FIRST DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 179497

Appellee,

- versus - Present:

RENANDANG MAMARUNCAS, CORONA, C.J., Chairperson,

Piagapo, Lanao del Sur; LEONARDO-DE CASTRO,

PENDATUM AMPUAN, BERSAMIN,

Piagapo, Lanao del Sur; DEL CASTILLO, and

Appellants, VILLARAMA, JR., JJ.

BAGINDA PALAO (at large)

Alias Abdul Wahid Sultan, Promulgated:

Accused. 01/25/12

x----------------------------------------------------------
---------x

DECISION

DEL CASTILLO, J.:

The assessment of the credibility of witnesses by the trial court is the center of this
controversy. The well-known rule, though subject to certain recognized exceptions, is
that findings of facts and assessment of credibility of witnesses are matters best left to
the trial court. Hence, [u]nless certain facts of substance and value were overlooked
which, if considered, might affect the result of the case, the trial courts assessment
must be respected. 1

Assailed in the present appeal is the June 30, 2006 Decision of the Court of Appeals
2

(CA) in CA-G.R. CR-H.C. No. 00196 which affirmed with modification the July 19,
1999 Decision of the Regional Trial Court (RTC) of Iligan City, Branch 06 in
3

Criminal Case No. 06-6150 convicting Renandang Mamaruncas (Mamaruncas) and

Pendatum Ampuan (Ampuan) (appellants) of the crime of murder.

On February 9, 1996, the following Information for murder was filed against
4

Mamaruncas, Baginda Palao (Palao) alias Abdul Wahid Sultan and Ampuan. 5
 That on or about February 1, 1996, in the City of Iligan,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, except for others whose cases are still under preliminary
investigation, conspiring with and confederating together and mutually
helping each other, armed with deadly weapon, to wit: a caliber .45
pistol, by means of treachery and evident premeditation, and with intent
to kill, did then and there willfully, unlawfully and feloniously attack,
shoot and wound one Baudelio R. Batoon, thereby inflicting upon him
the following physical injuries, to wit:

Cardio respiratory arrest

Hypovolemic shock

Multiple gunshot wound

which caused his death.

Contrary to and in violation of Article 248 of the Revised Penal Code

with the aggravating circumstances of treachery and evident
premeditation.

Only Mamaruncas and Ampuan appeared at the scheduled arraignment on May 20,
1996. Their co-accused, Palao alias Abdul Wahid Sultan (Abdul), remains at large.
Appellants pleaded not guilty and trial proceeded against them.
6

Factual Antecedents
The facts of the case, as summarized by the Office of the Solicitor General (OSG) in
its brief and substantiated by the transcripts of stenographic notes of the proceedings,
are as follows:

Around noontime on February 1, 1996, Baudelio Batoon, Richard

Batoon, Juanito Gepayo and a certain Nito were working on vehicles
inside Baudelio Batoons auto repair shop situated along the highway in
Tubod, Baraas, Iligan City.

Baginda Palao then entered the shop accompanied by appellants

Renandang Mamaruncas and Pendatum Ampuan. Baginda Palao wore
desert camouflage fatigues; while his two (2) companions wore
Philippine Army tropical green fatigues. Baginda Palao showed Baudelio
Batoon an arrest warrant and told the latter he was serving it against
Batoon.

The arrival of Baginda Palaos group prompted Juanito Gepayo

and Richard Batoon to stop their work and observe what was happening.

Baudelio Batoon told Baginda Palao to just wait awhile, as they

would settle the matter after he [Batoon] [finishes] tuning-up an engine
he had been working on.

Baginda Palao reacted by slapping the victims stomach and

pointing a .45 caliber pistol at him. Baudelio Batoon then tried to grab
Palaos gun, causing the two of them to grapple for the same. As these
two wrestled for control of the gun, Renandang Mamaruncas, who was
behind Baudelio Batoon, shot from behind Batoons right thigh with a .
38 cal. homemade gun. Pendatum Ampuan, who was also standing
behind Baudelio Batoon, followed up by shooting Batoons left arm pit
with a .45 cal. [homemade] pistol. Baudelio Batoon fell to the ground
and Baginda Palao finished [him off] with a single .45 cal. shot to the
back. Juanito Gepayo and Richard Batoon saw the entire scene, stunned
and unable to do anything. From their vantage points three (3) to four (4)
meters away, these witnesses had a clear and unobstructed view of the
entire incident.

Meanwhile, Police Inspector Graciano Mijares, then Commanding

Officer of the Iligan City PNP Mobile Force Company, was riding a
civilian car along the highway, heading towards Iligan City proper. He
was accompanied by his driver, SPO3 William Yee, and SPO3 George
Alejo. They heard the gunshots emanating from the auto repair shop at
Baraas, prompting Inspector Mijares to order his driver to stop the car.
They alighted and proceeded to the source of the gunshots. At the repair
shop, they saw three (3) men in camouflage gear with guns drawn and
pointed at a person already lying on the ground. Inspector Mijares group
shouted at the camouflaged gunmen to stop what they were doing and to
drop their firearms, at the same time announcing that they (Mijares
group) were policemen.

The camouflaged gunmen reacted by firing at the policemen. The

latter fired back. During the exchange of gunfire, Baginda Palao ran
behind the Batoon house, while Renandang Mamaruncas and Pendatum
Ampuan ran towards the road and a nearby car. Inspector Mijares was
able to hit Mamaruncas and Ampuan, while SPO3 Yee likewise hit
Ampuan. Mamaruncas, who managed to get inside the car, and Ampuan
were then captured by the policemen. The lawmen also gave chase to
Baginda Palao; but he escaped.

Other responding policemen brought Mamaruncas and Ampuan to

the hospital for treatment and they were eventually placed under
detention. Baudelio Batoon was brought to the hospital by his wife; but
he was pronounced dead on arrival.

Based on the necropsy examination of the victims body, Dr.

Leonardo Labanen established that the three (3) gunshot wounds found
on the body of Baudelio Batoon (i.e., at the right thigh, left armpit and
back) were inflicted at close range due to the presence, or at least traces,
of gunpowder burns. 7
 Only appellants testified for their defense. Their testimonies, as narrated by the
trial court, are as follows:

Accused Renandang Mamaruncas testified that he is 34 years old,

married, carpenter and a resident of Piagapo, Lanao del Sur. On the
morning of February 1, 1996, he was in Marawi City. He decided to
come down to Iligan City to see a movie. He left Marawi at 7:00 a.m.
and upon arrival at the Tambacan terminal in Iligan City, he went to the
house of his cousin. Later, he changed his mind about going to a movie
and returned to the Tambacan terminal in order to go back to Marawi
City. At about 11:30 a.m., Abdul Wahid Sultan arrived with Pendatum
Ampuan on board a car driven by Aminola. Abdul Wahid invited him to
go with them because he will collect some money and afterwards they
will have some enjoyment. He agreed and sat at the rear seat behind the
driver. Abdul Wahid was at the front seat with Pendatum behind at the
back seat. They drove to Baraas. They stopped at a crossing and Abdul
Wahid and Pendatum Ampuan alighted. Before walking away, Abdul
Wahid handed to Renandang a .38 cal[.] revolver with instructions to
remain in the car and [keep] watch. At first he refused but Abdul Wahid
insisted so he accepted the gun. Abdul Wahid and Pendatum walked to
the shop leaving the rear right door open. About ten minutes later, he
heard three gunshots. He moved to the rear seat where the door was open
and saw policemen, who arrived and surrounded the car. He placed the
gun on the seat and raised his hands as a sign of surrender. Then with his
right hand, he closed the car door. Just as the door closed, the policemen
shot him on the forearm and chest below the right nipple. He lost
consciousness and regained it only at the hospital.

He further testified that Abdul Wahid Sultan is an old friend. He is

also known as Baginda Palao. Pendatum Ampuan is not known as Abdul
Wahid Sultan.
 He also declared that the statement of Juanito Gepayo that only
Abdul Wahid Sultan and Pendatum Ampuan entered the shop and shot
Baudelio Batoon is true and that the testimony of P/Insp. Mijares that he
also shot the victim is not true. He denied any part in the shooting to
death of Baudelio Batoon.

Accused Pendatum Ampuan testified that he is 20 years old,

single, student and a resident of Piagapo, Lanao del Sur. On January 31,
1996 at about 6:00 a.m., he left Marawi City for Iligan City on board a
passenger Armak jeepney. He alighted at the terminal behind the
Gaisano Superstore and at exactly 7:00 a.m., he entered the store and
went to the upper storey to shop. When he came out, he met a friend
name[d] Bessah. Together they walked to the Maharlika Theater but then
Bessah expressed the intention to go home to Marawi City. He
accompanied Bessah to the Tambacan terminal. Then he proceeded to
the house of his Uncle Ali in Cabaro. (This is a place North of the city
and at the opposite side from Tambacan which is South of the city). He
arrived there at noon. He stayed overnight at his Uncle Alis house. At
about 9:00 a.m., the following day, February 1, 1996, he left the house of
his uncle. Outside, he met Baginda Palao, who was looking for a certain
Baser, a policeman. He wanted the latter to help him collect a debt. They
went to the terminal at the back of Gaisano store but did not find Baser.
Baginda told him to wait while he will look for Baser inside the Gaisano
store. Baginda returned without having found Baser and once again he
told him to wait while Baginda will look for a car. A little later, Baginda
returned on board a car driven by one Aminola Basar. They went to the
Tambacan terminal but again did not find Baser. Instead, they saw
Renandang Mamaruncas. Baginda invited the latter to go with them to
Baraas to collect a debt. Renandang entered the car and they proceeded
to Baraas. The car stopped at a place near a shop. Baginda instructed him
and Renandang to remain in the car because he was going out to collect
the debt. Baginda left the car and entered the shop. About ten minutes
later, he heard shouting followed by gunfire. He stepped out of the car to
verify and saw Baginda Palao [shoot] the victim. He retreated to the car
as the police led by Capt. Mijares arrived. They confiscated the car key
and arrested them except Baginda Palao who escaped. They were taken
to the hospital due to injuries. In his case, the sustained wounds when
mauled by the children of the victim but in another breath he admitted
that his injury was a gunshot wound when he was caught in the cross fire
as the police shot Renandang Mamaruncas. He was inside the car when
 he was hit. He further admitted that Baginda Palao is known as Abdul
Wahid Sultan. He denied shooting Baudelio Batoon. 8

Ruling of the Regional Trial Court

The RTC debunked appellants defense of denial and held them guilty as
principals by direct participation in the killing of Baudelio Batoon (Baudelio). It gave
full faith and credence to the evidence of the prosecution especially on the presence of
conspiracy among the malefactors and rendered a verdict of conviction, thus:

WHEREFORE, the court finds the accused Renandang Mamaruncas and

Pendatum Ampuan GUILTY beyond reasonable doubt as principals of
the crime of murder qualified by treachery defined and penalized in Art.
248 of the Revised Penal Code as amended, without the presence of any
other aggravating circumstances and hereby sentences each of them to
suffer the penalty of RECLUSION PERPETUA with the corresponding
accessory penalties attached thereto by law and to indemnify the Heirs of
Baudelio Batoon the sums of:

1. P10,200,000.00 for and as loss of support;

2. P66,904.00 for and as actual damages;

3. P50,000.00 as death indemnity and

4. P100,000.00 for and as moral damages

without subsidiary imprisonment in case of insolvency.

 Cost against the accused.

Having been under preventive detention since February 1, 1996,

the period of such detention shall be credited in full in favor of said
accused in the service of their respective sentences.

SO ORDERED. 9

In view of the Notice of Appeal filed by the appellants, the RTC forwarded the
10

records of the case to this Court. By Resolution dated January 31, 2000, the Court
11

resolved to accept the appeal. In view thereof, appellants were required to file their
brief. Appellants thus filed their brief on November 20, 2000 while the OSG
12 13

submitted the Brief for the Plaintiff-Appellee on May 2, 2001. Later, however,
14

consonant with this Courts pronouncement in People v. Mateo the case was15

transferred to the CA for appropriate action and disposition. 16

Ruling of the Court of Appeals

By Decision promulgated on June 30, 2006, the appeals court affirmed with
17

modification the RTC Decision. Said court ruled that the inconsistencies in the
prosecution witnesses testimonies pointed out by the appellants pertain only to minor
and collateral matters which do not dilute the probative weight of said testimonies.
Regarding the erroneous designation of appellant Ampuans name in the Information,
the court went on to hold that such error was only a formal defect and the proper
correction of which was duly made without any objection on the part of the defense.
The CA likewise held that treachery attended the commission of the crime.
 The decretal portion of the Decision reads:

WHEREFORE, premises considered, the Appeal is hereby

DISMISSED and the questioned Judgment dated July 19, 1999 of the
Regional Trial Court is AFFIRMED with MODIFICATION. Appellants
Renandang Mamaruncas and Pendatum Ampuan are found GUILTY
beyond reasonable doubt of murder as defined in Article 248 of the
Revised Penal Code, as amended by Republic Act No. 7659 and are
hereby sentenced to suffer the penalty of reclusion perpetua. The
appellants are to pay, jointly and severally, the heirs of Baudelio Batoon
the amount of P50,000.00 by way of civil indemnity, P50,000.00 as
moral damages, and P25,000.00 as exemplary damages and P66,904.00
as actual damages.

SO ORDERED. 18

Disgruntled, appellants are now again before this Court in view of their Notice of
Appeal from the Decision of the CA.
19

By Resolution dated November 19, 2007, this Court notified the parties that they may
20

file their respective supplemental briefs within 30 days from notice. In their respective
manifestations, the parties opted to adopt the briefs they earlier filed as their
supplemental briefs. 21

In their brief, appellants assign the following errors:

 I That the trial court erred in convicting [them] when they should have been
acquitted for failure of the prosecution to prove its case beyond reasonable doubt;
and

II. The information filed before the trial court was substantially defective. 22

The basic thrust of appellants first assignment of error is the credibility of the
prosecution witnesses. Appellants contend that the trial court anchored its finding and
conclusion on the testimonies of witnesses Juanito Gepayo (Gepayo), Richard Batoon
(Batoon) and P/Sr. Insp. Graciano Mijares (Mijares), who appear to be inconsistent in
their stand and whose credibility is therefore assailable. They question the prosecution
witnesses identification of Abdul and Ampuan as one and the same person and aver
that the same only leads to the logical conclusion that said witnesses were perjured
witnesses. They argue that Ampuan failed to grasp the information read to him as he
was arraigned as Abdul Wahid Sultan alias Pendatum Ampuan.

On the other hand, the OSG in praying for the affirmance of the appealed Decision,
opines that inconsistencies on minor and collateral matters in the testimony of a
prosecution eyewitness do not affect his credibility. It also contends that whatever
defect the information subject of appellant Ampuans arraignment has had been cured
with the latters consent during the trial.

Our Ruling

The appeal lacks merit.

In support of their quest for acquittal, appellants tried to cast doubt on the credibility
of witness Gepayo anchored on the following grounds: (1) there was serious
inconsistency in his testimony on whether he knew Ampuan before the incident; (2)
his actuation of just watching the incident without giving any assistance to his fallen
employer as well as his immediate return to work thereafter is contrary to human
nature and experience; (3) while he testified that appellant Mamaruncas was one of
the wounded suspects during the encounter, he failed to identify him in court; and, (4)
in his affidavit, he identified Abdul and Ampuan as one and the same person but later
on testified to the contrary.

Credibility of witnesses not affected by minor

inconsistencies.

The perceived inconsistency on whether Gepayo knows Ampuan even before the
incident is inconsequential as to discredit the credibility of Gepayos testimony. The
inconsistency pointed out by appellants pertains only to collateral or trivial matters
and has no substantial effect on the nature of the offense. In fact, it even signifies that
the witness was neither coached nor was lying on the witness stand. What matters is
that there is no inconsistency in Gepayos complete and vivid narration as far as the
principal occurrence and the positive identification of Ampuan as one of the principal
assailants are concerned. The Court has held that although there may be
23

inconsistencies in the testimonies of witnesses on minor details, they do not impair

their credibility where there is consistency in relating the principal occurrence and
positive identification of the assailant.
24

It could be true that Gepayo did not retreat to a safer place during the shooting
incident and did not render assistance to his wounded employer. To appellants, this
reaction is contrary to human nature. We believe otherwise. This imputed omission, to
our mind, does not necessarily diminish the plausibility of Gepayos story let alone
destroy his credibility. To us, his reaction is within the bounds of expected human
behavior. Surely, he was afraid that they might kill him because the malefactors were
then armed with guns. Thus, he would not dare attempt to stop them and stake his life
25

in the process. At any rate, it is settled that different people react differently to a
given situation or type of situation, and there is no standard form of human behavioral
response when one is confronted with a strange or startling or frightful experience.
Witnessing a crime is an unusual experience which elicits different reactions from the
witnesses and for which no clear-cut standard form of behavior can be drawn. 26

The failure of Gepayo to identify Mamaruncas in court does not bolster appellants
cause. As the CA correctly pointed out:

x x x We agree with the prosecutions observation that although he did

not positively identify appellant Mamaruncas as one of the shooters, he
was however, able to point out that there was a third person who
accompanied assailants Palao and Ampuan in approaching the victim
during the incident. This is also bolstered by Insp. Mijares[] testimony
that he saw three assailants pointing their guns at the victim who was
already lying prostrate on the ground. 27

In any event, even without Gepayos identification of Mamaruncas, the unrebutted

testimony of another prosecution eyewitness, Batoon, clearly points to Mamaruncas as
one of the assailants. Thus:

Q: After these three persons rather Abdul Wahid together with two
companions, presented the warrant of arrest to your father, what
happened thereafter?

A: They pulled their guns and pointed [them at] my father.

 Q: Who pulled out .45 caliber gun [and pointed it at] your father?

A: Abdul Wahid, Sir

Q: And what happened after the .45 pistol [was] pointed [at] your father?

A: My father tried to [grab] the .45 caliber from Abdul Wahid, Sir.

Q: What happened after?

A: My father was shot by one of his companion[s], Sir.

Q: Who [first shot] your father?

A: (Witness pointing to a person. [W]hen he was asked x x x his name[,]

he answered that he is Renandang Mamaruncas)

xxxx

Q: After this Renandang Mamaruncas shot your father, what happened

thereafter?

A: The other companion fired the next shot (witness pointing to a person
sitting at the bench inside the Courtroom and when he was asked
x x x his name, he answered that he is Pendatum [Ampuan].) 28

Undoubtedly, the testimonies of eyewitnesses Gepayo and Batoon on material details

are straightforward and consistent with each other. They personally saw appellants at
the scene of the crime at the time it was committed. Their combined declarations
established beyond reasonable doubt the identities of both appellants, along with their
co-accused Abdul, as the perpetrators of the crime.

As to the contention that Gepayo referred to Abdul Wahid Sultan and Pendatum
Ampuan as one and the same person in his affidavit and yet later on testified to the
29

contrary, this Court finds the same inconsequential and will not outrightly justify the
acquittal of an accused. In a very recent case, this Court reiterated that as between an
30

affidavit executed outside the court and a testimony given in open court, the latter
almost always prevails. It emphasized therein that:

Discrepancies between a sworn statement and testimony in court do not

outrightly justify the acquittal of an accused. Such discrepancies do not
necessarily discredit the witness since ex parte affidavits are often
incomplete. They do not purport to contain a complete compendium of
the details of the event narrated by the affiant. Thus, our rulings
generally consider sworn statements taken out of court to be inferior to
in court testimony (citation omitted).

The evidence at hand, moreover, clearly points out that it was the police officers who
supplied the names of the suspects in Gepayos affidavit. 31

Any alleged defect in the Information deemed

waived.

Anent the second assigned error, appellants aver that the Information filed before the
trial court was substantially defective considering that it accuses Abdul and Ampuan
as one and the same person when in fact they were identified as different persons. As
such, Ampuan was not able to comprehend the Information read to him.

The Court cannot accord merit to this argument. It is well to note that appellants failed
to raise the issue of the defective Information before the trial court through a motion
for bill of particulars or a motion to quash the information. Their failure to object to
the alleged defect before entering their pleas of not guilty amounted to a waiver of the
defect in the Information. Objections as to matters of form or substance in the
[I]nformation cannot be made for the first time on appeal. Records even show that
32

the Information was accordingly amended during trial to rectify this alleged defect but
appellants did not comment thereon, viz:

FISCAL ROBERTO ALBULARIO:

Per manifestation and admission of this witness, the Information be

amended from [Renandang] Mamaruncas and the word and, it
should be Bagindo [sic] Palao alias Abdul Wahid Sultan and the
alias Pendatum Ampuan be erased as corrected.

COURT:

Any comment from the accused.

ATTY. FIDEL MACAUYAG:

No comment, Your Honor. 33

Treachery correctly appreciated.

From the evidence and as found by the trial court and affirmed by the appellate court,
the facts sufficiently prove that treachery was employed by appellants. The attack on
Baudelio was so swift and unexpected, affording the hapless, unarmed and
unsuspecting victim no opportunity to resist or defend himself. As ruled by the trial
court:

In the above situation, treachery was considered to exist. More so in this

case when the victim was completely without any weapon from the
inception of the assault. At the moment when Pendatum Ampuan and
Renandang Mamaruncas shot him, Baudelio Batoon was not in any
position to defend himself. And when Abdul Wahid shot him while lying
wounded on the ground, he was utterly defenseless. 34

Hence, both lower courts correctly found appellants guilty of murder in view of the
presence of treachery.

Conspiracy was duly proven.

We also sustain the finding of conspiracy. Conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to
commit it. Direct proof of previous agreement to commit a crime is not necessary x x
x [as it] may be shown through circumstantial evidence, deduced from the mode and
manner in which the offense was perpetrated, or inferred from the acts of the accused
themselves when such lead to a joint purpose and design, concerted action and
community of interest. 35
In this case, conspiracy was clearly established. All three accused entered the shop of
Baudelio at the same time. Ampuan shot Baudelio from behind, hitting the latter at his
left armpit while Mamaruncas shot Baudelio on the thigh. When Baudelio fell to the
ground face down, Abdul shot him at the back. These consecutive acts undoubtedly
showed appellants unanimity in design, intent and execution. They performed
specific acts with such closeness and coordination as to unmistakably indicate a
common purpose and design in the commission of the crime.

The Court thus sees no cogent reason to disturb the findings of the RTC and the CA
considering that they are based on existing evidence and reasonable

conclusions drawn therefrom. It has been held time and again that factual findings of
the trial court, its assessment of the credibility of witnesses and the probative weight
of their testimonies and the conclusions based on these factual findings are to be given
the highest respect. As a rule, the Court will not weigh anew the evidence already
passed on by the trial court and affirmed by the CA. Though the rule is subject to
36

exceptions, no such exceptional grounds obtain in this case.

Against the damning evidence adduced by the prosecution, appellants could only
muster mere denial. As ruled in various cases by the Court, denial, if unsubstantiated
by clear and convincing evidence is inherently a weak defense as it is negative and
self-serving. As between the categorical testimony that rings of truth on one hand,
and a bare denial on the other, the former is generally held to prevail.
37

The Penalty

Undoubtedly, the crime committed is murder in view of the attending

aggravating circumstance of treachery. Murder, as defined under Article 248 of the
38
Revised Penal Code as amended, is the unlawful killing of a person which is not
parricide or infanticide, provided that treachery, inter alia, attended the killing. The
presence of any one of the enumerated circumstances under the aforesaid Article is
enough to qualify a killing as murder punishable by reclusion perpetua

to death. Since only the qualifying circumstance of treachery is found to be present,

both the RTC and the CA properly imposed the penalty of reclusion perpetua pursuant
to Article 63 of the Revised Penal Code. Moreover, Section 3 of Republic Act No.
9346 provides:
39

Section 3. Persons convicted of offenses punishable

with reclusion perpetua or whose sentences will be reduced to reclusion
perpetua by reason of this Act, shall not be eligible for parole under Act
No. 4103 otherwise known as the Indeterminate Sentence Law, as
amended.

Pursuant to the above provision, appellants are therefore not eligible for parole.

Awards of Damages

The Court modifies the award of civil indemnity in the amount of P50,000.00. In line
with prevailing jurisprudence, said award is increased to P75,000.00. Anent the
40

award of moral damages, the CA correctly imposed the amount of P50,000.00. These 41

awards are mandatory without need of allegation and proof other than the death of
the victim, owing to the fact of the commission of murder or homicide. 42
Anent the award of actual damages, the victims widow testified that the family spent
a total of P66,904.00 relative to the wake and burial of the victim. However, the claim
for said amount is supported merely by a list of expenses personally prepared by the
43

widow instead of official receipts. To be entitled to an award of actual damages, it is

necessary to prove the actual amount of loss with a reasonable degree of certainty,
premised upon competent proof and on the best evidence obtainable x x x. A list of
44

expenses cannot replace receipts when the latter should have been issued as a matter
of course in business transactions. Thus the Court deletes the lower courts award of
45

actual damages. Nonetheless, since entitlement of the same is shown under the facts
of the case, temperate damages in the amount of P25,000.00 should be awarded in
46

lieu of actual damages to the heirs of the victim pursuant to Article 2224 of the Civil
Code which provides that temperate damages may be recovered when the court finds
that pecuniary loss has been suffered but its amount cannot, from the nature of the
case, be proved with certainty.

The CA correctly deleted the indemnity for loss of earning capacity awarded by the
trial court. Such indemnity cannot be awarded in the absence of documentary
evidence except where the victim was either self-employed or a daily wage worker
earning less than the minimum wage under current labor laws.

As testified to by the widow, Florenda Batoon, the victim was earning a monthly
income of P20,000.00 and P90,000.00 as an auto repair shop and a six-wheeler truck
operator, respectively. The trial court made a conservative estimate of P500.00 a day
as the net income from the truck alone after making reasonable deductions from its
operation. Thus, ranged against the daily minimum wage then prevailing in Region X
which is P137.00 per day pursuant to Wage Order No. RX-03, this case undoubtedly
does not fall under the exceptions where indemnity for loss of earning capacity can be
given despite the lack of documentary evidence.

The Court sustains the award of exemplary damages in view of the proven qualifying
circumstance of treachery. The CA however awarded exemplary damages to the heirs
of the victim in the amount of P25,000.00. To conform with prevailing jurisprudence,
the Court increases this amount to P30,000.00. 47

WHEREFORE, premises considered, the June 30, 2006 Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 00196 which found appellants Renandang
Mamaruncas and Pendatum Ampuan guilty beyond reasonable doubt of murder
is AFFIRMED with further MODIFICATIONS as follows:

1. Appellants are sentenced to suffer the penalty of reclusion perpetua without

eligibility for parole;

2. The award of civil indemnity is increased to P75,000.00;

3. The award of P66,904.00 as actual damages is deleted;

4. P25,000.00 as temperate damages is awarded in lieu of actual damages;

5. The award of exemplary damages is increased to P30,000.00; and

6. Appellants are further ordered to pay the heirs of the victim interest on all damages
awarded at the legal rate of 6% per annum from the date of finality of this judgment.

SO ORDERED.
 MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson
G.R. No. 165427 March 21, 2011

BETTY B. LACBAYAN, Petitioner,

vs.
BAYANI S. SAMOY, JR., Respondent.

DECISION

VILLARAMA, JR., J.:

This settles the petition for review on certiorari filed by petitioner Betty B. Lacbayan against
respondent Bayani S. Samoy, Jr. assailing the September 14, 2004 Decision 1 of the Court of Appeals
(CA) in CA-G.R. CV No. 67596. The CA had affirmed the February 10, 2000 Decision 2 of the
Regional Trial Court (RTC), Branch 224, of Quezon City declaring respondent as the sole owner of
the properties involved in this suit and awarding to him P100,000.00 as attorneys fees.

This suit stemmed from the following facts.

Petitioner and respondent met each other through a common friend sometime in 1978. Despite
respondent being already married, their relationship developed until petitioner gave birth to
respondents son on October 12, 1979.3

During their illicit relationship, petitioner and respondent, together with three more incorporators,
were able to establish a manpower services company.4 Five parcels of land were also acquired
during the said period and were registered in petitioner and respondents names, ostensibly as
husband and wife. The lands are briefly described as follows:

1. A 255-square meter real estate property located at Malvar St., Quezon City covered by
TCT No. 303224 and registered in the name of Bayani S. Samoy, Jr. "married to Betty
Lacbayan."5

2. A 296-square meter real estate property located at Main Ave., Quezon City covered by
TCT No. 23301 and registered in the name of "Spouses Bayani S. Samoy and Betty
Lacbayan."6

3. A 300-square meter real estate property located at Matatag St., Quezon City covered by
TCT No. RT-38264 and registered in the name of Bayani S. Samoy, Jr. "married to Betty
Lacbayan Samoy."7

4. A 183.20-square meter real estate property located at Zobel St., Quezon City covered by
TCT No. 335193 and registered in the name of Bayani S. Samoy, Jr. "married to Betty L.
Samoy."8

5. A 400-square meter real estate property located at Don Enrique Heights, Quezon City
covered by TCT No. 90232 and registered in the name of Bayani S. Samoy, Jr. "married to
Betty L. Samoy."9

Initially, petitioner lived with her parents in Mapagbigay St., V. Luna, Quezon City. In 1983, petitioner
left her parents and decided to reside in the property located in Malvar St. in Project 4, Quezon City.
Later, she and their son transferred to Zobel St., also in Project 4, and finally to the 400-square
meter property in Don Enrique Heights.10

Eventually, however, their relationship turned sour and they decided to part ways sometime in 1991.
In 1998, both parties agreed to divide the said properties and terminate their business partnership by
executing a Partition Agreement.11 Initially, respondent agreed to petitioners proposal that the
properties in Malvar St. and Don Enrique Heights be assigned to the latter, while the ownership over
the three other properties will go to respondent.12 However, when petitioner wanted additional
demands to be included in the partition agreement, respondent refused. 13 Feeling aggrieved,
petitioner filed a complaint for judicial partition14 of the said properties before the RTC in Quezon City
on May 31, 1999.

In her complaint, petitioner averred that she and respondent started to live together as husband and
wife in 1979 without the benefit of marriage and worked together as business partners, acquiring real
properties amounting to P15,500,000.00.15 Respondent, in his Answer,16 however, denied petitioners
claim of cohabitation and said that the properties were acquired out of his own personal funds
without any contribution from petitioner.17

During the trial, petitioner admitted that although they were together for almost 24 hours a day in
1983 until 1991, respondent would still go home to his wife usually in the wee hours of the
morning.18 Petitioner likewise claimed that they acquired the said real estate properties from the
income of the company which she and respondent established.19

Respondent, meanwhile, testified that the properties were purchased from his personal funds,
salaries, dividends, allowances and commissions.20 He countered that the said properties were
registered in his name together with petitioner to exclude the same from the property regime of
respondent and his legal wife, and to prevent the possible dissipation of the said properties since his
legal wife was then a heavy gambler.21 Respondent added that he also purchased the said properties
as investment, with the intention to sell them later on for the purchase or construction of a new
building.22

On February 10, 2000, the trial court rendered a decision dismissing the complaint for lack of
merit.23 In resolving the issue on ownership, the RTC decided to give considerable weight to
petitioners own admission that the properties were acquired not from her own personal funds but
from the income of the manpower services company over which she owns a measly 3.33% share. 24

Aggrieved, petitioner elevated the matter to the CA asserting that she is the pro indiviso owner of
one-half of the properties in dispute. Petitioner argued that the trial courts decision subjected the
certificates of title over the said properties to collateral attack contrary to law and jurisprudence.
Petitioner also contended that it is improper to thresh out the issue on ownership in an action for
partition.25

Unimpressed with petitioners arguments, the appellate court denied the appeal, explaining in the
following manner:

Appellants harping on the indefeasibility of the certificates of title covering the subject realties is, to
say the least, misplaced. Rather than the validity of said certificates which was nowhere dealt with in
the appealed decision, the record shows that what the trial court determined therein was the
ownership of the subject realties itself an issue correlative to and a necessary adjunct of the claim
of co-ownership upon which appellant anchored her cause of action for partition. It bears
emphasizing, moreover, that the rule on the indefeasibility of a Torrens title applies only to original
and not to subsequent registration as that availed of by the parties in respect to the properties in
litigation. To our mind, the inapplicability of said principle to the case at bench is even more
underscored by the admitted falsity of the registration of the selfsame realties in the parties name as
husband and wife.

