. 11, id.). Thus, at around 8:00 Am. on same day, Neilla, her husband and relatives, two (2) policemen and a barangay tanod proceeded to GLV Factory, a company engaged in the manufacture of plastic hangers. Boy Vasquez, GLVs owner, gathered all his male workers (about 40 in number) at the garage where they were made to form a line and walk in a circular motion. Neilla stood near the screen door where she could not be seen but could clearly see the workers who pass[ed] the door. However, she failed to identify her assailant. (pp. 12-14, TSN, May 18, 1998). [O]n the early afternoon of same date, Neilla returned to the factory to identify appellant who was pointed to by Rolly Mata as the person who[m] he claimed to have seen sitting on the gutter immediately prior to the commission of the crime. During her face to face confrontation with appellant, Neilla recognized him and positively identified him as her assailant. (pp. 15-16, TSN, May 18, 1998)
Version of the Defense

He just saw [the victim] when she arrived at his work place on September 2, 1997. They were asked by the manager to line up by the door of the factory. They did not yet know the reason why they were told to line up. Then they were told to turn around or move in a circular motion and then were asked to move out. Then they went back to their work. He denied having raped her. Then he returned to work and faced complainant together with other workers. They were about 50. The manager told them to step out as Neilla was looking for the man who raped [her]. Neilla did not point to anyone as the perpetrator. They were undressed. There were no scratches on his back or on the others. At 1:00 p.m. he was asked to go to the office of the manager. Her husband elbowed Neilla, and the latter cried and pointed to him as the one who raped her. (TSN, June 15, 1998, pp. 1-19).
Ruling of the RTC

Debunking the defense of denial and alibi, the trial court held that the victim positively identified appellant as the one who had forcibly taken her money and sexually abused her. It ruled:[9] Examining the evidence on hand, the Court finds that the prosecution, in support of its charge [of] robbery with rape against the herein accused, relied heavily on the testimony of the private complainant positively identifying the herein accused as the malefactor. As the Court sees it, there is no basis to doubt the positive identification of accused by the private complainant who claimed that accused was the man who was sitting [o]n the gutter near the factory [o]n the early morning of September 2, 1997, who held her up and who raped her. Prosecution witness Rolly Mata identified and pointed to herein accused as the one whom he saw sitting on the gutter near the factory where he was working [o]n the early morning of September 2, 1997 when x x x private complainant passed by. As regards the positive identification made by the private complainant and her witness Rolly Mata, it is a settled rule that absent any credible evidence to prove the charge of bias and prejudice, it is presumed that the prosecution would not have imputed to the accused the crime with which he was charged unless he was guilty thereof. As held in a number of cases, the absence of any evidence as to the existence of an improper motive sustains the conclusion that no such improper motive exists and that the testimony of the witnesses, therefore, should be given full faith and credit. x x x. On the other hand, the defense denial of the accusation leveled against accused is backed up by an alibi. Again, the Supreme Court has ruled that the defense of alibi is unavailing against the positive identification of the accused by the witnesses x x x. In sum, the defense of alibi cannot prevail over the positive identification of the accused by the private complainant and witness Rolly Mata who have no untoward motive to falsely testify.
Assignment of Errors

Appellant contends that the trial court erred in the following:[10] Denying the charge against him, appellant narrated the facts in this manner:[8] I Ronnie Navales testified that he was from La Carlota City, Bacolod. He came here with his neighbor to find work. He had been working at the factory for only one month. He slept at the factory. On September 2, 1997 at around 1:00 Am. he was sleeping at the factory. He went to sleep at 10:00 p.m. and woke up at 6:00 Am. He denied that he was sitting near the gutter at 1:15 Am. The truth is he was sleeping. He does not know Rolly MatA x x x [F]inding that the complainant had positively identified her assailant. II x x x [F]inding the accused guilty beyond reasonable doubt of the crime of robbery with rape.

In the main, the defense raises doubts on the identification of the appellant.
The Courts Ruling

Contrary to the prosecutions account, appellant insists that the husband of complainant prodded her to point to the former inside the office that afternoon. Appellant testified in this wise: Q. What did Neilla Llagas do when she saw you and her husband?

The appeal has no merit.

Main Issue: Identification of the Perpetrator

A. When I was sitting down, Neilla Llagas was standing in front of me and I was asked by her husband where I was working, sir. Q. And what was your answer? A. I told him, here in the factory of Boy Vazquez, sir. Q. Neilla did not do anything at that time? A. None yet, sir. xxx Q. And after her husband elbowed Neilla, what happened? A Neilla cried and she pointed to me as the one who raped her, sir.[17] xxx xxx

Complainant testified that she was able to identify appellant as her assailant, when she and her husband went to the GLV factory several hours after the incident. On the other hand, appellant contends that the impartiality of the identification process was violated because no other suspect was present at the time. He bewails the absence of an impartial screening process like a police line -up. Furthermore, he avers that complainant had not been able to identify him earlier that morning when he was inside the factory with 50 other workers.[11] Appellants argument is not convincing. True, the corruption of out-of-court identification contaminates the integrity of incourt identification during the trial.[12] In this case, however, we find no flaw in the complainants out-of-court identification of appellant. It has been held that in resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.[13] Applying this test, the Court is convinced that appellant was properly identified by the complainant before the trial. Complainant had a good look at her assailant when the crime was committed. He approached her and announced a holdup; after taking her bag, he dragged and raped her. As the Office of the Solicitor General has observed, a man and a woman cannot be physically closer to each other than during a sexual act.[14] Under the circumstances, it was unlikely for her to have forgotten the face of appellant. Moreover, several hours after the crime when the details of the incident were still fresh in her memory, she was able to identify appellant because of his features. When she saw him that afternoon inside the office, there was no doubt in her mind that he was indeed her assailant. She testified thus: Q How were you able to identify the accused inside the office of the factory owner? A His height, his figure, his face, the buil[d] of his body, his eyes and the way he talks.[15]

The trial court, however, disbelieved his testimony and gave credence to complainants narration. In the same manner, it accepted complainants account that appellant was not present that morning when she went to the factory to see if her attacker was one of the workers.[18] The well-settled rule is that the assessment of the credibility of witnesses is a matter best undertaken by the trial court because, of its unique opportunity to observe them firsthand during the trial. Unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted, the trial courts finding is accorded respect, even finality.[19] In this case, we find no reason to reverse the findings of the court a quo. Time and time again, the Court has held that no woman in her right mind would declare to the whole world that she was raped, unless she is telling the truth.[20] Moreover, appellant failed to adduce any evidence to show motive on the part of the complainant to testify falsely against him. In any event, complainants testimony was corroborated by Rolly Mata, who testified that he had seen appellant in the vicinit y of the crime scene where the victim was walking just before the assault.
Tuason v. CA and People v. Meneses Not Applicable

The mere fact that no other suspect was inside the factory owners office that afternoon did not taint the identification mad e by complainant. Nobody prodded her to point to appellant. Nobody told her that he was the malefactor. The evidence on record shows that she knowingly and voluntarily recognized him. Verily, her conduct that afternoon supported her claim. Notwithstanding the presence of two policemen and an NBI agent inside the room, she was still afraid of appellant who was also there. She testified as follows: Q. Where was [appellant] facing in relation to you when you pointed to him? A. I was behind my husband and he was facing us, sir. xxx Q. Why were you hiding behind your husband? A. I was afraid, sir. Q. [Of] whom were you afraid? A. [Of] him, sir. Q. Why were you afraid of him? A. Because of what he did to me, sir.[16] xxx xxx

Appellant cites People v. Meneses[21] and Tuason v. CA,[22] both resulting in acquittals, because the accused were identified in a show-up as in the present case.[23] In that identification procedure, the suspect alone is taken by the police to face the witness.[24] Quoting Tuason v. CA, appellant argues that a show-up constitutes the most grossly suggestive identification procedure now or ever used by the police. We are not persuaded. True, a show-up may be suggestive, but it is not by itself a sufficient reason to reject a witness identification of the accused. As noted earlier, courts consider the totality of circumstances in each case in resolving questions regarding out-of-court identifications. Indeed, in Meneses and Tuason, the acquittal did not arise from the mere fact that the police had resorted to this identification procedure. In Tuason, the Court held that the identification of the accused was not spontaneous and independent because the witness pointed to him after an NBI agent had done so.[25] InMeneses, the Court did not find the witness credible, because while he knew appellant prior to the crime, being his uncle who for some time he was staying with, he failed to point to him as the attacker when questioned by the police immediately after the incident.[26] In the present case, no sufficient evidence was presented to show that the identification procedure was flawed. On the contrary, complainant recognized appellant when she saw him in the afternoon several hours after the incident. As discussed earlier, the totality of the circumstances in this case shows that her identification of appellant was spontaneous and independent.
Appellants Alibi

Raising the defense of alibi, appellant avers that he was sleeping inside the factory when the crime was committed. This argument is not persuasive. Alibi is always viewed with suspicion, because it is inherently weak and unreliable. For this defense to prosper, it must preclude any doubt about the physical impossibility of the presence of the accused at the locus criminis or its immediate vicinity at the time of the incident.[27]

In this case, the factory was near the entrance of the subdivision where the crime was committed. It was not, therefore, impossible for appellant to have been at the crime scene at the time. Furthermore, the defense failed to corroborate his account, which could have been done easily. In any event, it has been held that alibi cannot prevail over the positive identification of the appellant by a credible witness, as in this case. [28]
Crime and Punishment

Following the arraignment, the trial ensued with both the prosecution and the defense, respectively, presenting their evidence. Rowena Solon, assistant manager of BPI Family Bank, Paraaque Branch, testified that on 11 March 1996 at around 1:30 in the afternoon, while attending to a withdrawal transaction, two armed men suddenly barged in. With their guns aimed at the people inside the bank, one shouted, "Holdup ito;" the other yelled, "Relax lang, dapa, dapa lahat!" Out of fear, the bank employees and bank clients laid prostrate on the floor. One of the malefactors, in maong pants and t-shirt, walked towards the cash vault. A loud explosion, shortly followed by gunshots, was heard. Soon, the robbers dashed to their cars with their loot and sped away. In minutes, it was over. After verification, it was determined that the robbers got away with a cash sum of P1,277,956.68. SPO1 Zaldy Cres was assigned at Block 5, Paraaque, Metro Manila, covering Barangay BF Homes, El Grande Avenue and Aguirre Street, in Sucat. Responding to the report that men with high-powered guns were seen near BPI Family, he, together with Police Inspector Florendo Escobar and civilian agent Michael Laurenti, rushed to the vicinity. Just as they were closing in, SPO1 Cres spotted a man standing beside a coconut tree with his M-203 firearm pointed at them. Barely seconds passed when the man started to fire his firearm successively. SPO1 Cres was instantly hit at his upper arm and stomach, and the mobile car crashed onto the A&C Minimart.[2] He crept out of the mobile car and took refuge in the neighboring bakeshop where he called for reinforcement. There was a brief exchange of gunshots and, when it subsided, he saw the lifeless body of Insp. Escobar. SPO3 Pedro Buccat, Chief Officer-In-Charge of the Investigation at the Paraaque Police Headquarters, testified that he promptly repaired to the BPI Family bank with SPO3 Wilfredo Cornelio, SPO1 Alberto Parena, and SPO1 Mario Interia upon being advised about the robbery by the Tactical Operations Center. At the crime scene, the police officers were able to recover empty shells of calibers M-14, M-16, M-203, a grenade launcher, and deformed shrapnel. The items were subsequently turned over to PNP Crime Laboratory for examination. A cartographic sketch of the accused was made from the description furnished by Mrs. Tina Ocampo, an eyewitness to the bank robbery. One of the "operatives" commented that the sketch resembled a police officer, named SPO1 Bernie Faustino, stationed in Manila. SPO3 Buccat, when asked, could not recall the name of the person who made that comment. Dante K. Inting, the deputy chairman of the security unit of BF Homeowners Association, declared that he was at the A&C Minimart, located across BPI Family, at the time of the robbery. He was at the store around 11:30 a.m. until about 1:30 p.m. when, abruptly, he heard a loud explosion coming from the direction of BPI Family Bank. Curious, he left the store and saw accused-appellant standing along Aguirre Street sporting a M-203 grenade launcher. He spotted a mobile patrol car trudging from the other end of the street until it smashed into the border of A&C Minimart building. A bullet shattered the windshield of the car. When accused-appellant poked his gun at him, he moved aside and concealed himself behind a pile of rice sacks. From where he sought cover, he witnessed a policeman crawling out of the mobile car. While the policeman was close to the rear of the vehicle, accused-appellant shot him. The wounded policeman was still able to ran towards the direction of Far East Bank, but accused-appellant continued to fire at him until the victim finally fell to the ground. He also saw accused-appellant fire successive shots at another policeman who was fleeing towards a nearby bakeshop. Not long after that, he saw the gunwielder hastily board a red Mazda pick-up, with five to six armed men, for a quick getaway. The witness later crossed the street and approached some responding policemen. He did not breathe a word to anyone on the identity of accused-appellant but instead went to Tagaytay right after the incident to attend to some projects. It was only several days later, or on 25 March 2000, when he disclosed to Col. Florencio Regis the identity of the gunman. His act of finally laying bare, he said, was triggered by the threat made by a certain Ritchie Ylaya (Ylaya), whom he came across days after the incident, who was said to have remarked, " Pare, lie-low ka muna dahil nabangga mo ang grupo. Kukunin ka raw sa pamilya mo." Inting stated that he knew accused-appellant personally, since he himself, like his brother Bienvenido Inting, was a policeman, formerly connected with the Special Operation Division of Southern Police District Command. Before he was discharged from the service back in 1987 or 1988, he frequented Manila to get some information and survey "intelligence" matters. On several occasions during his surveillance, he already caught glimpses of accused-appellant and his group within his area of responsibility. He saw accused-appellant on 05 March 1996 and the days that followed at 54 Canton Street, Phase III BF Homes, Paraaque, in the company of SPO1 Alexander Anggulo, SPO1 Herbert Borja, Boy Marquez, Bueno, Miranda, SPO2 Benjamin de Jesus, and SPO1 Benjie Faustino. He also took note of their vehicles; a red Lite Ace van, a green Lite Ace van, a red Mazda pick-up, and three taxi cabs, all parked thereat. The civilian volunteer Michael Laurenti, assigned at Block 5, Paraaque Police Station, was among those dispatched to investigate the BPI Family robbery incident. He testified that at around 1:30 in the afternoon of 11 March 1996, Insp. Escobar apprised him that there was a shootout at the corner of El Grande Avenue and Aguirre Street. He boarded the mobile car to join Insp. Escobar and SPO1 Cres. At the corner of El Grande Avenue and Aguirre Street, he saw two armed men, one was positioned in front of BPI Family, holding a M-203 grenade launcher, while the other was right in the middle of the street armed with a M-14 firearm. Accused-appellant fired the grenade launcher the moment he spotted the mobile car. It hit and shattered the car windshield. A volley of gunfire ensued. He crawled out of the car and ran past Insp. Escobar, who appeared to have been hit in the left arm and left temple. Shortly after the gunfire, they all boarded an ambulance which headed for Paraaque Medical Center.

Appellant was convicted under Article 294 (1) of the Revised Penal Code, as amended, which provides: ART. 294. Robbery with violence against or intimidation of persons Penalties .-- Any person guilty of robbery with the use of violence against any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. In robbery with rape, the offender has an intent to take personal property belonging to another, and such intent precedes the rape. In this case, it was shown that appellant approached the victim and announced a holdup while poking a knife at her. After taking her bag, he dragged her to an area near the village basketball court and raped her. In view of the evidence presented, the trial court was correct in convicting him of robbery with rape and sentencing him to reclusion perpetua. The court a quo also ordered appellant to pay the victim P100,000 for civil indemnity, P100,000 for moral damages, and P50 for the money taken from her. In line with current jurisprudence,[29] appellant should be ordered to pay the victim the reduced sum of P50,000 as indemnity ex delicto. We also hold that the victim is entitled to moral damages, for the fact that she has suffered the trauma of mental, physical and psychological sufferings is too manifest to require further proof.[30] The amount, however, should be reduced to P50,000. WHEREFORE, the assailed Decision is AFFIRMED, with the MODIFICATION that the appellant shall pay the victim P50,000 as indemnity ex delicto and P50,000 as moral damages, in addition toP50 as actual damages. Costs against appellant. [G.R. No. 129220. September 6, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 BERNIE JAMON FAUSTINO, accused-appellant. VITUG, J.: If a human must be taken to pay a debt to society, let not a wrong man, ever, be made to account for it. The trek to Justice is not a game of chance or skill but a quest for truth, the only path by which the righteous end can be reached. The Regional Trial Court of Paraaque, Branch 260, convicted accused-appellant SPO1 Bernie Jamon Faustino of the crime of robbery with homicide and sentenced him to suffer the extreme penalty of death. The case was forwarded to this Court for automatic review. On 10 April 1996, accused-appellant entered a plea of "not guilty" to the charge of Robbery with Homicide under an Information that read: "That on or about the 11th day of March 1996, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with alias Romeo Bueno, alias Manolito Villanueva and alias Boy Marquez, who are still at large and eight (8) John Does, whose true names and present whereabouts are still unknown and all of them mutually helping and aiding one another, with intent to gain and without the knowledge and consent of the complainant BPI Family Bank, BF Homes, Paraaque Branch, and by means of force, violence and intimidation employed upon the persons of SPO1 Zaldy Cres and CVO Clarito Laurente, did then and there willfully, unlawfully and feloniously take, rob, and divest cash money amounting to the total sum of P1,150,248.00, belonging to said BPI Family Bank, to the damage and prejudice of the owner thereof in the aforementioned amount of P1,150,248.00; that on the occasion of the said Robbery, the above-named accused, with intent to kill and without justifiable reason, did then and there willfully, unlawfully, and feloniously attack, assault, and shoot with a gun one P/Ins. Florendo Escober, thereby causing him serious gunshot wounds which caused his death." "CONTRARY TO LAW."[1]

Two days after the incident, Laurenti, upon being shown a photograph of accused-appellant, and informed by SPO3 Buccat that the man on the picture was one among the suspects in the robbery and shootout incident that took Insp. Escobar's life, acknowledged that accused-appellant was the culprit. Dr. Bienvenido Munoz, Medico Legal Officer of the National Bureau of Investigation, examined the cadaver of Insp. Florendo Escobar. His findings disclosed that the deceased sustained one gunshot wound and one shrapnel wound. He prepared an autopsy report and the death certificate showing that Insp. Escobar died of gunshot wounds. Moises Tamayo, an agent assigned with the Task Force Anti-Kidnapping, Homicide, and Robbery Division of the National Bureau of Investigation ("NBI"), recounted that at around 2 o'clock in the afternoon of 11 March 1996, his office received a call from Director Toledo, instructing him and his men to proceed to BPI Family at El Grande. He, together with Atty. Sacaguing and cartographer Armando Mendoza, immediately went to the scene of the crime. Once inside the bank, witnesses were presented to the cartographer, one after the other, and they described the individual appearances of the armed men who robbed the bank. Seeing that a cartographic sketch resembled one of the Faustino brothers, he directed Atty. Sacaguing to pass around the photographs of Bernie faustino, Benjie Faustino, Benjamin de Jesus, and Herbert Borja to the witnesses, and from one of these pictures, accused-appellant was identified to be among the malefactors by a witness. Tamayo related that months before the robbery, a certain Atty. Perito and a woman went to their office to report that Benjamin De Jesus, Herbert Borja, Francisco Baltazar, and the Faustino brothers were responsible for the series of robberies in Metro Manila. Following the information, he requested for photographs of the people named by the informants from the Western Police District. Eventually, photographs were obtained from the National Police Commission. From 1995 up until March 1996, he consistently made a follow-up investigation on the intelligence report but his verification produced negative results insofar as accused-appellant was concerned. Joan M. Escobar, daughter of deceased Lt. Escobar, testified that her father, 49 years of age at the time of his untimely death, was receiving a monthly income of P14,026.50. The family incurred (a) P600.00 at the Paraaque Medical Center; (b) P65,000.00 at Trinidad Funeral; (c) P10,000 burial expenses; and (d) P50,000 additional funeral expenses. The defense, during its turn, presented a number of witnesses in support of the denial and alibi of the accused. Senior Inspector Emiliano R. Amatosa, block commander of Block 3 (Sub-Station 9) of the Malate Police Station, testified that accused-appellant reported for duty at around 10:00 in the morning of 11 March 1996. Shortly before 11:00 a.m., the police station received a complaint from Ella Ocampo Celeste and Allan Matic regarding a theft incident in Munoz Street, Malate, Manila. As soon as accusedappellant and SPO2 Datu returned from a lunch break, the police officers proceeded to the place where the reported theft occurred and were able to apprehend a suspect, a certain Daloso, thought to be a member of the akyat bahay gang proliferating within the neighborhood. Upon returning to the police headquarters, accused-appellant and SPO2 Datu took turns in conducting a tactical interrogation on Daloso. Insp. Amatosa first interviewed Daloso, followed by accused-appellant, and finally by SPO2 Datu. The interrogation ended at about four o'clock in the afternoon. Insp. Amatosa instructed SPO2 Datu and accused-appellant to then bring the suspect to Malate Police Station, Sub-station 9, of the Western Police District Command. At around eight o'clock in the evening, Insp. Amatosa received a phone call from his immediate superior, Police Chief Inspector Felix Garcia, inquiring on the whereabouts of accused-appellant. It was only then when he learned that accused-appellant had been implicated in the crime of robbery with homicide. Insp. Amatosa ordered accused appellant to report to him the following morning. SPO1 Jose Jeffrey Mendiola, a police investigator assigned at the Investigation Unit (Station 9) of Malate Police Station, recounted that at around five o'clock in the afternoon of 11 March 1996, SPO2 Datu, Luzviminda Manalo, complainants Ella Ocampo Celeste and Allan Matic, and accused-appellant went to the police station and referred a theft case against suspect Daloso. Since accused-appellant and SPO2 Datu were both in a hurry to return to their block headquarters, said to be unattended at the time, the former merely signed in blank an affidavit for the arrest of the suspect. It was Manalo, an alleged witness to the crime of theft, who supplied the entry found in paragraph 4 of the affidavit of arrest, stating "that they effected the arrest of Romualdo Daloso at about 10:00 in the morning of 11 March 1996 along Meding Street, Malate, Manila," a practice which, although tolerated, was not the standard procedure in the arrest of a suspect. Ella Ocampo Celeste testified that on 11 March 1996, at about 10:30 in the morning, she went to Block 3 Police Station, together with Allan Matic and Luzviminda Manalo, in order to report a robbery of which she was the victim. She claimed that in the early dawn of that day, she was robbed of a VHS machine, a cassette tape, a calculator, and P5,000.00 cash. Celeste and her two companions went to F. Munoz Street at around 10:30 a.m. with Lt. Amatosa, SPO2 Datu, and accused-appellant. At around 11:30 a.m., the group returned to the station, after which they again repaired to the crime scene and then got back to the station at about an hour past lunchtime. Isagani T. Neri was chairman of Barangay 744, Zone 80, 5th District Manila, on 11 March 1996, when the shootout in Paraaque occurred. On that day, around noon, he saw Lt. Amatosa, SPO2 Datu, the handcuffed suspect Daloso and accused-appellant pass by his house and board a jeepney bound for Dagonoy.

