Professional Documents
Culture Documents
Aggrieved, petitioner filed a complaint for illegal dismissal with the Labor
Arbiter alleging that he was dismissed on mere suspicion that he stole the
money and that he was denied an opportunity to defend himself pursuant to
the provision of the Collective Bargaining Agreement between private
respondent and the union of which petitioner was a member.
In a decision dated October 26, 1984, Labor Arbiter Saturnino P. Orate
ordered the reinstatement of petitioner, finding that there was no reasonable
ground in dismissing the latter because private respondent failed to establish
by preponderance of evidence the legality of the dismissal.
On appeal, the NLRC, on February 12, 1988, set aside the Labor Arbiters
decision and entered another dismissing petitioner's complaint for illegal
dismissal for lack of merit.
Hence, this petition.
Petitioner Porfirio Auxilio, Jr. claims that he was denied due process of law
because the grievance procedure provided in the Collective Bargaining
Agreement (CBA) was not strictly observed. He likewise maintains that with
the rejection by the Labor Arbiter of the probative value of his flight, the
Special Investigation Report and Polygraph Report, his dismissal from
employment is not legal.
A review of the records of this case shows that public respondent did not
commit any grave abuse of discretion in reversing the Labor Arbiter's
decision.
The Grievance Machinery in the CBA states:
. . . Sec. 2. A GRIEVANCE is any controversy by the union or
an employee against the CLUB or any controversy by the
CLUB against the UNION or an employee concerning any
ruling practice or working condition in the CLUB, or any
dispute as to the interpretation of any provisions of this
Agreement. (p 38, Rollo)
As correctly pointed out by the Solicitor General in his Comment, the
instances enumerated where the grievance machinery may be availed of are
not present in this case and that there was no overt act on the part of
petitioner to bring any cause for complaint to the attention of the immediate
supervisor concerned as prescribed in Step 1 on the Supervisory level. What
is truly involved in the case at hand is the last action pursued by private
respondent in the face of overwhelming evidence found by the police
investigators on the theft of its P15,000.00 on January 17, 1982. The
invocation of the grievance machinery provisions of the CBA is not in place.
(Comment, p. 8).
No doubt petitioner was afforded due process of law. There is convincing and
sufficient evidence on record to show that private respondent corporation
fully complied with the notice and hearing requirements of due process.
Petitioner was notified and repeatedly invited for further investigation but he
"chose to ignore" the said notices by his "convenient absence" from his
residence and the continued refusal by his wife to receive the notices
(Memorandum of public respondent, p. 5). Private respondent cannot be
faulted as petitioner had ample opportunity to be heard. Since he
unjustifiably rejected the opportunity, petitioner cannot now complain that
he was denied due process of law.
Petitioner also maintains that his dismissal was without basis as his
complicity in the theft of the P15,000.00 was solely based on suspicions and
on the polygraph test conducted on his person.
Loss of confidence is a valid ground for dismissing an
employee. Proof beyond reasonable doubt of the employer's
misconduct is not required, it being sufficient that there is
some basis for the same or that the employer has reasonable
ground to believe that the employee is responsible for the
misconduct and his participation therein rendered him
unworthy of the trust and confidence demanded of his
position. (Nat'l Org. of Laborers and Employers vs. MRR, 21
SCRA 191; Nevans vs. Court of Industrial Relations, 23
SCRA 1321; Galsim vs. PNB, 29 SCRA 293; Reyes v. Zamora,
90 SCRA 92; Villadolid v. Inciong, 121 SCRA 205; San
Miguel Corp. v. Deputy Minister of Labor and Employment,
G.R. Nos. 61232-33, Dec. 29, 1983)
narrowed down the list of suspects to him alone. We agree with the public
respondent that petitioner's continued absence from his residence and
unexplained disappearance despite several notices for further police
investigation implied flight associated with guilt. The requirement that there
be some basis or reasonable ground to believe that the employee is
responsible for the misconduct is sufficiently met in the case at bar.
maximum) and the minimum is one degree lower than the prescribed penalty
now of reclusion temporal maximum to reclusion perpetua.
DECISION
SYLLABUS
PARAS, J.:
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ABSENCE
OF EVIL MOTIVE TO IMPLICATE A CLOSE RELATIVE, BOLSTERS
CREDIBILITY. Witnesses Calipayan had no motive to implicate appellant
who is their close relative being the son of the first cousin of Rosario
Calipayan as admitted by appellant himself in his testimony.
2. ID.; ID.; DYING DECLARATION; NO PROBATIVE VALUE WHERE THE
DECEASED WAS NOT IN A POSITION TO IDENTIFY HIS ASSAILANT. We
do not question the credibility of witness Segundina Delda in declaring that
her brother, Bienvenido Caluser, made a dying statement inside the bus that
Pare Benny wounded him. While there may be such statement made since
that was the belief of the deceased Bienvenido Caluser, We cannot give it
probative value. As already shown earlier, Bienvenido Caluser was not in a
position to identify his assailant as he was stabbed from behind and when
he, already wounded, bloodied and weak from his wounds, took a look at his
assailant, Bienvenido Caluser was again stabbed several times by the
appellant giving him no opportunity to fully identify his attacker. Maybe
because of the fact that Bienvenido Caluser and Marianito Intino had no
quarrel or misunderstanding in the past the former never thought of the
latter as his attacker, thus he uttered someone elses name who was their
drinking
guest
earlier
as
his
attacker.
3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY; MANIFEST
WHERE THE ATTACK WAS SUDDEN AND UNEXPECTED. There is no
question that there was treachery as the attack that came from behind was
so sudden and unexpected leaving the poor victim helpless to defend himself.
Appellant Marianito Intino alias "Marian" was charged before the lower court
with the crime of Murder in an Information quoted hereunder: jgc:chanrobles.com.ph
"That on or about the 17th day of September, 1976, in the Municipality of
Babatngon, Province of Leyte, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with the decided intent to kill
and by means of treachery did, then and there willfully, unlawfully and
feloniously attack, assault and wound one Bienvenido Caluser with a bolo
which he purposely provided himself, thereby hitting and inflicting upon the
said Bienvenido Caluser with wounds on the different parts of his body
which
caused
his
death
shortly
thereafter.
"Contrary to Article 248 of the Revised Penal Code." (p. 1, Rollo)
After due trial, judgment 1 was rendered by the trial court on October 3,
1984,
its
dispositive
portion
reading
as
follows: jgc:chanrobles.com.ph
"WHEREFORE, finding the accused Marianito Intino guilty beyond
reasonable doubt of the crime of Murder, there being no mitigating nor
aggravating circumstance, this Court hereby renders judgment sentencing
the accused to suffer the penalty of reclusion perpetua, with all the accessory
penalties
provided
for
by
law,
and
to
pay
the
costs.