The same dearth of merit permeates appellants imputation of reversible error against the trial court
for supposedly failing to make the proper delineation between an action for partition and an action
involving ownership. Typically brought by a person claiming to be co-owner of a specified property
against a defendant or defendants whom the plaintiff recognizes to be co-owners, an action for
partition may be seen to present simultaneously two principal issues, i.e., first, the issue of whether
the plaintiff is indeed a co-owner of the property sought to be partitioned and, second assuming
that the plaintiff successfully hurdles the first the issue of how the property is to be divided between
plaintiff and defendant(s). Otherwise stated, the court must initially settle the issue of ownership for
the simple reason that it cannot properly issue an order to divide the property without first making a
determination as to the existence of co-ownership. Until and unless the issue of ownership is
definitely resolved, it would be premature to effect a partition of the properties. This is precisely what
the trial court did when it discounted the merit in appellants claim of co-ownership. 26

Hence, this petition premised on the following arguments:

I. Ownership cannot be passed upon in a partition case.

II. The partition agreement duly signed by respondent contains an admission against
respondents interest as to the existence of co-ownership between the parties.

III. An action for partition cannot be defeated by the mere expedience of repudiating co-
ownership based on self-serving claims of exclusive ownership of the properties in dispute.
 IV. A Torrens title is the best evidence of ownership which cannot be outweighed by
respondents self-serving assertion to the contrary.

V. The properties involved were acquired by both parties through their actual joint
contribution of money, property, or industry.27

Noticeably, the last argument is essentially a question of fact, which we feel has been squarely
threshed out in the decisions of both the trial and appellate courts. We deem it wise not to disturb the
findings of the lower courts on the said matter absent any showing that the instant case falls under
the exceptions to the general rule that questions of fact are beyond the ambit of the Courts
jurisdiction in petitions under Rule 45 of the 1997 Rules of Civil Procedure, as amended. The issues
may be summarized into only three:

I. Whether an action for partition precludes a settlement on the issue of ownership;

II. Whether the Torrens title over the disputed properties was collaterally attacked in the
action for partition; and

III. Whether respondent is estopped from repudiating co-ownership over the subject realties.

We find the petition bereft of merit.

Our disquisition in Municipality of Bian v. Garcia28 is definitive. There, we explained that the
determination as to the existence of co-ownership is necessary in the resolution of an action for
partition. Thus:

The first phase of a partition and/or accounting suit is taken up with the determination of whether or
not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise legally proscribed) and
may be made by voluntary agreement of all the parties interested in the property. This phase may
end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership
does not exist, or partition is legally prohibited. It may end, on the other hand, with an adjudgment
that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents
and profits received by the defendant from the real estate in question is in order. x x x

The second phase commences when it appears that "the parties are unable to agree upon the
partition" directed by the court. In that event[,] partition shall be done for the parties by the [c]ourt
with the assistance of not more than three (3) commissioners. This second stage may well also deal
with the rendition of the accounting itself and its approval by the [c]ourt after the parties have been
accorded opportunity to be heard thereon, and an award for the recovery by the party or parties
thereto entitled of their just share in the rents and profits of the real estate in question. x x
x29 (Emphasis supplied.)

While it is true that the complaint involved here is one for partition, the same is premised on the
existence or non-existence of co-ownership between the parties. Petitioner insists she is a co-owner
pro indiviso of the five real estate properties based on the transfer certificates of title (TCTs) covering
the subject properties. Respondent maintains otherwise. Indubitably, therefore, until and unless this
issue of co-ownership is definitely and finally resolved, it would be premature to effect a partition of
the disputed properties.30 More importantly, the complaint will not even lie if the claimant, or petitioner
in this case, does not even have any rightful interest over the subject properties. 31
Would a resolution on the issue of ownership subject the Torrens title issued over the disputed
realties to a collateral attack? Most definitely, it would not.

There is no dispute that a Torrens certificate of title cannot be collaterally attacked, 32 but that rule is
not material to the case at bar. What cannot be collaterally attacked is the certificate of title and not
the title itself.33 The certificate referred to is that document issued by the Register of Deeds known as
the TCT. In contrast, the title referred to by law means ownership which is, more often than not,
represented by that document.34 Petitioner apparently confuses title with the certificate of title. Title
as a concept of ownership should not be confused with the certificate of title as evidence of such
ownership although both are interchangeably used. 35

Moreover, placing a parcel of land under the mantle of the Torrens system does not mean that
ownership thereof can no longer be disputed. Ownership is different from a certificate of title, the
latter only serving as the best proof of ownership over a piece of land. The certificate cannot always
be considered as conclusive evidence of ownership.36 In fact, mere issuance of the certificate of title
in the name of any person does not foreclose the possibility that the real property may be under co-
ownership with persons not named in the certificate, or that the registrant may only be a trustee, or
that other parties may have acquired interest over the property subsequent to the issuance of the
certificate of title.37 Needless to say, registration does not vest ownership over a property, but may be
the best evidence thereof. 1avvphi1

Finally, as to whether respondents assent to the initial partition agreement serves as an admission
against interest, in that the respondent is deemed to have admitted the existence of co-ownership
between him and petitioner, we rule in the negative.

An admission is any statement of fact made by a party against his interest or unfavorable to the
conclusion for which he contends or is inconsistent with the facts alleged by him. 38 Admission against
interest is governed by Section 26 of Rule 130 of the Rules of Court, which provides:

Sec. 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact
may be given in evidence against him.

To be admissible, an admission must (a) involve matters of fact, and not of law; (b) be categorical
and definite; (c) be knowingly and voluntarily made; and (d) be adverse to the admitters interests,
otherwise it would be self-serving and inadmissible.39

A careful perusal of the contents of the so-called Partition Agreement indicates that the document
involves matters which necessitate prior settlement of questions of law, basic of which is a
determination as to whether the parties have the right to freely divide among themselves the subject
properties. Moreover, to follow petitioners argument would be to allow respondent not only to admit
against his own interest but that of his legal spouse as well, who may also be lawfully entitled co-
ownership over the said properties. Respondent is not allowed by law to waive whatever share his
lawful spouse may have on the disputed properties. Basic is the rule that rights may be waived,
unless the waiver is contrary to law, public order, public policy, morals, good customs or prejudicial to
a third person with a right recognized by law.40

Curiously, petitioner herself admitted that she did not assent to the Partition Agreement after seeing
the need to amend the same to include other matters. Petitioner does not have any right to insist on
the contents of an agreement she intentionally refused to sign.

As to the award of damages to respondent, we do not subscribe to the trial courts view that
respondent is entitled to attorneys fees. Unlike the trial court, we do not commiserate with
respondents predicament. The trial court ruled that respondent was forced to litigate and engaged
the services of his counsel to defend his interest as to entitle him an award of P100,000.00 as
attorneys fees. But we note that in the first place, it was respondent himself who impressed upon
petitioner that she has a right over the involved properties. Secondly, respondents act of
representing himself and petitioner as husband and wife was a deliberate attempt to skirt the law
and escape his legal obligation to his lawful wife. Respondent, therefore, has no one but himself to
blame the consequences of his deceitful act which resulted in the filing of the complaint against him.

WHEREFORE, the petition is DENIED. The September 14, 2004 Decision of the Court of Appeals in
CA-G.R. CV No. 67596 is AFFIRMED with MODIFICATION. Respondent Bayani S. Samoy, Jr. is
hereby declared the sole owner of the disputed properties, without prejudice to any claim his legal
wife may have filed or may file against him. The award of P100,000.00 as attorneys fees in
respondents favor is DELETED.

No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

G.R. No. L-40677 May 31, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICANOR JIMENEZ and TEOFILO HERNANDO, accused. NICANOR JIMENEZ, accused-
appellant.

Jorge C. Paderanga (Counsel de Oficio) for accused-appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor
Amado D. Aquino for appellee.

ANTONIO, J.:

Appeal from the judgment of the Court of First Instance of Misamis Occidental in Criminal Case No.
OZ-542, finding appellant Nicanor Jimenez guilty beyond reasonable doubt of the crime of murder,
and imposing upon him the penalty of reclusion perpetua, with the accessories of the law, and
ordering him to indemnify the heirs of the deceased Fabiano Fuentes in the sum of P12,000.00,
without subsidiary imprisonment in case of insolvency.

Due to rampant trawl fishing in the area, Staff Sergeant Albino Panelo of the Constabulary, who was
in charge of the Integrated Civilian Home Defense (IC-HDF) in Tangub City, together with Barrio
Councilors Gaudioso Dungon, Fabiano Fuentes, Pascual Taylaran and Angel Enriquez of Barrio
Bocator, constituted themselves into two or more teams to patrol Pangil Bay, for the purpose of
apprehending persons engaged in trawl fishing. At about 11:00 o'clock in the evening of July 17,
1973, they sighted two pumpboats which they suspected to be engaged in trawl fishing. Fabiano
Fuentes, Angel Enriquez, Gaudioso Dungon and Sgt. Panelo succeeded in overtaking the two
pumpboats and in apprehending their occupants, namely: Engracio Sabandal and Juan Temporada
in the First boat, and Camilo Bayonas and Wilfredo Chasol in the other boat. Having succeeded in
their initial efforts, Sgt. Panelo and his companions proceeded to a fish corral owned by one Doring
to rest. While thus resting, at about 2:00 o'clock in the early dawn, they sighted another pumpboat in
the vicinity of Barrio Sumirap. They gave chase and finally overtook this third pumpboat. According
to Sgt. Panelo and Barrio Councilor Dungon, this particular pumpboat was manned by appellant
Nicanor Jimenez and one Teofilo Hernando. Moments later, another pumpboat passed by,
whereupon, Sgt. Panelo instructed Fabiano Fuentes to transfer to the third pumpboat, have it tied to
the latter's pumpboat, and to follow them. After giving such instructions to Fabiano Fuentes, Sgt.
Panelo and his remaining companions gave chase to the fourth pumpboat. Having apprehended the
fourth pumpboat, they noticed that the third pumpboat was not following them. After conducting an
intensive search of the area, they found no trace of either the third pumpboat or of Councilor
Fuentes. They then returned to Tangub City to report the incident to the Chief of Police and later to
the Constabulary Headquarters at Ozamis City. Two days later, or on July 19, 1973, they found the
cadaver of Fabiano Fuentes floating in the vicinity of Lusno, within the Municipality of Tambulig,
Zamboanga del Sur. Postmortem examination of the body of said deceased conducted on July 19,
1973 at 2:20 p.m. by Dr. Sinforiana del Castillo, Rural Health Officer of Lorenzo Tan, Tangub City,
revealed the following:

EXTERNAL EXAMINATION:

Body at the early state of decomposition.

Head extended upward.

Erosion of both eyes and soft tissue around it leaving eyeball intact.
Erosion of forehead most extensive on left side. Lips with small
erosion. Ears with mark erosion: Absence of left pinnae. Mouth open
with bloody water coming out from the nostril.

Neck-swollen, dark in color with small erosion depressed linear marked across the
neck 1 cm. below left ear. Neck extended upward.

Left hand swollen with rope loosely tied around the waist. No cadaveric spasm.

Right hand no cadaveric spasm, skin bleached and corrugated.

Forearms slightly flex towards the trunk.

Lower extremities extended. Skin bleached and corrugated.

Three dark spots at anterior aspect of right foot.

CAUSE OF DEATH ASPHYXIA.

Nicanor Jimenez was arrested on August 2, 1973, while Teofilo Hernando was arrested on August 3,
1973. Both arrests were effected at the places of residence of said persons at Taguitic, Kapatagan,
Lanao del Norte. On August 6, 1973, the City Fiscal filed the Information for Murder against Jimenez
and Hernando before the City Court of Tangub City, supported by the sworn statements of
Melquiades Daing, Irineo Badyao, Pedrito de Guzman, Alexander Mondragon, Banny Bayonas, and
Eliser Bayonas. On the same date, the City Judge issued the warrant for their arrest, and after said
accused waived their rights to present evidence at the preliminary investigation, the case was
remanded on August 29, 1973 to the Court of First Instance of Ozamis City for trial.

On September 10, 1973, the City Fiscal filed the Information against the two accused with said court.
On January 3, 1974, the court dismissed the case provisionally due to the repeated non-appearance
of prosecution witnesses. It was only on January 17, 1974 when the case was refiled by the City
Fiscal and on that occasion only appellant Nicanor Jimenez was arrested, while the other accused,
Teofilo Hernando, remained at large. After trial, appellant Nicanor Jimenez was found guilty as
charged and sentenced to suffer the afore-mentioned penalty.

The issue determinative of the appeal is the sufficiency of the evidence of the prosecution to
establish the Identity of appellant as one of the assailants of the deceased.

There being no eyewitnesses to the commission of the crime, the resolution of the question depends
upon (a) the credibility of the testimony of Sgt. Albino Panelo and Gaudioso Dungon; and (b) the
admissibility of the purported extra-judicial confession of appellant (Exhibit "A") before the City Judge
on August 4, 1973.

The Identification of a person allegedly seen at the scene of the crime should be reasonably clear
and unequivocal. 1 It must be noted that neither Panelo nor Dungon knew appellant Nicanor Jimenez
prior to the said incident. The problem is whether Panelo and Dungon could have, under the attendant
circumstances, recognized and remembered the Identities of the occupants of the third pumpboat on the
early dawn of July 18, 1973. Panelo admitted that while there was a moon, it was not so bright. They both
claim, however, that Panelo directed the beam of his flashlight at the occupants of the pumpboat.
Gaudioso Dungon even went further to claim that Sgt. Panelo not only talked with the occupants of the
pumpboat but also wrote down in his diary their names and addresses. This is, however, inferentially
contradicted by Sgt. Panelo in his sworn statement of August 9, 1973 (Exhibit "D") when he stated that he
did not know the names of the two occupants of the boat but he could recognize their faces. Neither the
claim of Panelo nor of Dungon that they recognized appellant as one of the occupants of the afore-
mentioned pumpboat and that the next day they reported the incident to the Chief of Police could be
believed because if that were true, the Chief of Police of Tangub City, Andres Enguito, would not have
testified that not a single constabulary reported to him the incident in question, much less bothered to
investigate the death of Fabiano Fuentes, thus, he was constrained to take over the investigation on
August 3, 1973. It was in such investigation that he interrogated one Pedrito de Guzman, who revealed
the involvement of appellant Nicanor Jimenez and Teofilo Hernando in the case. There are also
circumstances which cast serious doubts on the sincerity of the said declarants. Thus, Sgt. Panelo only
executed his sworn statement on August 9, 1973 Identifying appellant Nicanor Jimenez and Teofilo
Hernando, a week after said persons had purportedly executed their extra-judicial confessions before Pfc.
Juanito C. Quico and Police Chief Andres Enguito admitting their complicity in the commission of the
crime. Gaudioso Dungon was not even listed as a witness for the prosecution when the City Fiscal filed
the complaint and as a matter of fact it was only on January 11, 1974 that Dungon executed a sworn
statement on the alleged involvement of appellant. On the various occasions that the case was set for
hearing, Sgt. Panelo and Dungon were not presented as witnesses by the prosecution, thus resulting in
the dismissal of the case on January 3, 1974, because according to the trial court, the case had been
postponed several times due to the non-appearance of prosecution witnesses. The dismissal of the case
was predicated on the failure of Melquiades Daing, Wilfredo Alcazaren, Pedrito de Guzman, Ireneo
Badyao, Alexander Mondragon and Danny Bayonas to appear and testify for the prosecution on the
various dates of hearing, thus compelling the court to issue a warrant for their arrest.

The courts should exercise caution in weighing evidence of Identity. As Wharton observed, under
conditions that generally surround the commission of a crime, there is sometimes a predisposition to
connect an accused with a crime on the basis at times of fancied resemblances, depending upon the
prejudgment or bias of the declarant. 2
But even assuming for the nonce the verity of the testimony of Panelo and Dungon, the aforesaid
testimony by itself would still be insufficient to support the judgment of conviction. Hence, the vital
question iswhether or not the affidavit of appellant (Exhibit "A") is admissible as evidence in view
of the provisions of Section 20, Article IV, of the Constitution. Under the afore-mentioned section,
"No person shall be compelled to be a witness against himself. Any person under investigation for
the commission of an offense shall have the right to remain silent and to counsel, and to be informed
of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section shall be inadmissible
in evidence."

The history of this constitutional right against compulsory self- incrimination stems from the revulsion
of mankind against the abuses committed by the ecclesiastical inquisitions and by the Star Chamber
several centuries ago. The privilege against self-incrimination "was aimed at a more far-reaching evil
a recurrence of the Inquisition and the Star Chamber, even if not in their stark
brutality." 3 Involuntary confessions had been rejected by all courts not only on the ground of its
unreliability but also more important, on humanitarian principles which abhor all forms of torture or
unfairness towards the accused in criminal proceedings. 4 Although the constitutional language in which
the privilege is cast might be construed to apply only to situations in which the prosecution seeks to call a
defendant to testify against himself at the criminal trial, its application has been held to apply to civil
proceedings, 5 to congressional investigations, 6 to juvenile proceedings, 7 and other statutory
inquiries. 8 In the application of this right, the natural concern is the obvious realization that an inability to
protect the right at one stage of a proceeding may make its invocation useless at a later stage. Thus,
testimony "obtained in civil suits, or before administrative or legislative committees, could also prove so
incriminatory that a person compelled to give such testimony might readily be convicted on the basis of
those disclosures in a subsequent criminal proceeding." 9

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

It was, therefore, because of the greater concern of the framers of the new Constitution for the right
against self-incrimination that this provision of Section 20, of Article IV was incorporated in the new
Constitution. In Magtoto v. Manguerra, 12 We ruled that the proscription against the admissibility of
confession obtained from an accused during the period of custodial interrogation, in violation of the
aforementioned procedural safeguards, applies to confessions obtained after the effectivity of the new
charter on January 17, 1973.

In the case at bar, the Chief of Police admitted that prior to the police interrogation of appellant on
August 4, 1973, the latter was not warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the presence of an
attorney-either retained or appointed. It is a matter of record that appellant not only repudiated the
alleged extra judicial confession (Exhibit "A") as one procured thru coercion but also claimed that he
was threatened by the police that if he would not affirm his signature in Exhibit "A" before the City
Judge, they will further maltreat him. To show the unreliability of Exhibit "A", appellant's counsel de
oficio also demonstrated that the purported statements of appellant in said declaration as to the
manner in which the deceased was allegedly injured by the accused is inconsistent with the nature
and character of the injuries found on the body of the deceased by Dr. del Castillo in her postmortem
examination.

As observed in Miranda, 13 "without proper safeguards the process of in custody interrogation of persons
suspected or accused of crime contains inherently compelling pressures which work to undermine the
individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to
combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination,
the accused must be adequately and effectively apprised of his rights and the exercise of those rights
must be fully honored." For an individual in police custody is swept from familiar surroundings. He is
surrounded by antagonistic forces, and subjected to the techniques of persuasion. The presence of
counsel, in such a situation, would be the adequate protective device necessary to make the process of
police interrogation conform to the dictates of the privilege against self-incrimination. Without the
aforesaid warnings, We hold that the purported extra- judicial confession of appellant (Exhibits "A" and "A-
1") which was obtained during custodial interrogation by the police is inadmissible as evidence to prove
the guilt of appellant.

WHEREFORE, in accordance with the foregoing, the judgment of the Court of First Instance of
Misamis Occidental in Criminal Case No. OZ- 542 is reversed, and appellant ACQUITTED of the
crime charged, with costs de oficio.

Fernando Barredo, Aquino and Martin, JJ., concur.

Concepcion Jr., J, is on leave.

Separate Opinions

FERNANDO, J., concurring:

The opinion of Justice Antonio is to be commended both for its scholarship and its fealty to the
constitutional command that the guarantee against self-incrimination be afforded the most hospitable
scope as evidence by the adoption of the Miranda doctrine. 1 Therefore, concurrence cannot be
withheld. I give it. The reference in the opinion, however, to a recent American Supreme Court
decision, Michigan v. Tucker 2 in a rather extensive footnote 3 has persuaded me to add a few words. It
may only be ex abundanti cautela, but nonetheless, I entertain a slight misgiving that as to persons not as
well-posted in what Professor Thomas Reed Powell called the vagaries of constitutional interpretation or
not as sensitive to nuances in judicial opinions as the ponente, there could arise the erroneous
impression that the adoption of Miranda in the present Constitution 4 may still be affected by later
American cases that do not adhere to its strict norm. Hence this brief concurrence.

1. It does not admit of doubt that the right against self-incrimination arose from the belief that thereby
the recurrence of the evils associated with the Star Chamber and the Inquisition could be avoided. It
can be said that as originally phrased, what is sought to be prevented is compulsion. Confessions
voluntarily entered into are by no means excluded. 5 The moment, however, there is, in the language of
People v. Bagasala, 6 "any form of coercion, whether physical, mental or emotional," it becomes
inadmissible. 7 The opinion continues: "What is essential for its validity is that it proceeds from the free will
of the person confessing. 8 Miranda, to my way of thinking, further vitalized the constitutional guarantee.
The element of compulsion need not be shown in cases of custodial interrogation. For a confession to be
inadmissible, it suffices if at that stage, the person under investigation is not informed of his right to
remain silent and to counsel. As admitted in the able opinion of Justice Antonio, there is the assumption
that the circumstances of a police interrogation are so inherently coercive that unless the atmosphere be
neutralized in some manner, no individual's decision to speak could be considered as falling within the
exception to the privilege against self-incrimination once its voluntariness is shown. That is as it should
be. I do not think that the opinion of the Court rightfully viewed is susceptible to any contrary
interpretation.

2. It is true of course that the approach of the Burger Court differs from that of the Warren Court as
far as civil liberties cases are concerned. It was the late Chief Justice Warren who penned the
epochal Miranda opinion. That was in 1966. On May 14, 1969, shortly before he became Chief
Justice, the then Circuit Court of Appeals Judge Warren Burger, in Frazier v. United States, 9 made
clear that he was not sympathetic to the broad scope given the privilege of self- incrimination. As he
pointed out in his concurring and dissenting opinion: "Of more concern is the majority's expansion of
Miranda into a per se exclusionary rule, thereby transcending the Fifth Amendment requirement that only
those statements elicited through compulsion be excluded from evidence. Indeed, Miranda itself cannot
be read as going beyond the language of the Fifth Amendment. Any lingering doubts on this score were
resolved by a recent exposition on the subject by the Supreme." 10 Nonetheless, it is only fair to add that
two prominent commentators on the Warren Court, the late Professor Harry Kalven and Professor Gerald
Gunther, are on record as denying radical departure from the libertarian doctrines of the court. Thus, in
his foreword to the 1970 Term of the Warren Supreme Court, the late Professor Kalven noted: "Perhaps
because I had taken the political advertisements of change too seriously, I had expected dislocations in
the work of the Court. But as I read through the work of the Term I was relieved to find, with uncertain
exceptions of criminal procedure and reapportionment, less change than I had anticipated. I found, too,
measuring change of this sort, given the complexities of the of the work of the Court, was an exceedingly
difficult task. In any event the continuities impressed me more than the discontinuities." 11 The next year,
in discussing the 1971 Term, Professor Gunther in effect echoed the same sentiment: "When Harry
Kalven examined the Court's work in these pages a year ago, he was surprised to find that the 1970 Term
had produced less change than expected, that continuities were more impressive than discontinuities.
The 1971 Term leaves me with a similar impression. That assessment may be more surprising this year
than last; a sharper break was expected by many and has already been proclaimed by some. To me
portrayals of a dramatic turnabout do not ring true. Rather, I see a Court divided, uncertain and adrift. The
Burger Court continues more confident about stopping further extensions of the Warren Court paths than
about charting roads of its own. The changes were marginal, not cataclysmic." 12

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

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

Hence, to repeat, this brief concurrence.

G.R. No. 77116 January 31, 1989

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERDINAND CAMALOG and NOVELITO SOTTO, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Coronel Law Office for defendant-appellants.

GANCAYCO, J.:

When is a confession legally sufficient in accordance with the system of criminal justice in this
country? The present case brought before this Court on appeal from a decision of the Regional Trial
Court of Cavite in Criminal Case No. TM-140 entitled People vs. Armando de los Reyes, et al.,
projects this issue.

In an Information that was filed by the Provincial Fiscal of Cavite, Armando de los Reyes, Ferdinand
Camalog and Novelito Sotto were charged with the crime of Robbery with Homicide before the
Regional Trial Court of Cavite. It reads as follows:

That on or about June 12, 1985, In the municipality of Tanza, Cavite, Philippines, and
within the jurisdiction of this Honorable Court, the above named accused, conspiring
together, acting jointly and assisting one another, with violence against persons and
with intent of gain and without the consent of the owner did, then and there wilfully
and feloniously rob, take and carry away cash money amounting to P600.00 and
assorted jewelry valued at P30,600.00 Philippine Currency and owned by Jose M.
Malabanan, and by reason and on the occasion of the robbery, the said accused with
intent to kill, did, then and there wilfully and feloniously strike and stab Jose M.
Malabanan, with a pickax and a three-bladed and pointed weapon commonly known
as tres cantos on the different parts of his body causing the death of Jose M.
Malabanan, to the damage and prejudice of his heirs.
 The aggravating circumstances of dwelling, nighttime, treachery and abuse of
superior strength, were present at the time of the commission of the aforesaid
offense.

CONTRARY TO LAW. 1

The accused pleaded not guilty when arraigned. The three accused were earlier arrested and
detained without bail.

The facts of the case as presented by the prosecution are as follows:

In the morning of June 12, 1985, the Integrated National Police (INP) stationed at Tanza, Cavite
received a report that a killing was perpetrated inside a house at Barrio Amaya, Tanza, Cavite. Two
INP police officers, Patrolmen Ruben Bolante and Augusta de la Cruz responded to the report and
conducted an investigation at the scene of the crime. They came upon the lifeless body of Jose M.
Malabanan. The deceased was found lying on the floor of the room. They noted that the furniture
was in disarray and that the cabinet in the room was forcibly opened with its contents scattered
around the victim. The investigators took note of the presence of several bloodstains in many parts
of the room. They then found a pick hammer lying near the victim's body. They also came upon a
triple bladed knife, popularly called as tres cantos. Upon going outside the house, they discovered
human blood spilled near an artesian well. A third police officer, Sgt. Esmeraldo Romero,
interrogated some of the residents of the Barrio. He eventually came upon a barrio resident, Bayani
Bocalan, who told them that he saw Armando de los Reyes, a resident of Tanza, strolling near the
house of the victim in the early morning of June 12, 1985 and was in the company of two other men,
all of them acting suspiciously in the vicinity of the house of the victim.

Acting on the information given by Bayani Bocalan, the police authorities invited Armando de los
Reyes to their office for questioning. Sgt. Romero informed de los Reyes about his constitutional
rights and then began interrogating him. De los Reyes admitted his participation in the commission
of the crime and identified his two companions as a certain Mario from Ilocos and one Ben from
Manila, both of whom, according to him, could be found in the Luneta Park of Manila. The extra-
judicial confession was reduced in writing and was signed by him before Judge Aurelio Icasiano,
Municipal Trial Court Judge of Tanza, Cavite.

A team of Tanza policemen accompanied De los Reyes to the Luneta on the evening of June 13,
1985 to look for the said Mario and Ben. At the Luneta, De los Reyes pointed out to the policemen
the accused Ferdinand Camalog and Novelito Sotto whom he identified as his fellow conspirators.

Ferdinand Camalog and Novelito Sotto were interrogated and made to sign extra-judicial
confessions wherein they admitted their alleged participation in the commission of the crime
charged. These statements were subscribed and sworn to also before Judge Icasiano.

On the basis of these extra-judicial confessions, the three were charged with the crime of Robbery
with Homicide.

The appellants pleaded not guilty to the charge.

Both oral and documentary evidence were presented in court by the prosecution. They established
the death of Jose Malabanan, the damage caused to his heirs, and the loss of P30,600.00 worth of
cash and jewelries. The extra-judicial statements of the accused were presented, identified and
admitted in court as part of the testimony of the police investigators.
The defense presented witnesses who testified on the good moral character of Camalog and Sotto
and their whereabouts in the early morning of June 12, 1985.

On the witness stand, De los Reyes admitted his participation in the commission of the crime
charged but retracted his statement made in the extra-judicial confession regarding the participation
of his co-accused Camalog and Sotto. He testified that he had been mauled by the police
investigators during the interrogation. He also testified that he was threatened with bodily harm if he
refused to admit having committed the crime charged. He likewise testified that be was forced to
pinpoint the two other accused as his co-conspirators on account of a threat against his life made by
the police authorities. He asserted that Camalog and Sotto were not involved in the commission of
the robberry and homicide, that two men named Ben and Mario were his companions then, and that
both Ben and Mario are still at large.

The other two accused, Camalog and Sotto, testified that they were never near the scene of the
crime on the date and time it was committed, and that they were in their residences in Manila and
Quezon City, respectively. Two witnesses, Concepcion Villasis and Robert Cabanban, employer and
brother-in-law, respectively, of Sotto and Camalog, were presented to corroborate the alibi they
gave.

The accused further stressed the fact that they were forced to sign the extra-judicial confessions
presented in court. They also testified that the police investigators heat, maltreated and threatened
them with death if they refused to sign the confessions. They likewise stated that they were never
informed about their constitutional rights and that the police investigators never conducted an
investigation as regards their alleged participation in the crime. The two accused further testified that
during the period covering their custodial interrogation, they never had the chance to confer with a
lawyer.

On September 30, 1986, the trial court rendered a decision finding all the three accused guilty of the
crime charged, the dispositive portion of which reads:

WHEREFORE, the Court finds accused ARMANDO DE LOS REYES, FERDINAND

CAMALOG, and NOVELITO SOTTO guilty beyond reasonable doubt of the crime of
Robbery with Homicide punishable under Article 294 par. (1) of the Revised Penal
Code and there being no mitigating or aggravating circumstances present in the
commission of the crime hereby sentences said accused to suffer the penalty
of reclusion perpetua, to indemnify the heirs of the victim jointly and severally (1) in
the amount of P30,000.00 for the death of Jose Malabanan; (2) P30,600.00 for the
items taken from the victim's house; and (3) actual damages of P70,000.00; (4)
moral damages of P5,000.00 and to pay the proportionate costs.

SO ORDERED. 2

Taking exception to the finding that their guilt has been proved beyond reasonable doubt, the
accused Ferdinand Camalog and Novelito Sotto appealed their case to this Court on the ground that
the trial court erred as follows:

I. THE TRIAL COURT ERRED IN ADMITTING THE EXTRA-JUDICIAL

CONFESSIONS OF THE APPELLATE BECAUSE THEY WERE OBTAINED
THROUGH FORCE, THREAT AND INTIMIDATION AND THAT THEY WERE
OBTAINED IN VIOLATION OF SECTION 20, ARTICLE IV OF THE (1973)
PHILIPPINE CONSTITUTION.
 II. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF
JOHN LEO ALABADO.

III. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF ALIBI.

IV. THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF

ACCUSED ARMANDO DE LOS REYES.

V. THE TRIAL COURT ERRED IN FINDING THE APPELLATE APPELLANT'S

GUILTY BEYOND REASONABLE DOUBT.

In considering these interrelated errors assigned by appellants, We find merit in their contention that
there is no moral certainty to find them guilty beyond reasonable doubt of the crime charged.

The records show that their confessions were not regularly obtained. There were enough indications
that the statements were not given voluntarily.