Reynaldo G. Zamora, barangay kagawad, testified that on 11 March 1996, accused-appellant stayed from 1:00 p.m. to 4:20 p.m. at the second floor of the barangay hall, which also served as the headquarters of the cops on the block at Bgy. 73 Zone 80, conducting a tactical interrogation on Daloso. Neither accused-appellant nor he left the premises of the building. Immediately following the customary interrogation, Zamora left the barangay hall to accompany accused-appellant and SPO2 Datu in delivering the suspect to Precinct 9. It was already past five when they all came back to the barangay hall. Ernesto Rosales, chairman of Barangay 78, Zone 80, stated that at around 11:30 in the morning of 11 March 1996, while inside the barangay hall, he saw SPO2 Datu and accused-appellant talking to a man and a woman, whom he presumed were there to file a complaint. Not long afterwards, SPO2 Datu, accused-appellant, and the two complainants left the detachment. The group returned at about one oclock in the afternoon, this time with a suspect in handcuffs. All went upstairs where a tactical interrogation was promptly conducted. He himself went up and saw accused-appellant asking suspect if he took a VHS machine. Lt. Amatosa and SPO2 Datu then left the detachment to apprehend another suspect, pointed to by Daloso, leaving accused-appellant behind to guard the suspect. About half an hour later, Lt. Amatosa and SPO2 Datu returned to the detachment and the interrogation resumed. Between four and five oclock in the afternoon, the police officers escorted Daloso to Block 9. Ritchie L. Ylaya stated that, between the hour of 12:30 and 1:30 in the afternoon of 11 March 1996, he saw Dante Inting and company drinking beer inside Rojonet Restaurant in Sucat, Paraaque. Inting even asked him over for a drink but he turned down the invitation since he was with his younger son. When he reached home, his other son told him that there was a robbery incident at BPI Family bank, just a block away. Being then the security chairman of BF Northwest, Paraaque, he grabbed his radio and proceeded to the scene of the crime. He called some people to assist him in directing traffic and in making sure that the area was secured. He belied the allegation that Inting was an officer of the homeowners security. SPO Rodolfo Villadolid, a polygraph examiner assigned at the PNP Crime Laboratory, attested that, upon the request of Police Superintendent Rodolfo Castillo Sison, he conducted a polygraph examination on accused-appellant. His examination yielded negative results. Marilyn de Quinto, a forensic chemist at PNP Crime Laboratory, Camp Crame, Quezon City, declared that on 12 March 1996, upon a referral given by Chief Inspector Vicencio Cabasal, she conducted a paraffin test on the person of accused-appellant, and her findings revealed that both hands of the accused were negative of gunpowder residues. Considering the kind of test she had employed, she dismissed outrightly any possibility of error. SPO2 Datu, a member of Station 9, Western Police District Command, was presented to show that on 11 March 1996, between the hours of 11:30 in the morning and 4:00 in the afternoon, he was with accused-appellant performing official functions. He had lunch at a nearby eatery with accused-appellant. Upon their return to the detachment, they attended to the complaint of Celeste and Matic and looked for the alleged suspect, Daloso, who was finally accosted in an eatery along Meding Street, Singalong, Manila. Daloso was taken to the detachment where he underwent the standard tactical interrogation until four o'clock in the afternoon. In later bringing the suspect to Station 9, he was accompanied by accused-appellant and kagawad Zamora. Accused-appellant, SPO1 Bernie Jamon Faustino, vehemently denied any participation in the crime leveled against him. With a regular tour of duty from 7:00 in the morning until 3:00 in the afternoon, he was assigned at Block 3, Station 9 of Western Police District Command, located in Dagonoy, Singalong, Manila. On 11 March 1996, with the prior permission of his superior, Lt. Amatosa, accusedappellant reported late for work because he needed to follow-up his loan application. He attended to the complaint lodged by Ella Ocampo Celeste and Matic upon the instructions of Lt. Amatosa. He had lunch with SPO2 Datu in an eatery along Arellano Street corner Estrada Street, Malate, Manila. Shortly upon returning from lunch, he, in the company of SPO2 Datu, Lt. Amatosa, and the complainants, went to Meding Street, Singalong, Manila, at around 12:45 p.m. to conduct an investigation. The police officers arrested Daloso around one o'clock in the afternoon and escorted him to Block 3 where they subjected him to tactical interrogation until 4:30 p.m. Upon orders of Lt. Amatosa, Daloso was turned over to the Investigation Unit of Station 9 in Adriatico Corner Quirino Avenue, Metro Manila. SPO2 Datu, the complainants, the suspect, and Zamora were with him in bringing Daloso to the station. While he stated in his affidavit of arrest that suspect Daloso was arrested at around 10:30 in the morning, accused-appellant, nevertheless, maintained in court that the arrest was actually effected at about 1:00 in the afternoon. The Regional Trial Court, Branch 260, Paraaque, Metro Manila, after a long trial, rendered its decision, finding accused guilty of the crime charged; thus: WHEREFORE, finding accused Bernie Jamon Faustino guilty beyond reasonable doubt of the crime of robbery with homicide as def ined and penalized in Art. 294 of the Revised Penal Code, as amended by R.A. No. 7659, he is hereby sentenced to death. For the civil liability,

he is hereby condemned to pay the amount of P1,277,956.68 representing the amount taken from the Bank of the Philippine Islands, and to the heirs of the deceased the following: P50,000.00 as civil indemnity for death in line with existing jurisprudence; P600.00 for hospitalization expenses of Florendo Escobar; P125,000.00 for funeral and burial expenses of Florendo Escobar; P14,026.50 for a period of six (6) years representing his monthly income; P500,000.00 as moral damages; P500,000.00 as exemplary damages. "The Clerk of Court is directed to prepare the mittimus for the immediate transfer of Bernie Jamon Faustino from the Municipal Jail of Paraaque, Metro Manila to the Bureau of Corrections in Muntinlupa and to forward all the records of the case to the Supreme Court for automatic review in accordance with Section 9, Rule 122 of the Rules of Court and Art. 47 of the Revised Penal Code, as amended by Sec. 22 of the Republic Act No. 7659. "SO ORDERED. "Paraaque, Metro Manila, May 22, 1997"[3] In its appeal brief, the defense ascribed to the trial court the following "errors": I The trial court gravely erred in not heeding accused-appellants prayer for inhibition sought during the trial. II The trial court gravely erred in convicting appellant Bernie J. Faustino to death based on the fantastic and incredible testimony of witnesses. III The trial court gravely erred in convicting appellant Bernie J. Faustino to death based on the irregular and belated if not spurious identification. IV The trial court gravely erred in disregarding the defense of alibi, when the evidence of the prosecution is doubtful and weak. V

The trial court gravely erred in not considering accused-appellant defense of alibi when the same was fully corroborated by testimonial as well as documentary exhibits. VI The trial court gravely erred in convicting the accused-appellant when the prosecution failed to establish his guilt beyond reasonable doubt.[4] It is axiomatic that the prosecution bears the onus to prove beyond reasonable doubt not only the commission of a crime but likewise to establish, with the same quantum of proof, the identity of the person or persons responsible therefor. There is no question about the fact that a grave and most unfortunate crime has been committed. It is, in this case, indeed a given, but next to it is the pivotal issue of whether or not the prosecution has been able to discharge its equal burden in substantiating the identity of accused-appellant as being among the perpetrators of the crime. So here, as usual, we must look at the strength of the evidence introduced by the prosecution and certainly not to take a greater glance at the weakness of the cause for the defense. Accused-appellant was fingered by three witnesses, namely: Dante K. Inting, SPO1 Zaldy Cres and Michael Laurenti. In assessing an out-of-court, as well as in-court, identification of suspects, court ought to be guided by the totality of circumstances test. Under this standard, various factors figure in the appreciation of the testimony of the witness, to wit: (1) The witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.[5] The Court must now examine this touchstone and see it is has been satisfactorily accomplished by the prosecution in placing its pointing hand on the shoulder of accused-appellant. Inting's testimony may not but be regarded with jaundiced eyes. He asserted that he was at A&C Minimart, across BPI Family, when the bank heist took place. Inting claimed to have known accused-appellant prior to the robbery. In fact, he vehemently asserted that he knew him personally. He vaunted that he was once a policeman himself connected with the Southern Police District, Intelligence Division,[6] and later the deputy chairman of the Security Unit of BF Homeowners Association, Phase III.[7] He said that, during his surveillance from 05-09 March 1996, he caught glimpses of accused-appellant and his group[8] with several vehicles including the get-away red Mazda pick-up, parked within his area of responsibility.[9] Yet despite having observed and vividly recalled all these seemingly suspicious actuations of accused-appellant and his group, he did not disclose this fact to the authorities despite several opportunities to do so. In fact, it was only on 25 March 1996, or several days after the robbery, that he volunteered this information to the authorities and only after he was supposedly threatened not to reveal his knowledge of the incident. Inting's behavior is less than congruent with human nature and experience. The natural reaction of one who witnesses a crime and recognizes the offender is to reveal it to the authorities at the earliest opportunity.[10] "The natural tendency of a person who has witnessed the commission of a crime is to report it, and describe the malefactors at the earliest possible opportunity. This is particularly true where the victim is so closely related to the witness who claims to have seen the commission of the crime. Edwina's failure to promptly come out with such information to the police, casts a serious doubt on the accuracy, if not veracity, of the identification of accused-appellant later made by the same witness."[11] Even perhaps more strangely is that the witness would only come out into the open when, precisely, fear is instilled by a threat against it. While the Court is not unmindful of the natural reticence of witnesses from volunteering information on criminal acts they have witnessed, the impasse and the number of opportunities wherein they could have relayed such vital information and failed to do so, however, somehow detract from the credibility of their testimony.[12] Inting's failure to tell on accused-appellant to SPO1 Abangan, Major Pascual and SPO1 Cres casts doubts on his reliability and can merely infer an afterthought.[13] Notably, the delay in identifying accusedappellant to the authorities has not been sufficiently explained.

SPO1 Cres, for his part, was not really that certain in identifying accused-appellant as being the gunman. In his Sinumpaang Salaysay, dated 14 March 1996, during the preliminary investigation, as well as in the trial itself, witness suddenly appeared to be too dazed to be convincing when asked about the identity of the gunman. "Q: Babasahin ko sa iyo itong salysay na ibinigay mo question no. 5 'Namukhaan mo ba mobile na dala ninyo?' Sagot: Hindi ko po masyadong mamukhaan pero pag nakita ko siya sa personal baka sakaling makilala ko siya', dito sa sagot mong ito papayag ka ba na ikaw ay hindi mo siguradong natatandaan ang mukha ng bumaril sa inyo? "A: Hindi ko po siya masyadong mamukhaan pero kung makikita ko po siya, maaaring matatandaan ko po ang kanyang mukha. "Q: Ibig mong sabihin babaguhin mo ang sagot mong ito na hindi mo masyadong na mukhaan ang bumaril sa inyong mobile car? "A: Hindi ko po siyang masyadong mamukhaan pero kung makikita ko po, siya ay aking mamumukhaan, sir. "ATTY. VERZOSA: "Your Honor, counsel already arguing with the witness. "COURT: "Don't argue to the witness Atty. Agoot. "Atty. Agoot: "Your Honor, I am trying to impeach this witness because his statement contradict to the statement which he gave to the police, Your Honor. xxx xxx xxx "Q: SPO1 Zaldy Cres, natatandaan mo pa ba ng tayo ay magkita sa opisina ni Fiscal Elizabeth Guray noong Marso 25, 1996? "A: Yes, sir. "Q: At natatandaan mo rin ba na tinanong ni Fiscal Guray sa iyo na kung maituturo mo ang akusado na si SPO1 Bernie Faustino, natatandaan mo ba ang iyong sagot doon? "A: Opo, sir. "Q: Hindi ba ang iyong sagot ay hindi ko sigurado? "A: Opo, sir. xxx xxx xxx "Q: Noon hindi ka sigurado at tayo ay magkausap sa opisina ni Fiscal Guray iyon ay mas maaga pa sapagkat iyon ay March 25, 1996 noong mangyari iyon ngayon ay sigurado ka na si SPO1 Bernie Faustino and humawak at nagpaputok sa inyo ng baril? "A: Kamukhang kamukha niya kasi, sir. "Q: So, hindi ka sigurado sa sagot mo? "A: Hindi ako sigurado pero kamukhang kamukha niya po kasi ang nagpaputok sa amin nang baril, sir."[14] Laurenti, on the other hand, identified accused-appellant as being one of the malefactors only after he was shown a picture of him by SPO3 Buccat two days after the incident.[15] He did not inform the investigators of the identity of the gunman when they took his statement the day before.[16] He acknowledge that SPO3 buccat showed him pictures of accused-appellant and his twin brother, Benjie, and informed him that they were their suspects in the robbery,[17] which could have likely influenced the witness. Laurenti testified: Q: Kailan mo sinabi sa kanya na maisasa-larawan mo o mamumukhaan mo iyung taong bumaril sa inyo? A: Mga dalawang araw po.

Q: Nakalampas? A: Opo. Q: So, dalawang araw, March 13, and ibig mong sabihin? A: Opo. Q: So, noong kunin ang statement mo noong March 12, 1996, hindi mo pa sinabi sa kanyang mamumukhaan mo ang bumaril sa kanya. Iyon ang ibig mong sabihin? A: Hindi ko po sinabi sa kanya dahil kinakabahan po ako. Q: Kaya, hindi tinanong sa iyo dito sa statement mo? "A: Ano po? "Q: Dahil hindi mo sinabi sa kanya na maisasalarawan mo iyung bumaril sa inyo, kaya hindi inilagay dito sa statement mo at hindi tinanong sa iyo ni SPO3 Buccat kung mamumukhaan mo iyung bumaril sa inyo? "Atty Verzosa: The question is vague, Your Honor. "Atty Agoot: Very clear, Your Honor. "Court: Witness may answer. "x x x x x x x x x "A: Opo. "Q: Ngayon, bakit mo nasabi naman kay SPO3 Buccat noong March 13 na namumukhaan mo iyung taong bumaril sa iyo, bakit naimbestigahan ka bang muli noong March 13? "A: Opo. "Q: Sino ang nag-imbestiga sa iyo? "A: Binalikan po ako ni SPO1 Buccat. "x x x x x x x x x "Q: Noong ikaw ay balikan muli ni Buccat, saan ka binalikan, sa hospital? "A: Block 5 po. "Q: Sino ang mga kasama mo doon? "A: Mga pulis po. "Q: Sino ang mga pulis na iyon? "A: SPO1 Pactolan po, Sahara, SPO1 Ricardo. "Q: Sinabi mo ba kay SPO1 Pactolan na ang bumaril sa inyo ay maisasalarawan mo? "A: Opo.

"Q: Ano ang ginawa ni Pactolan noong masabi mo sa kanya na maisasalarawan mo iyung bumaril sa inyo. Mayroon ba siyang ginawa, dinala ka ba sa NBI? "A: Hindi po. "Q: Hindi ka rin kinunan ng statement ng pulis na iyon? "A: Hindi po. "x x x x x x x x x "Q: xxx Ngayon, batik tayo mull doon sa pagbalik sa iyo ni Pedro Buccat noong March 13. Di ba, ang katotohanan noon may dala-dala siyang picture na ipinapakita sa iyo, iyung picture ni SPO1 Bernie Faustino? "A: Paki-ulit. (Stenographer read back the question) "A: Mayroon po. "Q: Hindi ba ang katotohanan, sinabi niya, ito ang ituro mo? "A: Hindi po. "Q: Hindi ba sinabi sa iyo ni SPO3 Buccat na ito ang ituro mo? "A: Hindi po. "Q: Ano ang sinabi niya sa iyo? "A: Magsabi po ng katotohanan tungkol doon sa larawan na ipinapakita sa akin. "Q: Ibig mong sabihin, sinabi sa iyo ni Buccat, habang ipinapakita sa iyo ang picture, hindi ito ang bumaril o ito ang bumaril? "A: Sinabi po niya, ito ba ang bumaril. "Q: Sinabi niya sa iyo, ito ba ang bumaril? "A: Ako po mismo ang nagsabi. "Q: Sinabi ba sa iyo? "Atty. Verzosa: That is the answer. "Court: Ano ang sinabi sa iyo ni Buccat noong ipinapakita sa iyo ang litrato? "A: Noong ipinapakita po sa akin, itinuro ko po iyung tao. "Court: Ano ang sinabi mo? A: Siya po ang bumaril. "Q: Ibig mong sabihin, mayroong picture na dala-dala si Buccat, ito ba ang picture na dala-dala ni SPO3 Buccat noong March 13? A: Iyan po.

"Q: Noong ipakita sa iyo ito, ano ang sabi niya, ito ang picture ni SPO3 Bernie Faustino at picture ni P03 Ben Faustino. Hindi ba sinabi niya iyon? "A: Opo. x x x x x x x x x "Q: Hindi ba ang katotohanan ng ipakita sa iyo ni SPO3 Buccat itong picture na ito, sinabi niya na ito ang mga suspects namin? A: Opo."[18] The pictures, furnished by Atty. Sacaguing after the cartographic sketch was prepared, were passed around by NBI agent Manuel Tamayo, who, in turn, received them, months before the incident, from a certain Atty. Fernando Perito and a lady companion who informed him that the Faustino brothers were responsible for the spat of robberies in Metro Manila. Laurenti asserted that he was able to distinguish accused-appellant from his twin brother because accused-appellant, unlike his brother Benjie Faustino, did not have a mark on his face. It bewilders the Court how he could have detected the presence or absence of any distinguishing mark meters away and even while a gruesome incident was unfolding before his eyes. His testimony: "Q: Sabi mo, itinuro mo kanina na si SPO1 Bernie Faustino ang nakita mo? "A: Opo. "Q: Mayroon siyang kapatid ditong kamukha, tignan mo nga ang kapatid niyang si PO3 Ben Faustino kung kamukha niya? "A: Kamukha. "Q: Sinabi mo kanina na itong si SPO1 Bernie Faustino ang nakita mo. Bakit hindi itong si Ben Faustino? Mayroon ka bang distinguishing - marks kay SPO1 Bernie Faustino na magpapakita na iba siya kay PO3 Ben Faustino? "Atty. Verzosa: We will object, Your Honor. That is argumentative, based on speculation. "Court: Sustained. You should ask questions properly, Atty. Agoot. That is argumentative. "Q: Sabi mo kanina, magkamukha iyong dalawang tao, SPO1 Bernie Faustino at PO3 Ben Faustino. Di ba, totoo iyon? "A: . Opo. "Q: Ngayon, sinabi mo rin kanina at sinigurado mo na si SPO1 Bernie Faustino ang nakita mo. Hindi kaya itong si PO3 Ben Faustino ang nakita mo, sapagkat magkamukha naman sila? "A: Hindi po. Siya po. "Q: Bakit mayroon ka bang marka sa kanilang mukha na nagpapakita na ang taong nakita mo sa puno ng niyog ay si SPO1 Bernie Faustino? "A: Siya po. Wala pong marka ang mukha niya. lyung isa po meron. "Q: Saan ang marka niya? "A: Dito po sa may ilong at sa may mata niya. "Q: Wala namang marka diyan, di ba? "Atty. Verzosa: Argumentative, Your Honor. "Court:

Sustained. "Q: Ibig mong sabihin, nakita mo, walang marka sa ilong, ganoon ba iyon? "A: Oho. "Q: Nakita mo iyong taong bumaril na nasa malapit ng niyog, walang marka sa ilong at walang palatandaan? "A: Oho. "Q: Kaya sinabi mong si SPO1 Bernie Faustino iyon? "Atty. Verzosa: The question is argumentative, Your Honor. "Court: Atty: Agoot, the question is very argumentative. "Atty. Agoot: I withdraw the question, Your Honor."[19] The identification of an accused by an eyewitness is a vial piece of evidence and most decisive of the success or failure of the case for the prosecution. But even while significant, an eyewitness identification, which authors not infrequently would describe to be "inherently suspect,"[20] is not as accurate and authoritative as the scientific forms of identification evidence like by fingerprint or by DNA testing. In cases where only pictures of accused-appellant are presented for identification, the supposed positive identification is regarded as being tainted almost like an uncounselled confession.[21] Regrettably, neither bank teller Tina Ocampo nor security guard Wilfredo Novilla, who supposedly had described the gunman to the cartographer, was put to the witness stand. True, the defense of alibi can easily be fabricated and is thus a weak defense but it should not be an excuse for at once looking at it with a biased mind. Alibi is not always undeserving of merit, for, at times, it can only be the possible defense that can be offered by an accused. Where the prosecution evidence on the identification of an accused enfeebles, so, also, alibi assumes commensurate strength.[22] Here, the time and sequence constituting the alibi proffered by accused-appellant are corroborated by five witnesses, namely, S/Ins. Amatosa, SPO2 Datu, Chairmen Ned and Rosales, and Celeste, none of whom appears to be a relative or possessed with a perceptible reason, cause, or motive to give false testimony and to thus perjure themselves. In fact, the purported positive identification of the prosecution witnesses pales when juxtaposed against the individual testimony of the defense witnesses. Given all, serious doubt persists in the mind of the Court in laying the blame of the crime on accused-appellant and affirming his death sentence. WHEREFORE, premises considered, the assailed decision in Criminal Case No. 96-340 of the Regional Trial Court, Branch 260, Paraaque, finding accused-appellant SPO1 Bernie Jamon Faustino guilty of the crime of robbery with homicide, is REVERSED and SET ASIDE. He is ACQUITTED of the crime charged and prison authorities to whose custody he has been given are directed to forthwith release him unless there are other lawful reasons for his continued custody. Costs de oficio. [G.R. No. 125005. October 3, 2000] PEOPLE vs. MARCELO CABILES y ANGUSTIA, EMERITO DELOS REYES y NARANJO Alias EMY, accused-appellants. QUISUMBING, J.: For automatic review is the decision of the Regional Trial Court of Urdaneta City, Pangasinan, Branch 46 in Criminal Cases Nos. U8389, U-8390, U-8391, and U-8392, the dispositive portion of which reads: WHEREFORE, in view of all the foregoing, the Court finds:

IN CRIMINAL CASE NO. U-8390: the accused MARCELO CABILES[1] y ANGUSTIA GUILTY beyond reasonable doubt of the crime of ATTEMPTED HOMICIDE and applying the Indeterminate Sentence Law, hereby sentences him to suffer an indeterminate penalty of 6 months of Arresto Mayor in its maximum period, as MINIMUM, to 2 years, 4 months and 1 day of Prision Correcional in its medium period, as MAXIMUM and to pay the costs. IN CRIMINAL CASE NO. U-8389: the accused EMERITO DE LOS REYES y NARANJO alias Emy GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm(s) and Ammunitions (Presidential Decree No. 1866) and hereby sentences him to suffer imprisonment of RECLUSION PERPETUA and to pay the costs. IN CRIMINAL CASE NO. U-8391: the accused MARCELO CABILES y ANGUSTIA GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm(s) and Ammunitions (Presidential Decree No. 1866) and hereby sentences him to suffer imprisonment of RECLUSION PERPETUA and to pay the costs. IN CRIMINAL CASE NO. U-8392: the accused MARCELO CABILES y ANGUSTIA and EMERITO DE LOS REYES y NARANJO alias Emy GUILTY beyond reason able doubt of the crime of MURDER defined and penalized under Republic Act No. 7659, otherwise known as the Heinous Crime Law, the offense having been committed with the generic aggravating circumstances of taking advantage of superior strength and dwelling, hereby sentences EACH OF THEM the ultimum supplicium to DEATH; to pay jointly and severally the heirs of the victim MOISES PAMARANG, SR. in the amount of P50,000.00 as indemity, P11, 000.00 as actual damages, P200,000.00 as moral damages and to pay the costs. Finally it is said: Dura lex, sed lex interpreted as The law is harsh, but that is the law. SO ORDERED.[2] The facts of this case, according to the trial court, are as follows: Sometime between 7:30 to 8:00 P.M. of February 2, 1994, two persons went to the house of Moises Pamarang, Sr., calling out Apo!. Arman[3] Pamarang, son of the victim, who was then watching television in his grandfathers house, a few meters away from his parents house, saw the duo. Thinking that the two were interested in buying something from their store, Arman went to their house and stood behind the two, whom he recognized as appellants Emerito delos Reyes and Marcelo Cabiles. Meanwhile, the victims wife, Estelita Pamarang, who also heard the call, went to their front door, which also served as the door of their store. The area was lighted as there was a fluorescent light on the awning above the front door. She recognized appellants delos Reyes and Cabiles standing outside, with her son Arman behind them. The two were fellow barangay residents who cultivated the land opposite the victims family farm. Upon seeing Estelita, appellant Cabiles muttered that he had something to tell her husband. Estelita replied that her husband was already asleep and asked them to return the next day. After a few moments, however, the victim arrived and asked appellants what they wanted. Suddenly, Cabiles pulled out a handgun and shot the victim in the mouth. The latter fell and while Estelita was holding him up, delos Reyes moved forward and shot the victim in the stomach with a long firearm. Cabiles fired a second shot, hitting Moises in the chest. The two gunmen then hurriedly left. Seconds later, Arman rushed in to assist the victim, his father, while Estelita shouted for help. Moises, Jr., another son of the victim who was playing cards in his grandmothers house, heard the gunshots and the shouts of his mother and immediately rushed to their house. He met appellant Cabiles, who had just come out of their front gate. Suspecting that Cabiles was responsible for his mothers shouts for help, Moises, Jr. followed him and upon catching up, boxed Cabiles nape. Cabiles shot him but missed. Cabiles began to run. When he

noticed Moises, Jr., still dodging him, Cabiles fired at him again, missed a second time. Moises, Jr., decided not to press his luck and instead went home. By then, Moises, Sr., was dead. When police officers arrived, they were informed by Moises, Jr., that he knew the person who killed his father. Moises, Jr., who accompanied the policemen to the residence of appellant Cabiles, pointed him out as the killer. Cabiles was taken into custody and Estelita and Arman were summoned to the police station. When confronted with Cabiles, however, Estelita, failed to identify him as one of the persons who shot her husband. Moises, Jr. and Arman, who were present, likewise failed to identify Cabiles. At around 1:00 oclock in the morning the following day, both Cabiles and delos Reyes were brought to the police station for reinvestigation. This time, Estelita identified him as one of her husbands killers. She explained that she was not able to pinpoint him previously because his hair was brushed up; during the night of the incident his hair was brushed down. She also was then still in shock. Estelita also identified appellant delos Reyes as the other gunman. The two were placed in detention. Appellants asked that they undergo a paraffin test. These yielded negative results. The autopsy on the cadaver showed that the victim had sustained gunshot wounds on his mouth, stomach, and chest. Two slugs were recovered from his body. The cause of death was hypovolamicshock secondary to inthrathoracic hemorrhage, secondary to gunshot wound, lungs.[4] Complaints were filed in the Municipal Trial Court of Urdaneta for Murder against Emerito delos Reyes and Marcelo Cabiles; for Attempted Murder against Cabiles; for Illegal Possession of Firearm and Ammunition against delos Reyes; and for Illegal Possession of Firearm and Ammunition against Cabiles. After preliminary investigation, the municipal court judge found that no prima facie case existed, and recommended that the cases be dismissed. The investigating judges recommendation was forwarded to the Office of the Provincial Prosecutor for review. On March 31, 1995, notwithstanding the recommendation of the investigating municipal judge, the Office of the Provincial Prosecutor of Pangasinan filed the following separate informations with the court a quo: Criminal Case No. U-8389: The undersigned accused EMERITO DELOS REYES Y NARANJO alias EMY of the crime of ILLEGAL POSSESSION OF FIREARMS AND AMMUNITION, committed as follows: That on or about the 2nd day of February, 1994, at barangay Camantiles, municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused did then and there, wilfully, unlawfully and feloneously (sic) have in his possession, control and custody one (1) long firearm with ammunitions without securing first the necessary authority or license to possess and carry the same, and which firearm he used in shooting to death Moises Pamarang y Uminga. CONTRARY TO P.D. No. 1866[5] CRIMINAL CASE No. U-8390: The undersigned accuses MARCELO CABILES Y ANGUSTIA of the crime of ATTEMPTED MURDER, committed as follows: That on or about the 2nd day of February, 1995 (sic) at barangay Camantiles, municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused with intent to kill and with treachery, did then and there, wilfully, unlawfully, and feloneously (sic) shoot one Moises Pamarang Jr., y Villota for two (2) times but missed with the use of a firearm, thus the accused commenced the commission of the crime of Murder directly by overt acts but did not produce it by reason of some cause other than his spontaneous desistance, that is, the victim was able to run away from said accused. Contrary to Art. 248, in relation to Art. 6, Revised Penal Code.[6] CRIMINAL CASE No. U-8391:

The undersigned accuses MARCELO CABILES Y ANGUSTIA of the crime o f ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS, committed as follows: That on or about the 2nd day of February, 1994, at barangay Camantiles, municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused did then and there, wilfully, unlawfully and feloneously (sic) have in his possession, control and custody one (1) short firearm with ammunitions without first securing the necessary authority or license to posses and carry the same, and which firearm he used in shooting to death Moises Pamarang y Uminga. CONTRARY to Presidential Decree No. 1866.[7] CRIMINAL CASE No. U-8392: The undersigned accuses MARCELO CABILES Y ANGUSTIA and EMERITO DELOS REYES Y NARANJO alias EMY of the crime of MURDER, committed as follows: That on or about the 2nd day of February, 1994 at barangay Camantiles, municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspiring, and helping each other, and with treachery and evident premeditation, did then and there, wilfully, unlawfully and feloneously (sic) attack and shoot one Moises Pamarang y Uminga with the use of firearms hitting and inflicting the latter with mortal wounds which caused his death, to the damage and prejudice of his heirs. CONTRARY to Article 248, Revised Penal Code.[8] Upon arraignment, appellants, with the assistance of counsel de parte, pleaded NOT GUILTY to each of the foregoing informations. The four cases were tried jointly. At the trial, appellants interposed the defense of denial and alibi. The trial court summed up appellant Cabiles defense as follows: On February 2, 1994, at around 6:30 oclock in the evening, he and his 3-year old son Mark Hausen, went to the house of Eddie Gandesa, his business partner in the chainsaw business, by riding in his motorized tricycle which he owned to inform him that somebody would like to have his tree cut. He conversed with Gandesa (and) with his four (4) visitors and at around 8:00 oclock in the evening he asked permission to leave and proceeded to the house of Arsenia Garcia to buy rice but unable to purchase as there was no available rice for sale. They arrived in (sic) his house at around 8:20 oclock and parked his tricycle on (sic) the yard of Francisca Angelito. After five minutes his coaccused Emerito delos Reyes, whose house is about 40 meters away and his acquaintance since 1992, arrived and asked for his tricycle as he would like to carry passengers for a fee. When delos Reyes left, Francisca Angelito went to his house bringing with her cooked camoteng cahoy which they ate together with Ernesto Boy Alvarez, who went to fetch water from their pumpwell for his cow. At around 9:00 oclock a police patrol car went to the house of his co-accused delos Reyes and thinking that the latter met an accident in town he went out to observe. The police was asking from the wife of the accused delos Reyes the whereabouts of her husband but the former was told that he was out driving a tricycle for hire. The police then went to the place where he was and was asked if he saw a motorcycle with three (3) persons on board passed (sic) by their place as somebody was killed. Then Police Officer Gancea told him that because he is a stranger in the place and somebody was killed it was better for him to go to the police headquarters to clear doubts on his part, as the wife of the victim said that she could identify the killers if she could see them.Before they left, the police told to (sic) the wife of his co-accused to tell the latter to go to the police when he arrives. At the police station, Estelita Pamarang, wife of the victim, when he was shown to her for identification, failed to identify him. Arman Pamarang and Moises Pamarang, Jr., children of Estelita Pamarang were also there and they did not say anything when their mother was not able to pinpoint him as one of the killers of the victim Moises Pamarang, Sr On February 3, 1994 at around 1:00 oclock in the morning, the police returned and took him again to the police headquarters at Urdaneta, Pangasinan where he saw Estelita Pamarang, Arman Pamarang and Moises Pamarang, Jr. again but most of all he saw his co-accused Emerito delos Reyes. The wife of the victim pointed and identified him and his co-accused (as the ones) who killed the victim which he denied. They were then incarcerated. They asked for a paraffin examination which was done, the result of which is negative.[9] Appellant delos Reyes version was narrated by the court as follows:

That around 7:00 oclock in the evening of February 2, 1994, he was getting water for his 3 cows to drink at the water pump of his neighbor Alfredo Ladines and when he noticed that the tricycle of his co-accused Marcelo Cabiles arrived (sic) he changed his clothes and got the key of the tricycle from the wife of Cabiles at 8:15 oclock on said night whose house is 40 meters away from his house. He did not converse with his co-accused as he was at the pigpen near his house. He arrived at the town proper of Urdaneta, Pangasinan to wait for passengers who came from Baguio and Manila to deliver them to their respective places for a fee. There was also Pastor Garcia, a tricycle driver like him who was his companion on said night. He used the tricycle of his co-accused to transport passengers three (3) times a week. He earned P250.00 that night and gave one-half to the wife of the accused Cabiles. He went home at 10:00 oclock that same night and upon reaching his house, he was met by his wife and his younger sister at the road who told him to proceed to the police station as his coaccused was invited by the police and had no ride to return home. At the Mitura bridge, while proceeding to the police headquarters at Urdaneta, Pangasinan, he met his co-accused riding in a tricycle driven by Melandro Allan Coile, Cabiles nephew. Being told by his coaccused that he better return home there being nothing that happened at the police station he (Cabiles) being suspected to have killed somebody, and not the one responsible, they joined together in going to their respective residences. After parking the tricycle at the yard of Angelito he went to sleep and it was already 11:30 P.M. At 1:00 oclock in the early morning of February 3, 1994, he was awakened in (sic) his deep slumber by the barking of dogs so that he went out and saw peace officers Gancea and Andaya who invited him to go to the police station to clarify some important matters. He saw his co-accused in the patrol car when he rode in a tricycle with two (2) policemen. At the station he saw Estelita Pamarang, Moises Pamarang, Jr. and Arman Pamarang, the first being the wife of the victim and the two (2) are the sons of the former. At the investigating room, where he and his co-accused Cabiles were brought, Gancea together with the Pamarangs entered and asked to identify them but said Pamarangs were not able to identify them, Gancea and the three (3) Pamarangs went out and after five minutes they returned and it was at this time that the wife and two (2) sons of the victim pointed at them as the authors of the killing which they denied. Thereafter, he and his coaccused were incarcerated. As per their request paraffin examinations were conducted and the result was negative.[10] The trial court disbelieved the two accused, convicted appellants of the crimes charged, and imposed upon them the supreme penalty of DEATH for the murder of Moises Pamarang, Sr. For the illegal possession of firearms and ammunitions, it imposed the grave penalty of reclusion perpetua. Hence, this automatic review with appellants raising the following alleged errors of the trial court: 1. THAT THE HONORABLE JUDGE JOVEN COSTALES COMMITTED A GRAVE ABUSE OF DISCRETION IN HAVING PARTICIPATED ACTIVELY IN THE PROSECUTION OF THE CASE AND AS A RESULT, HE RENDERED A BIAS (sic) JUDGMENT CONVICTING BOTH THE ACCUSED OF THE CRIMES CHARGED. THAT SUCH ACTUATIONS OF THE HONORABLE JUDGE CONSTITUTE A REVERSIBLE ERROR. 2. THAT BY REASON HIS BIAS (sic) ACTUATIONS, THE HONORABLE JUDGE JOVEN COSTALES FAILED, AS HE DID FAIL, TO APPRECIATE FACTS OR CIRCUMSTANCES OF GREAT WEIGHT AND VALUE [WHICH IF CONSIDERED MIGHT ALTER THE OUTCOME OF THE CASE] HAS OVERLOOKED, MISUNDERSTOOD OR MISAPPLIED THE SAME. 3. THAT THE HONORABLE JUDGE JOVEN COSTALES MADE OFFICIAL DECLARATION IN OPEN COURT WHICH MADE COUNSEL BELIEVE TO BE LIKE AN ORDER OF THE COURT, THUS RELYING UPON SUCH DECLARATION, COUNSEL WAS THEREFORE OF THE HONEST EVALUATION THAT THE DEFENSE OF THE ACCUSED HAD BEEN FULLY ESTABLISHED SO THAT HE [COUNSEL] NO LONGER PROCEEDED TO PRESENT ADDITIONAL EXCULPATORY EVIDENCE. 4. THAT THE LOWER COURT FAILED TO CONSIDER THE NUMEROUS INCONSISTENT AND CONTRADICTING TESTIMONIES OF THE PROSECUTION WITNESSES WHO WERE MOTHER AND SONS, WHICH IF TAKEN AND CONSIDERED ALTOGETHER, WOULD HAVE CREATED A STRONG REASONABLE DOUBT WHICH WOULD HAVE ACQUITTED BOTH ACCUSED. 5. THAT THE HONORABLE JUDGE JOVEN COSTALES COMMITTED A GRAVE ABUSE OF DISCRETION IN DECLARING THAT ARMAN PAMARANGS TESTIMONY IS CATEGORICAL, SPONTANEOUS AND STRAIGHT FORWARD MANNER NOTWITHSTANDING SUBSTANTIAL INCONSISTENT STATEMENTS, WHICH DECLARATION ONLY SHOWS BIAS IN HIS DECISION.

6. THAT THE LOWER COURT, COMMITTED A GRAVE ABUSE OF DISCRETION IN NOT GIVING WEIGHT TO THE TESTIMONIES OF THE TWO [2] ACCUSED WHICH WERE CORROBORATED BY DIS-INTERESTED, UNBIASED AND CREDIBLE WITNESSES. Stated succinctly, the pivotal issue is: Was the guilt of appellants proven beyond reasonable doubt? This issue will be properly resolved as we proceed with the discussion of assigned errors. First, appellants complain that the trial judge actively participated in the prosecution of the case and thus rendered a biased judgment. They particularly assail the questions asked by the judge, of witness Arman Pamarang, following the redirect examination, [11] as indicative of his desire to convict appellants. Our scrutiny of the detailed questions asked by the trial judge, however, fails to disclose any bias on his part which would prejudice appellants. The questions were clarificatory. It is a judges prerogative to ask clarificatory queries to ferret out the truth.[12] Second, appellants contend that because of the eagerness of the judge to convict them, he overlooked certain facts, which if considered would affect the result of the case. Appellants particularly assail the failure of witness Estelita Pamarang to positively identify appellant Cabiles during their initial confrontation at the police station, just a couple of hours after the fatal shooting. Equally stressed is the failure of Estelita, Arman, and Moises Jr., to identify appellant delos Reyes as the other gunman during their confrontation in the presence of police investigators. However, Estelita explained that her failure to initially identify appellant Cabiles as one of the men who shot her husband was due the change in appellants hairdo. The trial court found her explanation credible and convincing. We shall now determine if the identification of the appellants as the offenders suffices to hold them liable as charged. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution.[13] Yet, eyewitness identification is not always reliable or accurate, given the possibility of misidentification. In People vs. Teehankee,[14] we said: Identification testimony has at least three components. First, witnessing a crime, whether as a victim or as a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. In evaluating out-of-court identification, we have adopted the totality of circumstances test where the following factors are considered: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.[15] Against this test, we find that Estelita Pamarangs identification of appellants is of doubtful value. In this case, the crime allegedly took place at the door of the Pamarang residence, amply lit by a fluorescent bulb.[16] In her testimony, Estelita pointed out that there was sufficient light for her to identify a person up to a distance of 12 to 15 meters.[17] She also claimed that she had talked with Cabiles for 5 minutes before the shooting and could recognize him very well.[18] She also noticed that Cabiles had a beard from the level of the ear down his chin.[19] Yet, when initially confronted with him at the police station, she could not identify Cabiles who at that hour was sporting a beard, not common among Filipino males. Estelita also admitted that she knew appellant delos Reyes very well because his farm lot fronts the farm of the Pamarangs. [20] But when first asked to identify delos Reyes, she could not make a positive identification. The victims son, Arman, also claimed that he stood for three minutes behind the two men who killed his father, [21] and identified Cabiles and delos Reyes as assailants. The records show, however, that Arman, like his mother, failed to initially identify appellants when he was first asked at the Urdaneta PNP station. Worth noting, the police presented a single suspect to the witnesses for purposes of identification. We have said before that this method is a grossly suggestive identification procedure used by the police.[22] We cannot discount the possibility that the ability of the Pamarangs to suddenly identify Cabiles and delos Reyes as the gunmen, during the second confrontation, was influenced by SPO2 Ernesto Gancea, considering that he is a compadre of the victim.[23] The prosecution failed to rebut delos Reyes testimony that after the three Pamarangs failed to identify him and Cabiles as the authors of the crime, Gancea brought them out of the investigation room for about five minutes and when they returned, it was then that the Pamarangs pointed to appellants as the killers.[24] The failure to properly identify appellant Cabiles is instructive. Estelita explained that her initial failure to identify Cabiles was due to his hairdo change. Her testimony on this point is as follows:

Q: Is that the kind of hairdo that you saw at that time? (Atty. Banaga pointing at accused Cabiles who is seated inside the courtroom). A: No, sir. COURT: You describe the hairdo. COURT INTERPRETER: The hairdo of the accused is about one inch in length and his face could easily be recognized together with his forhead (sic). ATTY. BANAGA: Q: Will you kindly brush down your hair? (Counsel referring to accused Cabiles who upon request of Atty. Banaga brushed his hair down with enough hair to cover a little of his forehead and his face can be recognized.) Q: Was that the hairdo of Marcelo Cabiles when you first saw him in the night of February 2, 1994? A: Yes, sir, that was the hairdo. Q: When you were asked to identify the accused during the preliminary investigation conducted by the Honorable Judge Orlando Siapno and you saw the accused Marcelo Cabiles was his hairdo brushed down that time? A: His hairdo was already brushed up, sir. COURT: Q: But you were already able to identify him during the preliminary investigation being conducted by Judge Siapno, is that correct? A: Yes, sir.[25] It would appear that regardless of Cabiles hairstyle, Estelita could recognize him. Why then did she claim earlier that she could not recognize him when his hair was brushed up? As her testimony now shows, her identification of Cabiles as one of the victims assailants becomes of doubtful value. We also find Moises Jr.s identification of Cabiles less than reliable. Moises, Jr., claimed he chased, caught up and boxed Cabiles who shot him twice, but missed each time.[26] He further testified that he accompanied the PNP members to the house of Cabiles, where he pointed Cabiles out as the gunman.[27] He averred that he identified Cabiles in the presence of his mother, Estelita and brother, Arman at the police station.[28] He denied any knowledge of the police asking his mother to identify Cabiles,[29] yet his testimony showed that he was present when his mother was confronted with Cabiles.[30] He said nothing when his mother failed to identify Cabiles nor volunteered to say he was positive Cabiles was one of the gunmen. We likewise note that Moises, Jr., under cross-examination gave evasive answers on his mothers failure to identify Cabiles and appears to have been a coached witness. He testified as follows: PROS. PERALTA (Re-direct) Q: You mentioned that you talked with the Prosecutor after this mornings session, what did the Prosecutor tell you? A: In connection with the case, sir. Q: What about the case? What did the Prosecutor tell you about the case? A: The Prosecutor advised me to good of (sic) my answers before the Judge. Q: Is that all that you talked about with the Prosecutor? A: Yes, sir.[31] xxx ATTY. BANAGA: Re-cross, your Honor. COURT: Proceed. ATTY. BANAGA:

Q: When you talked to Prosecutor Peralta in his office and told you that you answer in a nice way, did he also tell you the points where questions should be answered in a nice way? PROS. PERALTA: Your Honor, on this point we will admit that we prepared the witness. WITNESS: A: Yes, sir. ATTY. BANAGA: Q: What were these points? A: The question will be answered, sir. Q: I am asking you what were the points which Prosecutor Peralta would like you to answer in a nice way? A: In connection with the case, sir.[32] Moreover, we find incredible the claim of Moises, Jr., that though unarmed, he chased Cabiles whom he saw was armed with a gun. It is highly improbable and unreasonable that a person armed with a firearm will run away from an unarmed opponent. This aspect of Moises, Jr.s testimony invites incredulity. For no better test has yet been found to measure the value of a witness testimony than its conformity to the knowledge and common experience of mankind.[33] The testimonies of Arman and Moises, Jr., do not dovetail, instead they contradict each other on material points. On re-crossexamination, Arman testified: Q: You mentioned on cross examination of the court that you assisted your mother when your father was shot, is that correct? A: Yes, sir. Q: And you went inside the house? A: Yes, sir.[34] Moises, Jr., however, testified on cross-examination thus: Q: What makes you say that you are very sure of it were you with your mother at all times? A: Yes, sir, we were side by side and I advised her to stop crying. Q: About your brother Armand? A: He was also inside the house and he was crying, sir. Q: In other words, your brother Armand also arrived after the incident happened? A: I do not know if he was there, sir. Q: But certainly when you went to peep at your father who was lying down inside the store Armand was not there inside the house? A: I do not know because I did not notice. Q: But did you not say a while ago this morning that you never saw Armand inside your house? A: Yes, sir. Q: Which is which now, you saw Armand or you did not see Armand? A: I did not see him really, sir.[35] The foregoing exchanges at the witness stand strengthen the suspicion that the eyewitnesses in this case could have been coached witnesses. Where testimonies of two key witnesses could not stand together, then it would appear that one or both must be telling

a lie, and their story is a mere concoction.[36] The experience of courts and our general observation teach us that if a witness undertakes to fabricate and deliver in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message.[37] Given the testimonies of the key prosecution witnesses here, we have reasonable doubt regarding the identification of appellants as the perpetrators of the murder of Moises Pamarang, Sr. On the charges of illegal possession of firearms and ammunition against appellants, the records show that the prosecution merely set to prove that neither appellant was listed in the list of registered firearm holders in the province of Pangasinan.[38] No proof whatsoever was adduced by the prosecution to show that appellants owned or possessed unlicensed firearms and/or ammunition. In view of the paucity of the prosecutions evidence, we are constrained to rule that with respect to the charges of possessing unlicensed firearms and ammunition there is utter lack of evidence to convict either of the appellants beyond reasonable doubt. Simply said, the constitutional presumption of innocence in favor of both appellants has not been overcome. The trial court, in our view, had rushed the conviction of and the imposition of severe penalties on appellants. It should have scrutinized minutely the evidence for and against them. Given the negative results of the paraffin tests, we are alerted to be painstaking in our appreciation of the testimonial evidence. Granted that appellants defense of denial and alibi is inherently weak. But where the identification of appellants as the offenders is doubtful, inconclusive, or unreliable, then the accused is entitled to acquittal. For alibi assumes commensurate significance and strength, when the evidence for the prosecution is frail and effete.[39] As well said often, conviction must rest on the strength of the p rosecutions case and not on the weakness of the defense. In this case, we find that the guilt of appellants has not been adequately proved and they have to be acquitted for insufficiency of evidence. WHEREFORE, the assailed decision of the Regional Trial Court of Urdaneta City, Branch 46, in Criminal Cases Nos. U-8389, U8390, U-8391, and U-8392 is REVERSED and SET ASIDE.Appellants Marcelo Cabiles y Angustia and Emerito delos Reyes y Naranjo are ACQUITTED for lack of sufficient evidence to prove the charges against them beyond reasonable doubt. The Director of the Bureau of Corrections is hereby directed to cause the release of appellants forthwith, unless they are being lawfully held for another cause; and to inform the Court of his compliance, within ten days from notice. No costs. [G.R. No. 122740. March 30, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WINSTON DE GUZMAN, accused-appellant. REGALADO, J.: Accused-appellant Winston de Guzman was charged before the Regional Trial Court of Mati, Branch 5, Davao Oriental[1] with the crime of rape in an information docketed as Criminal Case No. 2584, and which alleged: That on or about June 9, 1994, in the Municipality of Governor Generoso, Province of Davao Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd designs, by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of one JOVELYN A. GERAM, a (sic) against her will.[2] Appellant pleaded not guilty when arraigned on the aforequoted indictment on September 5, 1994,[3] and the case then went to trial. The evidence for the prosecution reveals that 14-year old complainant, Jovelyn A. Geram,[4] was alone in their residence at Barangay Monserrat, Governor Generoso, Davao Oriental when the crime was committed in the afternoon of June 9, 1994 by appellant who had managed to gain entry into the house. Complainant was sleeping at around two oclock that afternoon when she was awakened by the weight of something on top of her. Upon opening her eyes, she saw herein appellant naked and sitting on her thighs. Complainant instinctively tried to shout for help but appellant covered her mouth and nose with his hand and warned her not to resist or she would be killed. A struggle between the two ensued thereafter. The strength of appellant and the strain of complainants efforts at resistance took its toll on the latter, causing her to feel weak and faint. On recovering her senses, complainant discovered that she was already undressed and she saw blood on her vagina. She also noticed some white fluid on her abdomen and thighs. Complainant felt pain on her genitals and other parts of her body. Appellant was no longer around, and the hapless complainant was left crying over the tragedy which had befallen her.

In the evening of the same day, a neighbor, Florami Bayno, arrived in the house of the Gerams to watch television. Complainant went with Florami when the latter went home. They proceeded to the house of Mauricia and Hugo Bayno, close friends of the Gerams and Floramis parents-in-law. In front of the couple, complainant recounted her ordeal at the hands of appellant. In the morning of June 10, 1994, complainant went to the house of another neighbor, Genesis Delgado, and confided her misfortune to the latter. Later, she went to the house of the Baynos and waited for her parents who were in Barangay Tambo attending to their fishing enterprise. Complainants mother, Evelyn Geram,[5] arrived shortly thereafter. Mother and daughter could only cry as the latter related the incident to the former. Complainant and her mother subsequently went to the barangay captain of Monserrat who advised them to report the matter to the police authorities of Sigaboy, Governor Generoso. After complainant had narrated the incident to the police, she and her mother proceeded to the municipal hospital for the physical examination of the former. Dr. Divina Lopez,[6] a resident physician of the Municipal District Hospital of Governor Generoso, issued a medical certificate detailing the result of her examination of complainant, as follows: FINDINGS: 1) Positive (+) BLOOD CLOTS BOTH ON LABIA MINORA 2) POSITIVE (+) RUPTURED HYMEN 3) REDNESS AROUND THE VULVAR AREA[7] Prosecution witness Genesis Delgado[8] declared that he saw appellant going inside the house of complainant on June 9, 1994 at around two oclock in the afternoon. Apparently, appellant entered through the kitchen door at the rear portion of the house. Two hours later, appellant went out of the house through the same kitchen door. Delgado noticed all of these while he was watching television inside their house located just beside the Gerams residence. Later, at the rebuttal stage, Enecita[9] dela Cruz Torion,[10] a teacher in Monserrat Elementary School, also testified that she saw appellant, together with two companions, sitting at the front porch of the house of the Gerams at about one oclock in the af ternoon of June 9, 1994. Enecita was then on her way from the school which was located in front of the house of the Gerams. The defense of appellant is denial and alibi. Aside from the intrinsic weakness of this shopworn excuse, we are not persuaded to grant any credence thereto since the facts relied on to make out appellants story obviously appear too pat a s to have clearly been contrived. The only persons presented to corroborate appellants story are his own parents, despite the availability of other persons wh ose lack of relationship to him would not have engendered suspicion of connivance. Appellant,[11] who is also a resident of Monserrat, asserted before the trial court that he was in Davao City at the time of the commission of the felony. He allegedly went there on June 6, 1994 with his mother to attend to his sister-in-law who was confined in the Davao Medical Center due to an incomplete abortion.[12] After sister-in-law was discharged from the hospital in the afternoon of June 8, they went to the house of Christy, his sister who was residing at Sasa, Davao City. He stayed in the house and cleaned it the whole day of June 9. At 4:30 in the morning of June 10, he and his mother left Davao City for Monserrat, arriving at their house between 8:30 and 9:00 A.M. Aside from merely repeating the position of appellant, his father, Raul De Guzman,[13] tried to convince the trial court that he saw complainant in the afternoon of June 9, 1994. According to this witness, Jovelyn went to their store on that date to borrow a VHS cassette tape featuring Robo Vampire. Appellants mother, Violeta De Guzman,[14] also sought to support his story by claiming that it was her decision to bring appellant along to Davao City so that he could help minister to her daughter-in-law. After considering the evidence of both the prosecution and the defense, the lower court gave credence to the testimony of Jovelyn and disregarded the defense of denial cum alibi presented by appellant. The trial court considered the immediate revelation made by Jovelyn of the crime committed against her, and her steadfast efforts to bring her violator to justice, as indicative of the veracity of her charge. It rejected the defense put up by appellant in light of the positive identification made by Jovelyn and the categorical declarations of the other prosecution witnesses placing him within the vicinity of the locus criminis at the time of the commission of the crime. Accordingly, appellant was sentenced to suffer the penalty of reclusion perpetua, to indemnify Jovelyn in the amount of P40,000.00, and to pay the costs.[15] Appellant now pleads for the reversal of the judgment of the trial court, contending that said court erred in giving credence to the testimony of Jovelyn and in finding him guilty on the basis thereof.[16]

Appellant adverts to the fact that complainant stated in her complaint[17] and in her testimony[18] given during the preliminary investigation that he committed the crime of rape through the application of odorous chemicals over her nose and mouth which caused her to sleep. This fact was not repeated by complainant in the trial court but she merely claimed the crime was consummated by appellant through force and intimidation. Such inconsistency, according to appellant, destroys Jovelyns credibility, thus warranting a reversal of the lower courts judgment of conviction. The records disclose that at the trial, counsel for appellant tried to utilize the testimony of complainant given in the preliminary investigation before Judge Rodolfo A. Castro to impeach her through statements therein supposedly different from what she gave in court.[19] Alluding to her answer to Judge Castros questions numbered 28 and 29, [20] appellants counsel asked complainant if she first reported the rape to one Dioneson Bayno. Complainant duly corrected that statement and clarified that it was Mauricia and Hugo Bayno whom she first told about the incident.[21] However, complainant was never confronted during the proceedings in the trial court with her answers allegedly given in the same testimony at the preliminary investigation regarding appellants resort to sleep-inducing chemicals. In fact, no sub-markings for such particular answers as exhibits were made in the records of her testimony in the preliminary investigation, much less offered by the counsel of appellant for that purpose during the trial of the case. It is universally accepted that a witness cannot be impeached by evidence of contradictory or prior inconsistent statements until the proper foundation or predicate has been duly laid by the party against whom said witness was called. [22] The American rule on laying the predicate is embodied in Rule 132 of our own Rules of Court, to wit: SEC. 13. How witness impeached by evidence of inconsistent statements. - Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. Although the whole record of the testimony of complainant at the preliminary examination was offered in evidence by the defense and admitted by the trial court,[23] complainant cannot now be discredited through any of her extrajudicial statements which were not brought to her attention during the trial. Thus, it has been held that granting arguendo the alleged contradictions, previous statements cannot serve as bases for impeaching the credibility of a witness unless his attention was first directed to the discrepancies and he was then given an opportunity to explain them.[24] In People vs. Resabal,[25] this Court explicitly ruled that the mere presentation of the prior declarations of a witness without the same having been read to the witness while he was testifying in court is insufficient for the desired impeachment of his testimony. As explained therein, the apparent contradiction between the declarations of the witness before the former justice of the peace court and those before the then court of first instance was insufficient to discredit him since he was not given ample opportunity, by reading to him his declarations before the lower court, to explain the supposed discrepancy. The rule which requires a sufficient foundation to be first laid before introducing evidence of inconsistent statements of a witness is founded upon common sense and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enables him to explain the statements referred to, and to show that they were made under a mistake, or that there was no discrepancy between them and his testimony.[26] It would be unjust to complainant at this stage to be declared an incredible witness as a result of the unauthorized procedure adopted by appellant. It is evidentiarily proscribed to discredit a witness on the bases of purportedly prior inconsistent statements which were not called to the attention of that witness during the trial, although the same are supposedly contained in a document which was merely offered and admitted in its entirety without the requisite specifications. Through such a somewhat underhanded recourse, a party can expediently offer in evidence at the trial the whole document containing allegedly variant statements and then point out much later on appeal the supposed contradictory statements which were not specified, intentionally or otherwise, in the same trial. That sub silentio gambit would necessarily deprive a witness of the chance to explain the seeming divergencies, which is the paramount consideration of the rule mandating the laying of the proper predicate. Complainant is undoubtedly the person best suited and mandated by the rule to explain the supposed differences in her statements. Without such explanation before us, whether plausible or not, we are left with no basis to evaluate and assess her credibility on the rationale that it is only when no reasonable explanation is given by a witness in reconciling his conflicting declarations that he should be deemed impeached.[27] As things stand before us and the court a quo, therefore, complainants credibility remains unimpeached.

On the foregoing considerations, we confirm the validity of the doctrine articulated by the Court of Appeals in Villaruel vs. Bascon[28] that, unless the proper predicate is laid during the trial by calling the attention of a witness to his alleged inconsistent statements given outside of his testimony in court and asking him to explain the contradiction, the supposed inconsistencies cannot be pointed out on appeal for the purpose of destroying the credibility of the witness. This pronouncement was actually based upon and in line with the holdings of this Court in Escosura[29] and People vs. Lim Quingsy.[30] We now take up the other document relied upon by appellant, that is, the complaint executed by complainant. A reading of the transcript of stenographic notes shows that said complaint was never introduced in evidence for the consideration of the trial court nor shown to complainant during the trial so that she could explain the alleged discrepancies in accordance with the foregoing rule. The complaint is not even included in the folder of exhibits as part of the documents admitted in evidence by the trial court. It is only attached to the original record of this case together with the other records of the preliminary investigation forwarded to the trial court. Under the revision in the 1985 Rules of Criminal Procedure, those records of the preliminary investigation do not form part of the record of the case in the Regional Trial Court.[31] Again, it is undeniable that the proper basis was not laid for the impeachment of complainant through the statements contained in her complaint. Coupled with the basic principle that courts shall consider no evidence which has not been formally offered or whose purpose has not been specified,[32] the complaint cannot also be taken into account for impeaching complainant. If appellant was really prepared to attack complainants credibility based on the statements in her complaint, he should necessarily have asked complainant about them during the trial, offered the complaint as his evidence, and specified the purpose for its submission. Appellant utterly failed in all of these mandatory evidential requirements. Hence, no impeaching evidence having been properly brought before it for its consideration during trial, the lower court was perfectly justified in disregarding the supposed inconsistent statements of complainant in her complaint and her testimony during the preliminary investigation. Her testimony at the trial, therefore, stands unassailed and entitled to full credit, together with the corroboration afforded thereto by the testimonies of the other prosecution witnesses, in stark contrast to the effete and puerile defense offered by appellant. WHEREFORE, the judgment of the court a quo is hereby AFFIRMED, with the MODIFICATION that the indemnity to be paid by accused-appellant Winston de Guzman is increased to P50,000.00 in accordance with the present case law thereon. G.R. No. 118944. August 20, 1998] PEOPLE vs. ROMULO VERSOZA y GARCIA and JERRY AVENDAO y MENDOZA, defendants-appellants. KAPUNAN, J.: This is an appeal from the 11 November 1994 Decision in Criminal Case no. 14940 of the Regional Trial Court of Malabon, Branch 72,[1] finding appellants Romulo Versoza y Garcia and Jerry Avendao y Mendoza, guilty beyond reasonable doubt of highway robbery with homicide as defined and penalized under Presidential decree No. 532 and imposing upon them the penalty of life imprisonment and the payment of civil indemnity in the amount of P50,000.00, interment of P70,000.00, moral damages of P100,000.00 and the costs of suit. The Information[2] dated 5 May 1994 charged: That on or about the 21st day of April 1994, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused; armed with a gun, conspiring, confederating and mutually helping with (sic) one another, with intent to gain and by means of violence and intimidation, did then and there wilfully, unlawfully and feloniously take, rob and carry away the passengers wristwatches with an unestimated amount while abroad a passenger jeepney with Plate No. NYZ-655, along NBB South, Navotas, Metro Manila and in the course thereof said accused with intent to kill, wilfully, unlawfully and feloniously, shoot passenger ALBERTO APLAON, hitting the latter on the back of his head, thereby inflicting upon the victim gunshot wound cause (sic) his immediate death. Contrary to law. Appellants pleaded not guilty to the offense charged. Their other co-accused, John Doe, remains at-large. Trial on the merits of the case ensued with the prosecution presenting fou r (4) witnesses, namely: (a) Estrella Aplaon, the victims wife; (2) eyewitness, Arthur Dojenas; (3) SPO1 Daniel Ferrer, the investigating/arresting officer; and (4) Dr. Florante Baltazar, the medico-legal officer who performed the autopsy on the victim.