"In the service of his sentence, the accused shall be entitled to the full time
during
which
he
was
under
preventive
imprisonment.
"The accused is hereby directed to pay to the heirs of the late Bienvenido
Caluser, as compensation, the amount of P12,000.00, without subsidiary
imprisonment
in
case
of
insolvency.
"SO
ORDERED."
(p.
7,
Decision;
p.
25
Rollo)
Hence, the appeal interposed by the accused with the following: chanrob1es virtual
1aw
library
ASSIGNMENTS OF ERROR
I
Briefly, the evidence for the prosecution tends to show that the appellant
Marianito Intino is a farmer who had been hired as a coconut picker by the
victim Bienvenido Caluser.
On September 17, 1976 at about 3:00 oclock in the afternoon, appellant and
the victim went to the house of the latters girl friend, Norma Calipayan, who
served them tuba. While they were drinking, they invited Benny Raliente, a
passerby to join them in their drinking spree. The latter accepted their
invitation but after drinking about two or three glasses of tuba, he left
Marianito and Bienvenido who continued with their drinking until about
6:00 oclock p.m. Thereafter, Bienvenido Caluser joined Norma, Rosario, her
mother and Luciano, her father in their supper. Marianito Intino seated
himself at the porch approximately four meters away from the dining table,
while Primo Calipayan, a brother of Norma was lying on a bench beside
Marianito. After eating Rosario went inside the bedroom to breastfeed her
one-year old child, while her husband went outside the house. Norma was
left with Bienvenido at the dining table. While they were conversing, Norma
saw Marianito suddenly rise from his seat, then approach Bienvenido from
behind him since Bienvenido was seated with his back facing the door
leading to the porch. Norma was seated on another bench at the right side of
Bienvenido, sideways to the door leading to the porch so that she was able to
see the action of Marianito. (Exh. E-3, p. 18, Record). After hearing
Bienvenido say "I am wounded" in the vernacular, Norma stood up as
Bienvenido held on to her. As Bienvenido tried to glance at his assailant,
appellant again stabbed him with his bolo which prompted witness Norma to
utter "Marian husto na." Then Normas mother, Rosario, who rushed out of
the room upon hearing somebody cry that he was wounded, saw Marianito
who was still attacking Bienvenido, who was already wounded. Rosario
pushed Marianito aside as she took the bolo from him to prevent him from
further attacking Bienvenido Caluser. Marianito ran away. When Luciano
Calipayan arrived, upon seeing Bienvenido Caluser bathed in his own blood
with intestines protruding from his abdomen, he immediately sought the
help of Punay de San Miguel and Peping de San Miguel and their other
neighbors. They placed Bienvenido Caluser on a hammock and boarded him
on a baby bus enroute to the Daniel Z. Romualdez Memorial Hospital in
Tacloban City, where he died about midnight of that same day.
On the other hand, the evidence for the defense consists of the testimonies of
witnesses Marianito Intino (appellant), Segundina C. Delda and Alejo D.
Ripalda. Appellant denied that he stabbed and killed the victim. He identified
the assailant as Benedicto Relente 2 or "Pare Benny" (of the victim).
According to the testimonies of Segundina C. Delda, sister of the victim, and
Alejo D. Ripalda, the victim made a dying declaration to Segundina while
inside the baby bus, (he repeated such declaration to Fernando San Miguel
while inside the intensive care unit of the hospital) that his attacker was
"Pare Benny" referring to Benedicto Relente of Villa Magsaysay. These two
separate dying statements were allegedly heard by witness Alejo Ripalda who
was then present on both instances.
any ill-feelings or bad blood between the victim and the appellant except
during that instance when the victim told the appellant jokingly that he
would box appellant because he was from Pagsulhugan. When Rosario heard
such conversation she cut in by asking Bienvenido what this talk was all
about. The latter simply answered that he was only joking.
"Q. Will you tell the court the sitting position of the persons drinking?
A. Bienvenido Caluser and Benny were facing each other and Rosario was
behind Luciano Calipayan, sir.
Q. How do you know that?
A. Because I could see them from the porch.
Q. What was illuminating them?
A. A kerosene lamp sir.
Q. Now while these persons were drinking at around 8.00 oclock what
happened?
A. Bienvenido Caluser was stabbed by a person called Benny.
Q. What did Benny do to Caluser?
A. Benny held the shoulder of Bienvenido Caluser and then stabbed him sir.
OF
THE
PHILIPPINES, plaintiff-appellee,
vs. PABLO
ADOVISO, defendant-appellant.
DECISION
Except for the name of the victim, the information in Criminal Case No.
P-2080 with respect to the killing of Emeterio Vasquez, contains the same
allegations.[4]
Appellant pleaded not guilty to both charges. At the joint trial of
Criminal Case Nos. P-2079 and P-2080, the prosecution presented their
version of the events that transpired on the evening of February18, 1990, as
follows:
KAPUNAN, J.:
Pablo Adoviso appeals from the Joint Judgment [1] of the Regional Trial
Court of Camarines Sur[2] declaring him guilty beyond reasonable doubt for
two counts of Murder.
Appellant, allegedly a member of the Citizens Armed Forces
Geographical Unit (CAFGU), was originally charged with four unidentified
persons who have, however, remained at large. The information[3] charging
appellant with the Murder of Rufino Agunos under Criminal Case No. P-2079
alleges:
That on or about the 18th day of February 1990 at about 8:00 oclock
[sic] in the evening at Sitio Tan-agan, Barangay Casugad,
Municipality of Bula, Province of Camarines Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, while armed with assorted long firearms, conspiring,
confederating and mutually helping one another, with intent to kill
and with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously shoot one Rufino Agunos several
times with said firearms hitting the latter on the different parts of his
body which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said Rufino Agunos.
That the crime complained of against the accused is not service
connected.
ACTS CONTRARY TO LAW.
The spouses Emeterio and Anastacia Vasquez had two adjacent houses
in Sitio Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the
houses was actually a camalig where they stored harvested rice. The spouses
preferred to live there because it was cooler. The living area of thecamalig had
walls of bamboo called salsag. This area was elevated from the ground. Three
steps led down to an awning (suyab) walled with bamboo slats. These slats
were placed horizontally approximately four to six inches apart. A portion of
the awning was used as a kitchen but another portion had a papag where
the Vasquez grandson, Rufino Agunos, son of their daughter Virginia, would
sleep whenever he tended the irrigation pump. The spouses son Bonifacio
occupied the other house eight (8) meters from the camalig with his own son
Elmer.