The trial court gave credence to the claim of the prosecution that the subject confessions were
signed voluntarily on the basis of the failure of appellants to complain to the Municipal Trial Judge
that they were forced to sign the same. The trial court failed to take note of the fact that when said
confessions were presented to Judge Icasiano, their tormentors were present to hear and know what
the appellants would say and do. They remained in the custody of their tormentors and not with
Judge Icasiano. Appellants must have been reasonably apprehensive of further maltreatment if they
manifested to Judge Icasiano that they were forced to sign the said confessions. 3

An observation was also made by the court a quo that it was not shown that the police investigators
had ill motive in order to implicate the accused to such a heinous crime. The police investigators
were from Tanza, Cavite, just like the victim and his heirs. Appellant Ferdinand Camalog is from
Ilocos Sur while appellant Novelito Sotto hails from Oriental Mindoro and both resided in Metro
Manila. De los Reyes pointed them out to the police investigators to be the "Ben" and "Mario" who
were his confederates. None of said nicknames jibed with the true names of appellants. The police
investigators did not care. They brought the two to their headquarters in Tanza. They investigated
them under circumstances that place into serious doubt their impartiality and motive.

The presence of details in the confessions of appellants were considered by the trial court as
evidence that the confessions were voluntarily made. An examination of the confession earlier
executed by De los Reyes shows that the details in the questioned confessions of appellants were
culled from the said confession of De los Reyes.

The high point in deciding this case is the respect which must be accorded the constitutional rights of
custodial prisoners at the time they are subjected to interrogation and their subsequent execution of
an extra-judicial confession, was there really a confession or admission during the custodial
investigation? Were they informed of their rights? We find no affirmative answers to these questions.
It appears that the appellants were not informed of their constitutional rights and, even assuming that
they were so informed, there is no indication that they understood those rights.

We gave emphasis to these points in recent cases, to wit:

When the Constitution requires a person under investigation to be informed of his

rights to remain silent and to counsel, it must be presumed to contemplate the
transmission of meaningful information rather than just the ceremonial and
 perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it
would not be sufficient for a police officer just to repeat to the person under
investigation the provisions of Section 20, Article IV of the Constitution. He is not only
duty-bound to tell the person the rights to which the latter is entitled: he must also
explain their effects in practical terms, e.g., what the person under interrogation may
or may not do, and in a language the subject fairly understands. 4

In Reyes vs. Quizo 5 We took time to elucidate on this viz.

In other words, the right of a person under interrogation "to be informed' implies a
correlative obligation on the part of the police investigator to explain, and
contemplates an effective communication that results in understanding what is
conveyed. Short of this, there is a denial of the right, as it cannot truly be said that
the person has been 'informed' of his rights. Now, since the right to be informed'
implies comprehension, the degree of explanation required will necessarily vary,
depending upon the education, intelligence and other relevant personal
circumstances of the person under investigation. Suffice it to say that a simpler and
more lucid explanation is needed where the subject is unlettered.

The trial court relied on the testimony of the police investigators that the appellants have been
informed of their fundamental rights but failed to take note of the conspicuous absence of any lawyer
to assist the accused during the custodial investigation. Even assuming that the accused waived
their constitutional right to counsel, there is no indication that they did so with the assistance of
counsel. The testimony of the accused during the trial of this case supports Our observation, to wit:

Atty. Abaya:

Q. Do you know who conducted the investigation?

A. The police.

Q. When you were investigated by the police were you assisted by

counsel of your choice?

A. No, sir.

Q. Did they inform you that you have the right to counsel?

A. No, sir.

Q. And did they manifest to you that they will give you a lawyer to
assist you in your investigation?

A. No, sir.

Q. Despite the absence of a lawyer, did you give a statement to the

police investigator?

A. No, sir. I did not give (a) statement. 6

Atty. Abaya:
 Q. You did not give a statement to the police investigator?

A. I was just asked to sign the document.

Q. Why did you sign the document?

A. I signed it because I was being threatened by the police.

Q. What kind of threat did the police exert on your person?

A. They told me that if I will not sign the document, they are going to
salvage me. 7

The prosecution witness, Sgt. Esmeraldo G. Romero, testified:

Atty. Bince:

Q. In short, when you told him of his right to counsel, there was no lawyer present, is that correct?

A. Yes, sir.

Q. When you told him that the statement that he will give might be used against him, you told that
without the presence of the lawyer, is that correct?

A. Yes, sir.

Q. When he refused allegedly the assistance of counsel there was no counsel around, is that also
correct?

A. Yes, sir. 8

Atty. Bince:

Q. You said you investigated also Novelito Sotto. During your investigation of him there was no
lawyer present. Is that correct?

A. Yes, sir.

Q. When you told him he can avail (of) the services of a lawyer, there was no lawyer present. Is that
correct?

A. Yes, sir.

Q. In short in both the custodial investigation of Armando de los Reyes and Novelito Sotto there was
no lawyer present to assist them?

A. Yes, sir. 9
Very relevant to this case is the pronouncement of this Court in Morales vs. Ponce Enrile, 10 reiterated
in People vs. Galit 11 and People vs. Lumayok, 12 where this Court categorically stated that the waiver by
the accused of his right to counsel must be made in the presence and with the assistance of counsel.

We stressed the inadmissibility of extra-judicial confessions obtained in violation of this principle:

At the time a person is arrested, it shall be the duty of the arresting officer to inform
him of the reason for the arrest and he must be shown the warrant of arrest, if any,
He shall be informed of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. The person arrested
shall have the right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means by telephone if possible or by letter or messenger. It
shall be the responsibilityof the arresting officer to see to it that this is accomplished.
No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself of by anyone on his behalf. The
right to counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the procedure herein
laid, whether exculpatory or inculpatory in whole or in part, shall be inadmissible in
evidence. (Emphasis supplied.) 13

In People vs. Lumayok, 14 this Court made the following observation

No custodial investigation shall be conducted unless it be in the presence of counsel

engaged by the person arrested by any person on his behalf or appointed by the
court upon petition either of the detainee himself or by anyone on his behalf. The
right to counsel may be waived but the waiver shall not be valid unless made with
the assistance ofcounsel. Any statement obtained in violation of the procedure herein
laid down whether exculpatory or inculpatory in whole or in part shall be inadmissible
in evidence. (Emphasis supplied).

The second error submitted by the appellants is that the extra-judicial confessions offered in
evidence were obtained in violation of Section 20, Article IV of the 1973 Constitution, the
fundamental law in force and effect at the time of their arrest. Even assuming that the accused were
informed of their right to remain silent, there is no showing that the appellants fully understood the
same.

The assertion made by the police investigators to the effect that the appellants were informed of their
fundamental rights will not overthrow the fact that appellants were not assisted by counsel during the
custodial investigation even if they had waived the right. The fact that the appellants were never
assisted by counsel during the custodial investigation is confirmed in the testimony of prosecution
witness Sgt. Esmeraldo Romero.

From the foregoing, it clearly appears that the Tanza, Cavite police investigators informed the
accused-appellants Ferdinand Camalog and Novelito Sotto about their constitutional rights in a
rather sloopy manner. The type of questions and answers recited in their extra-judicial confessions is
Identical to that of their co-accused Armando de los Reyes. There was not even a semblance of
conformity with the fundamental law.

Of course, the trial court put emphasis on the testimony of prosecution rebuttal witness John Leo
Alabado that at about 5:00 o'clock in the morning of June 17, 1985 on his way to the residence of
Bayani Bocalan, he saw the three (3) persons coming out of the victim's house. He identified the
appellants to be among the three. 15

This witness was presented by the prosecution when its witness Bayani Bocalan failed to appear
and accused De los Reyes denied the participation of the appellants in the commission of the
offense. It took this witness over a year to report what he saw. And instead of reporting the same to
the police authorities he conveniently allegedly reported what he supposedly saw to the victim's
father who was then looking for witnesses. He appeared in court without a subpoena. The sudden
emergence of this witness at the closing stages of the case is, to say the least, suspicious. A reading
of the transcript of his testimony, shows how incredible it can be. He remembers the exact day he
saw appellants. He did not notice any startling occurrence to remember said date and the identities
of appellants so vividly. He met Francisco Malabanan, the father of the victim, for the first time in
April 1986 when he revealed what he knew allegedly because his conscience bothered him. It was
Malabanan who brought him to court to testify.

Bayani Bocalan, who was the witness who identified De lo Reyes and saw his two companions, was
never presented by the prosecution. Such wilful suppression of evidence gives rise to the
presumption that if presented the same would prove to be adverse to the prosecution. 16

Moreover as argued by appellants, the testimony of Alabado was improper for rebuttal. It should
have been presented at the time the prosecution was presenting its evidence on direct examination.

The Solicitor General does not share the enthusiasm of the trial court in accepting the testimony of
this witness. He argues, however that the extra-judicial confessions of appellants are sufficient to
establish their guilt beyond reasonable doubt. The Court finds otherwise. With the inadmissibility of
the extra-judicial confessions of appellants, their conviction becomes baseless. They are entitled to
an acquittal.

WHEREFORE, the decision of the Regional Trial Court of Cavite in Criminal Case No. TM-140 dated
September 30, 1986 is hereby REVERSED and SET ASIDE as to the defendants-appellants and
another judgment is hereby rendered ACQUITTING defendants-appellants FERDINAND CAMALOG
and NOVELITO SOTTO with costs de oficio. This Decision is immediately executory.

SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. L-38930 June 28, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO TRINIDAD, alias "Pedro Diplat," and ROMEO CONDAYA, alias "Romy," accused-
appellants.

The Solicitor General for plaintiff-appellee.

Domingo V. Pascua for accused-appellant Isabelo Trinidad.

Emiliano S. Micu for accused-appellant Romeo Condaya.

CORTES, J.:

Appellants were accused of the crime of murder on the basis of the following information:

That on or about the 16th day of April, 1973, at night, in Barrio San Vicente,
municipality of Umingan, province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Isabelo Trinidad,
alias "Pedro Diplat and Romeo Condaya, alias "Romy," and Bonifacio Palding, alias
"Pacio," and Wilfredo Mitrado, alias "Edo," who were discharged in the municipal
court for insufficiency of evidence, conspiring together and mutually helping one
another, armed with a shotgun and with intent to kill, with evident premeditation and
treachery, did, then and there, wilfully, unlawfully and feloniously attack, assault and
shoot Cristita Balancio Vda. de Angel inflicting upon her fatal gunshot wounds which
caused her death as a consequence.

Contrary to Art. 248 of the Revised Penal Code. [Rollo, p. 4].

Upon arraignment, both accused-appellants, with the assistance of counsel, pleaded "Not Guilty."

In a decision dated May 27, 1974, the Court of First Instance rendered judgment convicting accused-
appellants of murder and sentencing them to suffer the penalty of reclusion perpetua, to jointly and
severally indemnify the heirs of the deceased Cristita Balancio Vda. de Angel in the amount of
P12,000.00 and to pay the costs. The shotgun and the cartridges used in the commission of the
crime were ordered confiscated and forfeited in favor of the government.

Not agreeing with the decision of the trial court accused-appellants appealed to this Court.

In his brief, accused-appellant Trinidad assigned the following errors:

I. THAT THE LOWER COURT ERRED SERIOUSLY WHEN IT REFUSED TO CONSIDER THE
EVIDENCE FOR THE DEFENSE

II. THAT THE LOWER COURT ERRED GRAVELY AND SERIOUSLY WHEN IT CONCLUDED
WITHOUT GROUNDS THAT:

1. It is undeniable that the initial holder of the gun was Isabelo

Trinidad.

2. Isabelo Trinidad made sufficient steps in trying to escape suspicion

by giving the gun for safekeeping to Romeo Condaya.

3. It is inconceivable for the police authorities to exactly know where

the gun and the cartridges were hidden if not for the information
furnished them by Romeo Condaya.

4. Isabelo Trinidad's presence at the scene of the crime was

established by even the evidence in his behalf [as) his house is a few
meters away from the victim's house.

5. Such startling occurrence could have roused Isabelo Trinidad from

his sleep. In fine, when Isabelo Trinidad, after the burst of gunfire
 returned to the victim's house it was only to shield himself from
responsibility for the crime which he concocted.

6. that the evidence clearly establish that Isabelo Trinidad

conveniently evaded direct confrontation with the police authorities at
the initial stage of the police investigation.

III. THAT THE LOWER COURT ERRED SO GRAVELY WHEN IT CONVICTED THE ACCUSED
(YOUR APPELLANT) OF THE CRIME CHARGED CONTRARY TO LAW AND THE EVIDENCE.

On his part, accused-appellant Condaya assigned the following errors:

THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE PRESENTED BY THE
DEFENSE TO PROVE THE IRREGULARITY RESORTED TO BY THE POLICE AUTHORITIES TO
EXACT ADMISSION BY MEANS OF VIOLENCE, INTIMIDATION AND DECEIT FROM THE
ACCUSED WAS IRRELEVANT DESPITE THAT ITS MATERIALITY AND RELEVANCE TO THE
CASE IS VERY CLEAR.

II

THE LOWER COURT ERRED IN HOLDING THAT THE INITIAL INVESTIGATION REVEALED
THAT ISABELO TRINIDAD, ROMEO CONDAYA, BONIFACIO PALDING AND WILFREDO
MITRADO IMMEDIATELY AFTER THE, BURST OF GUNFIRE WAS HEARD, WERE SEEN A FEW
METERS FROM THE HOUSE OF THE VICTIM CRISTITA BALANCIO VDA. DE ANGEL
HURRIEDLY WALKING TOWARDS THE NORTH AND THAT ROMEO CONDAYA WAS HOLDING A
GUN, DESPITE THE CLEARLY IMPROBABLE AND INCONSISTENT TESTIMONIES OF THE
WITNESSES WHO TESTIFIED ON THIS (SIC) POINTS.

III

THE LOWER COURT ERRED IN HOLDING THAT ROMEO CONDAYA LED THE AUTHORITIES TO
THE COLIBANGBANG" TREE AND THE BAMBOO GROVES WHERE THE SHOTGUN (EXH. C)
AND THE CARTRIDGES (EXHS. D, D-1, D-2 AND D-3) WERE ALLEGEDLY RESPECTIVELY
RETRIEVED DESPITE THE UNRELIABLE AND THE INADMISSIBILITY OF THE EVIDENCE UPON
WHICH IT WAS BASED.

IV

THE LOWER COURT ERRED IN CONCLUDING THAT ROMEO CONDAYA WAS THE GUN
WIELDER AND THAT HE DID SO UPON THE ACTIVE INDUCEMENT OF HIS CO-ACCUSED
ISABELO TRINIDAD, DESPITE THE TOTAL LACK OF EVIDENCE TO SUPPORT IT.

AND, FINALLY, THE LOWER COURT ERRED IN CONCLUDING THAT THE CRIME CHARGED IN
THE INFORMATION WAS PROVED AND THAT BOTH THE ACCUSED ARE GUILTY THEREOF
DESPITE THE TOTAL LACK OF SUFFICIENT EVIDENCE TO PROVE THEIR GUILT BEYOND
REASONABLE DOUBT.
Ultimately, however, as pointed out by accused-appellant Condaya, the issue boils down to whether
or not the prosecution has proven beyond reasonable doubt that accused-appellants Trinidad and
Condaya were the persons responsible for the death of the victim.

To support its judgment of conviction, the trial court relied on the following findings:

The evidence for the prosecution tends to establish that in the evening of April 16,
1973, one Cristita Balancio Vda. de Angel was asleep by the balcony of her house
situated at Barrio San Vicente, Umingan, Pangasinan. With her at that time were her
son, Juan Angel, her daughter-in- law and two (2) grandchildren. Suddenly, there
was a burst of gunfire, rousing Juan Angel and his wife from their sleep. Juan Angel
then peeped out from the window to find out what happened as his carabao was tied
just below the said window. As Juan Angel peeped, he saw Isabelo Trinidad, Romeo
Condaya, Wilfredo Mitrado and Bonifacio Palding, about five (5) to six (6) meters
away hurriedly walking towards the North.

Shortly, as Juan Angel's wife shouted. Romeo Condaya who was then holding a gun,
Isabelo Trinidad, Bonifacio Palding, and Wilfredo Mitrado ran farther towards the
North.

It turned out that Cristita Balancio Vda. de Angel was hit by her neck which caused
her death. (Exhibits "A" and "A-1"). So, Juan Angel proceeded to call for help. He
asked somebody to fetch Ignacio Dopale, the Barrio Captain of San Vicente,
Umingan, Pangasinan, who immediately responded to Juan Angel's call for help.
Initial inquiries from Juan Angel, revealed the information that Immediately after the
burst of gunfire, Romeo Condaya, Wilfredo Mitrado, Isabelo Trinidad and Bonifacio
Palding, were seen hurriedly walking towards the North. So that, Barrio Captain
Ignacio Dopale proceeded to the Umingan Municipal Building in Order to report the
matter.

Corporal Dominador Barwel of the Umingan Police Force to whom the case was
referred first fetched Sergeant Casio of the Philippine Constabulary at Umingan,
Pangasinan. Then, they proceeded to the scene of the incident in order to
investigate.

Arriving at the premises, they saw Cristita Balancio Vda. de Angel, already dead as a
result of gunshot wounds suffered at the back of her neck. This investigation again
revealed the information that Isabelo Trinidad, Romeo Condaya, Bonifacio Palding,
and Wilfredo Mitrado, were seen within the vicinity immediately after the gunfire. As
Isabelo Trinidad was then on the premises, he was apprehended and brought to the
Municipal Building of Umingan, Pangasinan. On the way, Isabelo Trinidad revealed
that he had caused the death of Cristita Balancio Vda. de Angel, as in fact he offered
to pay Romeo Condaya the amount of Five Hundred Pesos (P500.00) to do the job.
However, the intended victim was Juan Angel, because of Isabelo Trinidad's
carabao.

Accordingly, Sgt. Casio and Cpl. Dominador Barwel on April 17, 1973 took steps to
apprehend Romeo Condaya, Wilfredo Mitrado and Bonifacio Palding, at Sta. Rosa,
Umingan, Pangasinan. Wilfredo Mitrado was apprehended on April 18,1973 while
Romeo Condaya was apprehended sometime on April 20, 1973 at Sto. Tomas,
Pangasinan, after being turned over by the Sto. Tomas police authorities. On the way
to Umingan, Pangasinan, Romeo Condaya was verbally interrogated inside the jeep.
 Here, Condaya was asked if he had anything to do with the killing of Cristita Balancio
Vda. de Angel. Readily, Romeo Condaya admitted the shooting as Isabelo Trinidad
promised to pay him (Condaya) the amount of Five Hundred Pesos (P500.00).
However, this amount remained unpaid. On the same occasion, Romeo Condaya
informed Sgt. Casio and Cpl. Barwel that the gun used in the killing was hidden
somewhere atop a "Colibangbang" tree at Sta. Rosa, Umingan, Pangasinan.

At Sta. Rosa, Umingan, Pangasinan, and upon Condaya's instructions, the 12 gauge
locally made buck-shot was recovered. (Exhibit "C"). Thereafter, Romeo Condaya
pointed to the bamboo grove where he hid the cartridges. (Exhibits "D", "D-1', "D-2"
and "D-3").

After their apprehension, Romeo Condaya, Isabelo Trinidad, Bonifacio Palding, and
Wilfredo Mitrado were made to execute sworn statements which, however, they
refused to affirm before the Municipal Judge of Umingan, Pangasinan. [CFI Decision,
pp. 2-4; Rollo, pp. 21-23].

In their testimonies, accused-appellants Trinidad and Condaya denied their participation in the crime
and asserted that after their apprehension they were tortured and maltreated until they signed
documents which they later found out to be their extrajudicial confessions. Hence, their refusal to
affirm their written confessions before the municipal judge.

To prove his innocence, Trinidad emphasized the undisputed facts that he was even among those
who went to Umingan to fetch Sgt. Casio and Cpl. Barwel and that he even remained at the scene of
the crime while, they were conducting their investigation and provided refreshments for the
investigators.

The trial court dismissed accused-appellants defense with the following observation:

Before anything else, this Court notes with muffled amusement the manner at which
the accused presented their side of the case. For aware as they were that the
alleged statements taken from them by the authorities of Umingan, Pangasinan when
offered by the prosecution was denied admission, they persisted at presenting
evidence along this line. There really was no need for the accused to do what they
did. As far as this Court is concerned, the supposed irregularity at securing these
admissions was irrelevant. For so it is that these statements were not even
subscribed and sworn to before any competent authority. So that, when the accused
persistently harped at this alleged violence upon their persons, this Court was
furnished a sufficient basis at attributing a semblance of meaning to these
statements. But conformably with our settled constitutional demands of due process,
this Court considers these averments of violence extraneous to this case, although
the Municipal Health Officer, Dr. Eddie Soriano's medical certificates had shown a
contrary finding. (Exhibits "H", "H-1", "H-2", "I", "I-1", "I-2" and "I- 3"). [Rollo, pp. 31-
32].

At the outset, it must be stated that the trial court correctly denied the admissibility as evidence of
the written extrajudicial confessions of the accused-appellants. Such denial, however, should not
have been for the reason given, namely, that they were not subscribed and sworn to before the
proper authorities, but, rather, because the requirements of the Constitution were disregarded.

The 1973 Constitution, then in force and effect when the confessions were taken, provided in words
that left no room for doubt:
 Sec. 20. No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be inadmissible in evidence.
[Article IV].

The rule is that when an accused testifies that he signed his confession because he was maltreated,
the prosecution must present evidence to rebut this claim, otherwise the confession will be
considered illegally procured [People v. Inguito, L-53497, October 18, 1982, 117 SCRA 641.] The
presumption of regularity of performance of official duty does not apply to incustody confessions.
The prosecution must prove compliance with the constitutional requirements [People v. Tolentino,
G.R. No. L-50103, November 24, 1986, 145 SCRA 597.]In the instant case, accused-appellants'
allegations of torture and maltreatment were refuted by Dr. Soriano's testimony and medical
certificate.

However, since there is no proof that when they made their confessions they were informed of their
right to remain silent and to counsel and that they knowingly and intelligently waived these rights,
such confessions are inadmissible in evidence [People v. Duero, G.R. No. L-52016, May 13, 1981,
104 SCRA 379.] Likewise, the absence of counsel at the time of custodial investigation when the
extrajudicial confession was taken renders it inadmissible [People v. Burgos, G.R. No. L-68955,
September 4, 1986, 144 SCRA 1.] It is not enough that the suspect is asked if he needs a lawyer, he
must be informed that if he is an indigent a lawyer will be appointed to represent him during custodial
interrogation [People v. Tolentino, supra].

It is not only the oral confessions made to the apprehending officers, Sgt. Casio and Cpl. Barwel,
that are tainted but also the written confessions made and signed a few days after their arrest. Thus,
the testimonies of the police officers on the matters allegedly confessed to them by accused-
appellants and the written extrajudicial confessions are inadmissible in evidence.

2. As the extrajudicial confessions are inadmissible, the Court is tasked with determining whether
there remains sufficient evidence to sustain a finding of guilt beyond reasonable doubt.

It must be emphasized that no direct evidence was adduced to prove accused-appellants'

commission of the crime charged.

To sustain a finding of guilt beyond reasonable doubt, the trial court wove together several pieces of
circumstantial evidence.

The Rules of Court provides that circumstantial evidence is sufficient for a conviction if:

(1) there is more than one circumstance;

(2) the facts from which the inferences are derived are proven; and

(3) the combination of all the circumstances is such as to produce a conviction beyond a reasonable
doubt. [Sec. 5, Rule 133].

Although no general rule has been formulated as to the quantity of circumstantial evidence sufficient
for a conviction, the established requirement is that the circumstances proved must be consistent
with each other, consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with any other hypothesis except that of guilty [People v. Ludday, 61 Phil. 216; People v.
Contante, G.R. No. L-14639, December 28,1964,12 SCRA 653.]

Thus, using the requirements of the Rules of Court and established jurisprudence as yardsticks, this
Court is called upon, in this appeal, to ultimately determine whether the circumstantial evidence
adduced during the trial are sufficient for a conviction.

The Solicitor General, in his brief [pp. 13-15], enumerated several circumstances in support of a
finding that accused-appellants were guilty beyond reasonable doubt of the murder of Cristita
Balancio Vda. de Angel, which may be summarize as follows:

1. Before April 16, 1973, accused-appellant, Isabelo Trinidad, bore a grudge against
Juan Angel. Trinidad suspected Juan Angel of having burned the rope of his
(Trinidad's) carabao.

2. Trinidad had warned Juan Angel on April 15, 1973, that he (Trinidad) could have
Juan Angel killed at anytime, even inside the latter's house.

3. In the evening of April 16, 1973, Bonifacio Palding, saw Trinidad and Condaya (in
the course of a drinking session with Palding, and Wilfredo Mitrado) converse
secretly some six (6) meters away from Palding and Mitrado. After this conversation,
Trinidad gave Condaya a home made shotgun and then Trinidad and Condaya,
followed by Palding, and Mitrado, proceeded to the house of Juan Angel.

4. While Palding, was some four (4) meters behind Trinidad and Condaya he
(Palding) heard a gunshot and saw a flash of light near the door of Juan Angel's
house.

5. A few seconds later, Palding, saw Trinidad and Condaya running away from the
house. Palding and Mitrado also ran away in the direction taken by Trinidad and
Condaya.

6. Juan Angel saw Trinidad, Condaya, Palding, and Mitrado running away from the
house as he peeped through a window after he heard the gunshot.

7. When Palding, and Mitrado caught up with Trinidad and Condaya in a certain field,
Palding heard Trinidad instruct Condaya to take the shotgun to Sta. Rosa, Umingan,
Pangasinan and hide it.

8. After the apprehension of Condaya on April 20 or 21, 1973, the home-made

shotgun was recovered on top of a "colibangbang" tree behind the house of
Condaya's parents, together with three (3) live cartridges hidden in a bamboo grove
nearby.

To this enumeration may be added three (3) more circumstances: (1) that the victim was found dead
near the door inside her son Juan Angel's house; (2) that the victim died of hemorrhage caused by
gunshot wounds; and (3) that two pellets were recovered from her body.

All of these circumstances, eleven (11) in all, have been proven by direct evidence. Together, these
circumstances lead to the conclusion that accused-appellants Trinidad and Condaya were guilty
beyond reasonable doubt for the shooting of Cristita Balancio Vda. de Angel.
Even if the eighth circumstance cited by the Solicitor General that the shotgun and the
ammunition were recovered in the vicinity of the house of Condaya's parents is disregarded on
the ground that the recovery was the fruit of the tainted confession, the result would be the same
because of the overwhelming circumstantial evidence.

Two (2) of the circumstances also manifest a community of purpose indicative of a conspiracy
between Trinidad and Condaya, which would make both of them equally guilty of the crime [People
v. Garcia, G.R. Nos. L-26105, February 18, 1986, 141 SCRA 336], although only one of them may
have pulled the trigger and actually fired the fatal shot. Where a conspiracy has been proven, a
showing as to who inflicted the fatal wound is not required. [People v. Tala, G.R. Nos. L-69153-54,
January 30, 1986,141 SCRA 240].

The rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly
and convincingly as the commission of the crime itself [People v. Vicente, G.R. No. L-26241, May 21,
1969, 28 SCRA 247]. In the instant case, the third circumstance cited by the Solicitor General (that
Trinidad pulled Condaya away from Palding and Mitrado to converse secretly and then gave him the
shotgun before they all went to Juan Angel's house), coupled with the seventh (that Trinidad told
Condaya to hide the shotgun as they were running away from Juan Angel's house), sufficiently
proves the conspiracy between Trinidad and Condaya. The conduct of accused-appellants before,
during and after the commission of the crime are circumstances showing the presence of conspiracy
[People v. Cabiltes, G.R. No. L-18010, September 25, 1968, 25 SCRA 112].

The crime committed was murder with the qualifying circumstance of treachery, as characterized by
the fact that the victim was shot at close range while she was asleep, thus ensuring the commission
of the crime without risk to the assailants [People v. Dequina, 60 Phil. 279 (1934)]. That Juan Angel,
and not his mother, was apparently the intended victim is not incompatible with the existence of
treachery. Treachery may be taken into account even if the victim of the attack was not the person
whom the accused intended to kill. However, evident premeditation may not be considered as a
qualifying circumstance as it cannot be said that the assailants premeditated on the killing of the
actual victim [People v. Mabug-at, 51 Phil. 967 (1926); People v. Guillen, 85 Phil. 307 (1950)]. Thus,
evident premeditation, although alleged in the information, may not be considered as a qualifying
circumstance.

With the abolition of the death penalty in the 1987 Constitution, murder is now penalized
by reclusion temporal in its maximum period to reclusion perpetua. Absent any modifying
circumstances, the penalty is imposable in its medium period, or from eighteen (18) years, eight (8)
months and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the range of
the penalty is lowered by one degree to prision mayor in its maximum period to reclusion temporal in
its medium period, or from ten (10) years and one (1) day to seventeen (17) years and four (4)
months.

WHEREFORE, the decision of the court a quo is MODIFIED and the Court, in the exercise of its
discretion, sentences accused-appellants to suffer the indeterminate penalty of from fourteen (14)
years and one (1) day of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal,
as maximum, and to indemnify the heirs of the victim in the amount of P30,000.00.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 hereinafter referred to
as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges
issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution
and the Rules of Court because, inter alia: (1) they do not describe with particularity the
documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were
actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners
in deportation cases filed against them; (4) the searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction,
and prayed that, pending final disposition of the present case, a writ of preliminary injunction be
issued restraining Respondents-Prosecutors, their agents and /or representatives from using the
effects seized as aforementioned or any copies thereof, in the deportation cases already adverted
to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants
and declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices of
the aforementioned corporations, and (b) those found and seized in the residences of petitioners
herein.

As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission of said
papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:

. . . that the Government's action in gaining possession of papers belonging to

the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have
been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights
of defendants whose property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of
the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued
by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners herein. 1wph1.t

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants
and that accordingly, the seizures effected upon the authority there of are null and void. In this
connection, the Constitution 13 provides:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized.

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth
in said provision; and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a given provision
of our criminal laws. As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," as alleged in the aforementioned applications without
reference to any determinate provision of said laws or

To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above
quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen,
in times of keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in connection with one specific offense." Not satisfied with
this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."

The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
 business transactions including disbursement receipts, balance sheets and related profit and
loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights that the things to be seized be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even
if the searches and seizures under consideration were unconstitutional, the documents, papers and
things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation,
however, we are unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the criminal should
not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other
than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such other legal remedies as may be provided by other
laws.

However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution. The efforts of the courts and
their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the land.19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are
led by it to close the only courtroom door remaining open to evidence secured by official
 lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific
guarantee against that very same unlawful conduct. We hold that all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible
in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by
the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and underserving of mention in
a perpetual charter of inestimable human liberties, so too, without that rule the freedom from
state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that
the Court held in Wolf that the amendment was applicable to the States through the Due
Process Clause, the cases of this Court as we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included the exclusion of the evidence seized in
violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when
conceded operatively enforceable against the States, was not susceptible of destruction by
avulsion of the sanction upon which its protection and enjoyment had always been deemed
dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally unreasonable searches state
or federal it was logically and constitutionally necessarily that the exclusion doctrine an
essential part of the right to privacy be also insisted upon as an essential ingredient of the
right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege
and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the
only effectively available way by removing the incentive to disregard it" . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for
a search warrant has competent evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then there is no reason why the applicant
should not comply with the requirements of the fundamental law. Upon the other hand, if he has no
such competent evidence, then it is not possible for the Judge to find that there is probable cause,
and, hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But,
then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed By agents
of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power
they do not have. Regardless of the handicap under which the minority usually but,
understandably finds itself in prosecuting agents of the majority, one must not lose sight of the
fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of
the federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution
sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being
best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with
the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

[G.R. No. 123542. June 26, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO

BULOS, accused-appellant.