This case was spawned by an incident that occurred at around 9:00 in the morning of 21 April 1994. According to eyewitness Arthur Dojenas, he left his house at Sawata, Dagat-dagatan, Caloocan City that morning to report for work as headwaiter at the Savory Restaurant in Greenhills, San Juan, Metro Manila. He boarded a passenger jeepney with plate no. NYZ-655, en route to Divisoria. At around 9:00 a.m., while the passenger jeepney was cruising along the C-3 Road, North Bay Boulevard, Navotas, Metro Manila, one of the passengers, who was later identified as Romulo Versoza, suddenly cried out: Hold-up ito. Walang papalag.[3] Versoza grabble the necklace of one of the passengers who was later identified as Alberto Aplaon. Aplaon immediately reacted and shouted, Anong Hold-up? as he simultaneoulsy grabbed the firearm of Versoza. When Aplaon successfully wrested the firearm from Versoza, someone seated at the rear of the jeepney, who was later identified as Jerry Avedao, pulled out a gun and shot Aplaon, hitting his head just above the nape. Aplaon fell to the floor of the jeepney. Before alighting from the jeepney along North Bay Boulevard, one of the three perpetrators snatched the wristwatch of a passenger seated in front of the jeepney. Versoza, Avendao and their unnamed associate ran towards the squatters area in front of the Sulpicio Lines Compound along North Bay Boulevard. The police authorities were subsequently summoned. Dojenas alighted from the jeepney and waited for the policeman to arrive. Meanwhile, the driver of the jeepney rushed Aplaon to the Tondo General Hospital for treatment. He was pronounced dead on arrival. Minutes later, several policeman arrived at the crime scene and conducted an investigation on the holdup incident. Dojenas volunteered to accompany the policemen to the squatters area to look for and identify the perpetrators, but their search pro ved futile. Dojenas and the policemen proceeded to the Tondo General Hospital where they were informed that Aplaon had died. Dojenas went with the policemen to the Navotas Police Station where he gave his statement about the incident before SPO1 Daniel Ferrer, the investigator on the duty at the Navotas Police Station.[4] SPO1 Ferrer requested the PNP Crime Laboratory Services-National Capital Region Unit, to conduct an autopsy on the body of Aplaon.[5] Dr. Florante Baltazar, Chief Inspector and Medico-Legal Officer, conducted the autopsy at around 1:00 in the afternoon of the same day. His examination revealed that victim Aplaon died of a single gunshot wound to the back of his head. [6] He issued a medico-legal report[7] with the following findings: (1) gunshot wound, right parietal as the point of entry, 156.5 cm, from heel, 5 cms. From midsagittal line, measuring 0.8 x 0,7 cm., with contusion collar, measuring 0.9 x 0.8 cms., directed downwards, forwards (sic), right to left, fracturing the right parietal, left orbital plate, greater wing of the left sphenoid with a deformed slug recovered embedded thereat, lacerating the left and right cerebral hemisphere of the brain, (2) abrasion, right frontal region, measuring 3 x 2 cms., 5 cms. from anterior midline, and (3) hematoma, left infra-orbital region measuring 4.5 x 2 cms., 4 cms. from anterior midline. Dr. Baltazar also recovered a .38 caliber slug from Aplaons head. He opined that the relative distance between the assailant and the victim was more than 24 inches and that based on the downward trajectory of the bullet on the forehead from right to left, the assailant was in a higher position than, and was at the back of, the victim.[8] At around 12:05 a.m. of 1 May 1994, SPO1 Ferrer was along R-10 Road, Sitio Sto. Nio, North Bay Boulevard conducting a followup investigation when Lito Francisco, another victim in a separate robbery hold-up incident, approached him. Francisco told him that he could identify one of his assailants and accompanied SPO1 Ferrer to nearby Barangay Puting Bato where the alleged perpetrator was attending the wake of his grandmother. Upon their arrival, Francisco positively identified Versoza, a resident of R-10 Road, No. 1350 Sitio Sto. Nio, BBB South, Navotas, Manila, as the perpetrator of the holdup in which he was one of the victims. Immediately, SPO1 Ferrer frisked Versoza. He found and confiscated from Versoza a ruler measuring 8-1/2 inches long with an improvised knife at its end. SPO1 Ferrer apprehended Versoza and brought him to the Navotas Police Station for further investigation.[9] Thereafter, SPO1 Ferrer went to Dojenas house and asked Dojenas to go to the Navotas Police Station to find out if any of th ose detained there were the perpetrators of the 21 April 1994 robbery with homicide incident. A police line-up of the detained persons, including Versoza, was formed and Dojenas unhesitantly and positively identified Versoza as the one who grabbed the necklace of Aplaon. [10] Three days later, a follow-up police team apprehended and detained Avendao. Once again, SPO1 Ferrer contracted Dojenas and asked him to go to the police station to identify any of the culprits among the detainees. Dojenas positively identified Avendao as the person who shot Aplaon.[11] On 4 May 1994, Dojenas executed a Sinumpaang Salaysay[12] attesting to the fact that he witnessed the holdup staged by at least three persons, two of whom being Verzosa and Avendao. Testifying in his defense, Versoza maintained that at around 9:00 in the morning of 21 April 1994, he and his cousin, Henry Redoblado, were vending prawns at the small market located in Marcelo St., Navotas. While doing so, Versoza saw three (3) fair-skinned person with high noses and who were wearing long sleeved shirts, run towards the squatters area with policemen in pursuit. The authorities, however, failed to arrest them.[13] Later in the afternoon, some policemen went to the squatters area to pick up a suspect in

connection with a robbery with homicide case. The said suspect later on told Versoza that the police released him after the victim, who was then at the Tondo General Hospital, failed to identify him as one of the malefactors. Versoza was drunk and attending the wake of his grandmother at Barangay Puting Bato when the police picked him up. He alleged that the police frisked him and place a deadly weapon inside his pocket. Then he was brought to the Navotas Police Station where he was falsely charged with illegal possession of deadly weapon. While in detention, Versoza claimed that Dojenas came and initially could not point to him as one of the malefactors. It was only when Dojenas went to the police station a second time that he identified him (Versoza) as one of the perpetrators. Versoza asserted on the witness stand that he was not acquainted with Avendao whom he met for the first time when the latter was also detained two days after his own detention on 1 May 1994. Versoza learned that Avendao lived 200 to 250 meters away from their house only after they were detained at the police station. For his part, Avendao swore that at 7:30 in the morning of 21 April 1994, he was at the Powerman Employment Agency in Padre Faura St., Ermita, Manila to file his application for a job in Bahrain. He left the agency at 11:00 a.m. Avendao narrated that on 3 May 1994, SPO1 Ferrer arrested him and brought him to the Naval Massage Parlor along North Bay Boulevard where one of its personnel was asked to identify him as the person who held them up. The person failed to identify him but he was nevertheless brought to and detained at the Navotas Police Station. While in detention, he was informed that he would be charged with concealing a deadly weapon. Thereafter, a certain Mrs. Aplaon entered the detention cell but she did not point to him. Later, SPO1 Ferrer asked him to line up with four (4) other detainees. Avendao positioned himself in the middle of the line-up. Dojenas entered and pointed to him as one of the malefactors in the 21 April 1994 robbery with homicide incident. When Dojenas pointed at him, Avendao just bowed his head and did nothing. On cross-examination, Avendao testified that he left his house at around 7:30 a.m. to apply for a job in Bahrain at a recruitment agency in Padre Faura. He boarded a jeepney for Divisoria at 7:50 a.m. At around 8:12 a.m. he arrived in Divisoria where it took him about eighteen (18) minutes before he could get a ride for Padre Faura. At 9:00 a.m. or thirty (30) minutes later, he reached Padre Faura and filed his application for a job at the Powerman Employment Agency. Two hours later or at around 11:00 in the morning, he arrived home. Avendao affirmed that he first met Versoza when they were both detainees at the Navotas Police Station. He also learned that Versoza resided in Sitio Sto. Nio, R-10 Road, North Bay Boulevard.[14] On 11 November 1994, the trial court promulgated the challenged decision that found Versoza and Avendao guilty beyond reasonable doubt of the crime of highway robbery with homicide. In meting out the penalty of life imprisonment upon them, the trial court gave full faith and credit to the eyewitness account of Arthur Dojenas, rejected the defense of alibi that both accused interposed for miserably failing to support their claims with any evidence.[15] The dispositive portion of the decision reads, thus: WHEREFORE, premises considered, judgment is hereby rendered finding both accused namely: Romulo Versoza y Garcia and Gerry Avendao y Mendoza guilty beyond reasonable doubt of the crime of Highway Robbery with Homicide, defined and penalized under PD No. 532 and they are both sentenced to life imprisonment. Both accused are also ordered to pay the heirs of Alberto Aplaon the following: (a) the admitted amount of P70,000.00 spent for the death and burial of Aplaon; (b) P100,000.00 by way of moral damages; and (c) P50,000.00 for loss of Aplaons life. Costs against the two (2) accused. SO ORDERED.[16] On appeal, Versoza and Avendao anchor their prayer for acquittal on the alleged unreliability of the positive identification made by the lone eyewitness who testified at the trial Arthur Dojenas. They claimed that when Arthur Dojenas pointed to them as the perpetrators, there were other detainees inside the detention cell and it was possible that one of those other detainees could have been the real culprit. They assert that Dojenas did not point to them right away during the confrontation at the police station. Neither was Dojenas' testimony corroborated by any other witness.[17] Specifically, appellant Avendao attempts to discredit his identification as one of the perpetrators of the crime by claiming that his name is Cherry and that his middle name is Pagatpat while the information and the dispositive portion of the assailed decision speak of a certain Jerry Avendao y Mendoza. Appellants contentions deserve little credit.

In People vs. Teehankee,[18] the Court enumerated the factors that should be considered in adopting the totality of circumstances test in resolving the admissibility of out-of-court identification of suspects: xxx (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.[19] Using this test in the case at bar, eyewitness Dojenas identification of appellants at the police line -up as the perpetrators of the 21 April 1994 robbery with homicide is solid and convincing. The robbery was staged in broad daylight, thus, undoubtedly, visibility was clear and Dojenas had all the opportunity to see the culprits. He witnessed every detail of the holdup since he was one of the passengers inside the jeepney and would naturally be keenly observing what would happen next as he faced the same danger that the victim did. Seeing appellants again at the police station and at the police line-up within two weeks after the incident, Dojenas could still sufficiently remember their features and distinctly tag them as the culprits in the 21 April 1994 robbery with homicide. Furthermore, Dojenas testified in a straightforward and categorical manner regarding the identities of the malefactors. He did not waver despite the grueling and extensive question fielded by the defense. He remained consistent and steadfast despite the defense counsels repetitive questions seemingly designed to confuse him.[20] He testified, thus: Q: Now, did you ever see the two (2) accused again after that incident of April 21, 1994? A: Yes, sir, at the Navotas Police Station. Q: When was that, when you saw them at the Navotas Police Station? A: May 1, 1994. xxx xxx Q: Why did the police investigator has to fetch you (sic), what is the purpose? A: To identify the holduppers. Q: And were you able to go to the police headquarters? A: Yes, sir. Q: At the Navotas Police Station? A: Yes, sir. Q: What happened there? A: I pointed to the suspects. Q: Where were the suspects when you pointed them both of them at one instance? A: They were on two (2) different cells. Q: Whom did you identify first? A: Him. (Witness pointing to Romulo Versoza.) Q: Where was Romulo Versoza when you identify him. A: Inside the cell. Q: Was he alone.? A: He was with several detainees. Q: How many detainees were there when you identified Romulo Versoza? xxx

A: More or less five (5). Q: What made you identified (sic) Romulo Versoza? A: Necause (sic) I recognized his face. Q: Why, was the appearance of Romulo Versoza so easy for you to identify? A: Yes, sir, because I remembered his face because I was near him. Q: When the incident happened, where were you seated at the passenger jeepney in relation to where Romulo Versoza (sic)? A: We were facing each other at the rear portion of the jeep. (Underscoring ours.) xxx xxx xxx

Q: After you have pointed Romulo Versoza inside the detention cell together with the five (5) detainees, what did you say (sic)? A: He remained silent. Q: He did not say no I am not the one? A: No, sir. Q: Why did he get mad he just received you identifying him (sic)? A: Yes, sir. Q: How about the other one Gerry Avendao, when did you see him again after the killing? A: There also at the detention cell. Q: On the same date when you identified Romulo Versoza? A: Not on the same date when I pointed to Romulo Versoza, three (3) days after. xxx xxx Q: Where was he when you pointed to him as a person involved in the incident? A: Inside the cell. Q: Was he alone? A: He was with several. Q: How many? A: More or less ten (10). Q: What did he say when you pointed to him as a person involved in the incident? A: He remained silent also. Q: He did not protest or react to what you have done in pointing to him? A: No, sir.[21] Appellants were placed in police line-ups with other persons precisely to test the eyewitness, Arthur Dojenas, if he could readily identify the real perpetrators. The presence of several other detainees, notwithstanding, Dojenas was successful in picking as the culprits in the robbery with homicide. xxx

In attempting to destroy his identification by Dojenas, appellant Avendao insist that said witness was not aware of his true and real name as he was mentioned in the sinumpaang salaysay, charged in the information and convicted by the trial court as Jerry Av endao y Mendoza and not as Cherry Abendao y Pagatpat, his real name. In sum, it is appellant Avendaos view that the identities of the malefactors can only be established if the witness knows their names. This is puerile reasoning. Identification of a person is not established solely through knowledge of the name of a person. Familiarity with physical features particularly those of the face, is actually the best was to identify a person. One may be familiar with the face but not necessarily the name. It does not follow, therefore, that to be able to identify a person, one must first know his name.[22] Moreover, it is completely illogical to equate and limit positive identification to a knowledge of the real names of the culprits since more often than not, robbers victimize people who are complete strangers to them and who do not know them by face or name purposely to avoid being recognized and positively identified. It is, therefore, enough that an eyewitness positively identify the culprits in a crime by means of their faces or physical features. Experience shows that precisely because of the unusual acts of bestiality committed right before their eyes, eyewitnesses, especially the victims of a crime, can remember with a high degree of reliability the identify of criminals.[23] The natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face and the body movements of the assailants create an impression that cannot be erased easily from their memory. [24] In the instant case, moreover, it was not shown that Dojenas had any ill motive to falsely testify against appellants. In this age of indifference, this citizen should be commended for not shirking from his duty as a responsible member of society. It bears stressing that appellant Avendao raised the issue of his being charged and convicting allegedly under a wrong name for the first time on appeal. When eyewitness Dojenas identified him in court, no objections were made by the defense as to Avendaos first and middle names and none were registered in the transcript of stenographic notes. Neither do the records bear out any effort on Avendaos part to raise the issue that the person being charged with the crime is named Jerry Avendao y Mendoza and not Cherry Abendao y Pagatpat. Having failed to make an objection as to his exact name in the course of the trial, it was too late for appellant Avendao to raise the matter on appeal. It is axiomatic that an objection in the course of the oral examination of a witness should be made as soon as the grounds shall become apparent. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered.[25] Appellants further claim that the elements of conspiracy had not been indubitably proven in the case at bar. They assert that they did not know each other prior to their detention at the police station. However, contrary to appellants assertion, the prosecution has proven beyond a shadow of doubt that they conspired in the commission of the crime. In conspiracy, direct proof of a previous agreement to commit by which the offense was perpetrated, or inferred from the acts of the accused when such point to a joint purpose and design, concerted action, and community of interest.[26] Conspiracy has been amply and sufficiently proven in this case. Appellant Versoza simultaneously announced the holdup, pulled out his gun tucked in his pants, pointed his gun at Aplaon and grabbed the latters necklace. When Aplaon resisted and succesfully wrested Versozas gun, appellant Avendao pulled out his gun and shot Aplaon on the head. Not contented with what happened, before alighting from the jeepney, one of them grabbed the wristwatch of another passenger seated in front of the jeepney. Both appellants and their unnamed cohort ran in the same direction towards the squatters area along North Bay Boulevard. There is, therefore, no doubt that there was unity of purpose and design in the execution of the unlawful act.[27] In the same manner, appellants' alibi collapses in the face of their positive identification as the perpetrators of the crime.[28] Appellant Versoza contends that he was sellling prawns in the market located at Marcelo St. in Navotas. His alibi, however, deserves scant consideration. Jurisprudence dictates that for the defense of alibi to prosper, it is not sufficient that appellant proves that he was not at the crime scene when the incident happened but, likewise, that it was physically impossible for him to be there at the time of the commission of the offense. In this case, when the robbery with homicide occurred, Versoza was within the vicinity of the scene of the crime. In Avendaos case, other than his self-serving statement, not a single witness or document was presented to corroborate his story that he was at the Powerman Employment Agency. The identification of appellants as the persons who robbed the passenger jeepney and gunned down Aplaon after robbing him of his necklace is, therefore, beyond peradventure of doubt. However, the trial court erred in convicting them of the crime of highway robbery with homicide under P.D. 532, the Anti-Piracy and Anti-Highway Robbery Law of 1974. What appellants committed is the crime of robbery with homicide, which is distinct from the offense covered by P.D. 532 which punishes, among others, indiscriminate highway robbery. Highway robbery/brigadage is defined in Section 2 (e) of said decree as (t)he seizure of any person fro ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine Highway. As manifest in the preamble of said decree, its objective is

to deter and punish lawless elements who commit acts of depredation upon persons and properties of innocent and defenseless inhabitants who travel from one place to another thereby disturbing the peace and tranquility of the nation and stunting the economic and social progress of the people. Consonant with this expressed policy, in People v. Puno,[29] the Court said: In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. The martial law legislator, in creating and promulgating Presidential Decree No. 532 for objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstance under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit: WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progress of the people; WHEREAS, such acts of depredations constitute x x x highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries; WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredations by imposing heavy penalty on the offenders, with the end view of eliminating all obstacles to the economic, social, educational and community progress of the people. (Emphasis supplied.) Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the innocent and defenseless inhabitants who travel from one place to another, and which single act of depredation would be capable of stunting the economic and social progress of the people as to be considered among the highest forms of lawlessness condemned by the penal statutes of all countries, and would accordingly constitute an obstacle to the economic, social, educational, and community progress of the people, such that said isolated act would constitute the highway robbery or briga ndage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous. In other words, a conviction for highway robbery requires proof that several accused were organized for the purpose of committing highway robbery indiscriminately. There is no such proof in this case. Neither is there proof that appellants previously attempted to commmit similar robberies to show the indiscriminate perpetration thereof.[30] Nonetheless, the designation of the crime in the information as highway robbery with homicide (Violation of P.D. 532) does not preclude conviction of the appellants of the crime of robbery with homicide. In the interpretation of an information, what controls is not the designation but the description of the offense charged.[31] The crime of robbery with homicide is clearly alleged in the information notwithstanding its erroneous caption. It is an offense necessarily included in that with which they were charged. Accordingly, appellants should be liable for the special complex crime of robbery with homicide. Said crime is committed when, on the occasion of the robbery, homicide resulted.[32] Consequently, all those who took part in the robbery are liable as principals therein although they did not actually take part in the homicide.[33] Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by reclusion perpetua to death. No mitigating or aggravating circumstances attended the commission of the crime. Thus, in accordance with Article 63 (2) providing that in the absence of neither mitigating or aggravating circumstances in crimes in which the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied, and therefore the imposable penalty in this case is reclusion perpetua. The claims for P70,000 burial and incidental expenses and P100,000 moral damages had all been conceded by counsel for appellants who found these claims quite reasonable.[34] Hence, the trial court treated the same as admissions and accordingly dispensed with the presentation of evidence.[35] In line with well-established jurisprudence, appellants shall also be solidarily liable to pay the heirs of the vistim the amount of P50,000.00 as civil indemnity.

WHEREFORE, the Decision convicting appellants Romulo Versoza and Jerry Avendao y Mendoza (Cherry Abendao y Pagatpat) of the crime of highway robbery with homicide is hereby MODIFIED. Appellants are found guilty of the crime of robbery with homicide defined and penalized under Article 294 (1) of the Revised Penal Code and are accordingly each imposed the penalty of reclusion perpetua. They shall jointly and severally pay the heirs of Alberto Aplaon the amount of P50,000.00 as civil indemnity, P70,000.00 as interment and burial expenses, and P100,000.00 as moral damages . Costs de oficio. [G.R. No. 115508. February 15, 2000] ALEJANDRO AGASEN and FORTUNATA CALONGE-AGASEN, petitioners, vs. THE HON. COURT OF APPEALS and PETRA BILOG, assisted by her husband FELIPE BILOG, respondents. YNARES_SANTIAGO, J.: On April 7, 1980, private respondent Petra Bilog, assisted by her husband Felipe Bilog, filed a complaint for Recovery of Possession and Ownership[1] with the Regional Trial Court of Agoo, La Union, involving an Eight Thousand Four Hundred Seventy Four (8,474) square meter parcel of land registered in her name under Transfer Certificate of Title No. T-16109 of the Registry of Deeds of La Union. She alleged that sometime in 1964 or 1965, petitioners took possession and assumed ownership of the said property, appropriating the fruits therefrom. She alleged that despite demands on them to vacate the land, petitioners refused to do so and even filed a case for Annulment of TCT and/or Reconveyance with Damages before the same court, which case was, however, dismissed on February 12, 1980. Thus, in her complaint, private respondent prayed that she be declared the true and absolute owner of the subject land and petitioners be ordered to turn over possession thereof to her. Additionally, private respondent prayed for P300,000.00 as attorneys fees, P2,000.00 as expenses of litigation as well as P60,000.00 representing the value of the lands produce from 1965 to the time o f the filing of the case and P4,000.00 annually until the case is terminated. In their Answer,[2] petitioners Alejandro Agasen and Fortunata Calonge-Agasen asserted that the subject land used to form part of Lot No. 2192, a forty two thousand three hundred seventy two (42,372) square meter parcel of land owned in common by the five (5) Bilog siblings, private respondent Petra Bilog being one of them. Petitioners claimed that they became the owners of the portion of the subject land which belonged to private respondent as her share therein, by virtue of: (1) the sale in their favor of 1,785 square meters thereof by Leonora Calonge, sister of Fortunata Calonge-Agasen, and (2) the sale in their favor by private respondent of the remaining 6,717.50 square meters on June 24, 1968, by virtue of a notarized Partition with Sale. Petitioners also affirmed that they had been in possession of the subject land since the time of the above-mentioned sale transactions, with a house of strong materials built thereon. By way of counterclaim, petitioners charged private respondent with having fraudulently caused title to the subject land to be issued in her name, following the subdivision of the original land between her and her co-heirs/owners, in violation of their (petitioners) rights over the subject land. Thus, petitioners prayed for the annulment of title in private respondents name and for the dismissal of the complaint, as well as for the award of P10,000.00 as exemplary damages, P25,000.00 as moral damages, P5,000.00 as litigation expenses and P7,000.00 as attorneys fees and costs. On November 19, 1984, the Regional Trial Court of Agoo, La Union, Branch 3, rendered judgment in favor of petitioners, dismissing the complaint and declaring Transfer Certificate of Title No. 16109 in the name of private respondent null and void.[3] On appeal, the Court of Appeals reversed the decision of the lower court and private respondent was declared the true and absolute owner of the subject land.[4] Accordingly, petitioners were ordered to turn over the subject land to private respondent. With the denial of petitioners Motion for Reconsideration on May 20, 1994,[5] the instant Petition was filed, anchored upon the following grounds I. THE DECISION (ANNEX A) ERRED IN DECLARING THE DEED OF PARTITION WITH SALE (EXH. 1) AND THE DEED OF ABSOLUTE SALE (EXH. 2) NOT AUTHENTIC AND VALID; II. THE DECISION ERRED IN HOLDING THAT DEFENDANTS FAILED TO SUBSTANTIATE THEIR CLAIM OF OWNERSHIP AND IN GIVING MORE CREDENCE TO PLAINTIFFS TESTIMONIAL EVIDENCE AND TAX DECLARATION NO. 21460 (EXH. B) AND CERTIFICATION OF TAX PAYMENTS (EXH. C);