At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez
was preparing coffee as his wife was about to retire for the night. Their
grandson Rufino had already gone to sleep in the papag. Anastacia had just
finished spreading the sleeping mat when she heard three or four
gunshots. Emeterio then uttered that he had been shot. Seeing Emeterio,
Anastacia exclaimed, Why should you not be hit when in fact there are guns
in front of you. Anastacia saw the protruding edge of the gun on the wall
near the stairs where Emeterio went down. A lamp near the stairs where
Emeterio drank coffee illuminated the camalig but Anastacia failed to
recognize the persons who fired their guns at her husband.
The Vasquez son Bonifacio was in the bigger house when he heard the
gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding the
engine of the irrigation pump. Bonifacio was still talking when he noticed
that Rufino had fallen asleep, the latters back against the bamboo
wall. Bonifacio left Rufino snoring in the papag and went to the other
house. Only a minute had passed after he had gone up when Bonifacio heard
the gunshots. He and his 16-year-old son Elmer immediately went down the
front yard to investigate.
Bonifacio hid himself in the dark portion of the yard, behind a coconut
tree. From a distance of eight (8) meters, Bonifacio saw Rufino, who was
inside the camalig, being shot by several persons from the outside. Looking
through the bamboo slats of the camalig wall, Bonifacio recognized one of the
assailants, with a large built and long hair, as appellant Pablo Adoviso
because of the gas lamp that was lighted inside the camalig. Of Rufinos
assailants, only appellant was not wearing a mask. Appellant was holding a
long firearm wrapped inside a sack with its muzzle protruding and directed
where Rufino was sleeping. Appellant then fired hitting Rufino. At that
moment, Bonifacio heard his father Emeterio shout Pino, (referring to his
grandson Rufino) and saw his father go down the stairs carrying a gas
lamp. Appellant fired again, hitting Emeterio at the stomach.
For his part, Elmer, who rushed towards the camalig with his father
Bonifacio, saw five (5) persons aiming their firearms at the camalig. Except
for appellant, each of these persons had a cover over their faces. Three (3) of
them were positioned in a ditch near the camalig while two (2) others were
near its door. Elmer saw these five (5) persons shoot his cousin Rufino who
was lying down on the papag. Although his back was hit, Rufino was able to
crawl under the papag. Elmers grandfather was also hit on the stomach but
he managed to go up the camalig. When appellant and his companion by
the camalig door saw Elmer, they fired at him then, with the three others at
the ditch, escaped to the banana plantation. Elmer, on the other hand, fled
towards the coconut plantation.
Upon returning to the camalig, Elmer saw his father carrying his
grandfather Emeterio. He also found Rufino at the foot of a coconut tree near
the river, lying on his side with his body curled. Rufino told Elmer that he
had been hit and, when Elmer failed to locate his wound, Rufino took Elmers
hand and put it on his back. Elmer then moved Rufino sidewise. Upon
returning to the camalig, Elmer carried his grandfather and bandaged his
stomach with diapers.
In the meantime, Bonifacio went to the municipal building of Bula to
fetch the police. Inspector Antonio Lopez and Senior Police Officer 1 Claro
Ballevar returned to the scene of the crime with him. The police brought
Emeterio and Rufino to the municipal hall of Bula and then to the Bicol
Regional Hospital. Both Emeterio and Rufino died early the next morning.
The certification[5] dated March 7, 1990 and signed by Dr. Janice Nanette
Estrada, resident physician of the Bicol Regional Hospital in Naga City, states
that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at the
inguinal area, the sacral area, the thigh and the abdomen. The wounds at
the inguinal area and the thigh bore contusion collars. The same physician
certified that Emeterio Vasquez, 88 years of age, sustained seven (7) gunshot
wounds at the paraumbilical area, lumbar area, hypogastrium, anterior
aspect of the right forearm, anteromedial aspect of the right forearm,
anteromedial aspect left arm and anterolateral aspect of the left arm. Four (4)
of these gunshot wounds had contusion collars at the paraumbilical area,
the hypogastrium, the right forearm and the left arm. [6]
Appellant Adoviso interposed alibi and denial as his defense.
Appellant claimed that he was a member of the CAFGU whose
headquarters was located in Barangay Palsong, Bula, Camarines Sur. At
around 7:00 in the evening of February 18, 1990, he was in Sitio Burabod,
Palsong, about a kilometer away from the CAFGU headquarters. He, together
with Francisco Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had
some drinks in the store of Honoria Tragante until around 11:00 p.m.
Honoria Tragante and Francisco Bislombre corroborated appellants
alibi. Antero Esteron likewise testified that from 7:00 until past 11:00 that
night of February 18, 1990, he and appellant had a drinking spree at the
Tragante store. He distinctly remembered that date because it was the fiesta
of Balatan.
To support his denial, appellant presented Lt. Antonio Lopez, the deputy
chief of police and SPO2 Claro Ballebar of the PNP Bula Police Station. Lopez
identified a police certification[7] prepared by Pfc. Ramon N. Canabe to the
effect that the shooting incident was perpetrated by unidentified armed men.
Lopez said that he (Lopez) was one of those who brought the victims to the
hospital who were then still conscious. The victims told him that they did not
know who shot them or why they were shot.
SPO2 Claro Ballebar, however testified that in the follow-up investigation
he conducted several days after the incident, Bonifacio Vasquez revealed to
him that he (Bonifacio) vividly saw the incident and recognized appellant as
one of the perpetrators of the crime and that the killings had some
something to do with land dispute between Bonifacios parents and the
Galicia family.