DECISION

GONZAGA-REYES, J.:

Elevated for our review is the conviction of the accused-appellant for the crime of
rape, for which he was sentenced to reclusion perpetua.[1] Pertinent portions of the
information accusing him of the crime are as follows:

Upon a complaint filed by the offended party Nancy P. Cordero, the undersigned
accuses ROGELIO BULOS of the crime of Rape under Article 335 of the Revised
Penal Code, committed as follows:

That on or about December 3, 1992, in the Municipality of Panabo, Province of

Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, employing force and intimidation while holding a knife, willfully,
unlawfully, and feloniously had carnal knowledge of Nancy P. Cordero against her
will, to the damage and prejudice of the latter.

CONTRARY TO LAW.[2]

Both the offended party and the accused are working for spouses Mario and Delia
Fariolan, who reside in Barangay Dujali, Panabo, Davao. The offended party was the
cook and general househelp while the accused worked as a truck helper for the
business of Mario Fariolan; they both stayed in the house of the Fariolans.

As testified to by Nancy Cordero, at about 3:00 in the afternoon of December 3,

1992, she was in her room folding laundry when the accused suddenly entered, locked
the door from inside, and closed the window. At the time, the Fariolans were out of
the house. She attempted to flee but the accused grabbed her and threatened her with a
hunting knife. Nancy shouted for help, but the accused told her to stop shouting or he
will kill her. She lost consciousness and when she came to, she found him on top of
her and having carnal knowledge of her. Soon after, a certain "Bong" or "Bobong", the
accused's uncle who allegedly served as a lookout, knocked on the door and warned
that the Fariolans might be returning anytime soon. Before he left her, the accused
threatened the victim not to report the incident to anyone.After he had gone, Nancy
examined herself and discovered that she was bleeding. She did not dare tell anyone
but wept alone in pain and anger.[3]

At 5 o'clock the next morning, Nancy left the Fariolan residence for her house,
also in Barangay Duwali, where she told her mother of what happened. Immediately
they reported the incident to the barangay captain. [4] On the same day, the accused also
left the house of the Fariolans and was nowhere to be located. [5] He only turned up on
December 14, 1992, Upon which he was immediately arrested. [6]

The medical examination on Nancy Cordero conducted on December 14, 1992

revealed the following findings:

Physical no findings noted in any part of her body.

External Examination of Perenium:

1) normal vaginal contour

2) moderate pubic hairs

3) hymen -noted healed lacerations at 2 o'clock and 9 o'clock positions

4) with moderate vaginal bleeding

5) inserted 2 fingers easily

Note: For referral to Regional Hospital for evaluation of vaginal bleeding and
further management.

Under normal conditions and proper treatment and barring any untoward
complications that may arise as a result of the injury and or deeper involvement w/o
may not be apparent at the time of the examination, the above mentioned physical
injuries may heal in about ___days.[7]
 The examining doctor, Dr. Emelda T. Bendijo, testified that the lacerations could
have been caused by the introduction of a male penis into the vagina of the
complainant.[8]

The defense sought to refute the accusations of Nancy Cordero, and presented
witnesses to prove alibi. The combined testimonies of Mario Fariolan, the employer of
both the offended party and the accused, and Conrado Perido, sought to establish that
the accused was not at the Fariolans' house on the afternoon in question but was
vacationing in Tampakan, South Cotabato where he stayed at Perido's house. Fariolan
further testified that Nancy Cordero had indeed worked as a cook at their house but
had left their employ on November 16, 1992; [9] thus, the alleged rape on December 3,
1992 could not have happened because Nancy Cordero and the accused were not in
their house at said date. Fariolan also disputed Nancy's statement that no one else was
in the house on the afternoon of December 3, 1992 since they had another maid;
moreover, he and his wife and child were in fact in the house at the time. [10]

The accused himself also took the witness stand to refute the accusations of
Nancy Cordero. He claimed that he left the Fariolans house on November 18, 1992, to
go with Roberto Perido or "Bobong" (the person Nancy accused of acting as the
lookout, and Conrado Perido's son to the latter's house in Tampakan, South
Cotabato. He said that he only returned to the Fariolans on December 7, 1992.

On rebuttal, Merson Cordero refuted the accused's claim that he was not with the
Fariolans but in South Cotabato on December 3, 1992. Cordero, a brother of the
offended party, also worked as a helper at the rice mill owned by the
Fariolans. Cordero testified that the accused in fact left the Fariolans house only on
December 4, 1992, after he had already raped his sister; [11] he returned only on
December 14, 1992, the day he was also arrested. [12] Cordero also said that the accused
in fact offered marriage to Nancy,[13] that the Fariolan spouses actively persuaded
Nancy to accept the offer of marriage, [14] and that Nancy refused. Because Nancy
turned down the accused's offer of marriage, the Fariolans informed Cordero that he
cannot work for them anymore.[15]

Two sur-rebuttal witnesses, Luna Tabayay and Delia Fariolan, reiterated the
defense's position that Nancy Cordero left work by November 16, 1992, and not
December 4, 1992 as she alleged.
 In rendering its decision, the trial court upheld the version of the offended party,
finding that her acts immediately after the incident attest to the truth of her
accusations.[16] Although she told no one in the Fariolan household about the rape, she
left that house first thing in the morning after the incident and reported the matter to
her mother. They then sought the help of the barangay captain. When they looked for
the accused he was suddenly nowhere to be found.

In contrast, the testimonies of the defense witnesses struck the trial court as
instructed and rehearsed,[17] and contrived merely to cover up for the crime of the
accused. The trial court found it unusual that Mario Fariolan would allow the accused
to take an extended vacation leave when the latter had worked no more than five
months with him; moreover, Mario Fariolan simply accepted the accused's word that
he was leaving "to take a rest" without questioning where he was going. The
corroborating accounts of Delia Fariolan, Mario's wife, and Luna Tabayay, an
employee of the Fariolans, were met with the same incredulity. Conrado Perido was a
relative of the accused by affinity; the trial court also gave scant consideration to his
testimony that the accused was at his farm and left only on December 4, 1992.

Citing decided cases that the sole testimony of the rape victim, even if
uncorroborated but delivered in a clear, straightforward, sincere, and convincing
manner, is sufficient to convict, the trial court meted out a judgment of conviction and
declared:

WHEREFORE, consistent with all the foregoing premises, this Court finds the
accused Rogelio Bulos guilty beyond reasonable doubt of the crime of rape penalized
under Article 335 of the Revised Penal Code, as charged in the information, and is
hereby sentenced to suffer the penalty of reclusion perpetua, with all the accessory
penalties provided by law, to indemnify the offended party, Nancy Cordero, by way of
moral damages in the amount of P30,000.00; and by way of exemplary damages in the
amount of P10,000.00, and to pay the costs.[18]

This appeal imputes the following errors to the decision of the RTC:

1 The trial court erred in failing to consider the fact that the initial criminal complaint filed by
the complainant was against two (2) accused (Rogelio Bulos and alias "Bong") supported by
her sworn statement apparently showing conspiracy by the duo in the commission of the
crime.
 2. The trial Court erred in failing to consider the inconsistencies of complainant in her testimony
in order to properly assess her credibility.

3. The trial court erred in failing to properly consider the testimonies of defense witnesses
especially the spouses Fariolan who are the employers of both the complainant and the
accused-appellant.[19]

The criminal complaint filed by Nancy Cordero recounts that a certain "Bong"
acted as the lookout while accused-appellant assaulted and raped her in her
room. Accused-appellant would convince us that the failure of Nancy to pursue the
charges against "Bong" is inconsistent with the allegations of her complaint and
should seriously undermine the credibility of her accusations.

This argument is threadbare and deserving of scant consideration. The non-

inclusion of "Bong" as one of the accused does not diminish accused-appellant's
individual culpability, nor does it preclude the subsequent filing of charges against the
said "Bong" as an accomplice to the rape. If the intention of defense counsel was to
make it appear that Nancy changed her story since the filing of the complaint, he is
proven wrong by the transcripts which show that Nancy testified that "Bong" acted as
the lookout during the rape.

Accused-appellant would also want us to examine the details of Nancy's

testimony which he claims to be fraught with inconsistencies, and to reconsider
accused's alibi in the light of the testimony of the defense witnesses, whom the trial
court dismissed as biased witnesses. The alleged inconsistencies refer to the exact
time when the victim lost consciousness, whether the rape was committed before or
after she lost consciousness, and the presence of other people in the house when the
rape was committed.

We find these so-called inconsistencies too inconsequential to merit the reversal of

the trial court's findings. A rape victim cannot be expected to remember or recount in
utmost clarity and consistency the details of her harrowing and humiliating
experience.[20] If anything, inconsistencies on minor details project a spontaneity and
earnestness which render greater credibility to a rape account.

Contrary to accused-appellant's contentions, Nancy Cordero's testimony was

straightforward, clear and convincing.

ATTY. MILLAN
Q: You told us that suddenly, the accused entered your room. As soon as he got in, what did he do?

A: He locked the door.

Q: And then, what did he do?

A: He closed the window and held my hands.

Q: When he held your hands, what did you do?

A: I attempted to go outside, but he grabbed my hands and pointed a knife at me.

Q: You said you tried to run out of your room but you were stopped by the accused. What did you do
next?

A: I shouted for help.

Q: And when you did that, what did the accused do?

A: He told me not to shout, or else I will be killed.

Q: And then?

A: That was the reason why I lost consciousness.

Q: You mean, you lost consciousness?

A: Yes, Sir.

Q: Thereafter, when you regained consciousness, what happened?

A: He, succeeded (in) his intention.

Q: More particularly or specifically, when you regained consciousness, where was the accused?

A: He was still on top of me.

Q: And what was he precisely doing?

A: I cried for help.

Q: My question is, what was he doing when you regained consciousness?

A: He was still on top of me, but he already succeeded (in) his intention.
 Q: What was he doing actually?

A: He fucked me.

Q: And when you realized he was having carnal knowledge with you, what did you do?

A: I did not report the incident because I was warned by the accused not to report to my mother, or
else I will be killed.[21]

It is doctrinally settled that the lone testimony of the rape victim herself is
competent to establish guilt, where the same is found to be credible, convincing, and
consistent with human nature and the normal course of things. [22] This is because from
the nature of the offense, the only evidence that can oftentimes be offered to establish
the guilt of the accused is the complainant's testimony.[23] The Court also considers that
ordinarily, no woman would be willing to undergo the humiliation of a public trial and
testify to the details of her ordeal were it not but a response to the compelling need to
seek and obtain justice.[24] There is nothing in this case to indicate that Nancy Cordero,
an 18-year old cook and house helper, would have any motive to falsely implicate the
accused, in the process admitting to the stain to her modesty and honor, and losing her
humble means of employment; the logical conclusion is that her testimony is worthy
of full faith and credence.

Furthermore, Nancy's statements are corroborated by the medical certificate,

which confirmed the presence of healed vaginal lacerations. When testimony of rape
is supported by physical findings of penetration, there is sufficient foundation for
concluding that there was carnal knowledge. [25] Lacerations, whether healed or fresh,
are the best physical evidence of forcible defloration. [26]

We also join the observation of the trial Court that Nancy Cordero's conduct after
the rape renders credibility to her accusations. We have held that the conduct of the
victim immediately following the assault is of utmost importance in establishing the
truth or falsity of the charge of rape. [27] Here, Nancy lost no time in fleeing the Fariolan
residence to seek the help of her mother, and together report the matter to the
authorities.

A gratuitous disclaimer by accused-appellant cannot prevail over the positive

identification of the offended party, more so if the alibi is corroborated only by the
accused's relatives and friends.[28]Accused-appellant argues that the Fariolan spouses,
as the employers of both the offended party and accused-appellant, were not only
unbiased witnesses but even shared with the offended party an interest in having the
perpetrator brought to ,justice as the rape was also effectively a desecration of their
home. This argument is unacceptable, however, in light of the spouses' active
involvement in persuading Nancy to accept accused-appellant's offer of marriage. It is
certainly revealing of which employee they favor, and where their biases lie.

The Court also takes into consideration the flight of accused-appellant the day
after the rape, and his offer of marriage to the victim after the incident had been
reported to the authorities. As a rule in rape cases, an offer of marriage to the offended
party is an admission of guilt.[29]

Accused-appellant was charged with rape under Article 335 of the Revised Penal
Code, before the amendatory provisions of Republic Act No. 7659 took effect. With
no attendant mitigating or aggravating circumstances, the imposable penalty
is reclusion perpetua.

As for the resulting indemnities, the trial court awarded only P30,000.00 by way
of moral damages and P10,000.00 as exemplary damages. Comfortably with recent
case rulings,[30] we grant civil indemnity ex delicto in the amount of P50,000.00, and
increase the award of moral damages, to which the offended party is entitled
automatically and without need of proof, to P50,000.00. The award of exemplary
damages is deleted, no aggravating circumstance having attended the commission of
the offense.[31]

WHEREFORE, the decision of the Regional Trial Court of Davao is

AFFIRMED, with the MODIFICATION that accused-appellant Rogelio Bulos is
ordered to pay P50,000.00 as moral damages. The award of exemplary damages is
deleted. No pronouncement as to cost.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

HEIRS OF POLICRONIO M. G.R. No. 165748

URETA, SR., namely: CONRADO
B. URETA, MACARIO B. URETA,
GLORIA URETA-GONZALES,
ROMEO B. URETA, RITA URETA-
SOLANO, NENA URETA-
TONGCUA, VENANCIO B.
URETA, LILIA URETA-TAYCO,
and HEIRS OF POLICRONIO B.
URETA, JR., namely: MIGUEL T.
URETA, RAMON POLICRONIO
T. URETA, EMMANUEL T.
URETA, and BERNADETTE T.
URETA,
Petitioners,

- versus -

HEIRS OF LIBERATO M. URETA,

namely: TERESA F. URETA,
AMPARO URETA-CASTILLO,
IGNACIO F. URETA, SR.,
EMIRITO F. URETA, WILKIE F.
URETA, LIBERATO F. URETA,
JR., RAY F. URETA, ZALDY F.
URETA, and MILA JEAN URETA
CIPRIANO;
HEIRS OF PRUDENCIA URETA
PARADERO, namely: WILLIAM
U. PARADERO, WARLITO U.
PARADERO, CARMENCITA P.
PERLAS, CRISTINA P.
CORDOVA, EDNA P. GALLARDO,
LETICIA P. REYES; NARCISO M.
URETA;
VICENTE M. URETA;
HEIRS OF FRANCISCO M.
URETA, namely: EDITA T.
URETA-REYES and LOLLIE T.
URETA-VILLARUEL; ROQUE M.
URETA; ADELA URETA-
GONZALES; HEIRS OF
 INOCENCIO M. URETA, namely:
BENILDA V. URETA, ALFONSO V.
URETA II, DICK RICARDO V.
URETA, and ENRIQUE V. URETA;
MERLINDA U. RIVERA; JORGE
URETA; ANDRES URETA,
WENEFREDA U. TARAN; and
BENEDICT URETA,
Respondents.
x--------------------------------------------------x
HEIRS OF LIBERATO M. URETA, G.R. No. 165930
namely: TERESA F. URETA,
AMPARO URETA-CASTILLO,
IGNACIO F. URETA, SR.,
EMIRITO F. URETA, WILKIE F.
URETA, LIBERATO F. URETA,
JR., RAY F. URETA, ZALDY F.
URETA, and MILA JEAN URETA
CIPRIANO;
HEIRS OF PRUDENCIA URETA
PARADERO, namely: WILLIAM
U. PARADERO, WARLITO U.
PARADERO, CARMENCITA P.
PERLAS, CRISTINA P.
CORDOVA, EDNA P. GALLARDO,
LETICIA P. REYES; NARCISO M.
URETA;
VICENTE M. URETA;
HEIRS OF FRANCISCO M.
URETA, namely: EDITA T.
URETA-REYES and LOLLIE T.
URETA-VILLARUEL; ROQUE M.
URETA; ADELA URETA-
GONZALES; HEIRS OF
INOCENCIO M. URETA, namely:
BENILDA V. URETA, ALFONSO V.
URETA II, DICK RICARDO V.
URETA, and ENRIQUE V. URETA;
MERLINDA U. RIVERA; JORGE
URETA; ANDRES URETA,
WENEFREDA U. TARAN; and
BENEDICT URETA,
Petitioners,

- versus

HEIRS OF POLICRONIO M. Present:

URETA, SR., namely: CONRADO
B. URETA, MACARIO B. URETA, VELASCO, JR., J., Chairperson,
GLORIA URETA-GONZALES, PERALTA,
ROMEO B. URETA, RITA URETA- ABAD,
SOLANO, NENA URETA- MENDOZA, and
TONGCUA, VENANCIO B. SERENO, JJ.
URETA, LILIA URETA-TAYCO,
and HEIRS OF POLICRONIO B.
URETA, JR., namely: MIGUEL T.
URETA, RAMON POLICRONIO
T. URETA, EMMANUEL T.
URETA, and BERNADETTE T.
URETA, Promulgated:
Respondents. September 14, 2011

x--------------------------------------------------x
DECISION
MENDOZA, J.:

These consolidated petitions for review on certiorari under Rule 45 of the

1997 Revised Rules of Civil Procedure assail the April 20, 2004 Decision[1] of the
Court of Appeals (CA), and its October 14, 2004 Resolution[2] in C.A.-G.R. CV No.
71399, which affirmed with modification the April 26, 2001 Decision[3] of the
Regional Trial Court, Branch 9, Kalibo, Aklan (RTC) in Civil Case No. 5026.

The Facts
In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely, Policronio,
Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio, Roque, Adela,
Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The children of
Policronio (Heirs of Policronio), are opposed to the rest of Alfonsos children and
their descendants (Heirs of Alfonso).

Alfonso was financially well-off during his lifetime. He owned several fishpens, a
fishpond, a sari-sari store, a passenger jeep, and was engaged in the buying and
selling of copra. Policronio, the eldest, was the only child of Alfonso who failed to
finish schooling and instead worked on his fathers lands.

Sometime in October 1969, Alfonso and four of his children, namely, Policronio,
Liberato, Prudencia, and Francisco, met at the house of Liberato. Francisco, who
was then a municipal judge, suggested that in order to reduce the inheritance taxes,
their father should make it appear that he had sold some of his lands to his children.
Accordingly, Alfonso executed four (4) Deeds of Sale covering several parcels of
land in favor of Policronio,[4] Liberato,[5] Prudencia,[6] and his common-law wife,
Valeriana Dela Cruz.[7] The Deed of Sale executed on October 25, 1969, in favor of
Policronio, covered six parcels of land, which are the properties in dispute in this
case.

Since the sales were only made for taxation purposes and no monetary
consideration was given, Alfonso continued to own, possess and enjoy the lands
and their produce.

When Alfonso died on October 11, 1972, Liberato acted as the administrator of his
fathers estate. He was later succeeded by his sister Prudencia, and then by her
daughter, Carmencita Perlas. Except for a portion of parcel 5, the rest of the parcels
transferred to Policronio were tenanted by the Fernandez Family. These tenants
never turned over the produce of the lands to Policronio or any of his heirs, but to
Alfonso and, later, to the administrators of his estate.

Policronio died on November 22, 1974. Except for the said portion of parcel
5, neither Policronio nor his heirs ever took possession of the subject lands.

On April 19, 1989, Alfonsos heirs executed a Deed of Extra-Judicial

Partition,[8] which included all the lands that were covered by the four (4) deeds of
sale that were previously executed by Alfonso for taxation purposes. Conrado,
Policronios eldest son, representing the Heirs of Policronio, signed the Deed of
Extra-Judicial Partition in behalf of his co-heirs.

After their fathers death, the Heirs of Policronio found tax declarations in his name
covering the six parcels of land. On June 15, 1995, they obtained a copy of the
Deed of Sale executed on October 25, 1969 by Alfonso in favor of Policronio.

Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned about the
Deed of Extra-Judicial Partition involving Alfonsos estate when it was published in
the July 19, 1995 issue of the Aklan Reporter.

Believing that the six parcels of land belonged to their late father, and as
such, excluded from the Deed of Extra-Judicial Partition, the Heirs of Policronio
sought to amicably settle the matter with the Heirs of Alfonso. Earnest efforts
proving futile, the Heirs of Policronio filed a Complaint for Declaration of
Ownership, Recovery of Possession, Annulment of Documents, Partition, and
Damages[9] against the Heirs of Alfonso before the RTC on November 17, 1995
where the following issues were submitted: (1) whether or not the Deed of Sale was
valid; (2) whether or not the Deed of Extra-Judicial Partition was valid; and (3)
who between the parties was entitled to damages.

The Ruling of the RTC

On April 26, 2001, the RTC dismissed the Complaint of the Heirs of Policronio and
ruled in favor of the Heirs of Alfonso in a decision, the dispositive portion of which
reads:

WHEREFORE, the Court finds that the preponderance of evidence

tilts in favor of the defendants, hence the instant case is hereby
DISMISSED.

The counterclaims are likewise DISMISSED.

With costs against plaintiffs.

SO ORDERED.

The RTC found that the Heirs of Alfonso clearly established that the Deed of
Sale was null and void. It held that the Heirs of Policronio failed to rebut the
evidence of the Heirs of Alfonso, which proved that the Deed of Sale in the
possession of the former was one of the four (4) Deeds of Sale executed by Alfonso
in favor of his 3 children and second wife for taxation purposes; that although tax
declarations were issued in the name of Policronio, he or his heirs never took
possession of the subject lands except a portion of parcel 5; and that all the produce
were turned over by the tenants to Alfonso and the administrators of his estate and
never to Policronio or his heirs.

The RTC further found that there was no money involved in the sale. Even
granting that there was, as claimed by the Heirs of Policronio, 2,000.00 for six
parcels of land, the amount was grossly inadequate. It was also noted that the
aggregate area of the subject lands was more than double the average share
adjudicated to each of the other children in the Deed of Extra-Judicial Partition;
that the siblings of Policronio were the ones who shared in the produce of the land;
and that the Heirs of Policronio only paid real estate taxes in 1996 and 1997. The
RTC opined that Policronio must have been aware that the transfer was merely for
taxation purposes because he did not subsequently take possession of the properties
even after the death of his father.

The Deed of Extra-Judicial Partition, on the other hand, was declared valid
by the RTC as all the heirs of Alfonso were represented and received equal shares
and all the requirements of a valid extra-judicial partition were met. The RTC
considered Conrados claim that he did not understand the full significance of his
signature when he signed in behalf of his co-heirs, as a gratutitous assertion. The
RTC was of the view that when he admitted to have signed all the pages and
personally appeared before the notary public, he was presumed to have understood
their contents.

Lastly, neither party was entitled to damages. The Heirs of Alfonso failed to
present testimony to serve as factual basis for moral damages, no document was
presented to prove actual damages, and the Heirs of Policronio were found to have
filed the case in good faith.

The Ruling of the CA

Aggrieved, the Heirs of Policronio appealed before the CA, which rendered a
decision on April 20, 2004, the dispositive portion of which reads as follows:

WHEREFORE, the appeal is PARTIALLY GRANTED. The appealed

Decision, dated 26 April 2001, rendered by Hon. Judge Dean R. Telan of
 the Regional Trial Court of Kalibo, Aklan, Branch 9, is hereby AFFIRMED
with MODIFICATION:

1.) The Deed of Sale in favor of Policronio Ureta, Sr., dated 25

October 1969, covering six (6) parcels of land is hereby declared VOID for
being ABSOLUTELY SIMULATED;

2.) The Deed of Extra-Judicial Partition, dated 19 April 1989,

is ANNULLED;

3.) The claim for actual and exemplary damages are DISMISSED for
lack of factual and legal basis.

The case is hereby REMANDED to the court of origin for the proper
partition of ALFONSO URETAS Estate in accordance with Rule 69 of the
1997 Rules of Civil Procedure. No costs at this instance.

SO ORDERED.

The CA affirmed the finding of the RTC that the Deed of Sale was void. It found
the Deed of Sale to be absolutely simulated as the parties did not intend to be
legally bound by it. As such, it produced no legal effects and did not alter the
juridical situation of the parties. The CA also noted that Alfonso continued to
exercise all the rights of an owner even after the execution of the Deed of Sale, as it
was undisputed that he remained in possession of the subject parcels of land and
enjoyed their produce until his death.

Policronio, on the other hand, never exercised any rights pertaining to an

owner over the subject lands from the time they were sold to him up until his death.
He never took or attempted to take possession of the land even after his fathers
death, never demanded delivery of the produce from the tenants, and never paid
realty taxes on the properties. It was also noted that Policronio never disclosed the
existence of the Deed of Sale to his children, as they were, in fact, surprised to
discover its existence. The CA, thus, concluded that Policronio must have been
aware that the transfer was only made for taxation purposes.

The testimony of Amparo Castillo, as to the circumstances surrounding the

actual arrangement and agreement between the parties prior to the execution of the
four (4) Deeds of Sale, was found by the CA to be unrebutted. The RTCs
assessment of the credibility of her testimony was accorded respect, and the
intention of the parties was given the primary consideration in determining the true
nature of the contract.

Contrary to the finding of the RTC though, the CA annulled the Deed of
Extra-Judicial Partition due to the incapacity of one of the parties to give his
consent to the contract. It held that before Conrado could validly bind his co-heirs
to the Deed of Extra-Judicial Partition, it was necessary that he be clothed with the
proper authority. The CA ruled that a special power of attorney was required under
Article 1878 (5) and (15) of the Civil Code. Without a special power of attorney, it
was held that Conrado lacked the legal capactiy to give the consent of his co-heirs,
thus, rendering the Deed of Extra-Judicial Partition voidable under Article 1390 (1)
of the Civil Code.

As a consequence, the CA ordered the remand of the case to the RTC for the proper
partition of the estate, with the option that the parties may still voluntarily effect the
partition by executing another agreement or by adopting the assailed Deed of
Partition with the RTCs approval in either case. Otherwise, the RTC may proceed
with the compulsory partition of the estate in accordance with the Rules.

With regard to the claim for damages, the CA agreed with the RTC and
dismissed the claim for actual and compensatory damages for lack of factual and
legal basis.

Both parties filed their respective Motions for Reconsideration, which were
denied by the CA for lack of merit in a Resolution dated October 14, 2004.

In their Motion for Reconsideration, the Heirs of Policronio argued that the RTC
violated the best evidence rule in giving credence to the testimony of Amparo
Castillo with regard to the simulation of the Deed of Sale, and that prescription had
set in precluding any question on the validity of the contract.

The CA held that the oral testimony was admissible under Rule 130, Section
9 (b) and (c), which provides that evidence aliunde may be allowed to explain the
terms of the written agreement if the same failed to express the true intent and
agreement of the parties thereto, or when the validity of the written agreement was
put in issue. Furthermore, the CA found that the Heirs of Policronio waived their
right to object to evidence aliunde having failed to do so during trial and for raising
such only for the first time on appeal. With regard to prescription, the CA ruled that
the action or defense for the declaration of the inexistence of a contract did not
prescribe under Article 1410 of the Civil Code.

On the other hand, the Heirs of Alfonso argued that the Deed of Extra-
Judicial Partition should not have been annulled, and instead the preterited heirs
should be given their share. The CA reiterated that Conrados lack of capacity to
give his co-heirs consent to the extra-judicial settlement rendered the same
voidable.

Hence, the present Petitions for Review on Certiorari.

The Issues

The issues presented for resolution by the Heirs of Policronio in G.R. No.
165748 are as follows:
I.

Whether the Court of Appeals is correct in ruling that the Deed of

Absolute Sale of 25 October 1969 is void for being absolutely
fictitious and in relation therewith, may parol evidence be
entertained to thwart its binding effect after the parties have both
died?

Assuming that indeed the said document is simulated, whether or

not the parties thereto including their successors in interest are
estopped to question its validity, they being bound by Articles
1412 and 1421 of the Civil Code?

II.

Whether prescription applies to bar any question respecting the

validity of the Deed of Absolute Sale dated 25 October 1969?
Whether prescription applies to bar any collateral attack on the
validity of the deed of absolute sale executed 21 years earlier?

III.

Whether the Court of Appeals correctly ruled in nullifying the

Deed of Extrajudicial Partition because Conrado Ureta signed the
same without the written authority from his siblings in
 contravention of Article 1878 in relation to Article 1390 of the
Civil Code and in relation therewith, whether the defense of
ratification and/or preterition raised for the first time on appeal
may be entertained?
The issues presented for resolution by the Heirs of Alfonso in G.R. No.
165930 are as follows:

I.

Whether or not grave error was committed by the Trial Court and
Court of Appeals in declaring the Deed of Sale of subject
properties as absolutely simulated and null and void thru parol
evidence based on their factual findings as to its fictitious nature,
and there being waiver of any objection based on violation of the
parol evidence rule.

II.

Whether or not the Court of Appeals was correct in holding that

Conrado Uretas lack of capacity to give his co-heirs consent to the
Extra-Judicial Partition rendered the same voidable.

III.

Granting arguendo that Conrado Ureta was not authorized to

represent his co-heirs and there was no ratification, whether or
not the Court of Appeals was correct in ordering the remand of
the case to the Regional Trial Court for partition of the estate of
Alfonso Ureta.

IV.

Since the sale in favor of Policronio Ureta Sr. was null and void ab
initio, the properties covered therein formed part of the estate of
the late Alfonso Ureta and was correctly included in the Deed of
Extrajudicial Partition even if no prior action for nullification of
the sale was filed by the heirs of Liberato Ureta.

V.
 Whether or not the heirs of Policronio Ureta Sr. can claim that
estoppel based on Article 1412 of the Civil Code as well as the
issue of prescription can still be raised on appeal.
These various contentions revolve around two major issues, to wit: (1)
whether the Deed of Sale is valid, and (2) whether the Deed of Extra-Judicial
Partition is valid. Thus, the assigned errors shall be discussed jointly and
in seriatim.

The Ruling of the Court

Validity of the Deed of Sale

Two veritable legal presumptions bear on the validity of the Deed of Sale:
(1) that there was sufficient consideration for the contract; and (2) that it was the
result of a fair and regular private transaction. If shown to hold, these presumptions
infer prima facie the transactions validity, except that it must yield to the evidence
adduced.[10]

As will be discussed below, the evidence overcomes these two

presumptions.

Absolute Simulation

First, the Deed of Sale was not the result of a fair and regular private transaction
because it was absolutely simulated.

The Heirs of Policronio argued that the land had been validly sold to
Policronio as the Deed of Sale contained all the essential elements of a valid
contract of sale, by virtue of which, the subject properties were transferred in his
name as evidenced by the tax declaration. There being no invalidation prior to the
execution of the Deed of Extra-Judicial Partition, the probity and integrity of the
Deed of Sale should remain undiminished and accorded respect as it was a duly
notarized public instrument.

The Heirs of Policronio posited that his loyal services to his father and his being
the eldest among Alfonsos children, might have prompted the old man to sell the
subject lands to him at a very low price as an advance inheritance. They explained
that Policronios failure to take possession of the subject lands and to claim their
produce manifests a Filipino family practice wherein a child would take possession
and enjoy the fruits of the land sold by a parent only after the latters
death. Policronio simply treated the lands the same way his father Alfonso treated
them - where his children enjoyed usufructuary rights over the properties, as
opposed to appropriating them exclusively to himself. They contended
that Policronios failure to take actual possession of the lands did not prove that he
was not the owner as he was merely exercising his right to dispose of them. They
argue that it was an error on the part of the CA to conclude that ownership by
Policronio was not established by his failure to possess the properties
sold. Instead, emphasis should be made on the fact that the tax declarations, being
indicia of possession, were in Policronios name.