III. THE DECISION ERRED IN FINDING/HOLDING THAT THE NON-REGISTRATION OF THE DEED OF PARTITION WITH SALE AND THE DEED OF ABSOLUTE SALE WITH THE REGISTER OF DEEDS MADE THE PURCHASES THEREUNDER "DENTED" AND DID NOT AUTOMATICALLY VEST TITLE OR OWNERSHIP OVER THE SUBJECT PROPERTY TO THE BUYERS; IV. THE DECISION ERRED IN HOLDING THAT THE DAILY NOTEBOOK (EXH. 3) CONTAINING THE MEMORANDUM OF INSTALLMENT SALE BY LEONORA CALONGE TO DEFENDANT-APPELLEE FORTUNATA AGASEN (EXH. 3-a TO 3-c) OVER THE PARCEL OF LAND DESCRIBED IN EXH. 2 WAS NOT A VALID OR CREDIBLE DOCUMENT OF TRANSFER; V. THE DECISION GRAVELY ERRED IN HOLDING THAT TCT NO. 16109 (EXH. A) CANNOT BE COLLATERALLY ATTACKED ON THE GROUND THAT IT IS BARRED BY THE RULE ON INDEFEASIBILITY OF A TORRENS TITLE AFTER THE LAPSE OF ONE YEAR FROM THE DECREE OF REGISTRATION. [6] Although the instant case is a petition for review under Rule 45 which, as a general rule, is limited to reviewing errors of law, findings of fact being conclusive as a matter of general principle, however, considering the conflict between the factual findings of the trial court and the respondent Court of Appeals, there is a need to review the factual issues as an exception to the general rule.[7] As correctly stated by the lower court, the crucial question in the instant controversy is whether or not the two (2) documents, relied upon by petitioners as basis for their claim of ownership, are valid. Overthrowing the lower courts finding of validity, the Court of Appeals ruled that private respondents testimonial and documentary evidence "junked" petitioners documents (Exhibits "1" and "2"). We disagree. To begin with, it is not denied that the two subject documents are notarized documents and, as such, are considered public documents which enjoy the presumption of validity as to authenticity and due execution.[8] One of the documents, the Deed of Absolute Sale, was identified by Assistant Provincial Fiscal Maximo Quero, the administering officer who had notarized it. The legal presumption of validity of petitioners duly notarized public documents has not been overcome by preponderant evidence by private respondent, upon whom the burden of proof rests, having alleged the contrary.[9] The subject documents were also attached by petitioners to their Answer where they were alleged as part of the counterclaim. As such, private respondent should have specifically denied under oath their genuineness and due execution.[10] After all, a counterclaim is considered a complaint, only this time, it is the original defendant who becomes the plaintiff. It stands on the same footing and is to be tested by the same rules as if it were an independent action.[11] Having failed to specifically deny under oath the genuineness and due execution of the said documents, private respondent is deemed to have admitted the same. And while private respondent denied having signed any document selling the subject parcels of land, the trial court found her signature on the subject documents to be genuine, after a comparison thereof with her own documentary evidence on record (Exh. "B"). Indeed, it has been held that where a comparison is permissible, it may be made by the court, with or without the aid of expert witnesses;[12] and evidence respecting handwriting may be given by a comparison made by the court with writings admitted or treated as genuine by the party against whom the evidence is offered.[13] In the case at bar, the lower court compared private respondents signatures on the subject documents with that appearing on her own evidence (Exh. "B") and found the same identical. The following circumstances all indicate the genuineness and due execution of the subject documents: (1) The subject documents were duly notarized public documents; (2) The documents enjoy the legal presumption of validity; (3) Their genuineness and due execution were not specifically denied under oath by private respondent; (4) Private respondents signature thereon were found genuine by the lower court upon a comparison of her signature thereon with that in her own documentary evidence; (5) The actual identification and positive testimony of petitioner; and (6) The testimony of the lawyer who had notarized one of the subject documents. Private respondents bare denial of the same cannot, by any measure, overcome the above-mentioned evidence and legal presumptions in petitioners favor.

As for the sale in petitioners favor by the original vendee thereof, Leonora Calonge, the Court of Appeals accepted private respondents charges that there was no valid document of transfer and that the notebook with memorandum of sale and record of installment payments, relied upon by petitioners, was worse than the two subject documents. Again, we disagree. The memorandum of sale appearing in Exhibit "3" is sufficient to prove the sale between petitioner Fortunata Calonge Agasen and her late sister, the previous vendee of the land subject of the Deed of Absolute Sale from private respondent. After all, contracts are obligatory in whatever form they may have been entered into provided all essential requisites are present.[14] The provision of Article 1358 on the necessity of a public document is only for convenience, not for validity or enforceability. It is not a requirement for the validity of a contract of sale of a parcel of land that this be embodied in a public instrument.[15] It was likewise error for the Court of Appeals to rule that the transactions were "dented by the failure to register/annotate the same with the Register of Deeds" and that due to such failure, the documents "did not automatically bind the subject property." First, one of the subject documents, the Deed of Absolute Sale, was in fact registered. Second, as elucidated in Fule vs. Court of Appeals[16] "The Civil Code provides that contracts are perfected by mere consent. From this moment, the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law. A contract of sale is perfected at the moment there is a meeting of the minds upon the thing which is the object of the contract and upon the price. Being consensual, a contract of sale has the force of law between the contracting parties and they are expected to abide in good faith by their respective contractual commitments. Article 1358 of the Civil Code which requires the embodiment of certain contracts in a public instrument, is only for convenience, andregistration of the instrument only adversely affects third parties. Formal requirements are, therefore, for the benefit of third parties. Noncompliance therewith does not adversely affect the validity of the contract nor the contractual rights and obligations of the parties thereunder." In the light of the foregoing, we reverse the Court of Appealss ruling that the failure of petitioners to register the Partition with Sale was fatal. The Court of Appeals also found petitioners claim of ownership to be unsubstantiated, in contrast to that of private respondent who presented tax declarations and certification of tax payments in her favor. As pointed out by petitioners, however, the tax declarations in the name of private respondent for the year 1978 were issued only in 1977, and only after she had secured title to the property in her name. Such a belated declaration has been held to be indicative of an absence of a real claim of ownership over the subject land prior to the declaration.[17] On the other hand, the real estate tax payments certified as paid by the Municipal Treasurer refers to the entire mother Lot No. 2192 before it was subdivided or partitioned into five (5) equal lots. Private respondent cannot be said to have paid taxes on the subject property during the period when petitioners claimed that the property had already been sold to them. We also note that, far from being unsubstantiated, petitioners claim of ownership is backed by their long years of possessio n of the subject parcels of land. There is no dispute that petitioners had occupied the subject land since the sale in their favor, i.e., since 1964 in the case of the Deed of Absolute Sale and since 1968 in the case of the Partition with Sale. They have also built a concrete house which has long been standing thereon. Then, too, petitioners have adequately explained why they have not pursued their action for annulment of title against private respondent, which the Court of Appeals viewed as having "further darkened the cloud of suspicion which hovered over the questioned documents." Private respondent herself admits that petitioners were the first to assert their right, by filing an action for annulment of title and/or for reconveyance with damages against private respondent[18] which complaint was, however, dismissed without prejudice.[19] On the other hand, the complaint of private respondent was filed two months after the dismissal of their complaint, prompting them to merely interpose their cause of action as a compulsory counterclaim in the lower court. Finally, the Court of Appeals is likewise in error in holding that private respondents title was "vested with the garment of indefeasibility." The rule on indefeasibility of torrens title --- i.e., that torrens title can be attacked only for fraud, within one year after the date of the issuance of the decree of registration --- applies only to original titles and not to subsequent registration. An action for annulment of title and/or reconveyance which was previously filed by petitioners and interposed in their counterclaim is an action open to them to attack private respondents fraudulently acquired title. Neither may the compulsory counterclaim of petitioners challenging the title of private respondent be brushed aside as merely a collateral attack which would bar a ruling on the validity of the said title.[20]

WHEREFORE, premises considered, the instant Petition for Review is GRANTED. The Decision of the Court of Appeals dated January 11, 1994 in CA-G.R. CV No. 10309 is SET ASIDE. The decision of the Regional Trial Court of Agoo, La Union, Branch 32, dismissing Civil Case No. A-713, annulling Transfer Certificate of Title No. 16109 in the name of private respondent and finding petitioners to be the lawful owners of the land covered by the same, is REINSTATED. No pronouncement as to costs. [G.R. No. 116599. September 27, 1999] PEOPLE vs. DOMINGO PAGPAGUITAN, alias PINGKONG and ROBERTO SALAZAR alias OPAW, accused-appellants. QUISUMBING, J.: On appeal is the Decision of the Regional Trial Court of Butuan City, Branch I, finding appellants Domingo Pagpaguitan and Roberto Salazar guilty beyond reasonable doubt of the crime of rape and sentencing them to suffer the penalty of reclusion perpetua and to pay private complainant Evelyn Nalam, jointly and severally, the amount of P30,000.00 as moral damages. that: Assisted by her father, Federico Nalam, complainant on March 24, 1992, filed before the Butuan City Prosecutor a complaint stating

The undersigned complainant accuses DOMINGO PAGPAGUITAN alias Pingkong and ROBERTO SALAZAR alias Opaw of the crime of Rape committed as follows: That on or about January 31, 1992 at Barangay Bitan-agan, Butuan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with the use of force and intimidation, did then and there willfully, unlawfully and feloniously had sexual intercourse with the undersigned complainant, who is 14 years old, against her will and consent, to her damage and prejudice. CONTRARY TO LAW (Art. 335 of the Revised Penal Code).[1] The pertinent facts as found by the trial court are as follows: Roberto Salazar is Evelyns neighbor at barangay Bitan-agan, Butuan City and Domingo Pagpaguitan is his gang mate. In the evening of January 30, 1992, both of them went to see Evelyn at her employers house at Montilla Boulevard, Butuan C ity, and told her that they met her father who was very angry with her and swore to come and get her, if not kill her, if she will not go home to Bitan-agan. Although Evelyn wondered why her father should feel that way as she asked permission before she left home, she nevertheless went with the two accused boarding a jeep for San Vicente where the two accused left her things, then proceeded towards Bitan-agan. The accused told her that they would seek the assistance of Commander Coz to help pacify her fathers anger. But instead of going to the residence of Commander Coz, the accused brought her to the uninhabited farmhouse of Roberto Salazars grandfather. With knives in their hands, they threatened to kill her if she would not go with them up the mountain; they held her by her hands. Upon entering the house, Roberto stayed by the door and Domingo started embracing and kissing her several times; she pleaded with him but he answered that if she could not be taken harmlessly, then it would have to be by force; she kicked Domingo and continued to plead with him, but the latter boxed him (sic) on her chest and thighs many times as she fought back, until she fell to the floor, whereupon Domingo removed his pants and her panties as she continued pleading and weeping telling Domingo not to do it as she considered him a brother; Domingo placed himself on top of her, spread her legs and inserted his penis into her vagina and she felt great pain for this was her first intercourse; he made the motions of pushing and pulling his penis within her vagina x x x. Her body was in pain and her vagina was bleeding. While Pagpaguitan was doing this to her, Salazar was watching them. The following morning the accused brought her to the house of Domingo in the mountain where his mother was. As Domingo and Roberto agreed that evening to bring her to Leyte, Domingos mother left to sell a carabao to earn money for their fare to Leyte. In the absence of Domingos mother and in the presence of Roberto Salazar, Domingo again forced himself upon her. [2] The complainants relatives, meantime, had gone out looking for her. They found her with Pagpaguitan. A meeting was then held on February 2, 1992 before the purok president and the barangay captain between the parents of Pagpaguitan and the parents of the

private complainant. Pagpaguitan and the complainant were both present. At the meeting, Pagpaguitan proposed marriage to the complainant, but the latter rejected the proposal. On February 10, 1992, complainant went to a doctor for a physical examination. The examination was conducted by Dr. Rowena T. Catipay, Medical Officer III of the Butuan City General Hospital and Medical Center. Her findings were as follows: Examined a patient who was conscious, coherent, ambulatory. SKIN: Fair, Hematoma noted on both thighs, left lateral and right lateral portions. x x x Genetalia (sic): No vaginal laceration noted on the mucosa HYMEN: Not intact; Caruncula in appearance. x x x Vaginal Smear taken for spermatozia Negative.[3] On February 19, 1992, complainant and her father executed affidavits at the police station, and later filed the complaint for rape with the Butuan City Prosecutor. Pagpaguitan and Salazar were arrested on August 16, 1992.[4] They were arraigned on October 2, 1992. Both pleaded Not Guilty. Thereafter, trial on the merits ensued. Pagpaguitan admitted having sex with complainant, but insisted that it was consensual. He claimed they had eloped and that truly they were actually sweethearts. As narrated by the trial court, his version of the facts follows: [O]n January 3, 1992, [Evelyn] went to his and Robertos place of work at RGS Bakery, Obrero, Butuan City, to tell him that his (sic) father was angry with her as somebody reported to him that she and Domingo often met at the plaza; he told Evelyn that her father would be angrier if he knew she came to his place of work, to which Evelyn charged that he did not love her; his pride was pricked so he invited her to his house at Bitan-agan; Roberto Salazar went with them; he and Evelyn lived together in his parents house as husband and wife; on January 5, 1992, he told Evelyn to go home and he and his parents would follow to ask for her hand, but her parents did not entertain them; in the dawn of January 6, 1992, Evelyn went to his house which was one kilometer away from her house and from then on lived with him until March 15, 1992 when her parents went to his house and pulled their daughter and maltreated her in front of him and his parents; x x x they met again on March 16, 1992 before the purok president of Purok 2; from there they proceeded to the barangay captain of Bitan-agan; when they went out of the office of the barangay captain, Evelyn told him to bring her personal belongings because she would look for a way to follow him wherever he would go; Evelyn admonished him to leave Bitan-agan as her parents are looking for a way to kill him and his parents so he left for Leyte; while in Leyte, he and Evelyn exchanged letters (Exh. 2); he received three letters from Evelyn; he is willing to marry Evelyn because he loves her; x x x [F]rom January 3 to 5, he and Evelyn had sexual intercourse 4 times; from January 6 to March 15, 1992, he could no longer remember how many times he had sex with Evelyn x x x[5] The trial court, however, disbelieved Pagpaguitans version. Finding the prosecutions evidence convincing, the court convicted Pagpaguitan and Salazar and sentenced them to reclusion perpetua. Both appealed. Before us they raise the following errors: I

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BEYOND REASONABLE DOUBT OF RAPE DESPITE UNTRUSTWORTHY AND FLIP-FLOPPING UNCORROBORATED TESTIMONY OF THE PRIVATE COMPLAINANT/VICITIM. II THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONIES OF THE PUROK PRESIDENT AND THE BARANGAY CAPTAIN THAT THE SUBJECT OF THE INSTANT COMPLAINT WAS INITIALLY ELOPEMENT. III THE TRIAL COURT ERRED IN ARROGATING UNTO ITSELF THE SPECIAL TASK OF DETERMINING THE GENUINESS OF THE HANDWRITING OF THE COMPLAINANT WHICH RESULT IT HEAVILY RELIED UPON IN ITS VERDICT AGAINST THE ACCUSED. [6] We find the appeal without merit. Regarding the first error, it must be pointed out that in a prosecution for rape, the evaluation of the evidence presented during trial ultimately revolves around the credibility of the complaining witness.[7] If found positive and credible by the trial court, her testimony suffices to support a conviction.[8] Complainants testimony in the present case never flip-flopped, contrary to the appellants claim. On direct testimony, complainant categorically stated that she was boxed, mauled, and forced to submit to accuseds carnal desire. She testified, thus: Q: In that house, what happened if any when you arrived there together with the two accused? A: Upon arriving there, they took me to the room while Roberto Salazar stayed at the door. Q: What happened, if any? A: Domingo Pagpaguitan embraced me and kissed me several times. Q: What did you do when you were embraced and kissed by Domingo Pagpaguitan? A: I pleaded with him not to do that because I considered him as my brother. Q: What was his reply, if any? A: He said that since I could not be taken harmlessly, he will get me by force. Q: What happened after that? A: When he tried to get near me and embrace me and kiss me, I tried to resist and kicked Domingo Pagpaguitan and pleaded (with him) not do that to me as I considered them as my brothers. Q: When you said you kicked him did you hit him? A: Yes, sir. Q: What was his reaction when you kicked him? A: Domingo Pagpaguitan again embraced me and kissed me. Q: And what was your reaction again? A: I resisted him but I could not overpower him because he mauled me. Q: When you said Domingo Pagpaguitan mauled you, where in particular, in relation to your body did he maul you? A: I was boxed here (witness indicating her chest) and also my thighs.

Q: How many times were you boxed? A: Many times because I fought back. Q: What happened to you, if any, when you were boxed on the thighs by Domingo Pagpaguitan? A: I fell to (sic) a lying down position. x x x Q: When you fell down upon being boxed at the thigh and chest by Domingo Pagpaguitan, what else did he do to you, if any? A: He removed his pants and also removed my panties. Q: When he was removing your panties, what did you do, if any? A: I continued pleading and weeping. x x x Q: After removing your panty, what else, if any, did Domingo Pagpaguitan do to you? A: He placed himself on top of me. Q: After that, what did he do when he was on top of you? A: He spread my legs. Q: Then what else happened if any? A: He inserted his penis into my vagina. Q: What did you feel when he inserted his penis into your vagina? A: Very painful. Q: You said it was very painful, did you have any experience before about sex? A: None, sir. Q: When he was on top of you and you said he inserted his penis into your vagina and you felt pain, what was he doing? Atty. Jalad: There is no answer, your honor, it is a very simple question. Court: If it is true that she has no experience, it will not be easy to answer that. The Court understands that. Answer. Witness: He made push and pull movements on top of me.[9] Her testimony under cross-examination remained firm. She was mauled and boxed on her thighs and stomach, and deflowered by Domingo Pagpaguitan against her will.[10] The only difference in her account concerns where she was hit. On direct examination, she said in the chest; on cross-examination, she said in the stomach. We have ruled that the credibility of a rape victim is not destroyed by the few minor inconsistencies in her testimony.[11] After all, a victim of violent sexual abuse cannot and is not expected to keep an accurate account of her traumatic experience.[12] Here, complainants account was straightforward and candid. It is settled doctrine that a victim who says she has been raped almost always says all there is to be said.[13] Given the candor of complainants testimony and her lack of motive to testify falsely against the accused, the trial court could not be said to err in finding the Pagpaguitan guilty as charged. Moreover, we have ruled that the findings of the trial court are entitled to the highest respect by the appellate courts, particularly where the prosecution and the defense have contradictory versions of the facts.[14]

On the second error, during the proceedings before the purok president and the barangay captain, elopement was indeed mentioned. However, Pagpaguitans tale of elopement rang with far too many inconsistencies to be credible. If he and complainant had eloped and were never apart from January 6, 1992 to March 15, 1992, how would he explain the proceedings before the purok president and the barangay captain on February 2, 1992?[15] It is established that he and complainant, with their respective parents, appeared before their purok and barangay officials on February 2, 1992, and not, as he claimed, on March 16, 1992. If they were indeed living together and never separated for over two months, how would he explain the fact that complainant underwent medical examination on February 10, 1992,[16] and executed an affidavit before the police authorities of Butuan City on February 19, 1992,[17]without his knowledge? Pagpaguitan suggests that the hematoma on the complainants thighs could have been due to the maltreatment inflicted by complainants father upon her when she returned home on March 16, 1992. But where did complainant get the hematoma found by the doctor on her thighs when she was examined on February 10, 1992? Mere assertion of a love relationship would not necessarily rule out the use of force to consummate it.[18] Much more so where such relationship was denied by the victim, who resisted the brutal suitor. In rape the prosecution must rule out the victims consent to the sexual act.[19] Here, the testimony of private complainant was clear and convincing: she did not consent to penile invasion. Again appellant Pagpaguitan sought to prove he and complainant were lovers by citing her testimony which ran as follows: Q: After Domingo Pagpaguitan was through with you, did you say anything to him? A: Yes. Q: What did you say? A: I told him Why did you do this to me when I have not committed any wrong against you? :Q: What else, if any? A: When I said that, Domingo said that he would marry me. Q: What was your reply if any? A: I said, If you were going to marry me would you do an evil act first? Q: What did he say if any? A: He asked me why I wont accept him and I answered. How could I accept you when I saw that a pig was taken from you and if I marry you, what will you feed me?[20] Pagpaguitan claimed the above dialogue clearly showed their sweet relationship with each other and revealed intimacy in the ir relationship even before the sexual act.[21] However, as correctly pointed out by the Solicitor General, the cited dialogue merely revealed familiarity rather than intimacy.[22] Even assuming for arguments sake, that they were sweethearts, nevertheless, rape was committed because by force, appellant had sex with the victim against her will.[23] The claim that they were sweethearts could not prove complainants consent[24] nor undermine her complaint. The findings of the examining physician, Dr. Rowena T. Catipay, support the accusation for rape. The medical certificate issued on February 10, 1992 noted hematoma on complainants thighs. Her hymen was no longer intact and caruncula were noted. Both phenomena the cause of the hematoma and the caruncula appearance of complainants hymen were explained by the examining physician, as follows: Q: As a doctor, will you please explain to this Honorable Court what could have caused the hematoma on both thighs of Evelyn Nalam? A: It may have been caused by the application of a blunt instrument. Q: How about a hard blow like a hard fist, can it cause hematoma? A: Yes, Sir. Q: What else is (sic) your findings, Doctor?