SO ORDERED.[9]
Appellant hinges his bid for exoneration on whether he was properly
identified by the two (2) eyewitnesses as one of the killers of the victims. He
contends that eyewitnesses Bonifacio and Elmer Vasquez presented an
incredible story because it is highly improbable that they could have
distinctly and positively recognized accused-appellant as one of the
perpetrators of the crimes."[10] According to appellant, Bonifacio, who was in
the dark portion of the yard hiding behind a coconut tree, could not have
identified appellant by the light emanating from gas lamp inside
thecamalig where Emeterio Vasquez and Rufino Agunos were staying at the
time of the incident. Neither could Elmer Vasquez, who declared that he saw
his grandfather shot by appellant, could have identified appellant because of
the poor lighting coming from the gas lamp being carried by his
grandfather. Appellant claims that the gas lamp carried by Elmer's
grandfather was a small can about two (2) inches tall and the wick is smaller
than a cigarette and the lamp inside the camalig was placed inside a bigger
can so that the direction of the light emanating therefrom was upwards and
not sidewise.[11]
Visibility is indeed a vital factor in the determination of whether or not
an eyewitness could have identified the perpetrator of a crime. However, it is
settled that when conditions of visibility are favorable, and the witnesses do
not appear to be biased, their assertion as to the identity of the malefactor
should normally be accepted.[12] Illumination produced by kerosene lamp or a
flashlight is sufficient to allow identification of persons. [13] Wicklamps,
flashlights, even moonlight or starlight may, in proper situations be
considered sufficient illumination, making the attack on the credibility of
witnesses solely on that ground unmeritorious.[14]
In this case, not one (1) but two (2) gas lamps illuminated the place the
one placed inside the camalig and that held by Emeterio as he descended
from the stairs after the first volley of gunfire. Appellants contention therefore
that one particular gas lamp could not have lighted the place because it was
placed inside a can is puerile. Besides, Elmer was not describing either of the
gas lamps during the incident. The defense counsel at the trial and
appellants counsel misunderstood the testimonies of Elmer and his
grandmother on that matter. Thus, Elmer testified:
ATTY. CORTES:
Q Is it not that the lamp you said placed along the door, which is already marked
as lamp, is that not this lamp was placed inside a kerosene can as testified to
by your grandmother so that the cat could not cause it to fall?
A The lamp was placed on the floor where my husband was drinking coffee.
A It was placed just on the floor not inside the can.[15] (Underlining
supplied.)
Q Who are the persons you are referring to as having left when you placed the light
inside the can?
COURT:
A My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio
and Rufino to the hospital.[16] (underlining supplied).
Clearly then, the lamp inside the camalig was placed on the floor and a
xxx.
Q Because you were already about to retire, the doors and windows were already
closed, is that correct?
A Yes, sir.
Q That you also shut down or closed the light, is that correct?
A No, sir, we even placed the kerosene lamp inside a can.
Q You said, you placed the lamp inside a can so that the light is going up, is that
correct?
A Yes, sir.
Q So, the light was not illuminating sidewise because it was inside a can?
A When we left, I got the kerosene lamp and brought it with me.
ATTY. CORTES:
I think, the witness did not get the question right, Your Honor.
COURT:
Repeat the question.
ATTY. CORTES:
Q My question Madam Witness is, when you were about to retire?
can was placed over it only after the incident when Anastacia left with her
son and the police to bring the victims to the hospital.
The bamboo slats of the camalig could not have effectively obstructed
the eyewitnesses' view of appellant, considering that the slats were built four
(4) meters apart. Besides, it is the natural reaction of relatives of victims to
strive to observe the faces and appearance of the assailants, if not ascertain
their identities, and the manner in which the crime is committed. [17] A relative
will naturally be interested in identifying the malefactor to secure his
conviction to obtain justice for the death of his relative(s). [18] It must
remembered that appellant was not a complete stranger to the
eyewitnesses. Bonifacio had known him for ten (10) years [19] while Elmer had
been acquainted with him for four (4) years. Elmer recalled that appellant
used to join the rabuz at the barracks.[20] Familiarity with appellants face and
appearance minimized if not erased the possibility that they could have been
mistaken as to his identity.
Appellants allegation that it was improbable for him to have committed
the crimes without a mask, unlike the other participants, deserves scant
consideration. It is not contrary to human experience for a person to commit
a crime before the very eyes of people who are familiar to them.Indeed, some
may even take pride in their identification as the perpetrator of a criminal
act.
Appellant also considers as a positive sign, Bonifacios failure to
immediately identify him as the perpetrator of the crime to the police. [21] The
delay in reporting his participation to the police was however sufficiently
explained by Bonifacio. Bonifacio was afraid of appellant since the latter was
a member of the CAFGU and, as such, was provided with a gun. He was also
hesitant in identifying appellant immediately lest he got wind of his
impending arrest and posthaste escaped the clutches of the law. The failure
Apart from the fact that appellant's alibi was inherently weak, he was
not even sure where he was and who were his companions at the time the
crimes were committed. We quote the observation of the trial court on this
point:
On the premise that the trial court rendered the judgment of conviction
on the basis of mere conjectures and speculations, [29] appellant argues that
the negative result of the polygraph test should be given weight to tilt the
scales of justice in his favor.
A polygraph is an electromechanical instrument that simultaneously
measures and records certain physiological changes in the human body that
Saturday, 1:30 p. m.
February 14, 1931
Rev. FATHER,
The baby due in June is mine and I should like for my name to be given to it.
CESAR SYQUIA
The occasion for writing this note was that the defendant was on the eve of
his departure on a trip to China and Japan; and while he was abroad on this
visit he wrote several letters to Antonia showing a paternal interest in the
situation that had developed with her, and cautioning her to keep in good
condition in order that "junior" (meaning the baby to be, "Syquia, Jr.") might
be strong, and promising to return to them soon. The baby arrived at the
time expected, and all necessary anticipatory preparations were made by the
defendant. To this he employed his friend Dr. Crescenciano Talavera to attend
at the birth, and made arrangements for the hospitalization of the mother in
Saint Joseph's Hospital of the City of Manila, where she was cared for during
confinement.
When Antonio was able to leave the hospital, Syquia took her, with her
mother and the baby, to a house at No. 551 Camarines Street, Manila, where
they lived together for about a year in regular family style, all household
expenses, including gas and electric light, being defrayed by Syquia. In
course of time, however, the defendant's ardor abated and, when Antonia
began to show signs of a second pregnancy the defendant decamped, and he
is now married to another woman. A point that should here be noted is that
when the time came for christening the child, the defendant, who had charge
of the arrangement for this ceremony, caused the name Ismael Loanco to be
given to him, instead of Cesar Syquia, Jr., as was at first planned.
The first question that is presented in the case is whether the note to
the padre, quoted above, in connection with the letters written by the
defendant to the mother during pregnancy, proves an acknowledgment of
paternity, within the meaning of subsection 1 of article 135 of the Civil Code.