They further argued that the Heirs of Alfonso failed to appreciate that the
Deed of Sale was clear enough to convey the subject parcels of land. Citing
jurisprudence, they contend that there is a presumption that an instrument sets out
the true agreement of the parties thereto and that it was executed for valuable
consideration,[11] and where there is no doubt as to the intention of the parties to a
contract, the literal meaning of the stipulation shall control. [12] Nowhere in the
Deed of Sale is it indicated that the transfer was only for taxation purposes. On the
contrary, the document clearly indicates that the lands were sold. Therefore, they
averred that the literal meaning of the stipulation should control.

The Court disagrees.

The Court finds no cogent reason to deviate from the finding of the CA that
the Deed of Sale is null and void for being absolutely simulated. The Civil Code
provides:

Art. 1345. Simulation of a contract may be absolute or relative. The former

takes place when the parties do not intend to be bound at all; the latter,
when the parties conceal their true agreement.

Art. 1346. An absolutely simulated or fictitious contract is void. A relative

simulation, when it does not prejudice a third person and is not intended
for any purpose contrary to law, morals, good customs, public order or
public policy binds the parties to their real agreement.

Valerio v. Refresca[13] is instructive on the matter of simulation of contracts:

In absolute simulation, there is a colorable contract but it has no

substance as the parties have no intention to be bound by it. The main
 characteristic of an absolute simulation is that the apparent contract is not
really desired or intended to produce legal effect or in any way alter the
juridical situation of the parties. As a result, an absolutely simulated or
fictitious contract is void, and the parties may recover from each other
what they may have given under the contract. However, if the parties state
a false cause in the contract to conceal their real agreement, the contract is
relatively simulated and the parties are still bound by their real
agreement. Hence, where the essential requisites of a contract are present
and the simulation refers only to the content or terms of the contract, the
agreement is absolutely binding and enforceable between the parties and
their successors in interest.

Lacking, therefore, in an absolutely simulated contract is consent which is

essential to a valid and enforceable contract.[14] Thus, where a person, in order to
place his property beyond the reach of his creditors, simulates a transfer of it to
another, he does not really intend to divest himself of his title and control of the
property; hence, the deed of transfer is but a sham. [15] Similarly, in this case,
Alfonso simulated a transfer to Policronio purely for taxation purposes, without
intending to transfer ownership over the subject lands.

The primary consideration in determining the true nature of a contract is the

intention of the parties. If the words of a contract appear to contravene the evident
intention of the parties, the latter shall prevail. Such intention is determined not
only from the express terms of their agreement, but also from the contemporaneous
and subsequent acts of the parties.[16] The true intention of the parties in this case
was sufficiently proven by the Heirs of Alfonso.

The Heirs of Alfonso established by a preponderance of evidence[17] that the

Deed of Sale was one of the four (4) absolutely simulated Deeds of Sale which
involved no actual monetary consideration, executed by Alfonso in favor of his
children, Policronio, Liberato, and Prudencia, and his second wife, Valeriana, for
taxation purposes.

Amparo Castillo, the daughter of Liberato, testified, to wit:

Q: Now sometime in the year 1969 can you recall if your grandfather and
his children [met] in your house?

A: Yes sir, that was sometime in October 1969 when they [met] in our
house, my grandfather, my late uncle Policronio Ureta, my late uncle
Liberato Ureta, my uncle Francisco Ureta, and then my auntie Prudencia
Ureta they talk[ed] about, that idea came from my uncle Francisco Ureta
 to [sell] some parcels of land to his children to lessen the inheritance tax
whatever happened to my grandfather, actually no money involved in this
sale.

Q: Now you said there was that agreement, verbal agreement. [W]here
were you when this Alfonso Ureta and his children gather[ed] in your
house?

A: I was near them in fact I heard everything they were talking [about]

xxx

Q: Were there documents of sale executed by Alfonso Ureta in furtherance

of their verbal agreement?

A: Yes sir.

Q: To whom in particular did your grandfather Alfonso Ureta execute this

deed of sale without money consideration according to you?

A: To my uncle Policronio Ureta and to Prudencia Ureta Panadero.

Q: And who else?

A: To Valeriana dela Cruz.

Q: How about your father?

A: He has.[18]

The other Deeds of Sale executed by Alfonso in favor of his children

Prudencia and Liberato, and second wife Valeriana, all bearing the same date of
execution, were duly presented in evidence by the Heirs of Alfonso, and were
uncontested by the Heirs of Policronio. The lands which were the subject of these
Deeds of Sale were in fact included in the Deed of Extra-Judicial Partition
executed by all the heirs of Alfonso, where it was expressly stipulated:

That the above-named Amparo U. Castillo, Prudencia U. Paradero,

Conrado B. Ureta and Merlinda U. Rivera do hereby recognize and
acknowledge as a fact that the properties presently declared in their
respective names or in the names of their respective parents and are
included in the foregoing instrument are actually the properties of the
deceased Alfonso Ureta and were transferred only for the purpose of
effective administration and development and convenience in the payment
 of taxes and, therefore, all instruments conveying or affecting the transfer
of said properties are null and void from the beginning. [19]

As found by the CA, Alfonso continued to exercise all the rights of an owner
even after the execution of the Deeds of Sale. It was undisputed that Alfonso
remained in possession of the subject lands and enjoyed their produce until his
death. No credence can be given to the contention of the Heirs of Policrionio that
their father did not take possession of the subject lands or enjoyed the fruits thereof
in deference to a Filipino family practice. Had this been true, Policronio should
have taken possession of the subject lands after his father died. On the contrary, it
was admitted that neither Policronio nor his heirs ever took possession of the
subject lands from the time they were sold to him, and even after the death of both
Alfonso and Policronio.

It was also admitted by the Heirs of Policronio that the tenants of the subject
lands never turned over the produce of the properties to Policronio or his heirs but
only to Alfonso and the administrators of his estate. Neither was there a demand for
their delivery to Policronio or his heirs. Neither did Policronio ever pay real estate
taxes on the properties, the only payment on record being those made by his heirs
in 1996 and 1997 ten years after his death. In sum, Policronio never exercised any
rights pertaining to an owner over the subject lands.

The most protuberant index of simulation of contract is the complete absence

of an attempt in any manner on the part of the ostensible buyer to assert rights of
ownership over the subject properties. Policronios failure to take exclusive
possession of the subject properties or, in the alternative, to collect rentals, is
contrary to the principle of ownership. Such failure is a clear badge of simulation
that renders the whole transaction void. [20]

It is further telling that Policronio never disclosed the existence of the Deed
of Sale to his children. This, coupled with Policronios failure to exercise any rights
pertaining to an owner of the subject lands, leads to the conclusion that he was
aware that the transfer was only made for taxation purposes and never intended to
bind the parties thereto.

As the above factual circumstances remain unrebutted by the Heirs of Policronio,

the factual findings of the RTC, which were affirmed by the CA, remain binding
and conclusive upon this Court.[21]
 It is clear that the parties did not intend to be bound at all, and as such, the
Deed of Sale produced no legal effects and did not alter the juridical situation of the
parties. The Deed of Sale is, therefore, void for being absolutely simulated pursuant
to Article 1409 (2) of the Civil Code which provides:

Art. 1409. The following contracts are inexistent and void from the
beginning:

xxx

(2) Those which are absolutely simulated or fictitious;

xxx

For guidance, the following are the most fundamental characteristics of void
or inexistent contracts:

1) As a general rule, they produce no legal effects whatsoever in

accordance with the principle "quod nullum est nullum producit
effectum."

2) They are not susceptible of ratification.

3) The right to set up the defense of inexistence or absolute nullity

cannot be waived or renounced.

4) The action or defense for the declaration of their inexistence or

absolute nullity is imprescriptible.

5) The inexistence or absolute nullity of a contract cannot be invoked

by a person whose interests are not directly affected.[22]

Since the Deed of Sale is void, the subject properties were properly included
in the Deed of Extra-Judicial Partition of the estate of Alfonso.

Absence and Inadequacy of Consideration

The second presumption is rebutted by the lack of consideration for the

Deed of Sale.
 In their Answer,[23] the Heirs of Alfonso initially argued that the Deed of Sale
was void for lack of consideration, and even granting that there was consideration,
such was inadequate. The Heirs of Policronio counter that the defenses of absence
or inadequacy of consideration are not grounds to render a contract void.

The Heirs of Policronio contended that under Article 1470 of the Civil
Code, gross inadequacy of the price does not affect a contract of sale, except as it
may indicate a defect in the consent, or that the parties really intended a donation
or some other act or contract. Citing jurisprudence, they argued that inadequacy of
monetary consideration does not render a conveyance inexistent as liberality may
be sufficient cause for a valid contract, whereas fraud or bad faith may render it
either rescissible or voidable, although valid until annulled. [24] Thus, they argued
that if the contract suffers from inadequate consideration, it remains valid until
annulled, and the remedy of rescission calls for judicial intervention, which remedy
the Heirs of Alfonso failed to take.

It is further argued that even granting that the sale of the subject lands for a
consideration of 2,000.00 was inadequate, absent any evidence of the fair market
value of the land at the time of its sale, it cannot be concluded that the price at
which it was sold was inadequate.[25] As there is nothing in the records to show that
the Heirs of Alfonso supplied the true value of the land in 1969, the amount of
2,000.00 must thus stand as its saleable value.

On this issue, the Court finds for the Heirs of Alfonso.

For lack of consideration, the Deed of Sale is once again found to be void. It
states that Policronio paid, and Alfonso received, the 2,000.00 purchase price on
the date of the signing of the contract:

That I, ALFONSO F. URETA, x x x for and in consideration of the

sum of TWO THOUSAND (2,000.00) PESOS, Philippine Currency, to me
in hand paid by POLICRONIO M. URETA, x x x, do hereby CEDE,
TRANSFER, and CONVEY, by way of absolute sale, x x x six (6) parcels of
land x x x.[26] [Emphasis ours]

Although, on its face, the Deed of Sale appears to be supported by valuable

consideration, the RTC found that there was no money involved in the sale. [27] This
finding was affirmed by the CA in ruling that the sale is void for being absolutely
simulated. Considering that there is no cogent reason to deviate from such factual
findings, they are binding on this Court.

It is well-settled in a long line of cases that where a deed of sale states that the
purchase price has been paid but in fact has never been paid, the deed of sale is
null and void for lack of consideration.[28] Thus, although the contract states that
the purchase price of 2,000.00 was paid by Policronio to Alfonso for the subject
properties, it has been proven that such was never in fact paid as there was no
money involved. It must, therefore, follow that the Deed of Sale is void for lack of
consideration.

Given that the Deed of Sale is void, it is unnecessary to discuss the issue on
the inadequacy of consideration.

Parol Evidence and Hearsay

The Heirs of Policronio aver that the rules on parol evidence and hearsay
were violated by the CA in ruling that the Deed of Sale was void.

They argued that based on the parol evidence rule, the Heirs of Alfonso and,
specifically, Amparo Castillo, were not in a position to prove the terms outside of
the contract because they were not parties nor successors-in-interest in the Deed of
Sale in question. Thus, it is argued that the testimony of Amparo Castillo violates
the parol evidence rule.

Stemming from the presumption that the Heirs of Alfonso were not parties to
the contract, it is also argued that the parol evidence rule may not be properly
invoked by either party in the litigation against the other, where at least one of the
parties to the suit is not a party or a privy of a party to the written instrument in
question and does not base a claim on the instrument or assert a right originating in
the instrument or the relation established thereby.[29]

Their arguments are untenable.

The objection against the admission of any evidence must be made at the
proper time, as soon as the grounds therefor become reasonably apparent, and if
not so made, it will be understood to have been waived. In the case of testimonial
evidence, the objection must be made when the objectionable question is asked or
after the answer is given if the objectionable features become apparent only by
reason of such answer.[30] In this case, the Heirs of Policronio failed to timely
object to the testimony of Amparo Castillo and they are, thus, deemed to have
waived the benefit of the parol evidence rule.

Granting that the Heirs of Policronio timely objected to the testimony of

Amparo Castillo, their argument would still fail.

Section 9 of Rule 130 of the Rules of Court provides:

Section 9. Evidence of written agreements. When the terms of an
agreement have been reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of
the written agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The term "agreement" includes wills.
[Emphasis ours]

Paragraphs (b) and (c) are applicable in the case at bench.

The failure of the Deed of Sale to express the true intent and agreement of
the parties was clearly put in issue in the Answer[31] of the Heirs of Alfonso to the
Complaint. It was alleged that the Deed of Sale was only made to lessen the
payment of estate and inheritance taxes and not meant to transfer ownership. The
exception in paragraph (b) is allowed to enable the court to ascertain the true intent
of the parties, and once the intent is clear, it shall prevail over what the document
appears to be on its face.[32] As the true intent of the parties was duly proven in the
present case, it now prevails over what appears on the Deed of Sale.
 The validity of the Deed of Sale was also put in issue in the Answer, and was
precisely one of the issues submitted to the RTC for resolution. [33] The operation of
the parol evidence rule requires the existence of a valid written agreement. It is,
thus, not applicable in a proceeding where the validity of such agreement is the fact
in dispute, such as when a contract may be void for lack of consideration.
[34]
Considering that the Deed of Sale has been shown to be void for being
absolutely simulated and for lack of consideration, the Heirs of Alfonso are not
precluded from presenting evidence to modify, explain or add to the terms of the
written agreement.

The Heirs of Policronio must be in a state of confusion in arguing that the

Heirs of Alfonso may not question the Deed of Sale for not being parties or
successors-in-interest therein on the basis that the parol evidence rule may not be
properly invoked in a proceeding or litigation where at least one of the parties to
the suit is not a party or a privy of a party to the written instrument in question and
does not base a claim on the instrument or assert a right originating in the
instrument or the relation established thereby. If their argument was to be accepted,
then the Heirs of Policronio would themselves be precluded from invoking the
parol evidence rule to exclude the evidence of the Heirs of Alfonso.

Indeed, the applicability of the parol evidence rule requires that the case be
between parties and their successors-in-interest.[35] In this case, both the Heirs of
Alfonso and the Heirs of Policronio are successors-in-interest of the parties to the
Deed of Sale as they claim rights under Alfonso and Policronio, respectively. The
parol evidence rule excluding evidence aliunde, however, still cannot apply
because the present case falls under two exceptions to the rule, as discussed above.

With respect to hearsay, the Heirs of Policronio contended that the rule on
hearsay was violated when the testimony of Amparo Castillo was given weight in
proving that the subject lands were only sold for taxation purposes as she was a
person alien to the contract. Even granting that they did not object to her testimony
during trial, they argued that it should not have been appreciated by the CA
because it had no probative value whatsoever.[36]

The Court disagrees.

It has indeed been held that hearsay evidence whether objected to or not
cannot be given credence for having no probative value.[37] This principle, however,
has been relaxed in cases where, in addition to the failure to object to the
admissibility of the subject evidence, there were other pieces of evidence presented
or there were other circumstances prevailing to support the fact in issue. In Top-
Weld Manufacturing, Inc. v. ECED S.A.,[38] this Court held:

Hearsay evidence alone may be insufficient to establish a fact in an

injunction suit (Parker v. Furlong, 62 P. 490) but, when no objection is
made thereto, it is, like any other evidence, to be considered and given the
importance it deserves. (Smith v. Delaware & Atlantic Telegraph &
Telephone Co., 51 A 464). Although we should warn of the undesirability
of issuing judgments solely on the basis of the affidavits submitted, where
as here, said affidavits are overwhelming, uncontroverted by competent
evidence and not inherently improbable, we are constrained to uphold the
allegations of the respondents regarding the multifarious violations of the
contracts made by the petitioner.

In the case at bench, there were other prevailing circumstances which

corroborate the testimony of Amparo Castillo. First, the other Deeds of Sale which
were executed in favor of Liberato, Prudencia, and Valeriana on the same day as
that of Policronios were all presented in evidence. Second, all the properties
subject therein were included in the Deed of Extra-Judicial Partition of the estate of
Alfonso. Third, Policronio, during his lifetime, never exercised acts of ownership
over the subject properties (as he never demanded or took possession of them,
never demanded or received the produce thereof, and never paid real estate taxes
thereon). Fourth, Policronio never informed his children of the sale.

As the Heirs of Policronio failed to controvert the evidence presented, and to

timely object to the testimony of Amparo Castillo, both the RTC and the CA
correctly accorded probative weight to her testimony.

Prior Action Unnecessary

The Heirs of Policronio averred that the Heirs of Alfonso should have filed
an action to declare the sale void prior to executing the Deed of Extra-Judicial
Partition. They argued that the sale should enjoy the presumption of regularity, and
until overturned by a court, the Heirs of Alfonso had no authority to include the
land in the inventory of properties of Alfonsos estate. By doing so, they arrogated
upon themselves the power of invalidating the Deed of Sale which is exclusively
vested in a court of law which, in turn, can rule only upon the observance of due
process. Thus, they contended that prescription, laches, or estoppel have set in to
militate against assailing the validity of the sale.
 The Heirs of Policronio are mistaken.

A simulated contract of sale is without any cause or consideration, and is,

therefore, null and void; in such case, no independent action to rescind or annul the
contract is necessary, and it may be treated as non-existent for all purposes. [39] A
void or inexistent contract is one which has no force and effect from the beginning,
as if it has never been entered into, and which cannot be validated either by time or
ratification. A void contract produces no effect whatsoever either against or in
favor of anyone; it does not create, modify or extinguish the juridical relation to
which it refers.[40] Therefore, it was not necessary for the Heirs of Alfonso to first
file an action to declare the nullity of the Deed of Sale prior to executing the Deed
of Extra-Judicial Partition.
Personality to Question Sale

The Heirs of Policronio contended that the Heirs of Alfonso are not parties,
heirs, or successors-in-interest under the contemplation of law to clothe them with
the personality to question the Deed of Sale. They argued that under Article 1311
of the Civil Code, contracts take effect only between the parties, their assigns and
heirs. Thus, the genuine character of a contract which personally binds the parties
cannot be put in issue by a person who is not a party thereto. They posited that the
Heirs of Alfonso were not parties to the contract; neither did they appear to be
beneficiaries by way of assignment or inheritance. Unlike themselves who are
direct heirs of Policronio, the Heirs of Alfonso are not Alfonsos direct heirs. For
the Heirs of Alfonso to qualify as parties, under Article 1311 of the Civil Code,
they must first prove that they are either heirs or assignees. Being neither, they
have no legal standing to question the Deed of Sale.

They further argued that the sale cannot be assailed for being barred under
Article 1421 of the Civil Code which provides that the defense of illegality of a
contract is not available to third persons whose interests are not directly affected.

Again, the Court disagrees.

Article 1311 and Article 1421 of the Civil Code provide:

Art. 1311. Contracts take effect only between the parties, their assigns and
heirs, x x x
 Art. 1421. The defense of illegality of contracts is not available to third
persons whose interests are not directly affected.

The right to set up the nullity of a void or non-existent contract is not limited
to the parties, as in the case of annullable or voidable contracts; it is extended to
third persons who are directly affected by the contract. Thus, where a contract is
absolutely simulated, even third persons who may be prejudiced thereby may set
up its inexistence.[41] The Heirs of Alfonso are the children of Alfonso, with his
deceased children represented by their children (Alfonsos grandchildren). The
Heirs of Alfonso are clearly his heirs and successors-in-interest and, as such, their
interests are directly affected, thereby giving them the right to question the legality
of the Deed of Sale.

Inapplicability of Article 842

The Heirs of Policronio further argued that even assuming that the Heirs of
Alfonso have an interest in the Deed of Sale, they would still be precluded from
questioning its validity. They posited that the Heirs of Alfonso must first prove that
the sale of Alfonsos properties to Policronio substantially diminished their
successional rights or that their legitimes would be unduly prejudiced, considering
that under Article 842 of the Civil Code, one who has compulsory heirs may
dispose of his estate provided that he does not contravene the provisions of the
Civil Code with regard to the legitime of said heirs. Having failed to do so, they
argued that the Heirs of Alfonso should be precluded from questioning the validity
of the Deed of Sale.

Still, the Court disagrees.

Article 842 of the Civil Code provides:

Art. 842. One who has no compulsory heirs may dispose by will of all his
estate or any part of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does
not contravene the provisions of this Code with regard to the legitime of
said heirs.

This article refers to the principle of freedom of disposition by will. What is

involved in the case at bench is not a disposition by will but by Deed of Sale.
Hence, the Heirs of Alfonso need not first prove that the disposition substantially
diminished their successional rights or unduly prejudiced their legitimes.

Inapplicability of Article 1412

The Heirs of Policronio contended that even assuming that the contract was
simulated, the Heirs of Alfonso would still be barred from recovering the
properties by reason of Article 1412 of the Civil Code, which provides that if the
act in which the unlawful or forbidden cause does not constitute a criminal offense,
and the fault is both on the contracting parties, neither may recover what he has
given by virtue of the contract or demand the performance of the others
undertaking. As the Heirs of Alfonso alleged that the purpose of the sale was to
avoid the payment of inheritance taxes, they cannot take from the Heirs of
Policronio what had been given to their father.

On this point, the Court again disagrees.

Article 1412 of the Civil Code is as follows:

Art. 1412. If the act in which the unlawful or forbidden cause consists does
not constitute a criminal offense, the following rules shall be observed:

(1) When the fault is on the part of both contracting parties, neither may
recover what he has given by virtue of the contract, or demand the
performance of the others undertaking;

(2) When only one of the contracting parties is at fault, he cannot recover
what he has given by reason of the contract, or ask for the fulfillment of
what has been promised him. The other, who is not at fault, may
demand the return of what he has given without any obligation to
comply with his promise.

Article 1412 is not applicable to fictitious or simulated contracts, because

they refer to contracts with an illegal cause or subject-matter.[42] This article
presupposes the existence of a cause, it cannot refer to fictitious or simulated
contracts which are in reality non-existent.[43] As it has been determined that the
Deed of Sale is a simulated contract, the provision cannot apply to it.

Granting that the Deed of Sale was not simulated, the provision would still
not apply. Since the subject properties were included as properties of Alfonso in
the Deed of Extra-Judicial Partition, they are covered by corresponding inheritance
and estate taxes. Therefore, tax evasion, if at all present, would not arise, and
Article 1412 would again be inapplicable.

Prescription

From the position that the Deed of Sale is valid and not void, the Heirs of
Policronio argued that any question regarding its validity should have been
initiated through judicial process within 10 years from its notarization in
accordance with Article 1144 of the Civil Code. Since 21 years had already elapsed
when the Heirs of Alfonso assailed the validity of the Deed of Sale in 1996,
prescription had set in. Furthermore, since the Heirs of Alfonso did not seek to
nullify the tax declarations of Policronio, they had impliedly acquiesced and given
due recognition to the Heirs of Policronio as the rightful inheritors and should,
thus, be barred from laying claim on the land.

The Heirs of Policronio are mistaken.

Article 1410 of the Civil Code provides:

Art. 1410. The action for the declaration of the inexistence of a contract
does not prescribe.

This is one of the most fundamental characteristics of void or inexistent

contracts.[44]

As the Deed of Sale is a void contract, the action for the declaration of its nullity,
even if filed 21 years after its execution, cannot be barred by prescription for it is
imprescriptible. Furthermore, the right to set up the defense of inexistence or
absolute nullity cannot be waived or renounced.[45] Therefore, the Heirs of Alfonso
cannot be precluded from setting up the defense of its inexistence.

Validity of the Deed of Extra-Judicial Partition

The Court now resolves the issue of the validity of the Deed of Extra-Judicial
Partition.

Unenforceability
The Heirs of Alfonso argued that the CA was mistaken in annulling the Deed of
Extra-Judicial Partition due to the incapacity of Conrado to give the consent of his
co-heirs for lack of a special power of attorney. They contended that what was
involved was not the capacity to give consent in behalf of the co-heirs but the
authority to represent them. They argue that the Deed of Extra-Judicial Partition is
not a voidable or an annullable contract under Article 1390 of the Civil Code, but
rather, it is an unenforceable or, more specifically, an unauthorized contract under
Articles 1403 (1) and 1317 of the Civil Code. As such, the Deed of Extra-Judicial
Partition should not be annulled but only be rendered unenforceable against the
siblings of Conrado.

They further argued that under Article 1317 of the Civil Code, when the
persons represented without authority have ratified the unauthorized acts, the
contract becomes enforceable and binding. They contended that the Heirs of
Policronio ratified the Deed of Extra-Judicial Partition when Conrado took
possession of one of the parcels of land adjudicated to him and his siblings, and
when another parcel was used as collateral for a loan entered into by some of the
Heirs of Policronio. The Deed of Extra-Judicial Partition having been ratified and
its benefits accepted, the same thus became enforceable and binding upon them.

The Heirs of Alfonso averred that granting arguendo that Conrado was not
authorized to represent his co-heirs and there was no ratification, the CA should
not have remanded the case to the RTC for partition of Alfonsos estate. They
argued that the CA should not have applied the Civil Code general provision on
contracts, but the special provisions dealing with succession and partition. They
contended that contrary to the ruling of the CA, the extra-judicial parition was not
an act of strict dominion, as it has been ruled that partition of inherited land is not a
conveyance but a confirmation or ratification of title or right to the land.
[46]
Therefore, the law requiring a special power of attorney should not be applied
to partitions.

On the other hand, the Heirs of Policronio insisted that the CA

pronouncement on the invalidity of the Deed of Extra-Judicial Partition should not
be disturbed because the subject properties should not have been included in the
estate of Alfonso, and because Conrado lacked the written authority to represent
his siblings. They argued with the CA in ruling that a special power of attorney was
required before Conrado could sign in behalf of his co-heirs.
 The Heirs of Policronio denied that they ratified the Deed of Extra-Judicial
Partition. They claimed that there is nothing on record that establishes that they
ratified the partition. Far from doing so, they precisely questioned its execution by
filing a complaint. They further argued that under Article 1409 (3) of the Civil
Code, ratification cannot be invoked to validate the illegal act of including in the
partition those properties which do not belong to the estate as it provides another
mode of acquiring ownership not sanctioned by law.

Furthermore, the Heirs of Policronio contended that the defenses of

unenforceability, ratification, and preterition are being raised for the first time on
appeal by the Heirs of Alfonso. For having failed to raise them during the trial, the
Heirs of Alfonso should be deemed to have waived their right to do so.

The Court agrees in part with the Heirs of Alfonso.

To begin, although the defenses of unenforceability, ratification and

preterition were raised by the Heirs of Alfonso for the first time on appeal, they are
concomitant matters which may be taken up. As long as the questioned items bear
relevance and close relation to those specifically raised, the interest of justice
would dictate that they, too, must be considered and resolved. The rule that only
theories raised in the initial proceedings may be taken up by a party thereto on
appeal should refer to independent, not concomitant matters, to support or oppose
the cause of action.[47]

In the RTC, the Heirs of Policronio alleged that Conrados consent was
vitiated by mistake and undue influence, and that he signed the Deed of Extra-
Judicial Partition without the authority or consent of his co-heirs.

The RTC found that Conrados credibility had faltered, and his claims were
rejected by the RTC as gratuitous assertions. On the basis of such, the RTC ruled
that Conrado duly represented his siblings in the Deed of Extra-Judicial Partition.

On the other hand, the CA annulled the Deed of Extra-Judicial Partition

under Article 1390 (1) of the Civil Code, holding that a special power of attorney
was lacking as required under Article 1878 (5) and (15) of the Civil Code. These
articles are as follows:
Art. 1878. Special powers of attorney are necessary in the following cases:
xxx
 (5) To enter into any contract by which the ownership of an immovable is
transmitted or acquired either gratuitously or for a valuable consideration;
xxx
(15) Any other act of strict dominion.

Art. 1390. The following contracts are voidable or annullable, even though
there may have been no damage to the contracting parties:

(1) Those where one of the parties is incapable of giving consent to a

contract;

(2) Those where the consent is vitiated by mistake, violence, intimidation,

undue influence or fraud.

These contracts are binding, unless they are annulled by a proper action in
court. They are susceptible of ratification.

This Court finds that Article 1878 (5) and (15) is inapplicable to the case at
bench. It has been held in several cases[48] that partition among heirs is not legally
deemed a conveyance of real property resulting in change of ownership. It is not a
transfer of property from one to the other, but rather, it is a confirmation or
ratification of title or right of property that an heir is renouncing in favor of another
heir who accepts and receives the inheritance. It is merely a designation and
segregation of that part which belongs to each heir. The Deed of Extra-Judicial
Partition cannot, therefore, be considered as an act of strict dominion. Hence, a
special power of attorney is not necessary.

In fact, as between the parties, even an oral partition by the heirs is valid if
no creditors are affected. The requirement of a written memorandum under the
statute of frauds does not apply to partitions effected by the heirs where no
creditors are involved considering that such transaction is not a conveyance of
property resulting in change of ownership but merely a designation and segregation
of that part which belongs to each heir.[49]

Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates the
incapacity of a party to give consent to a contract. What is involved in the case at
bench though is not Conrados incapacity to give consent to the contract, but rather
his lack of authority to do so. Instead, Articles 1403 (1), 1404, and 1317 of the
Civil Code find application to the circumstances prevailing in this case. They are as
follows:
 Art. 1403. The following contracts are unenforceable, unless they are
ratified:

(1) Those entered into in the name of another person by one who has been
given no authority or legal representation, or who has acted beyond his
powers;

Art. 1404. Unauthorized contracts are governed by Article 1317 and the
principles of agency in Title X of this Book.

Art. 1317. No one may contract in the name of another without being
authorized by the latter, or unless he has by law a right to represent him.

A contract entered into in the name of another by one who has no

authority or legal representation, or who has acted beyond his powers,
shall be unenforceable, unless it is ratified, expressly or impliedly, by the
person on whose behalf it has been executed, before it is revoked by the
other contracting party.

Such was similarly held in the case of Badillo v. Ferrer:

The Deed of Extrajudicial Partition and Sale is not a voidable or an

annullable contract under Article 1390 of the New Civil Code. Article 1390
renders a contract voidable if one of the parties is incapable of giving
consent to the contract or if the contracting partys consent is vitiated by
mistake, violence, intimidation, undue influence or fraud. x x x

The deed of extrajudicial parition and sale is an unenforceable or,

more specifically, an unauthorized contract under Articles 1403(1) and
1317 of the New Civil Code.[50]

Therefore, Conrados failure to obtain authority from his co-heirs to sign the
Deed of Extra-Judicial Partition in their behalf did not result in his incapacity to
give consent so as to render the contract voidable, but rather, it rendered the
contract valid but unenforceable against Conrados co-heirs for having been entered
into without their authority.

A closer review of the evidence on record, however, will show that the Deed
of Extra-Judicial Partition is not unenforceable but, in fact, valid, binding and
enforceable against all the Heirs of Policronio for having given their consent to the
contract. Their consent to the Deed of Extra-Judicial Partition has been proven by a
preponderance of evidence.
 Regarding his alleged vitiated consent due to mistake and undue influence to
the Deed of Extra-Judicial Partition, Conrado testified, to wit:

Q: Mr. Ureta you remember having signed a document entitled deed of

extra judicial partition consisting of 11 pages and which have previously
[been] marked as Exhibit I for the plaintiffs?

A: Yes sir.

Q: Can you recall where did you sign this document?

A: The way I remember I signed that in our house.

Q: And who requested or required you to sign this document?

A: My aunties.

Q: Who in particular if you can recall?

A: Nay Pruding Panadero.

Q: You mean that this document that you signed was brought to your
house by your Auntie Pruding Pa[r]adero [who] requested you to sign that
document?

A: When she first brought that document I did not sign that said document
because I [did] no[t] know the contents of that document.

Q: How many times did she bring this document to you [until] you finally
signed the document?

A: Perhaps 3 times.

Q: Can you tell the court why you finally signed it?

A: Because the way she explained it to me that the land of my grandfather

will be partitioned.

Q: When you signed this document were your brothers and sisters who are
your co-plaintiffs in this case aware of your act to sign this document?

A: They do not know.

xxx
 Q: After you have signed this document did you inform your brothers and
sisters that you have signed this document?