A: I examined the genitalia, the hymen was not intact; the hymen is no longer intact and the caruncula was noted. Caruncula means remnants of an intact hymen. Q: When you said that the hymen is no longer intact, what do you mean by that, Doctor? A: It means that there was penile entry to (sic) the vagina. It means there was an (sic) intercourse.[25]

country construing the rule are entitled to great weight in interpreting the local rule.[44] Following cited precedents, we find no reversible error on this score. Coming now to appellant Salazar, his defense claimed the trial court erred in convicting him since the private complainants own testimony showed that he was a mere on-looker during the sexual attack. His defense averred he never lent a lending hand to Pagpaguitan to ensure the success of the latters lewd designs on complainant.[45] But can we conclude that Salazar had no role in the rape of complainant? Note the trial courts findings regarding Salazar: And what about Roberto Salazar who is accused as co-conspirator? Evelyn said that he went with Domingo in fetching her and when the ravishment was done, he was watching. The farmhouse they brought her to is owned by Salazars grandfather, and upon arrival at the foot of the mountain, the two accused threatened her with their knives and held her hands bringing her to the farmhouse. From the choice of the farmhouse of Salazars grandfather as the place Evelyn will be brought to, a farmhouse in the mountain with no neighbor, is evidence that Salazar knew and agreed with Pagpaguitan beforehand concerning the latters intent to rape the complainant. But because of the theory of the case formulated by the defense that an elopement occurred on January 3, 1992, and not a rape on January 31Salazars counsel saw no need for him to take the stand to pledge his innocence. Throughout the trial, the defense never attempted to extricate Salazar from the muddle his friend brought him into, who, surely, must be the proponent of the crime. In fact, the defense seemed to have forgotten that Salazar is accused as co-conspirator. He just sat smugly at the audiences bench passively watching the trial the same way he watched the rape with perverse passivity.[46] It must be pointed out that direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans and plots.[47] Conspiracy may, nevertheless, be proven to exist where at the time of the commission of the crime, the accused had the same purpose and was united with his co-accused in its execution.[48] Complainants testimony showed that Salazar was instrumental in helping to bring her to the isolated and uninhabited farmhouse of his grandparents where the rape occurred and in preventing her escape from the clutches of the accused. Neither did he act to prevent his co-accused Pagpaguitan from boxing complainant and ravishing her. In fact, he was a spectator during the rape scene.[49] Complainants testimony as to Salazars role does not exculpate but clearly implicates him, thus: Q: Where did they bring you to Malihao? A: They brought me to the house of the grandparents of Roberto Salazar. Q: Is that house of the grandparents of Roberto Salazar inhabited? A: Uninhabited. Q: You mean to tell this Honorable Court that when you arrived there was nobody there? A: There was nobody living in that house. Q: In that house, what happened if any when you arrived in there together with with (sic) the two accused? A: Upon arriving there, they took me to the room while Roberto Salazar stayed at the door.[50] x x x Q: What happened to you, if any, when you were boxed on the thighs by Domingo Pagpaguitan? A: I fell to (sic) a lying down position. Q: When you were lying down did you notice where Roberto Salazar was? A: Roberto Salazar remained at the door. Q: You mean he was just there watching the two of you? A: Yes, sir.[51] x x x Pros. Macalawi:

In response to clarificatory questions from the trial court, Dr. Catipay further explained that from the appearance of complainants hymen, the only possible explanation for her non-virgin state was sexual intercourse and nothing else: Q: And in this particular victim, how would you describe her hymen? A: Fimbriated hymen. Q: And in fimbriated hymen, if the remnants of a hymen which you call caruncula, upon examination, would that give you a sure conclusion that the cause of the breaking of the hymen was due to intercourse? A: Yes, Sir, because if the hymen was only broken by let us say jumping or bicycle riding, I dont think that the hymen would appear that loose. Q: So, in other words, by just examining the remnants of a broken hymen, the doctor can determine whether it was caused other than by intercourse or some other causes? A: Yes, Your Honor.[26] It has been ruled that a medical examination is not an essential prerequisite to a prosecution for rape. [27] However, when the physicians finding of penile penetration is corroborated by the testimony of the victim that the accuseds genitals touched her vagina, it is sufficient to establish the essential requisite of carnal knowledge.[28] Pagpaguitan tried to debunk the charge of complainant that he raped her on January 31, 1992, by claiming the examining physician had said that complainant told her the rape took place on another date, February 6, 1992.[29] It is settled, however, that the exact date of the commission of the rape is not an essential element of the crime.[30] The fact remains that the act took place on or about the date averred in the charge. Regarding the third error, Pagpaguitan faults the judge for arrogating unto himself the task of determining the genuineness of the handwriting at the back of the picture of the accused and the complainant together (Exhibit 1)[31]and the alleged letter of complainant to him (Exhibit 2)[32] submitted by the defense to prove that he and the victim were sweethearts. During the trial, the judge had ordered complainant to write a letter under his dictation which was subsequently marked as Exhibit X for the court. [33] The judge found this necessary in the interest of justice as the victim had denied having written either the letter or the dedication at the back of the picture.[34] It is of record that the handwriting at the back of the picture and in the letter were very different.[35] The trial court made the following findings after comparing Exhibit X with Exhibits 1 and 2, thus: In a letter by letter comparison, the court found that the alphabets (sic) g; k; p and y in Exhibit 2 and Exhibit X have different writing characteristics which led the court to believe that Exhibit 2 was not written by the complainant.[36] Pagpaguitan now asks whether or not it is permissible or proper for the trial judge to receive and examine a specimen writing, written at his order by a party who alleged that she was not the writer of other documents submitted in evidence? He argues that the task of comparing the handwriting on the documents in question was one for experts and not the judge. On this point, we find the judges comparison proper and permissible. When a writing in issue is claimed on the one hand and denied upon the other to be the writing of a particular person, any other writing of that person may be admitted in evidence for the purpose of comparison with the writing in dispute. [37] It is also recognized that a comparison of writing is a rational method of investigation; similarities and dissimilarities thus disclosed have probative value in the search for truth.[38] Thus, it has been held that, where a comparison is permissible, it may be made by the court, with or without the aid of expert witnesses.[39] The court may, in the exercise of its sound discretion, order a party to write or sign his signature as a basis for comparison.[40] For, the handwriting of a person is characteristic of the person himself.[41] Once admitted, the genuineness of other offered writings alleged to be the work of the same writer becomes a question for the trier of fact who may, but need not, be assisted in this task by experts.[42] Our rules on evidence having been drawn mainly from American sources, [43] decisions of American courts have persuasive effect. The general rule is that where a local rule is patterned or copied from that of another country, then the decisions of the courts in such

Q: Can you recall how many seconds or minutes did it take Domingo Pagpaguitan to do push and pull movements? Court: Let us correct that push and pull movement. Let us make it clear. When he was on top of me, he made motions of pushing it in and pulling it out. Pros. Macalawi: Q: Do you remember how many minutes or seconds did it take Domingo Pagpaguitan to do that movement? A: I do not recall how long. Q: When he was doing that have you noticed where was Roberto Salazar? A: He was watching us.[52] As correctly pointed out by the Solicitor General, there was nothing unnatural regarding comp lainants testimony that Salazar only stood by the door and watched them. It was precisely Salazars role in the rape of complainant to stop the latter in the event that she tried to run away.[53] Thus, there was no error committed by the trial court in convicting Salazar as a co-conspirator of Pagpaguitan. It is now firmly settled that in a conspiracy, the act of one is the act of all.[54] One who joins in a criminal conspiracy in effect adopts as his own the criminal designs of his co-conspirators and he can no longer repudiate the conspiracy after it had already materialized.[55] Article 335 of the Revised Penal Code, prior to its amendment by Republic Act No. 7659 and Republic Act No. 8353, provided that: Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and, 3. When the woman is under twelve years of age or demented. x x x After a thorough scrutiny of the records of this case, we find that the prosecution has adequately and satisfactorily proved the pertinent indispensable elements of the crime of rape defined and penalized under Article 335 of the Revised Penal Code, namely: that the appellant Domingo Pagpaguitan had carnal knowledge of complainant and that the act was accomplished against her will and through the use of force. The prosecution has also proved beyond a doubt that Salazar was Pagpaguitans confederate who ensured the success of Pagpaguitans carnal plot. The trial court did not err at all in convicting both appellants for the outrage committed on complainant. We find no reason now to overturn their conviction. We take note, however, that the award by the trial court of P30,000.00 in moral damages is now inadequate. In accordance with prevailing jurisprudence,[56] such award ought to be increased to P50,000.00. Further, without need of additional proof, the victim should also be awarded the amount of P50,000.00 as civil indemnity. The award of the trial court is therefore modified accordingly in this respect. WHEREFORE, the appealed Decision of the trial court finding appellants Domingo Pagpaguitan and Roberto Salazar guilty beyond reasonable doubt of the crime of rape and sentencing them to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the MODIFICATION that CIVIL INDEMNITY in the amount of FIFTY THOUSAND PESOS (P50,000.00) and MORAL DAMAGES also in the amount of FIFTY THOUSAND PESOS (P50,000.00) should be paid jointly and severally, by said appellants to private complainant, Evelyn Nalam. [G.R. Nos. 119837-39. December 9, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERWIN AGRESOR, accused-appellant. KAPUNAN, J.:

Appellant Erwin Agresor, then 19, was charged before the Regional Trial Court (RTC) of Laoag City with three (3) counts of rape under three separate informations all allegedly committed against his second cousin, Ritchie Calaustro, then 13 years old. The informations are quoted hereunder: In Criminal Case No. 7018: That on or about February 1, 1994 at nighttime in Brgy. Alsem, municipality of Vintar, province of Ilocos Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused thru force, violence and intimidation, did then and there willfully, unlawfully and feloniously had sexual intercourse with the undersigned against her will and consent. In Criminal Case No. 7017: That on or about February 12, 1994 at nighttime in Brgy. Alsem, municipality of Vintar, province of Ilocos Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused thru force, violence and intimidation, did then and there willfully, unlawfully and feloniously had sexual intercourse with the undersigned against her will and consent. In Criminal Case No. 7016: That subsequent to the second incident of rape committed on or about February 12, 1994 at nighttime on the same date, in Brgy. Alsem, municipality of Vintar, province of Ilocos Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused thru force, violence and intimidation, did then and there willfully, unlawfully and feloniously had sexual intercourse with the undersigned against her will and consent.[1] Upon arraignment, appellant pleaded not guilty to these charges. The RTC, thus, proceeded with the consolidated trial of the three rape cases. Appellant's alleged victim, Ritchie Calaustro testified that at about 10:00 in the morning of February 11, 1994, just after taking her snacks near the market, she was joined by her classmates Chuchi, Hermie and Lothelyn in walking back to school, the Vintar Academy at Vintar, Ilocos Norte. Suddenly, Erwin Agresor pulled Ritchie into a tricycle by grabbing both her hands. "If you do not follow me, I will kill you," he warned. Ritchie cried for help but her classmates, in fear, did not respond to her cries. The tricycle, which was driven by Ciano Viernes, sped away through Margaay Road and on to Barangay Alsem, passing through three other barangays. The tricycle stopped at around a quarter to two in the afternoon upon reaching Alsem. Appellant then paid Viernes, who proceeded back home. Appellant pulled Ritchie towards a hut around thirty (30) to forty (40) meters from where the tricycle had stopped. There were no other houses around the hut. "If you will not follow me, I will kill you," he threatened her. Appellant forced Ritchie into the hut and ordered her to undress. "If you do not want, I will kill you," he said. Ritchie removed her black denim pants and white T-shirt. He commanded her to lie down as he repeated his threat, "If you do not want, I will kill you, including your mother and father." Appellant brandished a knife around 10 1/4 inches long. Ritchie was still wearing her sando and panty when appellant put himself on top of her. He kissed her breast as he held her hands with his left hand and pointed the knife at her neck. Ritchie resisted as appellant pulled down her panty. He kissed her neck, lips and private part for about an hour. Appellant then "took advantage of (her) womanhood" by inserting his penis into her private part and making "push and pull movements." Ritchie felt pain. Appellant's penis remained in her vagina for a "short time only" or for "less than one hour." Ritchie stayed in the hut with, appellant the whole night. Because of appellant's threats, Ritchie did not escape. The next morning, or on February 12, 1994, Jose Ubay came to the hut to fetch Ritchie and appellant. Ritchie knew Ubay as a barkada of appellant, having seen them together on previous occasions. According to Ritchie, Ubay learned that they were in the hut after appellant told two men who went fishing in the river to inform Ubay about their presence: While these two men were in the hut, Ritchie cried for help but they did not heed her plea. When Ubay arrived, Ritchie told him about what appellant had done to her but he said nothing. Ritchie was forced to sit on Ubay's motorcycle between appellant and Ubay, who drove the vehicle to his house.

The three arrived at Ubay's residence, which was fifty (50) to eighty (80) meters from the hut, at around 8:00 in the morning. Ubay, his three children, and a woman who lent Ritchie clothes were the only occupants of the house. (Ubay's wife was abroad.) Ubay served breakfast but Ritchie could only eat a little. After a while, appellant's barkada, namely, Marlon, Boy, Bobby and Ruveno arrived on a jeep. The boys sat in the sala and drank gin. Ritchie, Erwin and Jose Ubay joined them while they drank. Ritchie asked appellant'sbarkada to help her because appellant "took" her. The men, who would stay in Ubay's house until the police came to her rescue, ignored her pleas. The men stopped drinking at about 5:00 in the afternoon. All the time they were drinking, Ritchie sat by herself. Ritchie wanted to escape but did not know where to go because it was her first time to be in that place. At around 7:00 in the evening, appellant ordered Ritchie to enter one of the rooms. Once they were inside, appellant locked the door. "Help me to go out of this room!" Ritchie cried, as appellant removed his clothes. No one came to Ritchie's aid. After undressing himself, appellant removed Ritchie's clothes. She struggled but appellant held her hands and pointed a knife at her. He removed her Tshirt and kissed her breast for "less than an hour." He kissed her as he removed her pants, panty and sando. Appellant forced Ritchie to lie down, and placed himself on top of her. "If you resist I will kill you," he threatened, pointing the knife at her. He then inserted his penis into her vagina and made push and pull movements. Ritchie felt pain during the intercourse, which lasted less than an hour. At around 8:00 that same evening, as Ritchie was putting on her clothes, appellant ordered her to undress and lie down again. For the third time, he inserted his penis into her private part and repeated the push and pull movements. Ritchie felt pain, and blood came out of her. Appellant then disengaged himself from Ritchie, and changed his clothes. He locked the door as he left. Ritchie cried and put on her clothes. Ritchie did not see appellant the rest of the night. The following day, on February 13, 1994, at around 6:00 in the morning, appellant opened the door and told her to eat. She ate with Ubay and his children after which appellant ordered her to enter the room again, and locked the door. Ritchie was locked inside the room for the duration of her captivity; she was allowed to go out only during mealtime. She could not escape because the room was supposedly guarded by appellant's friends, Boy, Marlon and Bobby. On February 16, 1994, five days after Ritchie was taken by appellant, appellant informed her that the police were looking for her. She wanted to run to the police but appellant brought her to the mountains, about eighty (80) meters south of Ubay's house. Big trees and thick foliage hid them from view. They stayed there until 4:00 that afternoon then they went back to Ubay's house where she spent the night in the same room. Appellant locked the door and went away. At 6:00 the following morning, appellant arrived and told her the police were in the area. Appellant dragged Ritchie from the room and again took her to the mountains. At about 8:00 that morning, the police found the two but appellant managed to escape. She told the police that appellant had taken advantage of her womanhood three times.[2] SPO1 Tomas Jose, Jr. of the Vintar Philippine National Police testified that they received a report at around 10:00 in the morning of February 11, 1994 from Ely Calaustro, Ritchie's father, that appellant had taken her away. A few days later, Ritchie's father reported that Ritchie and appellant were in Barangay Alsem. Apparently, the father and SPO4 Edgar Norienton went to Barangay Cabayo, where appellant's parents resided, to inquire as to the whereabouts of appellant. Upon learning that appellant had taken Ritchie to Alsem, the police on February 17, 1994 set out for Ubay's house, where appellant was reported to be hiding. They arrived there at around 8:00 in the morning but Ubay told them that neither appellant nor Ritchie was around. The police, thus, conducted a meeting with the barangay officials to seek their help. One of the barangay councilmen informed them that the two were hiding near the barangay water tank. The police then proceeded to the location of the water tank where they saw, from a distance of about forty (40) meters, appellant pulling Ritchie by the hand. Appellant dragged her for around twenty (20) meters. As the police chased the two, narrowing the distance to about fifteen (15) meters, appellant released Ritchie and ran away. The police chased appellant but they failed to catch him in the thick forest. SPO1 Jose asked Ritchie what happened. "He forced me to go away," she replied.[3] Hermie Albano, Ritchie's classmate, corroborated Ritchie's story on how she was taken by appellant. Between 9:00 and 10:00 in the morning of February 11, 1994, Hermie and Ritchie together with classmates Argentina Tunac, Lothelyn Matute, Chuchi Aghayani and Maris Vivid, were on their way to school after taking their snacks. They saw a tricycle parked near the gate of the Vintar Academy but they did not mind it. Suddenly, appellant pulled Ritchie's left wrist with his two hands and immediately put her inside the tricycle. Ritchie struggled and

cried but the tricycle quickly drove away. Hermie and her classmates reported the incident to Porfirio Pascua, Ritchie's uncle and a teacher at the Vintar Academy.[4] On March 1, 1994, Ritchie was brought to the Gov. Roque Ablan, Sr. Memorial Hospital where she was examined by Dr. Lorna Castillo. The certification[5] ssued by Dr. Castillo reveals that Ritchie had lacerations at the 3 and 9 o'clock positions of her hymen and a fresh superficial laceration 0.5 cm. in length at the fourchette. In his defense, appellant Erwin Agresor claimed that he and Ritchie were sweethearts, and their sexual intercourse consensual. Appellant testified that he and Ritchie were neighbors. Their houses in Barangay 1, San Roque, Vintar, llocos Norte stood beside each other. Back in 1993, complainant would go to appellant's house, and they would take care of the baby together. At first, they were merely "gangmates" but feelings of love later developed between them. According to appellant, he started courting complainant on March 3, 1993 when he was 19 and when complainant "must have been 13." Although she was young, he was interested in her because she was beautiful. On January 31, 1994, the, two went to Balacad, Laoag City where they spent the night. That night, she allowed him "to take advantage of her." Erwin also claimed that Ritchie used to send letters through his friend Cherry Anne Alcaraz and his aunt, Imelda Balaan. In a letter she sent through Cherry Anne on the first week of February 1994, Ritchie wrote that she was being forced to abort the baby she was carrying and that she wanted to go away. The lovers thus agreed to meet in one of the stores in the supermarket and leave together. After talking in the store, Erwin got his clothes from the house of one of his barkada. He also instructed Marciano Viernes, a tricycle driver, to fetch Ritchie from the store at around 10:00 that same morning. He and complainant then rode to Barangay 24, Alsem, Vintar in the tricycle. They reached Alsem at noon and proceeded, to a bahay kubo where they stayed the night and did what was "usual for sweethearts," kissing and "satisfying" their "mutual feelings" by performing the "sexual act" twice. The next day, Jose Ubay fetched them in his motorcycle. The three went to Ubay's house, where they stayed for the rest of the week. According to Erwin, Ubay had two children who stayed in the house with him. While they were in Ubay's house, they "did what husband and wife do." During the week, appellant went thrice to the river for a picnic with his barkada, and a girl companion. They usually meet there at about 10:00 in the morning and returned at 3:00 in the afternoon. On February 17, 1994, while Erwin was out fishing with his barkadas the police arrived in Ubay's house. When he and his barkada returned to the house, Ritchie was no longer around. People in Alsem told him that she had been taken by the police. He and hisbarkada then had a "drinking spree." Thereafter, they went around downtown and went back to Alsem about three hours later. Erwin denied that he grabbed Ritchie and put her in the tricycle, claiming that he was not in the tricycle when the tricycle picked her up. Neither did he point a knife at her neck when they had sexual intercourse in the hut. He claimed that she consented to the sexual act. In Ubay's house, she was free to leave had she wanted to since the "house was open." However, he conceded that the only means of transportation to the poblacion was Ubay's jeep. Appellant admitted that the hut where he first took Ritchie was isolated, the houses very far apart. Had she shouted, however, her shouts would echo from the river.[6] Cherry Ann Alcaraz, Ritchie's neighbor and schoolmate, corroborated appellant's claim that he and Ritchie were sweethearts. Cherry Ann declared that she knew of such fact since she and Ritchie were still in the Sixth Grade. Cherry Ann had also seen Erwin accompany Ritchie to school many times. On the first week of February 1994, complainant pleaded with Cherry Ann to deliver two (2) letters to appellant. Cherry Ann acceded to the request and delivered the letters to Erwin. She saw Erwin read the letter, fold it, and place it in his pocket.[7] Imelda Balaan, 24 years old, is appellant's aunt, being married to the brother of appellant's mother. She claimed that Ritchie's mother and her husband are cousins since Ritchie's grandmother and her husband's father are siblings. She said she knew that Ritchie and Erwin were sweethearts since Ritchie was thirteen and Erwin was twenty-one, because Ritchie told her so. Living with appellant in the house of her in-laws, she had seen Erwin and Ritchie putting their hands on each other's shoulders several times. At another time, she saw the two kissing in Erwin's room. As Erwin and Ritchie were relatives, Imelda admonished them that it was not proper for them to be sweethearts. Imelda delivered more than five of Ritchie's letters to appellant. On one occasion, she delivered to him a letter regarding her baon to a field trip.[8]