Upon this point we have no hesitancy in holding that the acknowledgment
thus shown is sufficient. It is a universal rule of jurisprudence that a child,
upon being conceived, becomes a bearer of legal rights and capable of being
dealt with as a living person. The fact that it is yet unborn is no impediment
to the acquisition of rights. The problem here presented of the recognition of
unborn child is really not different from that presented in the ordinary case
of the recognition of a child already born and bearing a specific name. Only
the means and resources of identification are different. Even a bequest to a
living child requires oral evidence to connect the particular individual
intended with the name used.
It is contended however, in the present case that the words of description
used in the writings before us are not legally sufficient to indemnify the child
now suing as Ismael Loanco. This contention is not, in our opinion, well
founded. The words of recognition contained in the note to the padre are not
capable of two constructions. They refer to a baby then conceived which was
expected to be born in June and which would thereafter be presented for
christening. The baby came, and though it was in the end given the name of
Ismael Loanco instead of Cesar Syquia, Jr., its identity as the child which the
defendant intended to acknowledge is clear. Any doubt that might arise on
this point is removed by the letters Exhibit F, G, H, and J. In these letters the
defendant makes repeated reference to junior as the baby which Antonia, to
whom the letters were addressed, was then carrying in her womb, and the
writer urged Antonia to eat with good appetite in order that junior might be
vigorous. In the last letter (Exhibit J) written only a few days before the birth
of the child, the defendant urged her to take good care of herself and
of junior also.
It seems to us that the only legal question that can here arise as to the
sufficiency of acknowledgment is whether the acknowledgment contemplated
in subsection 1 of article 135 of the Civil Code must be made in a single
document or may be made in more than one document, of indubitable
authenticity, written by the recognizing father. Upon this point we are of the
opinion that the recognition can be made out by putting together the
admissions of more than one document, supplementing the admission made
in one letter by an admission or admissions made in another. In the case
before us the admission of paternity is contained in the note to the padreand
the other letters suffice to connect that admission with the child then being
carried by Antonia L. de Jesus. There is no requirement in the law that the
writing shall be addressed to one, or any particular individual. It is merely
required that the writing shall be indubitable.
The second question that presents itself in this case is whether the trial
court erred in holding that Ismael Loanco had been in the uninterrupted
possession of the status of a natural child, justified by the conduct of the
father himself, and that as a consequence, the defendant in this case should
MINOR
MARTIN
JOSE
PROLLAMANTE,
DECISION
CORONA, J.:
[2]
[3]
[4]
[8]
[9]
[12]
[14]
The trial court denied the motion to dismiss the complaint and
ordered the parties to submit themselves to DNA paternity testing at
the expense of the applicants. The Court of Appeals affirmed the trial
court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a
complaint for support can be converted to a petition for recognition
and (2) whether DNA paternity testing can be ordered in a proceeding
for support without violating petitioners constitutional right to
privacy and right against self-incrimination.
[15]
[19]
[18]
[26]
[23]
10/11, which are identical with semen taken from the victims vaginal
canal. 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.
[27]
The contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. 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.
Over the years, we have expressly excluded several kinds of
object evidence taken from the person of the accused from the realm
of self-incrimination. These include photographs, hair, and other
bodily substances. We have also declared as constitutional several
procedures performed on the accused such as pregnancy tests for
women accused of adultery, expulsion of morphine from ones
mouth and the tracing of ones foot to determine its identity with
bloody footprints. In Jimenez v. Caizares, we even authorized the
examination of a womans genitalia, in an action for annulment filed
by her husband, to verify his claim that she was impotent, her orifice
being too small for his penis. Some of these procedures were, to be
sure, rather invasive and involuntary, but all of them were
constitutionally sound. DNA testing and its results, per our ruling
in Yatar, are now similarly acceptable.
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[38]
[41]
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon
the case that the appellate court remanded the case and ordered the
testing, which the North Dakota Supreme Court upheld.
discussed at length the nature of such a petition and just what was
meant by grave abuse of discretion:
[49]
[51]
[53]
promulgating its decision and resolution, and any error made would
have only been an error in judgment. As we have discussed, however,
the decision of the respondent court, being firmly anchored in law
and jurisprudence, was correct.
Epilogue
For too long, illegitimate children have been marginalized by
fathers who choose to deny their existence. The growing
sophistication of DNA testing technology finally provides a much
needed equalizer for such ostracized and abandoned progeny. We
have long believed in the merits of DNA testing and have repeatedly
expressed as much in the past. This case comes at a perfect time
when DNA testing has finally evolved into a dependable and
authoritative form of evidence gathering. We therefore take this
opportunity to forcefully reiterate our stand that DNA testing is a
valid means of determining paternity.
WHEREFORE, in view of the foregoing, the petition is hereby
DENIED. The Court of Appeals decision dated January 28, 2004 in
CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.
Salle University where she taught Cell Biology. She was also head of
the University of the Philippines Natural Sciences Research Institute
(UP-NSRI), a DNA analysis laboratory. She was a former professor at
the University of the Philippines in Diliman, Quezon City, where she
developed the Molecular Biology Program and taught Molecular
Biology. In her testimony, Dr. Halos described the process for DNA
paternity testing and asserted that the test had an accuracy rate of
99.9999% in establishing paternity.
[4]
DECISION
CARPIO, J.:
The Case
This is a petition for review to set aside the Decision dated 29
November 2000 of the Court of Appeals (appellate court) in CA-G.R.
SP No. 59766. The appellate court affirmed two Orders issued by
Branch 48 of the Regional Trial Court of Manila (trial court) in SP No.
98-88759. The Order dated 3 February 2000 directed Rosendo
Herrera (petitioner) to submit to deoxyribonucleic acid (DNA)
paternity testing, while the Order dated 8 June 2000 denied
petitioners motion for reconsideration.
[1]
[2]
[3]
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba
(respondent), represented by his mother Armi Alba, filed before the
trial court a petition for compulsory recognition, support and
damages against petitioner. On 7 August 1998, petitioner filed his
answer with counterclaim where he denied that he is the biological
father of respondent. Petitioner also denied physical contact with
respondents mother.
Respondent filed a motion to direct the taking of DNA paternity
testing to abbreviate the proceedings. To support the motion,
respondent presented the testimony of Saturnina C. Halos, Ph.D.
When she testified, Dr. Halos was an Associate Professor at De La
Procedure. He asserted that the trial court rendered the Orders dated
3 February 2000 and 8 June 2000 in excess of, or without
jurisdiction and/or with grave abuse of discretion amounting to lack
or excess of jurisdiction. Petitioner further contended that there is no
appeal nor any [other] plain, adequate and speedy remedy in the
ordinary course of law. Petitioner maintained his previous objections
to the taking of DNA paternity testing. He submitted the following
grounds to support his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions
precedent for the admissibility of DNA testing and ignoring the serious constraints affecting
the reliability of the test as admitted by private respondents expert witness.