A: No I did not. [51]

xxx

Q: Now you read the document when it was allegedly brought to your
house by your aunt Pruding Pa[r]adero?

A: I did not read it because as I told her I still want to ask the advise of my
brothers and sisters.

Q: So do I get from you that you have never read the document itself or
any part thereof?

A: I have read the heading.

xxx

Q: And why is it that you did not read all the pages of this document
because I understand that you know also how to read in English?

A: Because the way Nay Pruding explained to me is that the property of my

grandfather will be partitioned that is why I am so happy.

xxx

Q: You mean to say that after you signed this deed of extra judicial
partition up to the present you never informed them?

A: Perhaps they know already that I have signed and they read already the
document and they have read the document.

Q: My question is different, did you inform them?

A: The document sir? I did not tell them.

Q: Even until now?

A: Until now I did not inform them.[52]

This Court finds no cogent reason to reverse the finding of the RTC that
Conrados explanations were mere gratuitous assertions not entitled to any
probative weight. The RTC found Conrados credibility to have faltered when he
testified that perhaps his siblings were already aware of the Deed of Extra-Judicial
Partition. The RTC was in the best position to judge the credibility of the witness
testimony. The CA also recognized that Conrados consent was not vitiated by
mistake and undue influence as it required a special power of attorney in order to
bind his co-heirs and, as such, the CA thereby recognized that his signature was
binding to him but not with respect to his co-heirs. Findings of fact of the trial
court, particularly when affirmed by the CA, are binding to this Court.[53]

Furthermore, this Court notes other peculiarities in Conrados testimony.

Despite claims of undue influence, there is no indication that Conrado was forced
to sign by his aunt, Prudencia Paradero. In fact, he testified that he was happy to
sign because his grandfathers estate would be partitioned. Conrado, thus, clearly
understood the document he signed. It is also worth noting that despite the
document being brought to him on three separate occasions and indicating his
intention to inform his siblings about it, Conrado failed to do so, and still neglected
to inform them even after he had signed the partition. All these circumstances
negate his claim of vitiated consent. Having duly signed the Deed of Extra-Judicial
Partition, Conrado is bound to it. Thus, it is enforceable against him.

Although Conrados co-heirs claimed that they did not authorize Conrado to sign
the Deed of Extra-Judicial Partition in their behalf, several circumstances militate
against their contention.

First, the Deed of Extra-Judicial Partition was executed on April 19, 1989, and the
Heirs of Policronio claim that they only came to know of its existence on July 30,
1995through an issue of the Aklan Reporter. It is difficult to believe that Conrado
did not inform his siblings about the Deed of Extra-Judicial Partition or at least
broach its subject with them for more than five years from the time he signed it,
especially after indicating in his testimony that he had intended to do so.

Second, Conrado retained possession of one of the parcels of land

adjudicated to him and his co-heirs in the Deed of Extra-Judicial Partition.

Third, after the execution of the partition on April 19, 1989 and more than a
year before they claimed to have discovered the existence of the Deed of Extra-
Judicial Partition on July 30, 1995, some of the Heirs of Policronio, namely, Rita
Solano, Macario Ureta, Lilia Tayco, and Venancio Ureta executed on June 1, 1994,
a Special Power of Attorney[54] in favor of their sister Gloria Gonzales, authorizing
her to obtain a loan from a bank and to mortgage one of the parcels of land
adjudicated to them in the Deed of Extra-Judicial Partition to secure payment of the
loan. They were able to obtain the loan using the land as collateral, over which a
Real Estate Mortgage[55] was constituted. Both the Special Power of Attorney and
the Real Estate Mortgage were presented in evidence in the RTC, and were not
controverted or denied by the Heirs of Policronio.

Fourth, in the letter dated August 15, 1995, sent by the counsel of the Heirs
of Policronio to the Heirs of Alfonso requesting for amicable settlement, there was
no mention that Conrados consent to the Deed of Extra-Judicial Partition was
vitiated by mistake and undue influence or that they had never authorized Conrado
to represent them or sign the document on their behalf. It is questionable for such a
pertinent detail to have been omitted. The body of said letter is reproduced
hereunder as follows:
Greetings:

Your nephews and nieces, children of your deceased brother Policronio

Ureta, has referred to me for appropriate legal action the property they
inherited from their father consisting of six (6) parcels of land which is
covered by a Deed of Absolute Sale dated October 25, 1969. These
properties ha[ve] already been transferred to the name of their deceased
father immediately after the sale, machine copy of the said Deed of Sale is
hereto attached for your ready reference.

Lately, however, there was published an Extra-judicial Partition of the

estate of Alfonso Ureta, which to the surprise of my clients included the
properties already sold to their father before the death of said Alfonso
Ureta. This inclusion of their property is erroneous and illegal because
these properties were covered by the Deed of Absolute Sale in favor of
their father Policronio Ureta no longer form part of the estate of Alfonso
Ureta. Since Policronio Ureta has [sic] died in 1974 yet, these properties
have passed by hereditary succession to his children who are now the true
and lawful owners of the said properties.

My clients are still entitled to a share in the estate of Alfonso Ureta who is
also their grandfather as they have stepped into the shoes of their deceased
father Policronio Ureta. But this estate of Alfonso Ureta should already
exclude the six (6) parcels of land covered by the Deed of Absolute Sale in
favor of Policronio Ureta.

My clients cannot understand why the properties of their late father

[should] be included in the estate of their grandfather and be divided
among his brothers and sisters when said properties should only be
divided among themselves as children of Policronio Ureta.
 Since this matter involves very close members of the same family, I have
counseled my clients that an earnest effort towards a compromise or
amicable settlement be first explored before resort to judicial remedy is
pursued. And a compromise or amicable settlement can only be reached if
all the parties meet and discuss the problem with an open mind. To this
end, I am suggesting a meeting of the parties on September 16,
1995 at 2:00 P.M. at B Place Restaurant at C. Laserna St., Kalibo, Aklan. It
would be best if the parties can come or be represented by their duly
designated attorney-in-fact together with their lawyers if they so desire so
that the problem can be discussed unemotionally and intelligently.

I would, however, interpret the failure to come to the said meeting as an

indication that the parties are not willing to or interested in amicable
settlement of this matter and as a go signal for me to resort to legal and/or
judicial remedies to protest the rights of my clients.

Thank you very much.[56]

Based on the foregoing, this Court concludes that the allegation of Conrados
vitiated consent and lack of authority to sign in behalf of his co-heirs was a mere
afterthought on the part of the Heirs of Policronio. It appears that the Heirs of
Policronio were not only aware of the existence of the Deed of Extra-Judicial
Partition prior to June 30, 1995 but had, in fact, given Conrado authority to sign in
their behalf. They are now estopped from questioning its legality, and the Deed of
Extra-Judicial Partition is valid, binding, and enforceable against them.

In view of the foregoing, there is no longer a need to discuss the issue of

ratification.

Preterition

The Heirs of Alfonso were of the position that the absence of the Heirs of
Policronio in the partition or the lack of authority of their representative results, at
the very least, in their preterition and not in the invalidity of the entire deed of
partition. Assuming there was actual preterition, it did not render the Deed of
Extra-Judicial Partition voidable.Citing Article 1104 of the Civil Code, they aver
that a partition made with preterition of any of the compulsory heirs shall not be
rescinded, but the heirs shall be proportionately obliged to pay the share of the
person omitted. Thus, the Deed of Extra-Judicial Partition should not have been
annulled by the CA. Instead, it should have ordered the share of the heirs omitted
to be given to them.
 The Heirs of Alfonso also argued that all that remains to be adjudged is the
right of the preterited heirs to represent their father, Policronio, and be declared
entitled to his share. They contend that remand to the RTC is no longer necessary
as the issue is purely legal and can be resolved by the provisions of the Civil Code
for there is no dispute that each of Alfonsos heirs received their rightful
share. Conrado, who received Policronios share, should then fully account for what
he had received to his other co-heirs and be directed to deliver their share in the
inheritance.

These arguments cannot be given credence.

Their posited theory on preterition is no longer viable. It has already been

determined that the Heirs of Policronio gave their consent to the Deed of Extra-
Judicial Partition and they have not been excluded from it. Nonetheless, even
granting that the Heirs of Policronio were denied their lawful participation in the
partition, the argument of the Heirs of Alfonso would still fail.

Preterition under Article 854 of the Civil Code is as follows:

Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.

Preterition has been defined as the total omission of a compulsory heir from
the inheritance. It consists in the silence of the testator with regard to a compulsory
heir, omitting him in the testament, either by not mentioning him at all, or by not
giving him anything in the hereditary property but without expressly disinheriting
him, even if he is mentioned in the will in the latter case. [57] Preterition is thus a
concept of testamentary succession and requires a will. In the case at bench, there
is no will involved. Therefore, preterition cannot apply.

Remand Unnecessary
 The Deed of Extra-Judicial Partition is in itself valid for complying with all
the legal requisites, as found by the RTC, to wit:

A persual of the Deed of Extra-judicial Partition would reveal that

all the heirs and children of Alfonso Ureta were represented therein; that
nobody was left out; that all of them received as much as the others as
their shares; that it distributed all the properties of Alfonso Ureta except a
portion of parcel 29 containing an area of 14,000 square meters, more or
less, which was expressly reserved; that Alfonso Ureta, at the time of his
death, left no debts; that the heirs of Policronio Ureta, Sr. were
represented by Conrado B. Ureta; all the parties signed the document, was
witnessed and duly acknowledged before Notary Public Adolfo M. Iligan of
Kalibo, Aklan; that the document expressly stipulated that the heirs to
whom some of the properties were transferred before for taxation
purposes or their children, expressly recognize and acknowledge as a fact
that the properties were transferred only for the purpose of effective
administration and development convenience in the payment of taxes and,
therefore, all instruments conveying or effecting the transfer of said
properties are null and void from the beginning (Exhs. 1-4, 7-d). [58]

Considering that the Deed of Sale has been found void and the Deed of
Extra-Judicial Partition valid, with the consent of all the Heirs of Policronio duly
given, there is no need to remand the case to the court of origin for partition.

WHEREFORE, the petition in G.R. No. 165748 is DENIED. The petition

in G.R. No. 165930 is GRANTED. The assailed April 20, 2004 Decision
and October 14, 2004Resolution of the Court of Appeals in CA-G.R. CV No.
71399, are hereby MODIFIED in this wise:

(1) The Deed of Extra-Judicial Partition, dated April 19, 1989, is

VALID, and

(2) The order to remand the case to the court of origin is

hereby DELETED.
SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice
WE CONCUR:
G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation. 5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. 8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino. 10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than
1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella. 12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding. 13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during
its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000. 15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion. 20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope. 26 There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

 At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter: 31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1wphi1.nt

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government. 36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act. 41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et
al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December
4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio
with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the
petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting
documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
 petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of

prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:
 "x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question. 57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966. 66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
" it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity
from suit. They also involve the correct calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that
"it is emphatically the province and duty of the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace." 85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:
 "x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

 The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement." 89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.
 Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.
 I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacaang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency." 93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as it
may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to
render service for that would be a violation of his constitutional right. 94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII." 95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;

2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;

3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS
A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,
 (Sgd.) FELICIANO BELMONTE JR.
Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,
 (Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following Taada v.
Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to
which full discretionary authority has been delegated to the Legislative xxx branch of the
government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a
lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot
pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The
question is political in nature and addressed solely to Congress by constitutional fiat. It is a
political issue, which cannot be decided by this Court without transgressing the principle of
separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese
citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E.
Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila,
respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
 properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself." 105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages," 106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
 form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong." 107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune
from suit or from being brought to court during the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the impeachment process against the petitioner
has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a
condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in
the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan 112 and related
cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and
graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio." 119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases. 125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat. 126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
 itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must
be allegation and proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at a bar, the records do not show that the
trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
 bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.

c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors.
Their long experience in criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they considered any extra-
record evidence except evidence properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel
 on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis
supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof. 131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1wphi1.nt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors. 134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

G.R. No. L-36554 December 14, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOVITO AGUEL, SILVERIO AGUEL and RAMON JALIKO, defendants, SHEM
JAKOSALEM, defendant appellant.

RESOLUTION

ABAD SANTOS, J.:

In Our decision which was promulgated on May 19, 1980, We affirmed in toto the judgment of the
Circuit Criminal Court of Cebu City in Criminal Case No. CCC-XIV- 613-Cebu which reads as
follows:

WHEREFORE, the Court finds the accused Shem Jakosalem GUILTY beyond
reasonable doubt of the crime of Robbery with Homicide and applying the provisions
of Article 294, paragraph 1 of the Revised Penal Code, and there being no mitigating
nor aggravating circumstance present in connection with the crime charged, the
accused is hereby sentenced to suffer the penalty of RECLUSION PERPETUA, to
indemnify Aurora Ira the sum of P60,000.00 for the lost of money and other valuables
and for the death of Cristituto [Restituto] Ira to pay the heirs the sum of P12,000.00
with one-fourth of the costs.

In the decision, We said, among other things, the following:

The appellant claims that evidence not available at the trial was later discovered to
the effect that it was not Virgilio Ababon who drove the get-away taxi but one Sergio
Carampotan. Copies of clippings from the "Morning Times" of Cebu City dated
November 8 and 4, 1972, marked as Annexes "A" and "B" were submitted as the
"newly discovered evidence." Suffice it to say, the clippings are hearsay and have no
evidentiary value. Moreover, the "newly discovered evidence" of November 8 and 4,
1972, should have been immediately utilized as a possible basis for a new trial since
the judgment under appeal had not yet become final instead of submitting it as a
ground for acquittal in a brief dated May 20, 1974.
Taking a cue from Our statement the defendant-appellant filed a motion for new trial based on newly
discovered evidence on July 11, 1980. We required the Solicitor General to comment and he has
submitted the following:

Appellant anchors his motion for reconsideration and/or new trial on newly
discovered evidence on the broad ground of substantial justice.

Appellant cites peculiar circumstances obtaining in his case as exceptional so as to

allegedly warrant a new trial if only to afford him the opportunity to establish his
innocence of the crime charged.

Thussometime in November 1972, or two (2) months after appellant's conviction

by the Circuit Criminal Court on August 31, 1972, the PC-CIS apprehended a gang of
robbers (Annexes "A" and "B", Appellant's Brief).

On November 5, 1972, Edilberto Campo executed his handwritten extra-judicial

confession (Annex "A" of Annex "A", motion) admitting participation in the La
Moderna robbery naming the other participants.

On January 21, 1974, Ramon Guevarra executed a handwritten extra-judicial

confession (Annex "D" of Annex "A", motion) admitting participation in the La
Moderna naming his confederates therein.

On February 28, 1976, Emiliano Paez executed an extrajudicial confession (Annex

"E" of Annex "A", motion) admitting participation in the robbery and named his other
cohorts in the heist.

On December 2, 1975, the District State Prosecutor filed an information (Annex "B",
motion) docketed as Criminal Case No. CCC-XIV-1151-Cebu for the same offense
and involving the same offended parties in Criminal Case No. XXX-XIV-613, Cebu,
for- which appellant was convicted, but with a different set of accused. The
Information reads.

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus - CCC-XIV-1151-CEBU

EXEQUIEL CIBRIAN alias Robbery with Homicide

WILLIAM CIBRIAN,

RODRIGO DELUVIO,

ANECITO DELUVIO,

HECTOR HURTELANO,

RAMON (Baby) GUEVARRA,

RENATO (Tata) ASEGURADO,

EDILBERTO CAMPO,

SERGIO CARAMPATAN,

MAGDALENO TIBGAO,

EMILIANO (Boy) PAEZ,

Accused.

x-----------------------------------x

AMENDED INFORMATION

The undersigned, District State Prosecutor, accuses Exequiel Cibrian alias William
Cibrian, Rodrigo Deluvio, Anecito Deluvio, Hector Hurtelano, Ramon (Baby)
Guevarra, Renato (Tata) Asegurado, Edilberto Campo, Sergio Carampatan,
Magdaleno Tigbao and Emiliano (Boy) Paez, of the crime of Robbery with Homicide
committed as follows:

That on or about the 9th day of June 1972, in the City of Cebu, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, armed with
firearms, conspiring and confederating together and helping one another, with the
use of a motor vehicle, did there and then wilfully, unlawfully and feloniously, with
deliberate intent of gain, and by means of violence and intimidation by holding up
Mrs. Aurora Ira, the proprietor of the store and Lydia Pilares, a customer who were
then inside the store, by pointing their guns at them, and after ordering them to squat
on the floor and to bow low and tying their hands and plastering her mouth to prevent
her from making an outcry, take, steal and carry away from La Moderna Jewelry
Store located at Labucay Building, Cebu City, assorted pieces of jewelries and cash
all amounting to P160,000.00 more or less, belonging to the spouses Restituto Ira
and Aurora Ira, to the damage and prejudice of the said owners in the said total sum;
that on the occasion of the said robbery and for the purpose of enabling them to take,
steal and carry away the articles above mentioned, the herein accused, in pursuance
of their conspiracy, did lighten and there wilfully, unlawfully and feloniously and with
evident premeditation and taking advantage of their superior number, strength and
arms, with intent to kill, treacherously attach, assault and shot to death Restituto Ira,
husband of Aurora, with the use of a gun causing his death, and after which they fled
with the use of a motor vehicle in a get away.

That in the commission of the offense, it was attended by the following aggravating
circumstances, to wit:

1. That the crime was committed in disregard of the respect due the offended party
on account of her sex;

2. That the crime was committed by a band;

3. That the accused took advantage of their strength and number;

4. That the crime was committed by means of a motor vehicle.

CONTRARY TO LAW.

In a letter dated October 17, 1981, to the Clerk of Court of this Honorable Court, the
Acting Clerk of Court of the Circuit Criminal Court of Cebu gave the following
information regarding Criminal Case No. CCC-XIV-1151-Cebu:

Accuse Dat Re St
d
e ma atu
Arr rks s
aig
ned

1. July No Pri
Exeq 3l, t so
uiel 197 Gu ne
Cibria 5 ilty r
n

2. Jan - Bo
Rodri . do- nd
go 29, ed
Deluv 197
io 6

3. -do- - -
Aneci do- do
to -
Deluv
io

4. -do- - -
Hecto do- do
r -
Hortel
lano

5. -do- - -
Renat do- do
o -
Aseg
urado

6. -do- - CI
Ramo do- S
n Cu
Guev sto
arra dy

7. -do- - -
Edilb do- do
erto -
Camp
o

8. - Pri
Magd do- so
aleno ne
Tigba r
o, Jr.
July
30,
1981

9. Mar Gu Pri
Emilia ch ilty so
no 12, ne
Paez 197 r
6

10. - - At
Sergi lar
o ge
Cara
mpat
an
It appears further that in a 3rd Indorsement dated July 10, 1978 of District State
Prosecutor Arzadon to the Chief State Prosecutor, from the evidence consisting of
sworn statements of the witnesses and extra-judicial confessions of some of the
accused in CCC-XIV-1151, the crime was committed by said accused and no
mention was made of the participation of Shem Jakosalem.

Said 3rd Indorsement reads:

From the evidence consisting of sworn statements of the witnesses and extra-judicial
confessions of some of the accused, in the latter case (CCC-XIV-1151), the crime
was committed by said accused and NO MENTION WAS MADE OF THE
PARTICIPATION OF SHEM JAKOSALEM and his three coaccused in the
commission of the robbery for which Jakosalem was charged and found guilty by
Judge Cupin in Criminal Case No. CCC-XIV-613.

If, as claimed by Shem Jakosalem, he was wrongly charged by the City Fiscal of
Cebu and he was unjustly convicted by Judge Cupin because he did not commit the
offense imputed to him, this matter should be looked into by the Office of the Solicitor
General who handles the side of the government in the appealed case of Jakosalem
considering that during the pendency of the appeal the case is subjudice. '(Italics
supplied, words capitalized, in parenthesis, ours for emphasis; Annex "F" of Annex
"A", motion)

The foregoing circumstances, we submit, happened after appellant's trial and

conviction and while his case was pending before this Honorable Court. There was,
therefore, no way by which these developments could have been known by appellant
during his trial.

It is our submission that the above circumstances constitute newly discovered

evidence which justify a reopening of this case to erase all doubts, if any, relative to
appellant's guilt or innocence.

It may not be amiss to point out that while 'according to Sgt. Josefino Pilapil, Head of
the Control Area Zone, Theft and Robbery Section, the basis of the police
for pinpointing the accused was the information given by an informer, a police
character named Jolly Amameo alias Boy Alias, who was killed a week after the
appellant was arrested on June 18, 1972, that the persons responsible for the
robbery were Shem Jakosalem, a certain Umpad, Romeo Estrada alias Carlito,
and Roberto Sastrillo alias Boy' (italics ours, pp. 4-6, Decision dated May 19, 1980,
SC), other persons different from the above were charged aside from appellant,
namely: Jovito Aguel, Silverio Aguel and Ramon Jalico who were thereafter Identified
as the John Doe, "Peter Doe" and "Richard Doe" in the original information. The
aboved named individuals were subsequently arraigned and found innocent of the
crime charged.

It is also to be stressed that the issue of Identification assumes importance after

taking into consideration the foregoing circumstances coupled with the extra-judicial
confession as well as the judicial admission of Emiliano Paez that he was the one
who shot Restituto Ira. It is axiomatic that, as basic and elemental as proof of the
essential elements of the crime charged itself, positive proof of the Identity of the
alleged offender is an indispensable prop to any judgment of conviction for said
crime.
Delineating the criterion on this point, the Supreme Court has very-cogently declared

... The Identity of the offender, like the crime itself, must be proven
beyond reasonable doubt. The question of Identification of an
accused as the perpetrator of an offense might seem to be the
simplest that could possibly come before a court. But the fact is
precisely the reverse. The question of Identification has proved itself
over and over again, by far, instead the most perplexing. As one court
has observed: There are few more difficult subjects with which the
administration of justice has to deal. The carelessness or
superficiality of observers, the parity of powers of graphic description,
and the different force with which peculiarities of form or color or
expression strike different persons, make recognition or Identification
one of the least reliable of facts testified to even by actual witnesses
who have seen the parties in question ... (People vs. Beltran, 61
SCRA 246, 250 citing Estate of Bryant, 176 Pa. 309, 318, 35 Atl. 571,
577 cited in Wall, Eyewitnesses Identification in Criminal Cases 1965
ed.).

For this reason, this Honorable Court has warned that-

The courts should exercise caution in weighing evidence of Identity.

As Wharton observed, under conditions that generally surround the
commission of a crime, there is sometimes a predisposition to
connect an accused with a crime on the basis at times of fancied
resemblances, depending upon the prejudgment or bias of the
declarant' (People vs. Jimenez, et al. 71 SCRA 186, 192).

It is noteworthy that when appellant was brought by the police authorities to the
residence of Mrs. Ira on July 5, 1972, the latter, after taking a look at him, told the
police that the former was not one of the robbers (p. 9, SC decision) although later
on she Identified appellants as one of the robbers with the explanation that when
appellant was brought to her, she was afraid to Identify him because she had no
confidence in the person of Lt. Ponciano Gacho (p. 12, SC decision).

If only to satisfy the requirement that the guilt of the accused must be proved beyond
reasonable doubt, appellant should be given the leeway to prove his innocence.

It has been held that the authority of the appellate court over an appealed case is
broad and ample enough to embrace situations as the instant case where the court
may grant a new trial or retrial based on grounds other than those provided in
Section 13 of Rule 124 or Section 2 of Rule 121. While Section 13, Rule 124 and
Section 2, Rule 121 provides for specific grounds for a new trial, i.e. newly
discovered evidence, and errors of law or irregularities committed during the trial,
Section 11 of Rule 124 which provides:

Power of appellate court on appeal.Upon appeal from a judgment

of the Court of First Instance, the appellate court may reverse, affirm,
or modify the judgment and increase or reduce the penalty imposed
by the trial court, remand the case to the Court of First Instance for
new trial or retrial, or dismiss the case.
 does not so specify, thereby leaving to the sound discretion of the court the
determination, on a case to case basis, of what would constitute meritorious
circumstances warranting a new trial or retrial (Jose vs. CA, 70 SCRA 264).

This Honorable Court, in the aforecited case of Jose vs. CA, lbid, ruled that:

Surely, the Rules of Court were conceived and promulgated to aid

and not to obstruct the proper administration of justice, to set forth
guidelines in the dispensation of justice but not to bind and chain the
hand that dispense justice, for otherwise, courts win be mere slaves
to or robots of technical rules, shorn or judicial discretion.

Thus, admittedly, courts may suspend its own rules or exempt a case
from them for the purposes of justice or, in a proper case, disregard
them. In this jurisdiction, in not a few instances, this court ordered a
new trial in criminal cases on grounds not mentioned in the statute,
viz: retraction of witness, negligence or incompetency of counsel,
improvident plea of guilty, disqualification of an attorney de oficio to
represent the accused in the trial court, and where a judgment was
rendered on a stipulation of facts entered into by both the prosecution
and the defense.

Characteristically, a new trial has been described as a new invention

to temper the severity of a judgment or prevent the failure of justice.

It is, therefore, our position that 'the rigid application of the rules of procedure must
bow to the overriding goal of courts of justiceto render justice where justice is due
to secure to every individual all possible legal means to prove his innocence of a
crime of which he is charged (Jose vs. CA, supra).

CONCLUSION AND RECOMMENDATION

WHEREFORE, it is respectfully recommended that the decision of this Honorable

Court dated May 19, 1980 be set aside and the case be remanded to the court a
quo for new trial and for the purpose of allowing appellant to present his alleged
newly discovered evidence.

WHEREFORE, as prayed for, Our decision of May 19, 1980, is hereby set aside and this case is
hereby remanded to the court a quo for new trial so that the accused can present his alleged newly
discovered evidence. No costs.

SO ORDERED.

Barredo (Chairman), Aquino, Concepcion, Jr., De Castro, Ericta and Escolin JJ., concur.

[G.R. Nos. 132325-26. July 26, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO
ESPINA, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

This is an appeal from the Decision[1] of the Regional Trial Court of Tagbilaran, Branch 47,
in Criminal Case Nos. 8194 and 8155 convicting accused-appellant of the crime of Murder
qualified by Illegal Possession of Firearms under P.D. No. 1866, as amended by R.A. No. 8294;
and sentencing him to suffer the penalty of Reclusion Perpetua and to pay the heirs of the
deceased the sum of P50,000.00 and the costs.
The information for the crime of murder alleged:

That on or about the 30th day of September, 1992, in the municipality of Tubigon,
province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the
abovenamed accused without justifiable motive, with treachery and abuse of superior
strength, the accused being then armed with a short firearm and without giving
opportunity to the victim to defend himself, did then and there willfully, unlawfully
and feloniously attack, assault and shoot one Romeo Bulicatin, with the use of said
firearm, hitting the latter on the vital part of his body resulting to his death; to the
damage and prejudice of the heirs of the deceased.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code
with the aggravating circumstance of nighttime being purposely sought for or taken
advantage of by the accused to facilitate the commission of the crime. [2]

For Illegal Possession of Firearms, the information stated:

That on or about the 30th day of September, 1992, in the municipality of Tubigon,
province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the
abovenamed accused, with intent to possess firearm and ammunition did then and
there willfully, unlawfully and criminally keep, carry and have in his possession,
custody and control a short firearm and ammunition without first obtaining the
necessary permit or license to possess the said firearm and ammunition from
competent authority, which firearm and ammunition were carried by the accused
outside of his residence and used by him in committing the crime of Murder of which
one Romeo Bulicatin was the victim; to the damage and prejudice of the Republic of
the Philippines. Acts committed contrary to the provisions of Presidential Decree No.
1866.[3]

Upon arraignment on June 27, 1994, accused-appellant pleaded not guilty to both charges;
[4]
thereafter trial followed.
 The facts as adduced by the prosecution are synthesized in the Peoples Brief, thus -

In the afternoon of September 30, 1992, the members of an association locally known
as the ripa-ripa went to the house of Eufronia Pagas located at sitio Batic, Tan-awan,
Tubigon, Bohol for their scheduled contribution to a fund intended for a wedding
celebration. (p. 3, August 23, 1996, TSN; p. 3, January 21, 1997, TSN) Among those
present thereat were Romeo Bulicatin, Rogelio Espina, Samson Abuloc who were
having a drinking spree and playing chikika, a card game. (p. 4, May 9, 1995, TSN).

When accused-appellant arrived, Romeo asked three (3) bottles of kulafu wine from
him and he acceded by buying three (3) bottles of kulafu wine from the store of
Eufronia Pagas. Later on, at around 4:00 of that afternoon, Romeo again demanded
another bottle of kulafu wine from accused-appellant but this time, the latter refused
to give in to the demand. (p. 4, January 21, 1997, TSN) Romeo then proceeded to
where accused-appellant was playing cards and without any warning, urinated on the
latter and clipped him under his (Romeo) arms. (p. 4, August 23, 1996, TSN)
Accused-appellant got angry. He however did not engage Romeo in any altercation
but instead turned away and went home. (p. 5, May 9, 1995, TSN)

Later on in the evening, at about 9:00 p.m., while Romeo, Rogelio and Samson were
still having a drinking spree at the store of Eufronia Pagas, they heard accused-
appellant calling Romeo from outside, saying, Borgs, get out because I have
something to say. The trio came down from the house. Rogelio went down first,
followed by Samson and Romeo (pp. 5-6, ibid.) When Rogelio reached the ground,
accused-appellant told him to drop down while Samson also dropped himself to the
ground when he saw accused-appellant about to draw his firearm. At that juncture,
Romeo was still at the stairway and when he turned his back towards accused-
appellant, the latter shot him, hitting him at the back. Romeo ran away but he was
chased by accused-appellant who fired two (2) more shots at him. (p. 5, March 19,
1996, TSN; p. 7, May 9, 1995)

Samson ran away from the scene of the incident and upon reaching the house of Poloy
Concha, he saw Romeo outside the house asking for help. Samson asked some of
residents to help him bring Romeo to barangay Cawayanan. (pp. 14-15, March 19,
1996, TSN) They loaded Romeo in a rattan cradle and upon reaching the said
barangay at about 3:00 oclock of the following morning, they transferred him to the
vehicle owned by a certain Emiliano Fucanan. From the said barangay, Romeo was
taken to the house of Mayor Placing Mascarinas in Poblacion, Tubigon, Bohol where
he was transferred to the ambulance which took him to the Celestino Gallares
Memorial Hospital in Tagbilaran City. On the way to the hospital, Felix Celmar asked
Romeo what happened to him and the latter answered that he was shot by accused-
appellant. (pp. 4-8, July 29, 1996, TSN) Romeo was brought to the emergency room
and underwent operation. He however died at about 5:00 p.m. of October 2, 1992, due
to septic shock irreversible, generalized peritonitis, gunshot wound, perforating
ileum. (pp. 7 & 11, June 18, 1996, TSN)[5]

The defense presented four witnesses, namely: Rogelio Espina, Dr. Harold B. Gallego,
Maximiano Dormal and accused-appellant himself.
The testimonies of accused-appellant and Maximiano Dormal may be summarized as
follows:
At around 1:00 oclock in the afternoon of September 30, 1992, accused-appellant was in the
house of Eufronia Pagas to represent his father in a meeting to prepare for a wedding
celebration. Among those present in the said gathering were accused-appellants brother, Rogelio
Espina, and the deceased, Romeo Bulicatin who were having a drinking spree. When accused-
appellant arrived thereat, Bulicatin asked him to buy 3 bottles of kulafu wine to which he
acceded. At around 4:00 oclock of the same afternoon, Bulicatin again demanded another bottle
of kulafu wine from accused-appellant. The latter, however, refused to obey, prompting Bulicatin
to urinate on accused-appellant. This infuriated accused-appellant, but instead of assaulting
Bulicatin, he turned his back and walked away because he knew that Bulicatin always carried a
knife. When accused-appellant was about 12 meters away from the house of Eufronia Pagas,
Bulicatin pursued him. Accused-appellant tried to evade Bulicatin but the latter caught up with
him and stabbed him on his side. Consequently, accused-appellant sustained a deep punctured
wound but was fortunately able to escape until he passed out.[6]
At around 6:00 oclock p.m. of the same day, Maximiano Dormal who was then on his way
home, saw accused-appellant wounded and lying on the ground. Recognizing the latter, Dormal
immediately informed and accompanied accused-appellants parents who lost no time in bringing
him to the hospital.[7]
On the other hand, defense witness Rogelio Espina (Rogelio), declared that in the afternoon
of September 30, 1992, he was in the house of Eufronia Pagas, having a drinking spree with
Romeo Bulicatin and Samson Abuloc, while his brother, herein accused-appellant, was playing
cards. At around 3:00 oclock p.m., he saw Bulicatin approach accused-appellant and forthwith
urinated on him. Thereafter, Bulicatin grabbed accused-appellant under his arms but the latter
was able to extricate himself from the hold of Bulicatin and ran away. Rogelio wanted to follow
accused-appellant but was prevailed upon by Bulicatin to stay. They then continued their
drinking spree until 9:00 oclock p.m. When they were about to go home, Rogelio heard
somebody calling Bulicatin, saying - Get out, Borgs, as I have something to tell you. According
to Rogelio, he is certain that the voice was not that of accused-appellant. When they decided to
go home, he was the first one to go downstairs, followed by Samson Abuloc, and then by
Bulicatin. Upon reaching the ground, Rogelio heard a gunshot and immediately scampered away
without looking back to see who was shot. He claimed that it was only two days after the
incident that he came to know who the victim of the shooting incident was. He added that from
the house of Eufronia Pagas, he directly went home where he was told by his mother that
accused-appellant was stabbed and was brought to the hospital.
On August 25, 1997, the trial court rendered the assailed decision, holding as follows:
WHEREFORE, Premises Considered, the Court finds the accused, Romeo Espina,
guilty beyond reasonable doubt, for the crime of Murder defined and penalized by
Article 248 of the Revised Penal Code and Qualified Illegal Possession of Firearms
under Presidential Decree No. 1866, as amended by Republic Act No. 8294 and
sentences him to suffer the straight penalty of imprisonment of RECLUSION
PERPETUA with the inherent accessory penalties provided by law, there being a
mitigating circumstance of vindication for a grave offense committed on the accused;
to indemnify the heirs of the deceased, Romeo Bulicatin, in the amount of Fifty
Thousand (P50,000.00) Pesos; and to pay the costs.