Jose Ubay, a jeepney driver, testified that he had known the accused for more than three years prior to February 11, 1994. He said that he was introduced to Ritchie by Erwin as his sweetheart about a year before the alleged rape. On February 11, 1994, Jose Ubay saw Erwin and Ritchie in a hut at the boundary of Borangabong and Alsem when he visited his fishpond. The two looked happy together. Upon being re-introduced to Jose Ubay, Ritchie asked Ubay if she could go to his house, about two (2) kilometers away. He agreed, and Ubay brought them home on his motorcycle. Ritchie sat behind appellant, who in turn sat behind Ubay. Upon arriving at Ubay's house, appellant and Ritchie sat in the living room as Ubay prepared lunch. After lunch, Ritchie and Erwin entered one of the rooms. Ubay did not hear any noise from the room. Ubay then went out to converse with a neighbor. When he returned two hours later at about 3:00 p.m., the two were still in the room. In the course of the week, Jose Ubay's barkada came to the house and stayed there for two days. At times, they would go out on a picnic and Ubay would bring Erwin with him, leaving Ritchie alone in the house. Between February 11 and 17, 1994, Ubay went out to drive his jeep. As the children were in school, Ritchie and Erwin were left in the house. Ritchie would clean the house while Erwin would sometimes cook. During their stay in Ubay's house, Ubay observed that they were both happy. Ubay denied that Ritchie asked him to take her home. He also claimed that he never prevented her from leaving the house. Ubay noticed that Ritchie had a bag when she arrived at his house. The same bag was left in the house when the police took Ritchie. Appellant then took the bag after Ritchie was taken by the police.[9] Marciano Viernes, the tricycle driver who drove the couple to Alsem, was Erwin's classmate in elementary school. On February 11, 1994, Erwin hired him to fetch complainant at the carinderia in the market. Marciano drove appellant to Margaay where appellant alighted, and proceeded to fetch Ritchie. Upon reaching the carinderia, Marciano asked who was Ritchie from Ritchie herself. He did not know Ritchie until that day. He began to tell her that "Erwin said that she would come," and had yet to finish his statement when Ritchie boarded the tricycle. Ritchie had a bag with her. The tricycle then picked up Erwin who was waiting in Margaay, and proceeded to a river near Alsem. The two went down near the river, and Marciano went home.[10] Appellant's brother, Edgar Agresor, confirmed that Ritchie is their second cousin since Ritchie's grandmother and Edgar's grandfather are sibling. He recounted that on January 31, 1994 at around 7:00 in the evening, Erwin and Ritchie arrived at his house in Balacad, Laoag City and told him that they had eloped and that they were afraid to go home. Edgar offered to accompany them but they told him that Ritchie's father would beat her up if they did. After taking their supper, Edgar informed the couple that they would sleep downstairs. Erwin was to occupy a bench while complainant was supposed to sleep on a bed. At around 2:00 in the morning, Edgar went down to answer the call of nature, and saw the two on the bed embracing each other. Edgar felt embarrassed, and did not bother them. The following day, Edgar Laurento, a policeman-uncle of complainant, the latter's wife, and a driver, came and forced complainant to go home. Ritchie did not want to go home but they pulled her away. Appellant was not around at that time because he had gone to Vintar to get their clothes.[11] On rebuttal, Ritchie denied that she and appellant were sweethearts. Nor did she go voluntarily with Marciano Viernes, the tricycle driver. She denied knowing Imelda Balaan or Edgar Agresor, appellant's brother. She alleged that she had never gone to Balacad, Laoag City with Edwin. Confronted with the letters offered as evidence by the defense, Ritchie denied having written them. She said that that was not how she wrote and that "the letters were different" from her handwriting. Ritchie also explained that she could not have escaped from Ubay's house because she was not familiar with the place. Alsem was around fourteen (14) kilometers away from her barangay. One time when she was alone, she went out and ran but the place was "far" and there was only one vehicle plying the area. She managed to negotiate only a little distance and, tired, she returned. Ritchie asked someone "to help [her] go out of the place" but instead of acceding to her plea, that person brought her back to Ubay's house. That person turned out to be a relative of Ubay's.[12] Appellant, on sur-rebuttal reiterated his defense that he and the complainant were sweethearts.[13] After trial, the RTC rendered judgment finding the accused guilty of all three counts of rape, thus:

WHEREFORE, accused Erwin Agresor is hereby found GUILTY beyond reasonable doubt of three (3) counts of rape and is hereby sentenced to suffer the penalty of imprisonment of FORTY (40) YEARS of reclusion perpetua in each of the cases or a total of ONE HUNDRED TWENTY (120) YEARS, plus all the accessory penalties provided by law, and to pay private complainant Ritchie Calaustro the amount of FIFTY THOUSAND PESOS (P50,000.00) in each of the cases or a total of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) without subsidiary imprisonment in case of insolvency. Costs against the accused. SO ORDERED.[14] Appellant now asserts his innocence before this Court. We reverse appellant's conviction. The following circumstances give credence to appellant's defense and raise reasonable doubts as to his guilt: First, the undated letters[15] iven by complainant to appellant establish that they were indeed lovers. Thus, in Exhibit "2," complainant swears her undying love for appellant: Dearest Erwin, I hope you're fine reading upon reading my letter. Even we far each other. 1 always Love you. I always think of you. Umasa kang hindi ako magbabago dahil ipinangako ko sa sarili ko ikaw lang ang mamahalin at dina ako iibig pa ngayon at kailanman. Just always remembered this: You are the only one who own my heart. I had never loved anyone but only you. I always Love you: I need you I miss you Sana huwag kang magbabago Sana ako lang ang mamahalin mo. Sana tayong dalawa na ngayon at kainlanman.

Love Ritchie

Exhibit "3" consists of two pieces of paper where complainant confesses that she is pregnant and that appellant is the father of the child she is carrying. She asks appellant to take her away. Dearest Erwin, I hope you're fine condition upon reading my simple letter. Napakasakit tanggapin ang nangyari sa atin dalawa kung masakit sa iyo mas masakit sa akin. Hindi ko naman kagustuhan ang nangyari sa atin. Kung alam mo lang ang nararamdaman ko noon parang gusto ko nang mamatay. Mahal na mahal kita kahit buhay ko para lang sa iyo. Pangako sa iyo. Kung talagang mahal mo ako ipaglalaban mo ang ating pag-ibig. Di ba nagsumpaan tayo na mamatay lang paraan para maghiwalay tayo. Ilayo mo ako kung talagang mahal mo ako ipaglalaban mo ang karapatan mo. Alam mo ba ang karapatan mo dahil isa ka nang ama. Alam mo ba buntis ako isang buwan na. Hindi ko alam na buntis ako pero dinala ako sa doktor at inaksemen nila ako at don ko nalaman ang katotohanan: Paano na ako ang magiging anak mo. Ayokong ipalaglag kung pilitin nila na ipalaglag mabuti umalis na lang ako. Alam mo naguguluhang ako ngayon at sinabi nila ilalayo nila ako pupunta daw ako sa Maynila. Ayokong maghiwalay tayo. Mahal na mahad kita ngunit kung nagbago na ang desisyon mo wala akong magawa ngunit sa akin ang tatanongin mo wala akong masasabi ngunit ang tandaan mo hindi ako magbabago dahil ama ka ng dinadala ko. Ipaglalaban ko hanggang kamatayan. Pangako Sa iyo.

Love always Ritchie P.S. At sinasabi ko una ka naging akin una kang na umangkin sa akin katawan. Ano man ang mangyayari hindi kita iiwan. Ipaglalaban ko hanggan kamatayan: At the back of the second leaf, complainant wrote: Happy Valentines: I Love you I miss you I need you Huwag kang mag-alala dahil ipaglalaban ko Ikaw lang ang mamahalin hanggang wakas. Take care co 'z I care kung mawawala ka sa buhay ko mamabuti kung mamatay na lang ako. In Exhibit "4," complainant wishes appellant a "Belated happy, happy birthday." The letter also reveals that their relationship had gone sour. Complainant nevertheless reiterated her love for appellant. Dearest Erwin, I hope you're fine condition upon reaching my simple letter. I want to greet you a Belated happy, happy birthday. Sana tanggapin mo ang munting regalo para sa iyo. Alam mo parang hindi ko matanggap ang nangyari sa atin. Parang gusto ko nang mamatay. Parang akong baliw na palaging umiiyak wala na akong ganang kumain. Hindi ko na mai-concentrate ang aking pag-aaral. Alam mo hindi ko naman kagustuhan ang nangyari sa atin. Hindi ako makatulog sa kaiisip ko ang nangyari sa atin at sinasabi ko sa sarili bakit nangyari sa atin ng ganito. Bakit nagkakanito ang ating relasyon? Wala naman alam kung bakit nagkaganito ang ating relasyon. Bakit nagkulang ba ako sa iyo? Sabihin mo. Siguro baliw ang sabi mo sa akin kung sasabihin ko pa rin na mahal kita. Oo mahal pa rin kita kahit nagkaganito tayo. Kahit na ipagpalit mo pa ako. Kahit na hindi mo na ako mahal. Oo mahirap malimutan ang isang katulad mo. Paano ba kita Malilimutan Mahal ko? At sinasabi ko sarili ko bakit nagkaganito akala ko tayo na habang buhay. Mahirap malimutan ang isang katulad mo na nagbigay kulay sa buhay ko, nagbigay aya. Ako'y iyong-iyo habang buhay. Complainant promises to fight for their love in Exhibit "7," her parents' disapproval notwithstanding. Dearest Erwin, Bago sa lahat nais ko sanang batihin ka nang maganday araw mo diyan habang binabasa mo ang sulat ko.

Matagal na tayong hindi nagkita miss na miss kita. Palaging nasa isip ko. Alam mo pagdating ng gabi, hinahanap ko ang mga yakap mong kaysarap at ang matamis mong mga halik. Sana huwag mo akong ipagpalit kanino man. Sana tayong dalawa na habang buhay. Sana wala akong karibal o kaagaw. Sana ako lang ang nasa puso and isipan mo. Ikaw lang ang aking inspirasyon ko upang matupad ko ang mga pangarap ko. At ako naman huwag kang mag-alala hindi kita ipagpalit kanino man. Ikaw lang ang nagbigay kulay at saya sa buhay ko. Kung hindi ikaw huwag na lang. Umasa kang hindi kita ipagpalit hanggang mamatay ako kahit katumbas nito y kasawian. Kung ayaw man ang mga magulang ko hanggang dumating man ang tamang edad ko at tayo pa rin. Ipag lalaban ko kahit mamatay ako ganyan ang pagmamahal ko sa iyo. Mahal na mahal kita walang hahadlang sa akin. Maging sino ka man. Mamatay lang maging paraan upang magkahiwalay tayo. Kahit palaging hindi tayo nagkikita umasa kang ikaw pa rin ang pinakamamahal ko. Alam mo kapag ako'y nag-iisa aking nadarama kalungkutan sa buhay ko at sa panaginip ko'y ikaw pa rin hindi magawang limutin ka. Ikaw ang lahat sa akin. Mahal kita pag-ibig ko'y tanging sa iyo. Ikaw at ako sana'y laging makapiling. Ako'y iyong-iyo ngayon at kailanman. Kahit hindi tayo nagkikita, kahit minsan lang kitang makita ang magpakailanman tayong dalawa. Take care co'z I care I Love you I miss you I need you Ingat ka mahal kita In Exhibit "8," complainant admits that she has another suitor but she did not mind him. Complainant reminded appellant how much she loves him. Dearest Erwin, Bago sa lahat nais ko sanang batihin ka nang magandang araw po diyan habang binabasa mo ang sulat ko. Nakapagsulat ako dahil gusto ko sanang magpaliwanang sa iyo. Yong sinasabi mo na kasama ko sa plasa ay totoong nanliligaw sa akin ngunit paano ko sasagutin dahil may boyfriend na ako walang iba kundi ikaw. Alamomo sinabi ko na walang siyang pag-asa. Ngunit palaging naman siyang sumusunod sa akin. Alam mo naman na ikaw lang ang Mahal ko at wala nang iba. Alam ang Diyos na ikaw long at walang nang iba. Ngunit kong ayaw mong maniwala wala akong magawa. Ngunit laging tandaan mo na ikaw lang ang Mahal ko at walang nang iba. Hindi ko kayang mawala ka sa akin. Dahil Mahal kita pag-ibig ko'y alay sa iyo at dina iibig pa. Just always remember there's someone who loves you very much. And cares for you. I love you and take care of yourself. Sorry kong nasaktan ka man hindi ko sinasadya. I promise na iiwasan ko na siya. Sana'y huwag kang magbago. I love you Ritchie Always,

I miss you I need you I will always love you. Ang pangalan ng lalaki ay Roque Viernes at taga Diaton. Love and care Ritchie I love you a millions I love you from the deepest chamber of my heart. At the left margin of the letter, written horizontally, complainant asks for appellant's forgiveness. Sana'y mapatawad mo ako Ngunit kong hindi Diyos na lang ang bahala. Complainant however denied authorship of these letters. Comparing the handwriting in the letters with that in her notebook, which was introduced in evidence as specimens, the trial court concluded that: ... the Court has seen material differences in the two sets of writings. True, at first blush one can be deceived into believing that the two sets of writings were written by only one (1) person. This is not unexpected as the forger would always strive to write in the manner the person with whom he would like to pass on the writing as his. However, a meticulous scrutiny shows material difference which are as follows: 1) the letters in the genuine writings are uniform in sizes and shapes (round) unlike in the love letters wherein some letters are larger than the others and/or slimmer than the others; and 2) the letters in the genuine writings show a uniform slant to the left unlike in the love letters wherein some letters stand erect notably the signature Ritchie in Exhibit "4".[16] We fail to see any difference between the two sets of writings that can be described as material. The size and proportions of letters do not have much significance in the identification of handwriting for the simple reason that they can be appreciably changed according to the circumstances.[17] And while there are portions in the love letters written in an erect manner, the handwriting in these letters, in general, like the handwriting in the notebook is slanted to the left. Moreover, the differences noted by the trial court may be due to variations that invariably occur since the hand does not move in a mechanical manner and cannot always produce characters exactly alike.[18] The mood and the relative importance of the document may also unconsciously affect the handwriting,[19] and may account for the variations therein. The handwriting in the notebook was obviously produced in school where students are given a limited time to take down notes. They are subject to scrutiny by both teachers and classmates. Love letters, on the other hand, are usually written in a more relaxed environment and in a more leisurely manner, with much time for contemplation. They are usually meant only for the eyes of letter-writer's lover. In any case, the test of genuineness ought to be the resemblance, not the formation of letters in some other specimens but to the general character of writing, which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent course, and is, therefore, itself permanent.[20] The identification of handwriting should not rest, therefore, on the apparent similarity or dissimilarity of one feature but should be based on the examination of all the basic characteristics of the handwriting under study.[21]

Our own examination of the love letters reveals that they are devoid of any unusual pen pauses, pen lifts, tremors and retouchings that characterize forgeries. Indeed, the writing appears to flow naturally, not conscious, hesitant or studied. The writers of both sets of writing write with a consistent heavy pressure. There are no pronounced variations in the formation of the letters. It is also significant to add that appellant produced in evidence not only one or two letters to prove his relationship with complainant, but a total of eight letters and notes. The handwriting in all these letters bears a striking similarity to the specimens. The sheer number of the love letters weighs against any suspicions of forgery since it would greatly increase the risk of discovery. The task of determining the genuineness of the handwriting would have been made easier had an expert witness been employed to aid the court in carrying out this responsibility. The records[22] how that counsel for the accused did ask the court for time to file a motion so that the handwriting may be submitted to the National Bureau of Investigation (NBI) to ascertain its authenticity. Such motion was, however, denied by the court, ruling that "The Court itself can determine whether or not that handwriting is the handwriting of the private complainant." The trial court should not have simply brushed aside this motion since the accused's defense rests on the theory that he and the victim were sweethearts and the letters were offered precisely to prove such defense. Accordingly, he is entitled to present evidence that the handwriting thereon was genuine, especially in the light of the denial of the alleged victim that the handwriting was hers. It is true that the opinion of handwriting experts are not necessarily binding upon the courts,[23] the expert's function being to place before the court data upon which the court can form its own opinion.[24] Ultimately, the value of the expert testimony would still have to be weighed by the judge,[25] upon whom the duty of determining the genuineness of the handwriting devolves. Nevertheless, the handwriting expert may afford assistance in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer.[26] There is no doubt that superior skills along these lines will often serve to direct the attention of the courts to facts, assent to which is yielded not because of persuasion or argument on the part of the expert, but by their own intrinsic merit and reasonableness.[27] As there was a dispute regarding the genuineness of the handwriting, it would have been more prudent if the trial court allowed the presentation of a handwriting expert by the defense. The denial of the request for time to file a motion to have the handwriting examined in effect rendered the right of the accused to have compulsory process to secure the production of evidence in his behalf[28] nugatory.[29] Second, the contents of complainant's bag reveals that she and appellant were indeed eloping. The bag contained, among others, a belt, seven (7) brassieres, five (5) panties,[30] and three (3) shirts.[31] In explaining the presence of these items in her bag, complainant admitted ownership of the articles but claimed that she discovered that they were missing from her cabinet after she was rescued by the police. She suspected that appellant took them from her cabinet. The trial court believed complainant's explanation: ... for about two (2) years, before February 11, 1994, the private complainant had been staying in the house of his uncle. The one-storey house of her uncle is adjacent to the house where the accused was staying. The two houses share the same yard and the same gate with only a cemented wall separating the two houses. The doors of these houses are beside each other. This was not rebutted by the defense. This unexpected revelation conclusively shows that the private complainant's suspicion that the accused stole her personal belongings is well-founded. Significantly, the accused was not arrested on February 17, 1994 when the police officers rescued the private complainant. He eluded arrest by running into a thick forest as testified to by prosecution witness SPO1 Tomas Jose, Jr. These cases were filed on May 26, 1994. By virtue of a warrant of arrest issued on May 27, 1994, the accused was arrested on June 1, 1994. From February 17, 1994 to June 1, 1994, he had sufficient time to think of his defense to exculpate himself from the charges against him. He had a very strong motive to steal the personal belongings of the private complainant. In this regard, the private complainant testified that during the day, no one would be left in her uncle's house since her cousins, the children of her uncle, would be all in school while his (sic) uncle would also be out. Hence, the accused could have easily entered the house and stole the personal belongings of the private complainant.[32] We are not as inclined as the trial court to accept such explanation. The conclusion that appellant stole complainant's clothes to support his defense that he and complainant eloped is based on mere speculation and surmise. The circumstances noted by the trial court in arriving at such conclusion do not constitute proof to that effect. The presence of complainant's clothes in her bag could just as well mean that appellant and complainant were planning to elope. Doctrinally, where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[33]

Finally, this Court has reversed judgments of conviction and acquitted the accused when there are strong indications pointing to the possibility that the rape charges were merely motivated by some factors except the truth as to their commission. [34] In some cases, the scandal resulting from the relationship of the complainant and the accused impels the complainant or her relatives to file a complaint of rape against the accused. Thus, in People vs. Lamarroza,[35] a case involving an eighteen-year old woman "intellectually weak and gullible," the Court found that the alleged victim's family was "obviously scandalized and embarrassed by [the victim] Elena's 'unexplained' pregnancy," prompting them to cry "rape." The Court acquitted the accused. In People vs. Domogoy,[36] private complainant was seen having sexual intercourse in the school premises with appellant therein by the latter's co-accused. "It is thus not farfetched," the Court held, "for complainant to have instituted the complainant for rape against the three to avoid being bruited around as a woman of loose morals." Similarly, in People vs. Castillon,[37] the Court considered the complainant's agreement to engage in pre-marital sexual intercourse "already a disgrace to her family, what more of her acquiescence to have sexual intercourse on a stage near the vicinity where the JS program was being held and prying eyes and ears abound." In, People vs. Bawar,[38] the complainant was caught in flagrante by her sister-in-law engaging in sexual intercourse with the accused, a neighbor. The Court gathered from the complainant's testimony that "she filed the case because she thought it would be better to cry 'rape' and bring suit to salvage and redeem her honor, rather than have her reputation sullied in the community by being bruited around and stigmatized as an adulterous woman." People vs. Godoy[39] also involved an adulterous relationship between the accused, who was married, and his seventeen-year old student. In acquitting the accused, the Court held: The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families. It could precisely be that complainant's mother wanted to save face in the community where everybody knows everyone else, and in an effort to conceal her daughter's indiscretion and escape the wagging tongues of their small rural community, she had to weave the scenario of this rape drama. Here, the elopement of a thirteen-year old with her nineteen-year old second cousin no doubt caused quite a tempest in the otherwise serene community of Vintar, Ilocos Norte. That complainant's parents were against their relationship, as evidenced in one of her letters, makes it more likely that the charges of rape were instigated to salvage the complainant's and her family's honor. While the "sweetheart theory" does not often gain favor with this Court, such is not always the case if the hard fact is that the accused and the supposed victim are, in truth, intimately related except that, as is usual in most cases, either the relationship is illicit or the victim's parents are against it. It is not improbable that in some instances, when the relationship is uncovered, the alleged victim or her parents for that matter would take the risk of instituting a criminal action in the hope that the court would take the cudgels for them than for the woman to admit her own acts of indiscretion.[40] WHEREFORE, the Decision appealed from is REVERSED. Appellant Erwin Agresor is hereby ACQUITTED of the crime of Rape. The Director of Prisons is directed to forthwith cause the release of accused-appellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within ten (10) days from notice.