3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings
and conclusions unfit for judicial notice and unsupported by experts in the field and scientific
treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be
inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the
petitioner, unconstitutional.[7]
Issues
Petitioner raises the issue of whether a DNA test is a valid
probative tool in this jurisdiction to determine filiation. Petitioner
asks for the conditions under which DNA technology may be
integrated into our judicial system and the prerequisites for the
admissibility of DNA test results in a paternity suit.
[10]
[12]
A prima facie case exists if a woman declares that she had sexual
relations with the putative father. In our jurisdiction, corroborative
proof is required to carry the burden forward and shift it to the
putative father.
[15]
and petitioner side by side, to show how much they resemble each
other.
Paternity and filiation disputes can easily become credibility
contests. We now look to the law, rules, and governing jurisprudence
to help us determine what evidence of incriminating acts on paternity
and filiation are allowed in this jurisdiction.
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
[16]
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.
xxx
[17]
[18]
In the present case, the trial court encountered three of the four
aspects. Armi Alba, respondents mother, put forward a prima
facie case when she asserted that petitioner is respondents biological
father. Aware that her assertion is not enough to convince the trial
court, she offered corroborative proof in the form of letters and
pictures. Petitioner, on the other hand, denied Armi Albas assertion.
He denied ever having sexual relations with Armi Alba and stated
that respondent is Armi Albas child with another man. Armi Alba
countered petitioners denial by submitting pictures of respondent
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like,
may be received as evidence of pedigree.
[21]
[22]
[23]
[24]
[25]
[26]
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an
individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is
unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals
blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs,
saliva, or other body parts.
[27]
The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine)
and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her
physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired
bases, A-T or T-A and G-C or C-G. These are called genes.
Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a
person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ.
They are known as polymorphic loci, which are the areas analyzed in DNA typing (profiling, tests,
fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing
simply means determining the polymorphic loci.
How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed
to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP
(restriction fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287
cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR
(variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain
reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic
laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million
times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the
other hand, takes measurements in 13 separate places and can match two (2) samples with a reported
theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or
fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime
scene is compared with the known print. If a substantial amount of the identifying features are the same,
the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint
is different, it is deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a
person possesses two genetic types called allele, one inherited from each parent. In [a] paternity test, the
forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs
DNA was inherited from the mother. The other half must have been inherited from the biological father. The
alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the mans DNA types do not match that of the child, the man
is excluded as the father. If the DNA types match, then he is not excluded as the father.[32] (Emphasis in the
original)
Although the term DNA testing was mentioned in the 1995 case
of People v. Teehankee, Jr., it was only in the 2001 case of Tijing
[33]
Admissibility of
DNA Analysis as Evidence
wary attitude towards DNA testing in the 1997 Pe Lim case, where
we stated that DNA, being a relatively new science, xxx has not yet
[36]
evidence: Frye
v.
v.
Merrell
Dow
[42]
Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be
recognized, and while courts will go a long way in admitting expert testimony deduced from a well
recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in which it belongs.
In
1989, State
v.
Schwartz modified the Frye standard.
Schwartz was charged with stabbing and murder. Bloodstained
articles and blood samples of the accused and the victim were
submitted for DNA testing to a government facility and a private
facility. The prosecution introduced the private testing facilitys results
over Schwartzs objection. One of the issues brought before the state
Supreme Court included the admissibility of DNA test results in a
criminal proceeding. The state Supreme Court concluded that:
[43]
While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific
community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys
compliance with appropriate standards and controls, and the availability of their testing data and results. [44]
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.
In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to
produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine
which half of the childs DNA was inherited from the mother. The other half must have been inherited from
the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types
in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the
child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[52]
[48]
[49]
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.
This Rule does not pose any legal obstacle to the admissibility of DNA
analysis as evidence. Indeed, even evidence on collateral matters is
allowed when it tends in any reasonable degree to establish the
probability or improbability of the fact in issue.
[50]
It is not enough to state that the childs DNA profile matches that of
the putative father. A complete match between the DNA profile of the
child and the DNA profile of the putative father does not necessarily
establish paternity. For this reason, following the highest standard
adopted in an American jurisdiction, trial courts should require at
least 99.9% as a minimum value of the Probability of Paternity (W)
prior to a paternity inclusion. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the probability
of a random match of two unrelated individuals. An appropriate
reference population database, such as the Philippine population
database, is required to compute for W. Due to the probabilistic
nature of paternity inclusions, W will never equal to 100%. However,
the accuracy of W estimates is higher when the putative father,
mother and child are subjected to DNA analysis compared to those
conducted between the putative father and child alone.
[53]
[54]
of
paternity. This
refutable
should
be
subjected
to
[55]
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. [51]
versus
DECISION
CARPIO MORALES, J.:
For several months in 2005, then 21-year old petitioner Jenie
San Juan Dela Cruz (Jenie) and then 19-year old Christian
Dominique Sto. Tomas Aquino (Dominique) lived together as husband
and wife without the benefit of marriage. They resided in the house of
Dominiques parents Domingo B. Aquino and Raquel Sto. Tomas
Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal.
On September 4, 2005, Dominique died.[1] After almost two
months, or on November 2, 2005, Jenie, who continued to live with
Dominiques parents, gave birth to her herein co-petitioner minor
child Christian Dela Cruz Aquino at the Antipolo Doctors Hospital,
Antipolo City.
AUTOBIOGRAPHY
IM CHRISTIAN DOMINIQUE STO. TOMAS
AQUINO, 19 YEARS OF AGE TURNING 20 THIS
COMING OCTOBER 31, 2005.[5] I RESIDE AT PULANGLUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL.
I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE
BROTHER NAMED JOSEPH BUTCH STO. TOMAS
AQUINO. MY FATHERS NAME IS DOMINGO BUTCH
AQUINO AND MY MOTHERS NAME IS RAQUEL STO.
TOMAS AQUINO. x x x.
xxxx
AS OF NOW I HAVE MY WIFE NAMED JENIE
DELA CRUZ. WE MET EACH OTHER IN OUR
HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME
GOOD FRIENDS, THEN WE FELL IN LOVE WITH
EACH
OTHER,
THEN
WE
BECAME
GOOD
COUPLES. AND AS OF NOW SHE IS PREGNANT AND
c.