SO ORDERED.[8]

Hence, this appeal on the following grounds:

I

THAT THE LOWER COURT HAS OVERLOOKED OR MISINTERPRETED

THE SIGNIFICANCE OF SOME FACTS OR CIRCUMSTANCES OF WEIGHT
AND INFLUENCE APPEARING IN THE RECORD IN FINDING THE
ACCUSED GUILTY OF THE OFFENSES CHARGED.
II

THAT THE LOWER COURT HAS GRAVELY ABUSED ITS DISCRETION IN

FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE
OFFENSES CHARGED.[9]

In particular, accused-appellant points to the following facts and circumstances that had been
allegedly overlooked by the trial court, to wit -

1) The resolutions of the 2nd Municipal Circuit Trial Court of Tubigon, Bohol in
Criminal Case Nos. 1245 and 1246 to the effect that there was no sufficient evidence
that accused-appellant had committed the crimes charged;

2) The non-presentation of Eufronia Pagas (the owner of the house where the victim
and his companions had a drinking spree), despite being listed in the information as
one of the witnesses for the prosecution.

3) The testimony of prosecution eyewitness Samson Abuloc, that he does not know
Felix Celmar who claimed to be one of the persons asked by the former to help him
bring the victim to the hospital.

4) The incredibility of the testimony of Samson Abuloc as regards his having

identified accused-appellant through his voice and the type of firearm used by the
latter in shooting the victim as well as his having seen the victim being hit at the back
by the first gunshot fired at him by accused-appellant;

5) The fact that at about 6:00 oclock in the evening of September 30, 1992, accused-
appellant was found by one Maximiano Dormal lying wounded and groaning near a
pathway leading to the latters house; and

6) The length of time that elapsed before Felix Celmar revealed that the victim told
him that accused-appellant was the one who shot him. [10]

Accused-appellant makes capital of the November 23, 1992 Resolutions [11] of the 2nd
Municipal Circuit Trial Court of Tagbuin-Clarin Bohol, which found the evidence against
accused-appellant to be insufficient after conducting the preliminary investigation. We note,
however, that said resolutions were reversed and superseded by the February 2, 1993 Omnibus
Resolution[12] of the Second Assistant Provincial Prosecutor, who, after conducting a re-
investigation of the instant case, found probable cause to hold accused-appellant for trial and
accordingly filed the corresponding informations against accused-appellant.
Moreover, the basis of the investigating judge in declaring insufficiency of evidence does
not appear to be substantial. Pertinent portion of said resolution reads:

Upon the foregoing facts, the court finds and is satisfied that the offense complained
of has been committed, but there is insufficiency of evidence that the herein accused
Romeo Espina committed the crime for the simple reason that according to the
declaration of Eufronia Pagas who is an unbiased witness as compared to the
declaration of Samson Abuloc who was a close barcada of the victim, the herein
accused Romeo Espina was not in her house where the drinking spree was held from
6:00 to 9:00 oclock in the evening of September 30, 1992. [13]

Clearly, the fact that Eufronia did not see accused-appellant in her house between 6:00 9:00
oclock in the evening of September 30, 1992, does not in any way contradict or refute the claim
of the prosecution that accused-appellant left the house of Eufronia at around 4:00 in the
afternoon after being urinated on by the victim and thereafter returned at about 9:00 p.m. and
shot the victim outside the house of Eufronia.
Then too, the non-presentation of Eufronia Pagas as a prosecution witness is not damaging
to the case of the prosecution. In Eufronias affidavit, she declared that after Rogelio Espina,
Samson Abuloc and the deceased went out of her house, she heard three gunshots but bothered
not to go outside because of fear.[14] Evidently, Eufronia Pagas is not an eyewitness and her
testimony would not do much for the prosecution. At any rate, it is the prosecutions prerogative
to determine who should be presented as witnesses on the basis of its own assessment of their
necessity.[15] Hence, its choice of witnesses can not be successfully challenged by accused-
appellant.
Whether or not prosecution witness Samson Abuloc knew Felix Celmar who claimed to be
one of the persons asked by the former to help him bring the victim to the hospital, is of no
consequence. As correctly pointed out by the Solicitor General, it is possible that Felix Celmar, a
resident of another barangay, is not known by name to Abuloc, especially so since their meeting
on that fateful day was only casual.
Neither do we find improbable the testimony of Samson Abuloc that he recognized the voice
of accused-appellant. Being a friend and a second cousin of accused-appellant, he is expected to
be familiar with his voice. So also, we find no reason to doubt the testimony of Abuloc that he
was able to identify the pistol used by accused-appellant as well as witnessed the stabbing of the
victim at the back. Not only was Abuloc only three to four meters away from accused-appellant,
[16]
the prosecution was likewise able to establish that the moonlight illuminating the locus
criminis afforded the witness a clear view of the shooting incident. [17] The Court has previously
held that the light from the stars or the moon, an oven, or a wick lamp or gasera can give ample
illumination to enable a person to identify or recognize another. [18] Under the circumstances,
therefore, Abuloc could not have failed to recognize accused-appellant who is not only his
barkada but a second cousin as well.
Contrary to the claim of accused-appellant, the trial court did not overlook his contention
that he could not have committed the offenses charged because at around 4:00 oclock p.m. of
September 30, 1992, he was unconscious due to a stab wound. In fact, the trial court treated the
same as a defense of denial and alibi. Indeed, these defenses cannot prevail over the categorical
and positive identification of accused-appellant by prosecution witness Abuloc who was not
shown to have any ill motive to testify falsely against him.[19]
Moreover, it is doctrinally settled that the assessment of the credibility of witnesses and their
testimonies is a matter best undertaken by the trial court because of its unique opportunity to
observe the witnesses first hand and to note their demeanor, conduct and attitude under grilling
examination.[20] In the case at bar, the trial court did not err in giving credence to the version of
the prosecution. The facts and circumstances alleged to have been overlooked by the trial court
are not material to the case and will not affect the disposition thereof.
The alleged dying declaration of the victim should not have been admitted as an ante
mortem statement, considering that the prosecution failed to show that the subject declaration
was made under the consciousness of an impending death. Prosecution witness Celmar testified
that on the way to the hospital, the victim told him that it was accused-appellant who shot
him. Though the victim eventually died two days after he was shot, there is nothing in the
records that would show that the victim was under the impression that he was going to
die. However, the declaration of the deceased pointing to accused-appellant as the culprit is
admissible as part of res gestae. Having been made shortly after a startling occurrence and under
the influence thereof, the victim evidently had no opportunity to contrive. [21]Furthermore, the
delay of Felix Celmar in revealing the declaration of accused-appellant does not make Celmars
testimony unworthy of belief. Delay in revealing the identity of the perpetrator of a crime does
not necessarily impair the credibility of a witness, especially where such witness gives a
sufficient explanation. In the case at bar, such delay was amply explained by the witness. Celmar
testified that it took him four months to reveal what he knew because he thought he would not be
utilized as witness for the prosecution. Moreover, after the incident, he had to leave for his work
in Albay.
In convicting accused-appellant, the trial court appreciated the special aggravating
circumstance of use of unlicensed firearm, pursuant to P.D. No. 1866, as amended by R.A. No.
8294. Considering the penalty provided for in Article 248 of the Revised Penal Code, as
amended by R.A. No. 7659, the trial court imposed the penalty of death on accused-
appellant. However, in view of the suspension of the imposition of the death penalty then,
accused-appellant was sentenced to suffer the penalty of reclusion perpetua.
The third paragraph, Section 1, of R.A. No. 8294 (which took effect on July 6, 1997),
amending P.D. No. 1866, provides that If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be used as an aggravating
circumstance. This amendment, however, cannot be applied in the present case. It bears stressing
that when the offenses at bar were perpetrated on September 30, 1992, the unlicensed firearm
used in taking the life of another was not yet a special aggravating circumstance in murder or
homicide. Not being favorable to the accused, the amendatory provision cannot be applied to
accused-appellant, lest it acquires the character of an ex post facto law.[22]
Likewise, the trial court erred in treating alevosia merely as a generic aggravating
circumstance, moreso in offsetting the same by the generic mitigating circumstance of having
committed the crime in immediate vindication of a grave offense. The treachery employed by
accused-appellant in shooting the victim is actually a circumstance that qualified the killing to
murder. Such being the case, treachery cannot be offset by a mitigating circumstance.
The trial court correctly appreciated the mitigating circumstance of having acted in
immediate vindication of a grave offense. As the evidence on record show, accused-appellant
was urinated on by the victim in front of the guests. The act of the victim, which undoubtedly
insulted and humiliated accused-appellant, came within the purview of a grave offense under
Article 13, paragraph 5, of the Revised Penal Code. Thus, this mitigating circumstance should be
appreciated in favor of accused-appellant.
As to the imposable penalty, the applicable provision is Article 248 of the Revised Penal
Code before its amendment by R.A. No. 7659 on December 31, 1993, the crime having been
committed on September 30, 1992. Thereunder, the penalty for murder was reclusion temporal in
its maximum period to death. With one generic mitigating circumstance and no aggravating
circumstance to offset it, the penalty should be imposed in its minimum period, i.e., reclusion
temporal maximum. Applying the Indeterminate Sentence Law, accused-appellant should be
sentenced to an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as
maximum.
WHEREFORE, the Decision of the Regional Trial Court of Tagbilaran, Branch 47, in
Criminal Case Nos. 8194 and 8195 finding the accused-appellant Romeo Espina guilty beyond
reasonable doubt of the crime of murder, is AFFIRMED with MODIFICATION that the accused-
appellant is hereby sentenced to suffer the indeterminate penalty of eight (8) years and one (1)
day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal, as maximum; and to pay the heirs of Romeo Bulicatin the sum of
P50,000.00 as death indemnity and to pay the costs.
SO ORDERED.
Puno, Kapunan, and Pardo, JJ., concur.
Davide, Jr., C.J., (Chairman), on official leave.
 G.R. No. 122934. January 5, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL

PRECIADOS (At Large), ARTURO ENAD, EMIGDIO VILLAMOR,
LEONCIO ALGABRE and FLORIANO ALGABRE @
LOLOY, accused.
ARTURO ENAD, accused-appellant.

DECISION
QUISUMBING, J.:

Accused-appellant Arturo Enad[1] assails the decision rendered by the Regional Trial Court of
Tagbilaran City, Branch 1, in two consolidated cases, Criminal Case No. 7887 for murder and
Criminal Case No. 7888 for frustrated murder. It convicted and sentenced him to reclusion
perpetua in the first case and to a prison terms of six (6) years and one (1) day of prision mayor,
as minimum to twelve (12) years and one (1) day of reclusion temporal, as maximum, in the
second case.
In Criminal Case No. 7887, the Office of the Provincial Prosecutor of Bohol charged Angel
Preciados, Arturo Enad, Emigdio Villamor, Leoncio Algabre, and Floriano Algabre alias Loloy
with murder allegedly committed as follows:

That on or about the 12th to the 13th day of May 1992, in the municipality of
Sagbayan, province of Bohol, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually
helping with (sic) one another, with intent to kill and without justifiable cause, did
then and there, willfully, unlawfully, and feloniously pour poison into the mouth of
one Primo Hilbero whereby causing the victims untimely death; to the damage and
prejudice of the heirs of the deceased in the amount to be proved during the trial.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code,
as amended, with the aggravating circumstances of (1) treachery, the victim being
unaware and unsuspecting and (2) abuse of superior strength, two of the accused
being armed with deadly weapons which they used in intimidating, threatening and
forcing the victim to drink the poison.[2]

In Criminal Case No. 7888, the same persons were charged with frustrated murder. The
charge sheet reads:

That on or about the 12th to the 13th day of May, 1992, in the municipality of
Sagbayan, province of Bohol, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually
helping with (sic) one another, with intent to kill and without justifiable cause, did
then and there willfully, unlawfully and feloniously pour poison into the mouth of one
Antonio Hilbero thereby inflicting serious injuries on the victims body; thus, the
accused having performed in said manner all the acts of execution which would have
produced the crime of Murder as a consequence, but which nevertheless did not
produce it by reason of a cause independent of their will, that is, by the timely medical
attendance and treatment rendered the damage and prejudice of the said offended
party in the amount to be proved during the trial (sic).

Acts committed contrary to the provisions of Article 248 in relation to Articles 6 and
50 of the Revised Penal Code, as amended, with the aggravating circumstances of (1)
treachery, the victim being unaware and unsuspecting and (2) abuse of superior of
strength two of the accused being armed with deadly weapon which they to used in
intimidating, threatening and forcing the victim to drink the poison. [3]

The informations were both dated July 20, 1992 but the cases were tried before
different salas. Branch 4 of the Regional Trial Court of Tagbilaran City, tried Criminal Case No.
7887, while Branch 3 tried Criminal Case No. 7888.
On August 26, 1992, the accused in Criminal Case No. 7888 were ordered arrested. But the
police failed to apprehend any of the accused. Preciados and the Algebres were reported to have
gone into hiding in Mindanao, while Enad and Villamor went to Cebu City. It was only on July
20, 1993, when appellant Arturo Enad was arrested. Arraigned in Criminal Case No. 7887, he
pleaded not guilty. He waived pre-trial and the case was set for trial.
On September 13, 1993, Judge Achilles L. Melicor of Branch 4, RTC of Tagbilaran City,
inhibited himself from Criminal Case No. 7887, since the accused were the political leaders of
Mayor Arthur Melicor-Aana, his cousin, while the victims were supporters of the mayors
political rival, Narzal B. Ermac.
On February 14, 1994, Criminal Case No. 7888 was revived and jointly tried with Criminal
Case No. 7887 in Branch 1, RTC of Tagbilaran City. Arraigned in Criminal Case No. 7888 on
February 15, 1994, appellant entered a plea of not guilty. Thereafter, Criminal Cases Nos. 7887
and 7888 were jointly tried, without prejudice to the separate arraignment and trial of the other
accused who continued to evade arrest.
The facts of the case, culled from the prosecutions presentation, are as follows:
Appellant and Antonio Hilbero,[4] the victim in Criminal Case No. 7888, are second
cousins. Both are residents of Ubujan, Sagbayan, Bohol. Appellant is also a cousin of Primo
Hilberos mother-in-law.Primo Hilbero is the victim in Criminal Case No. 7887.
During the May 11, 1992 elections, appellant and Antonio supported rival mayoralty
candidates of Sagbayan. Appellant was a supporter and poll watcher of Arthur Aana, while
Antonio, a barangay councilman of Ubujan, was a partisan of Narzal Ermac. Appellants co-
accused were also identified with Aana who won.
 At around 11:00 p.m. of May 12, 1992, Antonio with his common law wife and their two
children, his brother, Primo and his wife, Helen with their three children, Antonios mother,
Dominga, and another brother, Severino were at the second floor of the old rice mill at
Ubujan. Except for Helen, the clan had retired for the night. She was about to go to sleep when
she noticed Antonio go downstairs. Minutes later, her husband Primo, followed him. Then she
heard someone utter, Dont move. Alarmed, she rose from her mat and peeped through a two-inch
hole in the floor.[5] The ground floor was illuminated by moonlight. She saw appellant holding a
hand grenade while his other arm was locked in a stranglehold around the neck of Antonio who
knelt on the floor.[6] Nearby stood Angel Preciados with a gun pointed at Antonio. [7] She then
heard Emigdio Villamor say Dont move so that your family will not die. She saw the latter
forcing Primo to swallow an object.[8] The other accused held her husband to prevent him from
struggling. Shocked, Helen then soundlessly cried and embraced her children. Shortly
afterwards, Helens mother-in-law, Dominga, was awakened by the barking of the family
dog. Dominga went downstairs where she saw Primo lifeless on the floor, reeking of poison.
[9]
Antonio was nowhere to be found. Dominga rushed upstairs and woke up Severino, all the
while shouting for help. Minutes later, the barangay captain and some neighbors responded to
her shouts for assistance. They found Primo dead on the floor. Informed that Antonio was
missing, they searched the immediate surroundings for him but to no avail.[10]
Early in the morning of May 13, 1992, the search for Antonio was resumed. He was finally
found by his uncle, Simeon Degamo, holding on to rock in a natural well, some 300 meters away
from the rice mill. A rope was thrown to him and he was pulled out from the well. Noticing that
he smelled of some poisonous chemical, his rescuers made him drink coconut milk. [11] He was
weak and appeared on the verge of death and brought to the hospital at Clarin, Bohol for
emergency treatment.
The next day, prosecution witness Zosimo Viva,[12] a defeated municipal councilor candidate
in the same slate of Ermac, Antonios common law wife, and two police investigators transferred
Antonio to the Gov. Celestino Gallares Memorial Hospital in Tagbilaran City.[13] According to
prosecution witness Dr. Mayda[14] Reyes who admitted Antonio to the hospital, Antonio told her
that the latter was forced to drink a certain liquid, which smelled like insecticide. [15] Another
physician, Dr. Maria Luisa Tage, who attended to Antonio diagnosed, Poisoning, Etiology not
determined, Brief reactive psychosis.[16]
Since Antonio appeared to be dying, prosecution witness PO3 Leonardo Inoc, a police
investigator, took his ante-mortem statement[17] in which he named the aforementioned accused as
the persons responsible for poisoning him and dropping him in the well.[18]
Meanwhile, Ermac asked the National Bureau of Investigation (NBI) to conduct an
investigation.[19] The toxicological examination of Primos body revealed the presence
of methamidophos, the active ingredient of the insecticide Tamaron in Primos organs.[20] The NBI
also recovered two empty bottles, at the scene of the incident. Chemistry tests on them revealed
that the Hoechst bottle was positive for deltamethrine, an insecticide, while the other bottle
revealed traces of methamidophos.[21]
Appellant denied any involvement in the poisoning incident. He claimed an alibi. He said he
spent the whole night of May 11, 1992, in the municipal hall of Sagbayan, as a watcher for the
party of Mayor Aana. He went home early morning of May 12, 1992 and spent the whole day
repairing his pigpens even if he had not slept the previous night. At around seven oclock P.M. his
wife and he went to the house of his co-accused Angel Preciados to attend the birthday party of
the latters son.[22] Afterwards, they returned home and went to sleep. [23] He woke up at around
9:00 A.M. and learned about the incident. He went to the old rice mill to find out more about the
poisoning incident and saw the Hilberos. When he asked Helen what happened, she said she
knew nothing about the death of her husband. [24] Later that day, he returned to Cebu City where
he worked as a crane operator. He could not think of any reason why he would be suspected for
committing a crime, as he was on good terms with the victims.[25]
The defense offered a different version of the poisoning incident. According to the defense,
Antonio and Primo agreed to commit suicide by taking poison. [26] It presented Antonios affidavit
dated February 28, 1994,[27] where he recanted his story in his affidavit of May 22, 1992.
[28]
Antonio testified that he and Primo decided to commit suicide by drinking poison to prevent
defeated candidates Ermac and Viva from harming their families. Antonio refused to follow the
orders of Viva to kill the political leaders of Mayor Aana, including the appellant. Thus, Antonio
said, he and Primo feared for the lives of their relatives. After Primo and he drank poison, Primo
immediately died. When he did not succumb right away, Antonio wrote a suicide note and tried
to drown himself in the well.[29] After his rescue, Ermac and Viva took him into custody and
bought him to Mindanao, allegedly for his safety.[30] The two, however, threatened to kill him and
made him falsely charge the appellant with murder and frustrated murder. [31] Antonio totally
repudiated his ante-mortem statement and his earlier affidavit charging the accused with murder
and frustrated murder.
Testifying for the defense, P/Col. Benjamin Absalon, of the Bohol Provincial Command of
the Philippine National Police, testified that the police investigation revealed that Primos death
by poison was not due to foul play. He declared that they did not finish their investigation
because Antonio disappeared from the hospital before they could interview him.[32]
To rebut Antonios testimony, Dr. Mayda Reyes was called anew to confirm what Antonio
had told her, that he was forced to drink poison by several men. [33] SPO1 Leonardo Inoc testified
again that he took Antonios ante-mortem statement.[34] Apolinario Libranza, barangay captain of
Ubujan, Sagbayan was presented to refute Antonios claims regarding Zosimo Viva. [35] Antonios
mother, Dominga, testified that her son was not afraid of either Viva or Ermac [36]and affirmed the
truthfulness of Helens testimony.[37]
In sur-rebuttal, Antonio maintained the veracity of his suicide account.
Finding the prosecutions version more credible, the trial court on January 2, 1995, convicted
appellant of the crimes charged in Criminal Cases Nos. 7887 and 7888. It concluded:

PREMISES CONSIDERED, in Criminal Case No. 7887 the Court finds the accused
Arturo Enad GUILTY of the crime of Murder punished under Article 248 of the
Revised Penal Code and hereby sentences him to suffer an imprisonment
of RECLUSION PERPETUA with the accessories of the law and to pay the costs.

The accused Arturo Enad is further ordered to indemnify the surviving spouse of the
deceased Primo Hilbiro (sic) in the amount of P50,000.00 representing indemnity and
P50,000.00 representing moral and exemplary damages. In both instances without
subsidiary imprisonment in case of insolvency.
In Criminal Case No. 7888, the Court finds the accused Arturo Enad GUILTY of the
crime of Frustrated Murder under Article 248 in relation with (sic) Articles 6 and 50
of the Revised Penal Code, as amended and hereby sentences him to suffer an
Indeterminate Sentence from SIX (6) YEARS and ONE (1) DAY, the Minimum of the
Minimum Period of Prision Mayor, as Minimum, to TWELVE (12) YEARS and ONE
(1) DAY, the Minimum of the Minimum Period of Reclusion Temporal, as Maximum,
with the accessories of the law and to pay the cost.

The Court makes no pronouncement as to indemnity and damages for the Court
viewed the retraction of the complainant Antonio Hilbiro (sic) of his previous
testimony, as a waiver of indemnity.

It appearing that the accused Arturo Enad has undergone preventive imprisonment in
Criminal Cases Nos. 7887 and 7888 he is entitled to the full time of his preventive
imprisonment to be deducted from his term of sentences (sic) if he has executed a
waiver otherwise he will only be entitled to 4/5 of the time of his preventive
imprisonment to be deducted from his term of sentence (sic) if he has not executed a
waiver.

SO ORDERED.[38]

On July 25, 1995, appellant filed his notice of appeal to this Court. On November 20, 1996,
the Office of Legal Aid of the U.P. College of Law entered its appearance as counsel.
Before us, appellant poses the following questions for resolution:

1. WHETHER OR NOT THE TRIAL COURT ERRED IN GIVING WEIGHT AND

CREDENCE TO THE CONTRADICTORY AND IMPROBABLE TESTIMONIES
OF THE WITNESSES OF THE PROSECUTION.

2. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING AND

GIVING WEIGHT TO THE DOCUMENTARY EVIDENCE PRESENTED BY THE
PROSECUTION.

3. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT HOLDING THAT

THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED
BEYOND REASONABLE DOUBT AND IN DISMISSING THE DEFENSE OF
THE ACCUSED.

In sum, appellant raises the following issues: First, Did the trial court err in giving credence
to the testimony of alleged eyewitness Helen Hilbero? Second, Did the lower court err in relying
on dying statement of Antonio Hilbero? Third, Did the prosecution evidence successfully
overcome the presumption of innocence in favor of the accused?
 The first issue deals with the credibility of prosecution witness Helen Hilbero. Appellant
argues that the testimony of the sole prosecution eyewitness, Helen Hilbero, is doubtful. He
points out that it was odd that despite witnessing her husband murdered and her brother-in-law
poisoned, Helen did not make a statement to the police on what she witnessed; that while the
police took the sworn statement of Dominga, the mother of Primo and Antonio, they did not take
the statement of the widow, who allegedly saw everything; and that even after meeting appellant
face to face on the morning of May 13, 1992, no confrontation occurred between appellant and
her. Furthermore, the prosecution did not rebut appellants testimony that Helen admitted to
appellant that she did not know what happened to her husband and brother-in-law. The
prosecution suggests that Helens testimony was a mere concoction of the political opponents of
Mayor Aana and that Helen was coached on her testimony when it became apparent to Ermac
and Viva that Antonio would not testify the way they wanted.
The Office of the Solicitor General, for its part, contends that there is nothing unnatural in
Helens failure to immediately disclose what she knew. The failure to reveal the identities of the
perpetrators should not impair her credibility since there is no set standards of human behavior
when one is confronted with a strange, striking, or frightful experience. Moreover, she had her
reasons to keep what she knew to herself. The accused were her neighbors and they could easily
cause her and her family harm. Thus, the trial court, the OSG said, committed no error in relying
on her testimony to convict appellant.
Where the credibility of a witness is an issue, the established rule is that great respect is
accorded to the evaluation of the credibility of witnesses by the trial court. It is in the best
position to determine the issue of credibility of a witness, having heard his testimony and
observed his deportment and manner of testifying. [39] But, where there is a showing that the trial
court overlooked material and relevant facts, which could affect the outcome of a case, [40] the
Court will not hesitate to set aside the lower courts findings and assessments regarding the
credibility of witnesses.
In giving full faith and credence to the testimonies of the prosecution witnesses, the trial
court explained:

The findings of the court relative to the credibility of the witnesses militate in favor of
the prosecution witnesses (citations omitted). The court took into considerationthe
most important factor(s) (of) each witness, his manner and behavior on the witness
stand and the general characteristics, tone, tenor and inherent probability of his
statement (citations omitted) for in most instancesthe demeanor of a witness on the
witness stand is often a better evidence of his veracity than the answer he gives
(citations omitted) andit is perfectly reasonable to believe the testimony of a witness
with respect to other parts. Everytime when witnesses are found to have deliberately
falsified some material particulars it is not required that the whole of their
uncorroborated testimony be rejected but some portions thereof deemed worthy of
belief may be credited. (emphasis ours). [41]