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his
father because he was born out of wedlock and the
father unfortunately died prior to his birth and has no
more capacity to acknowledge his paternity to the child
(either through the back of Municipal Form No.
102 Affidavit
of
Acknowledgment/Admission
of
Paternity or the Authority to Use the Surname of the
Father). (Underscoring supplied)
Jenie
and
the
injunction/registration
child
of
promptly
name
filed
against
respondent
before
the Regional Trial Court of Antipolo City, docketed as SCA Case No.
06-539, which was raffled to Branch 73 thereof. The complaint
alleged that, inter alia, the denial of registration of the childs name is
a violation of his right to use the surname of his deceased father
under Article 176 of the Family Code, as amended by Republic
Act (R.A.) No. 9255,[10] which provides:
Article 176. Illegitimate children shall use the
surname and shall be under the parental authority of
their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate
children may use the surname of their father if their
filiation has been expressly recognized by the
father through the record of birth appearing in
2.2 Private
handwritten
instrument
an
instrument executed in the handwriting of the father
and duly signed by him where he expressly recognizes
paternity to the child. (Underscoring supplied)
The trial court held that even if Dominique was the author of the
handwritten Autobiography, the same does not contain any express
recognition of paternity.
Hence, this direct resort to the Court via Petition for Review
on Certiorari raising this purely legal issue of:
WHETHER
OR
NOT
THE
UNSIGNED
HANDWRITTEN STATEMENT OF THE DECEASED
FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE
CONSIDERED AS A RECOGNITION OF PATERNITY IN
A PRIVATE HANDWRITTEN INSTRUMENT WITHIN
THE CONTEMPLATION OF ARTICLE 176 OF THE
FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH
ENTITLES THE SAID MINOR TO USE HIS FATHERS
SURNAME.[15] (Underscoring supplied)
and affirmed her declarations in her AUSF that during his lifetime,
he had acknowledged his yet unborn child.[11]She offered Dominiques
handwritten Autobiography (Exhibit A) as her documentary evidencein-chief.[12] Dominiques lone brother, Joseph Butch S.T. Aquino, also
testified, corroborating Jenies declarations.[13]
By Decision[14] of April 25, 2007, the trial court dismissed the
complaint for lack of cause of action as the Autobiography
was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms)
of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules
and
Regulations
Governing
the
Implementation
of
R.A.
xxxx
in consonance with the law and thus prays for the dismissal of the
petition. It further submits that Dominiques Autobiography merely
acknowledged Jenies pregnancy but not [his] paternity of the child
she was carrying in her womb.[18]
the record
of
birth
an admission
appearing
made
in a
in
the
civil
public
register, orthrough
or private
handwritten
in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No.
1, Series of 2004, merely articulated such requirement; it did not
unduly expand the import of Article 176 as claimed by petitioners.
state
that
the
private
handwritten
that
Dominiques
Autobiography,
though
unsigned
by
instrument
testimony
relevant
is corroborated by
matters
in
the Affidavit
the
of
Autobiography,
Acknowledgment of
handwritten
acknowledging
parent
as
it
is
merely
the
by
Our laws instruct that the welfare of the child shall be the
herein that Dominique, during his lifetime, and Jenie were living
instrument
written by him. Taken together with the other relevant facts extant
handwritten
that the claim of filiation therein be shown to have been made and
private
[22]
the
the
investigation
of
the paternity
and
filiation
of
of
the
late
Christian
Dominique
Sto.
SUPREME COURT
Manila
EN BANC
April 25, 1957
G.R. No. L-9194
CO TAO, petitioner,
vs.
a su mayoria de edad;
(b) La cantidad de P200, por las deudas que ella habia contraido;
(c) La cantidad de P500, como daos morales;
(d) La cantidad de P200, para honorarios de abogado; y
PADILLA, J.:
Tao courted Lucita Vallejo and promised to marry her. And believing
here with money and food. In October, 1949, however, the child feel
that he was single, Lucita accepted him and in no time they were
sick, and upon suggestion of defendant Co Tao, Lucita and her child
having carnal relations in the said house almost every day, as must
children had arrived in the meanwhile, and defendant did not write
brought her to the house of her uncle, Candido Vallejo, at No. 389,
Lucita to stay in the said house until she delivered and promising to
pay the rentals thereof. At 3:00 o'clock, morning of August 13, 1948,
assisted by a midwife, Felisa Galang, who was summoned by Candido
Vallejo, Lucita, Vallejo gave birth to baby boy. At 8:00 o'clock, same
morning Candido accompanied Felisa to the pharmacy of Co Bun
Kim to inform the defendant Co Tao of the advent of his of spring.
Defendant gave Felisa the, sum of P20 for the delivery and asked her
what would she charge if she continued rendering service midwife for
20 days more, to which Felisa fixed the amount of P50 for the whole
service. The defendant, in the last day of her service, paid Felisa,
through Lucita, the balance of P30. It further appears that after the
parturition, everytime he (Co Tao) went out of the store to deposit Co
Bun Kim's money in the bank, the defendant asked the driver, Jose
Nabong, of Co Bun Kim, to pass by Candido's house to see Lucita,
and his child. On October 24, 1948, the child was baptized with the
name of Manuel Co, in the Catholic church of Espiritu Santo, Rizal
Avenue, Manila, acting as sponsor thereof, upon the request of
defendant himself, the driver Jose Nabong and his wife (Exhibit C).
After the baptism, Lucita continued living in his uncle's house where
defendant continued also visiting her and his child, sleeping with her
every night, having marital life with her throughout, and providing
Plaintiff became also ill and she had been borrowing money from
friends, until she decided to come to Manila and see defendant Co
Tao who refused to give her any help. Plaintiff engaged the services of
a lawyer to file the present action.
Defendant Co Tao's defense followed the usual pattern of
irresponsible men of passing the buck. He claims that under the
service of Co Bun Kim, there were other men such as Jose Nabong
(the driver), a certain Filipino and Chua Chiam with whom the
plaintiff, Lucita Vallejo, used to go out, after her working hours; and
that Lucita was also visited often times by other Filipinos who used
to wait for her and with whom she also went out, and such
suspicious conduct of the plaintiff was even protested to by her
master, Co Bun Kim. Defendant admitted, however, that she had
carnal relations with Lucita for three times only and for such acts she
often approached him for money; that after the lapse of months, he
found that she had already received from him the sum of P1.400.00
besides some pieces of jewelries, consisting of a ring and a watch. He
alleged finally that either for Lucita's frequent outings with several
men, or for her carnal relations with him (defendant), she found
herself in the family way and in June, 1948, she quit her work, and
went to live with her uncle; that during the christening in the
complaint for rape in the City Fiscal's Office of Manila, but the same
Upon the petition of the defendant, the trial court ordered the experts
of the National Bureau of Investigation (NBI) to test the blood of the
defendant Co Tao and the child Manuel Co, in order to determine
whether the former could be the father of the latter. On October 18,
1951, the NBI expert rendered a report of the analysis made, with the
following findings: "From their blood groups and types, the
defendant, Co Tao, is a possible father of the child" (Exhibit B).
In upholding the cause for the plaintiff-appellee, the trial court
declared that the minor Manuel Co is the illegitimate child of the
defendant Co Tao, and gave much weight to the testimony of Jose K.
Obando Chemist of the NBI and awarded the damages and attorney's
fees mentioned heretofore. After a careful survey of the evidence of
record, We hold that the judgment appealed from should be
sustained. As far as credibility of the witnesses is concerned, We find
no reason at all for disturbing the findings of the trial court to the
effect that the testimony of the plaintiff-appellee and her witnesses
deserves more credence than that of the defendant-appellant. The
following disquisition's of the trial court are fully supported by the
facts of record:
even accused him with rape at the fiscal's office but the complaint
por las tres unicas veces en que en gozo de aquella mujer el primer
reasons, the NBI expert cannot give assurance that the appellant was
the father of the child; he can only give his opinion that he is a
que habia regalado, a saber: una cama de P70 y una lampara de P25;
"possible father". This possibility, coupled with the other facts and
momentos de debilidad, valia algo mas que lo que vale una mujer
While it is admitted that the complaint for rape filed by the appellee
was dismissed by the Fiscal, this fact alone should not deprive the
presente.
desires and begetting a child from her, and after abandoning them
completely, the appellee must have become desperate and went to a
lawyer who tried to enlist the aid of the Fiscal's Office. This
notwithstanding, as a whole, the story given by the plaintiff-appellee
and her witnesses is deserving of credence and belief.
rendered the judgment and that for that reason the latter did not
have the opportunity to observe the demeanor of the witnesses
during the trial but merely relied on the records of the case does not
render the judgment erroneous.
child because the expert of the NBI was only able to say that he
(appellant) is a "possible father" of the child; that he could not have
been his father, because everytime he had carnal act with the
that as the acts alleged in the complaint filed on May 2, 1951 took
plaintiff, used a strong french umbrella; and that the plaintiff had
place in 1947 and 1948 and the new Civil Code took effect on 30
August 1950 article 2217 thereof, which provides for moral damages,
new Civil Code. The damages fixed by the trial court are reasonable
should not have been applied retroactively. The Court of Appeals held
and conscionable.
1]]
Moreover, "if a right should declared for the first time in this Code,
it shall be effective at once, even though the act or event which gives
rise thereto may have been done or may have occurred under the
prior legislation, provided said new right does not impair or prejudice
any vested or acquired right, of the same origin" (Art 2253, New Civil
Code). Evidently, appellant did not have a vested right or acquired
right not be held or responsible for moral damages, either by judicial
pronouncement or by provision of law. By the same token, therefore,
defendant-appellant is also liable to plaintiff- appellee for attorney's
fees, under paragraphs (1), (2), (5), (6) and (11) Article 2208 of the
petitioner.
V.
JAO, petitioner,
vs. COURT
OF APPEALS
and
Rodolfo and Perico Jao were the only sons of the spouses Ignacio
Jao Tayag and Andrea V. Jao, who died intestate in 1988 and 1989,
respectively. The decedents left real estate, cash, shares of stock and
other personal properties.
On April 17, 1991, Perico instituted a petition for issuance of
letters of administration before the Regional Trial Court of Quezon
City, Branch 99, over the estate of his parents, docketed as Special
Proceedings No. Q-91-8507.[1] Pending the appointment of a regular
administrator, Perico moved that he be appointed as special
administrator. He alleged that his brother, Rodolfo, was gradually
dissipating the assets of the estate. More particularly, Rodolfo was
receiving rentals from real properties without rendering any
accounting, and forcibly opening vaults belonging to their deceased
parents and disposing of the cash and valuables therein.
Rodolfo moved for the dismissal of the petition on the ground of
improper venue.[2] He argued that the deceased spouses did not reside
in Quezon City either during their lifetime or at the time of their
deaths. The decedents actual residence was in Angeles City,
Pampanga, where his late mother used to run and operate a
bakery. As the health of his parents deteriorated due to old age, they
stayed in Rodolfos residence at 61 Scout Gandia Street, Quezon City,
solely for the purpose of obtaining medical treatment and
hospitalization. Rodolfo submitted documentary evidence previously
executed by the decedents, consisting of income tax returns, voters
affidavits, statements of assets and liabilities, real estate tax
proceedings shall be the place where the decedent had his permanent
residence or domicile at the time of death. In determining residence
at the time of death, the following factors must be considered,
namely, the decedent had: (a) capacity to choose and freedom of
choice; (b) physical presence at the place chosen; and (c) intention to
stay therein permanently.[15] While it appears that the decedents in
this case chose to be physically present in Quezon City for medical
convenience, petitioner avers that they never adopted Quezon City as
their permanent residence.
The contention lacks merit.
The facts in Eusebio were different from those in the case at
bar. The decedent therein, Andres Eusebio, passed away while in the
process of transferring his personal belongings to a house in Quezon
City. He was then suffering from a heart ailment and was advised by
his doctor/son to purchase a Quezon City residence, which was
nearer to his doctor. While he was able to acquire a house in Quezon
City, Eusebio died even before he could move therein. In said case, we
ruled that Eusebio retained his domicile --- and hence, residence --in San Fernando, Pampanga. It cannot be said that Eusebio changed
his residence because, strictly speaking, his physical presence in
Quezon City was just temporary.
In the case at bar, there is substantial proof that the decedents
have transferred to petitioners Quezon City residence. Petitioner
failed to sufficiently refute respondents assertion that their elderly
parents stayed in his house for some three to four years before they
died in the late 1980s.
Furthermore, the decedents respective death certificates state
that they were both residents of Quezon City at the time of their
demise. Significantly, it was petitioner himself who filled up his late
mothers death certificate. To our mind, this unqualifiedly shows that
at that time, at least, petitioner recognized his deceased mothers
residence to be Quezon City. Moreover, petitioner failed to contest the
view
of
the
foregoing,
the
petition
is