On record the lower court heavily relied on the testimony of Helen. However, it did not
make any categorical finding as to her credibility or the veracity of her account.
 We find Helens testimony riddled with inconsistencies and improbabilities which could
affect the outcome of this case. Helen testified that upon hearing a different voice downstairs, she
peeped through a two-inch hole in the floor and saw, with the moonlight cascading through the
windows of the old mill, the accused forcibly make her husband, Primo, swallow poison. [42] On
direct examination, she stated, she heard the words Dont move. [43] Under cross-examination, she
said what she heard was Dont move so that the grenade will not be exploded. As the cross-
examination progressed, however, she declared that what she actually heard was Dont move
otherwise your family will be included. She initially admitted that the first words were uttered by
a voice unknown to her. On further grilling by the defense, she claimed she recognized the voice
as appellants. Relentless cross-examination, however, yielded an admission that it was the voice
of accused Villamor she heard first.[44] The identification of an accused through his voice is
acceptable, particularly if the witness knows the accused personally.[45] But the identification must
be categorical and certain. We observed that the witness changed her version a number of
times. A startling or frightful experience creates an indelible impression in the mind such that the
experience can be recalled vividly.[46] Where the witness, however, fails to remain consistent on
important details, such as the identity of the person whose voice she heard, a suspicion is created
that material particulars in her testimony had indeed been altered. If an eyewitness contradicts
himself on a vital question, the element of reasonable doubt is injected and cannot be lightly
disregarded.[47]
Helens testimony contained contradictory statements. In one instance she said she witnessed
the fatal poisoning of her husband by the accused because the mill was lit by moonlight. In
another instance she said the mill was dark and unlit.[48] On further cross-examination she claimed
that she witnessed the events because of the bright moonlight.[49] First, she said the moonlight was
very bright[50] then later she said the moon was not very full. [51] The defense showed that during
that night, five nights before its fullness, the moon was in its first quarter [52] and it was not as
bright as a full moon. Note also that Helens view of the event was limited because she was only
peeping through a small hole. Under these conditions, Helens flip-flopping testimony created
serious doubts regarding its veracity and credibility.Thus her testimony concerning the
destruction of the bamboo slats in one window of the mill invites serious doubt. The mill had two
windows covered with bamboo slats. To enter the mill through the windows, the bamboo slats
must be destroyed. Yet, Helen did not hear the sound of the bamboo slats being destroyed, which
was the only way the intruders could have entered.
Her testimony regarding the murder of her husband, Primo, is less than credible. She said
that while Primo struggled not to imbibe the poison, he did not utter a sound. According to her,
Primo could not utter a sound as his neck was clipped, or headlocked as the trial court puts it.
[53]
There was no showing, however, that the victims mouth was muffled to prevent him from
shouting for help. From her testimony, she could have easily asked for help. It will be recalled
that barangay captain and their neighbors quickly responded to her mother-in-laws shout for help
after seeing Primos corpse.[54] Helens account, that her husband violently struggled against his
murderers yet soundlessly gulped down the poison they made him drink, is unnatural. It evokes
disbelief. Evidence to be believed must not only proceed from the mouth of a credible witness
but it must also be credible by itself, and must conform to the common experience and
observation of mankind.[55]
As a rule, an eyewitness testimony cannot be disregarded on account of the delay in
reporting the event, so long as the delay is justified.[56] In this case, Helen kept silent for almost
two years. She had no affidavit during the preliminary investigation.[57] It was only at the trial that
she came out to say she witnessed her husbands murder. She did not explain why. Her long
silence is out of character and appears inconsistent with her behavior in immediately reporting to
the police and the barangay captain an incident when an unidentified man accosted her on the
whereabouts of Antonio.[58]
Additionally, on direct testimony, she declared that she knew that Antonio was found in a
hole filled with water on the morning of May 13, 1992. [59] Yet, on cross-examination, she
declared that she did not know where his rescuers found Antonio that morning. [60] Such
contradictory statements tend to erode Helens credibility as a prosecution witness and raise
serious doubt concerning the prosecutions evidence.
On the second issue, appellant submits that the trial court erred when it admitted and gave
much weight to the probative value of the ante mortem statement of Antonio.[61] Appellant
contends that the statement can neither be considered as dying declaration under Rule 130, Sec.
37[62] nor part of the res gestae under Rule 130, Section 42[63] of the Rules of Court. It is
inadmissible for being hearsay.Furthermore, he avers it was error for the trial court to give
weight to the first affidavit of Antonio,[64] since Antonio repudiated the same, stating that its
contents were false. According to appellant, Antonio claimed said affidavit was given under
duress.
The Solicitor General, for its part, argues that Antonios actions during and immediately after
the incident were completely inconsistent with those of a person who allegedly wanted to
commit suicide.Hence, his retraction should be looked at with jaundiced eye, following our
ruling in People v. Junio, 237 SCRA 826 (1994), where we held that retractions are generally
unreliable and looked upon with considerable disfavor.
A dying declaration is the statement which refers to the cause and surrounding
circumstances of the declarants death, made under the consciousness of an impending death.[65] It
is admissible in evidence as an exception to the hearsay rule [66] because of necessity and
trustworthiness. Necessity, because the declarants death makes it impossible for him to take the
witness stand[67] and trustworthiness, for when a person is at the point of death, every motive for
falsehood is silenced and the mind is induced by the most powerful consideration to speak the
truth.[68] The requisites for the admissibility of a dying declaration are: (1) the death is imminent
and the declarant is conscious of that fact; (2) the declaration refers to the cause and surrounding
circumstances of such death; (3) the declaration relates to facts which the victim is competent to
testify; (4) the declarant thereafter dies; and (5) the declaration is offered in a criminal case
wherein the declarants death is the subject of inquiry.[69]
In the present case, the foregoing requisites were not met. A dying declaration is essentially
hearsay, because one person is testifying on what another person stated. This is because the
declarant can no longer be presented in court to identify the document or confirm the statement,
but more important, to be confronted with said statement by the accused and be cross-examined
on its contents.[70] It was patently incorrect for the trial court to have allowed prosecution witness
PO3 Leonardo Inoc to testify on Antonios so-called dying declaration because Antonio was alive
and later even testified in court.
But was the purported ante-mortem statement part of the res gestae? Where a victims
statement may not be admissible as an ante mortem declaration, it may nonetheless be
considered as part of the res gestae, if made immediately after a startling occurrence in relation
to the circumstances thereof and when the victim did not have time to contrive a falsehood.
[71]
For res gestae to be allowed as an exception to the hearsay rule, the following requisites must
be satisfied: (1) that the principal act or res gestae be a startling occurrence; (2) the statement is
spontaneous or was made before the declarant had time to contrive or devise, and the statement
is made during the occurrence or immediately prior or subsequent thereto; and (3) the statement
made must concern the occurrence in question and its immediately attending circumstances.[72]
In this case, the element of spontaneity is lacking in the alleged ante-mortem statement.
Antonios statement was taken by PO3 Inoc at around 3:00 oclock P.M., May 14, 1992 or some
thirty-nine (39) hours after the incident. Thirty-nine hours is too long a time to be
considered subsequent immediately (stress supplied) to the startling occurrence. Even as
contemplated by the rules, statements given a day after the incident in answer to questions
propounded by an investigator cannot be considered part of the res gestae.[73] Furthermore, the
testimony of the declarant, that the statement was made under threats and with coaching from
losing candidates Ermac and Viva in order to get even with the winning candidate, Mayor Aana,
is uncontroverted.[74]
Dying declarations and statements which form part of the res gestae are exceptions to the
hearsay rule, thus they must be strictly but reasonably construed and must extend only insofar as
their language fairly warrants.[75] Thus, doubts should be resolved in favor of applying the
hearsay rule, rather than the exceptions. Under said rule, Antonios so-called ante-
mortem statement should not have been admitted in evidence, for it is neither a dying declaration
nor a part of res gestae.
Next we consider whether the trial court could properly rely on Antonios affidavit dated
May 22, 1994 naming the persons responsible for the poisoning incident, notwithstanding his
subsequent repudiation of said affidavit. As a rule, retractions are generally unreliable and are
looked upon with considerable disfavor by the courts[76]because of the probability that recantation
may later on be itself repudiated.[77] Furthermore, retractions can easily be obtained from
witnesses through intimidation or for monetary consideration, [78] and a mere retraction does not
necessarily negate an earlier declaration.[79] When faced with a situation where a witness recants
an earlier statement, courts do not automatically exclude the original testimony. The original
declaration is compared with the new statement, to determine which should be believed.[80]
In this case, the trial court rejected Antonios retraction of his affidavit dated May 22, 1992,
for being contrary to human experience and inherently unworthy of belief. The trial court cited,
by way of illustration, the portion of the affidavit where Antonio claimed that after he and Primo
agreed to commit suicide and drinking a bottle of insecticide, Antonio wrote a farewell letter to
his barangay-mates. We note, however, that Antonios second affidavit should have been rejected
together with the first affidavit. Unless an affiant himself takes the witness stand to affirm the
averments in his affidavit, the affidavit must be excluded from the judicial proceeding for being
inadmissible hearsay.[81] In this case the affiant expressly refused to confirm the contents of his
first affidavit. Instead, he testified that said affidavit, Exhibit E was prepared under grave threats
and severe pressure from Ermac and Viva.[82] His earlier affidavits contents were hearsay, hence
inadmissible in evidence.
Noted further that Exhibit E and its sub-markings were offered, to prove that Antonio
testified in detail before NBI Agent Atty. Amador Robeniol about what happened to him and his
brother Primo in the hands of the five accused. [83] Even if said Exhibit was admissible, all that it
proves is that Antonio testified and executed an affidavit before the NBI. It does not prove the
truthfulness of the allegations made and contained therein.
Coming now to the third issue: has the prosecution succeeded in proving appellants guilt
beyond reasonable doubt?
The records show that the only direct evidence linking appellant to the crimes charged and
for which he was convicted are the direct testimony of eyewitness Helen Hilbero and the
contents of Exhibit E. But as discussed earlier, neither can be given much probative value. As to
the testimonies of the other prosecution witnesses, we find them insufficient to convict appellant
as none of them had any personal knowledge of facts that would directly link appellant to the
offenses charged. Even if these witnesses testified in a straightforward and categorical manner,
their testimonies contained insufficient evidence to establish appellants guilt beyond reasonable
doubt.
Appellants defense of denial in the present case is inherently weak. [84] Denial, if
unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence
undeserving of any weight in law.[85] But such weakness does not excuse the prosecution from
presenting the adequate quantum of proof of the crime charged. The guilt of the accused must be
proved beyond reasonable doubt. And the prosecutions evidence must stand or fall on its own
weight. It cannot rely on the weakness of the defense. In the instant case, the prosecution failed
to prove the guilt of appellant with moral certainty. The testimony of its single purported
eyewitness, while positive, was less than credible. It did not meet the test such testimony of a
lone witness to sustain a judgment of conviction, must be both positive and credible.[86] In our
view, the burden of proof required for conviction of appellant has not been adequately discharged
by the prosecution.
WHEREFORE, the decision of the Regional Trial Court of Tagbilaran City, Branch 1, in
Criminal Cases Nos. 7887 and 7888, finding appellant Arturo Enad guilty of murder and
frustrated murder is hereby REVERSED and SET ASIDE for insufficiency of the evidence to
convict him beyond reasonable doubt. Appellant is ACQUITTED and ordered RELEASED from
confinement immediately unless he is held for another lawful cause.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

G.R. No. 142654 November 16, 2001

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ROLANDO MENDOZA y CARPIO, appellant.

PANGANIBAN, J.:

The reasons for the admissibility of a dying declaration as an exception to the hearsay rule are (a)
necessity and (b) trustworthiness. Necessity, because death renders a declarant's taking the witness
stand impossible, and it often happens that there is no other equally satisfactory proof of the crime.
Hence, the declaration is allowed to prevent a failure of justice. And trustworthiness, for in the
language of Lord Baron Eyre, the declaration is made in extremity, when the party is at the point of
death and every hope of this world is gone, when every motive for falsehood is silenced and the
mind induced by the most powerful considerations to speak the truth. A situation so solemn and
awful is considered by the law as creating an obligation equal to that which is imposed by an oath
administered in court.1 The idea, more succinctly expressed, is that "truth sits on the lips of dying
men."2

The Case

Before us is an appeal from the March 15, 2000 Decision 3 of the Regional Trial Court (RTC) of
Caloocan City (Branch 127) in Criminal Case No. C-55995 (99), convicting Rolando Mendoza of
murder and sentencing him to reclusion perpetua.

The decretal portion of the RTC Decision reads as follows:

"WHEREFORE premises considered and the prosecution having established to a moral

certainty the guilt of Accused ROLANDO MENDOZA of the crime of murder as defined and
penalized under Art. 248 of the Revised Penal Code as amended by RA 7659, this Court
hereby sentences the said accused to suffer the penalty of reclusion perpetua; to indemnify
the legal heirs of the deceased the civil indemnity of P50,000.00; to compensate MELY
CRUZ [for] the stipulated actual damages of P65,000.00; to pay Mrs. BEATRIZ VALDOZ
moral damages of P40,000.00 and to pay the costs, without any subsidiary imprisonment in
case of insolvency.

"The preventive imprisonment suffered by the accused shall be credited in full in the service
of his sentence in accordance with Art. 29 of the Revised Penal Code."4

The Information,5 dated January 27, 1999, charged appellant, together with his co-accused
Reynaldo Balverde, as follows:

"That on or about the 11th day of October, 1998 in Caloocan City, Metro Manila and within
the jurisdiction of this Honorable Court, the above-named accused, without any justi[fi]able
cause, conspiring together and mutually aiding one another, with deliberate intent to kill and
with treachery and evident prem[e]ditation, did then and there wil[l]fully, unlawfully and
feloniously attack, assault and stab with bladed weapons on the different parts of his body
one PRUDENCIO VALDOZ Y SANTOS, thereby inflicting upon the latter serious physical
injuries which injuries caused the victim's death at East Avenue Medical Center after several
days of confinement."6

On March 15, 1999, the trial court issued warrants of arrest7 against the two accused. Herein
appellant was arrested on October 19, 19998 but his co-accused, Balverde, has remained at large.
When arraigned on November 3, 1999, appellant pleaded 9 not guilty after the Information had been
read and interpreted to him in a language that he fully understood. 10 After pretrial, trial on the merits
ensued against him alone. Thereafter, the lower court promulgated its assailed Decision. The Public
Attorney's Office, counsel for appellant, filed the Notice of Appeal on March 27, 2000. 11

The Facts
Version of the Prosecution

In its Brief,12 the Office of the Solicitor General presents the prosecution's version of the facts as
follows:
"About 8:00 in the evening of October 11, 1998, Eduardo Mariquit was walking on his way
home from his sister's house. While traversing Sta. Rita Street, San Vicente Ferrer, Tala,
Caloocan City, he saw Prudencio Valdoz repeatedly stabbed by appellant Rolando Mendoza
alias 'Patsy' and Reynaldo Balverde, Jr. alias 'Jingjing.' Using a kitchen knife, appellant
stabbed Prudencio Valdoz on the stomach. Likewise, Reynaldo Balverde stabbed Prudencio
twice with a butcher's knife, hitting the latter below the left armpit. Wounded, Prudencio
Valdoz staggered and collapsed. Reynaldo Balverde alias 'Jingjing' approached Eduardo
Mariquit and warned him saying 'wala kang nakita, wala kang narinig.' Thereafter, appellant
and Reynaldo Balverde fled. Eduardo Mariquit went to help Reynaldo Valdoz. He assisted
him in going to his house which was about twelve (12) meters away. Eduardo Mariquit
thereafter went to see the victim's brother, Manuel Valdoz, and informed him that Prudencio
was stabbed by appellant Rolando Mendoza alias 'Patsy' and Reynaldo Balverde alias
'Jingjing.'

"Meanwhile, Estrellita Carmelo was watching TV inside her house at 587 Barangay Sta. Rita,
Tala, Caloocan City, when she noticed a commotion taking place outside. She heard people
shouting that somebody was stabbed. Estrellita Carmelo went out and saw Prudencio, her
neighbor and co-worker, lying still and wounded. Estrellita Carmelo, accompanied by her
neighbors, brought Prudencio to the Tala Hospital in a tricycle. Because the Tala Hospital
lacked the necessary equipment to treat the victim, he was transferred to East Avenue
Medical Center in Quezon City. Inside the operating room, Prudencio Valdoz beckoned to
Estrellita Carmelo to come near him. When Estrellita moved closer and placed her ear near
Prudencio's mouth, Prudencio, who was in great pain, told Estrellita . . ., 'Ate, baka mamatay
ako sasabihin ko sa iyo kung sino an[g] sumaksak sa akin, tandaan mo lang huwag mong
kalimutan.' Prudencio told Estrellita that Rolando Mendoza alias 'Patsy' and Reynaldo
Balverde alias 'Jingjing' stabbed him. Estrellita Carmelo stayed with the victim at the hospital
till the next day.

"The following day, Manuel Valdoz called the police. PO3 Alex Barroga of the Caloocan City
Police Station 6 arrived in the morning at the East Avenue Medical Center. He interviewed
the victim and took his statements. In the presence of his relatives and Estrellita Carmelo,
the victim, who was gasping for breath, gave his ante mortem statement. He pointed to
appellant Rolando Mendoza alias 'Patsy' and Reynaldo Balverde alias 'Jingjing' as the
persons who stabbed him. The victim affixed his signature on the ante mortem statement,
with Manuel Valdoz and Merle Valdoz as witnesses.

"On October [1]9, 1998, the victim died.

"Police Superintendent Ma. Cristina B. Freyra, Medico-Legal Officer, PNP Crime Laboratory
Services, Camp Crame, Quezon City conducted an autopsy on the cadaver of the victim. In
a Medico-Legal Report No. M-1595-98, dated October 3, 1998, Dr. Freyra stated the
following findings and conclusion:

'FINDINGS:

POSTMORTEM FINDINGS:

Fairly nourished, fairly developed, male cadaver in rigor mortis with postmortem
lividity at the dependent portions of the body. The conjunctiva lips and nailbeds are
pale. There is a surgical incision along the anterior midline of the abdomen,
measuring 35 cm long with 34 stitches applied, including 6 tension sutures. Needle
puncture marks noted at the distal 3rd of both firearms.
 TRUNK:

1) Stab wound, epigastric region measuring 2.6 cm long with 4 stitches applied, 13
cm left of the anterior midline, 120 cm from the heel, 6 cm deep, directed
posteriorwards, upwards and medialwards, piercing the left dome of the diaphragm
which was surgically repaired.

2) Stab wound, periumbilical region, measuring 1 cm long, just left of the anterior
midline, 105 cm from the heel, 9 cm deep, directed posteriorwards, upwards and
medialwards, piercing the head of the pancreas and the loops and mesentery of the
small intestine.

3) Stab wound, left anterior lumbar region, measuring 1.5 cm long with 2 stitches
applied, 19 cm from the anterior midline, 96 cm from the heel, 9 cm deep, directed
posteriorwards, upwards and medialwards, piercing the loops and mesentery of the
small intestine.

There is thick greenish yellow exudate in the abdominal cavity.

Stomach is empty.

The rest of the visceral organs are grossly unremarkable.

CONCLUSION:

Cause of death is septic shock secondary to multiple wou[n]ds, trunk S/P Exploratory
laparotomy.'

"Dr. Freyra declared that a typographical error was committed by the typist who inadvertently
omitted to state Stab Wound No. 3 in the Medico-Legal Report. Dr. Freyra thus indicated in
her own handwriting, Stab Wound No. 3 as follows:

'STAB WOUND NO. 3 ANTERIOR LUMBAR REGION, MEASURING 2 CM LONG

WITH 1 STITCH APPLIED 14 CM FROM MIDLINE ANTERIOR, 107 CM FROM THE
HEEL, 5 CM DEEP, DIRECTED POSTERIOR, UPWARD, AND MEDIALWARD,
PIERCING THE LOOP AND MESENTERY OF SMALL INTESTINE.'

"Dr. Freyra further declared that the four (4) stab wounds sustained by the victim were all
fatal."13(Citations omitted)

Version of the Defense

Appellant denies participation in the killing of Prudencio Valdoz.14 He adds that the trial court gave
too much weight and credence to the allegedly uncredible testimony of prosecution's principal
witness. Appellant reproduced the trial court's narration of the facts, as follows: 15

"Evidence for the Defense

"As summarized by the trial court, the evidence for the defense, on the other hand, is quoted
hereunder:
 "At past 8:00 p.m. of 11 October 1998, he (Accused MENDOZA) with co-accused
REYNALDO BALVERDE, JR., @ JING-JING (accused BALVERDE for short) was
walking home toward Dr. Puno Street, Barrio Sta. Rita North, Tala, this City coming
from Sta. Rita South. Upon reaching the closed store of the BALVERDE, they saw
Victim standing thereat with both hands tucked in his pockets. Thereupon Accused
BALVERDE asked Victim how come he was still there at that time and the latter, who
was apparently drunk, retorted: 'BAKIT, ANONG PAKIALAM MO.' Thence Accused
BALVERDE instructed Victim to go home but instead of acceding thereto Victim
cursed him. At this juncture Accused MENDOZA intervened and after pacifying [the]
victim, prevailed upon him to go home. As the latter was walking toward his house,
Accused BALVERDE asked if they would still watch VHS tape but he failed to receive
any answer, hence, Accused MENDOZA decided to go home. After negotiating a
distance of about ten (10) meters accused MENDOZA looked back and saw Accused
BALVERDE hurriedly walking uphill toward the direction of Victim, prompting accused
Mendoza to follow him. While about 8 to 9 meters away from Accused BALVERDE,
Accused MENDOZA called his name and in the process Victim whose attention was
also alerted thereby, turned around and the next thing Accused MENDOZA saw was
Accused BALVERDE and the victim engaging themselves in a fist-fight. Upon
approaching the duo, Accused MENDOZA held with his left hand the right hand of
Accused BALVERDE which was in Victim's waist and at the same time holding with
his right hand Victim's arm, and then he pushed the protagonists, telling them: 'ANO
BA KAYO PARANG HINDI TAYO MAGKAKILALA.' Considering that the source of
illumination at the scene was an electric post which was quite far, accused
MENDOZA was unable to see clearly what actually transpired between the duo,
except that he noticed when Victim raised his left arm and simultaneously uttering:
'Hah' before walking ahead and at about a distance of 4 to 5 meters away he fell to
the ground on his bended knees. Thinking that this was only brought about by
victim's state of drunkenness, accused MENDOZA approached the Victim to take him
home. At that instance, accused MENDOZA's brother-in-law JOSELITO GUTIERREZ
(JOSELITO for short) and a certain teenager arrived and helped him (Accused
MENDOZA) in lifting the Victim who when exposed to the light, they saw his T-shirt to
be soaking with blood. At that instance, accused MENDOZA spotted accused
BALVERDE running away uphill, thus, he tried to follow the latter to hold him
answerable to whatever he did to victim. However, he lost track of accused
BALVERDE when the latter entered an alley, hence, accused MENDOZA returned to
where he came from and seeing victim already on board a tricycle with some
companions including JOSELITO who was in another tricycle he decided to go
home; that he never went to the police to identify the real assailant of victim; that he
worked as a painter in Antipolo but used to go home every weekend and it was on 19
October 1999 when the police arrested him in connection with this case. Accused
MENDOZA further stated that prosecution witness EDUARDO MARIQUIT must have
entertained a grudge against him for reason that three weeks prior to the incident he
drove him away without giving him anything to eat since their food at the table were
just enough for the family especially his children and that before this, MARIQUIT
used to drop-by their house on Sundays to beg for some food." 16

Ruling of the Trial Court

In finding appellant guilty of murder, the court a quo gave full faith and credence to the testimony of
the prosecution's principal witness, Eduardo Mariquit, who had positively identified appellant as the
perpetrator of the crime. It likewise accepted the antemortem statement of the victim regarding his
death and deemed such statement to have been made under the consciousness of impending
death. These circumstances were held to prevail over appellant's defense of denial. Finally, the
lower court also ruled that the killing was attended by treachery.

Hence, this appeal.17

The Issues

In his appeal before us, appellant assigns the following alleged errors for our consideration:

"I

The trial court erred in giving too much weight and credence to the incredible testimony of
the prosecution's principal witness anent the subject incident and in totally disregarding the
testimony of the accused-appellant to the effect that it was his co-accused who stabbed the
victim.

"II

The trial court erred in giving probative value to the alleged ante-mortem statement of the
victim.

"III

The trial court erred in convicting the accused-appellant of the crime charged despite want of
moral certainty.

"IV

On the assumption however that the accused-appellant is guilty, the trial court erred in
convicting him of murder since the qualifying circumstance of treachery was not present
relative to the incident in question."18

For a more systematic presentation, we shall reclassify the above alleged errors into three: (1)
credibility of the witnesses, (2) evaluation of the antemortem statement, and (3) presence of
treachery.

The Court's Ruling

The appeal is partly meritorious.

First Issue:
Credibility of the Witnesses

As in most criminal cases, the crux of the controversy lies in the valuation of the credibility of the
prosecution witnesses vis--vis the denial presented by the defense.

Appellant rejects the testimony of Mariquit and submits that "contrary to the . . . finding of the trial
court, [his] testimony . . . anent the subject incident leaves much to be desired." 19 Appellant alleges
that said testimony was "replete with material inconsistencies, if not contradictions on equally
substantial points."20
We disagree. Categorical, candid and convincing was Mariquit's testimony, which positively pointed
to appellant and his co-accused, Balverde, as the culprits. As in most criminal cases, the linchpin in
the resolution of the instant case is the credibility of the witnesses.

Time and time again, this Court has declared that the findings of the trial court on this matter should
not be disturbed on appeal, unless the latter has overlooked some facts or circumstances of
substance and value which, if considered, might well affect the result of the case. This doctrine is
premised on the undisputed fact that, since the trial court has the best opportunity to observe the
demeanor of witnesses while on the stand, it can discern whether or not they are telling the
truth.21 The unbending jurisprudence is that its findings on the matter of credibility of witnesses are
entitled to the highest degree of respect and will not be disturbed on appeal. 22Appellant herein has
not given the Court sufficient reason to deviate from this doctrine.

He contends that the court a quo erred in giving credence to Mariquit's testimony, which supposedly
suffered from inconsistencies and contradictions on material points. He also points out several
contradictions between the sworn statement and the court testimony of the said witness on what
transpired before, during and after the stabbing of Valdoz.

First, while Mariquit testified that he had witnessed the stabbing incident, he also stated during the
cross-examination that it was only when he was on his way home that he met the victim holding the
latter's bloodied stomach. According to appellant, this inconsistency becomes more apparent in the
sworn statement of this witness. Second, the latter intimated therein that the other accused,
Balverde, was holding a butcher's knife while choking and trying to stab the former. The same
witness testified in open court, however, that Balverde had merely approached and told him, "Wala
kang nakita, wala kang narinig."23

Third, the witness was allegedly inconsistent on the events that transpired after the stabbing
incident. While he testified earlier that he had gone home thereafter, he told the court later on that he
had actually helped and even brought the victim to the latter's house. Fourth, appellant assails the
witness' testimony on the number of stab wounds sustained by the victim, because this figure was
belied by the medical findings. Fifth, appellant argues that while Mariquit insisted that he witnessed
the incident, such assertion was contradicted by the latter's testimony during trial. The said witness
admitted therein that he met appellant only after the former had relayed the occurrence to the
victim's brother.

Refutation of Alleged Discrepancies

We begin by stating that Mariquit testified in a categorical, straightforward, consistent and

spontaneous manner on how appellant and Balverde had stabbed and killed Valdoz, as follows:

"PROS. SISON WITNESS:

Q Will you please tell the Honorable Court where were you on October 11, 1998 at
about 8:00 in the evening?

A I was on my way home, sir.

Q From where did you come from at that time?

A In the house of my sister, sir.

COURT: (butts in)/WITNESS:

Q Wait, where is the house of your sister located?

A Same place, Your Honor.

Q What same place?

A Sta. Rita, San Vicente Ferrer, Tala, Caloocan City, Your Honor.

PROS. SISON/TO WITNESS:

Q While walking to your residence, what happened if there was any?

A I saw Jingjing and Patsy on my way home, sir.

Q When you saw them what happened?

A When I saw them they were stabbing Boy Valdoz, sir.

Q And what happened next?

A Jingjing approached me and told me 'WALA KANG NAKITA, WALA KANG

NARINIG.'"24

xxx xxx xxx

"Q If you can see this Patsy again will you be able to identify him?

A Yes, sir.

Q Will you look around the courtroom and point at him if he is here right now?

A (Witness pointing to accused Rolando Mendoza.)

Q Of course, if you can see Jingjing again you will be able to identify him also just like
accused Rolando Mendoza?

A Yes, sir.

Q Now, you said that it was accused Rolando Mendoza and a certain Jingjing who
stabbed Prudencio Valdoz?

A Yes, sir.

Q How did you know that Rolando Mendoza and Jingjing were the ones who stabbed
Boy Valdoz?

A 'Nakita ko po.'"25
xxx xxx xxx

"Q You said a while ago that Prudencio Valdoz was stabbed by Jingjing and Patsy, was
Prudencio Valdoz hit?

A Yes, sir.

Q Why did you say that he was hit by those stab thrust[s]?

A 'Nakita ko po.'

Q Why, what happened to him after the stabbing?

A He was able to take a few steps before he fell, sir.

Q Now, will you tell us what kind of bladed weapon that was used in stabbing Prudencio
Valdoz?

A 'Kutsilyo and a butcher's knife, sir.'

Q Who was then holding that butcher's knife?

A Jingjing, sir.

Q Describe that butcher's knife which you said held by Jingjing?

A About a foot long, sir.

COURT:(butts in)/WITNESS:

Q Including the handle?

A More than a foot long including the handle and about and inch thick, Your Honor.

PROS. SISON:/WITNESS:

Q How about that kutsilyo held by Patsy?

A Six (6) to seven (7) inches including the handle, sir.

COURT:(butts in)/WITNESS:

Q How about the blade, how thick?

A About an inch thick, Your Honor."26

xxx xxx xxx

 "Q You said, you actually saw the stabbing, you tell this Court how it was done. Let us go
first to Jingjing, how did he stab the victim?

A (The witness demonstrated how Jingjing stabbed the victim by his right hand.)

Q How many thrust[s]?

A Isa lang po ang nakita ko.

Q Fronting to each other?

A Yes, Your Honor.

Q How about Patsy how did he stab the victim?

A 'Patagilid po.' Hitting the victim below the left armpit, Your Honor.

Q How many thrust[s] did Patsy deliver?

A Two (2) Your Honor.

Q And [did] those thrust[s] hit the victim?

A Yes, Your Honor.

Q What part of the body?

A (The witness pointing at the side of the body, below the left armpit.)

Q Are you sure?

A 'Sigurado po.'"27

The trial court even noted that "despite the efforts, albeit futile, exerted by the defense counsel to get
from the mouth of Mariquit what he wanted the latter to say, the fact remains that said witness was
steadfast and consistent in his answer [that he had] seen the actual stabbing of the victim by [the]
accused [and] the court is inclined to believe [it,] being replete with details which only a person who
truly witnessed the event could relate."28

Regarding the fact that Mariquit testified that he met the victim only after the incident, this does not in
any way negate the former's testimony on having actually witnessed the stabbing. This much can be
gleaned from his testimony in court:

"Q Why did you say in your Sinumpaang Salaysay which was shown to you by the
Defense Counsel in paragraph 2, you said 'nasalubong ko si Prudencio Valdoz na duguan
sapo ang kanyang tiyan,' why did you say that?

A 'Nakita ko po at, tinulungan ko siya.'

PROS. SISON:
 There is no inconsistency because the stabbing comes first than the meeting of the
victim.

COURT:

It[']s very clear in the Sworn statement that he was walking then he met Prudencio
bloodied holding his stomach.

COURT:/WITNESS:

Q Which is true now?

A 'Nakita ko po ang pangyayari.'

Q Why did you not tell that in your Sworn Statement?

A 'Hindi ko po alam ang gumawa niyan, yung Pulis ang gumawa niyan.'

Q But you said, it was read to you by the Police?

A Yes, Your Honor.

Q Why did you not invite the attention of the Police?

A 'Wala na po.'

Q What do you mean by wala na po?

A 'Wala na po akong magagawa kasi napirmahan na.'"29

The stabbing incident indeed came before Mariquit could meet the victim. The witness never testified
that he had arrived only after the stabbing incident and met the victim afterwards. His categorical
and positive statement was that he witnessed the stabbing and met the victim afterwards. In fact,
even during his cross-examination, he reiterated the fact that he had witnessed the stabbing and
seen the victim and the assailants including appellant.

As to the events that transpired after the incident, appellant suggests that Mariquit gave inconsistent
statements on whether the latter had just gone home afterwards or indeed helped the victim reach
home. We see no material inconsistency in the statements of the said mess either in his affidavit or
in his testimony in court.

Appellant attempts to muddle the events by alleging that the statements of Mariquit contained
inconsistencies. Those inconsistencies, however, appear to touch merely on the order of the events
as they transpired. These are of minor import and do not shatter altogether the credibility or the
testimony of this witness. The fact that he met appellant and his co-accused after the stabbing did
not mean that he could not have witnessed the stabbing. One event necessarily comes after the
next.

Granting there were inconsistencies, these do not detract from the fact that appellant was positively
identified by Mariquit as one of the assailants. This conclusion is supported by both the affidavit of
the latter and his testimony in court. The same is true of his statement as to what Balverde did or
said to him after the incident. Judging from his consistent assertions, Mariquit was clearly threatened
by Balverde.

Finally, as to the alleged error in the statement of Mariquit on the number of stab wounds inflicted on
the victim, it would be unfair to expect the former to ascertain an exact figure in a startling event like
a killing. A fair estimate is enough. The important thing is that the stabbing took place, the victim
died, and the witness identified the culprits.30

Recall of All Details Not Required

Considering the lapse of time and the treachery of human memory, truth-telling witnesses are not
always expected to give error-free testimonies.31 They are not expected to remember every single
detail of an incident with perfect or total recall.32 This Court has stated time and time again that minor
inconsistencies in the narration of witnesses do not detract from their essential credibility as long as
their testimonies are coherent and intrinsically believable on the whole. 33 Inaccuracies may in fact
suggest that they are truthful and unrehearsed.

Likewise, the alleged conflict between the sworn statement and the testimony of Mariquit does not
vitiate his credibility as a witness. It has been held that affiants are not necessarily discredited by
discrepancies between their testimonies on the witness stand and their ex parte statements, which
are generally incomplete.34 Basic is the rule that affidavits-taken ex parte are judicially considered to
be incomplete and often inaccurate, sometimes from partial suggestions and sometimes from want
of suggestions and inquiries, without the aid of which witnesses may be unable to recall the
connected circumstances necessary for their accurate recollection.35Affidavits are generally
subordinated in importance to open court declarations, because the former are often executed when
affiants' mental faculties are not in such state as to afford them a fair opportunity to narrate in full
incidents that have transpired.36 Moreover, testimonial evidence carries more weight than an
affidavit.37

The responsibility of appellant for Valdoz's death was indubitably established by both the sworn
statement and the testimony of the said witness.

Appellant vigorously denies any participation in the death of Valdoz, maintaining that it was Balverde
who actually stabbed and killed the victim. In the light of the positive identification of appellant as the
perpetrator of the crime, this denial cannot be sustained. 38 Naturally, he would pass the blame to his
co-accused in the belief that the latter, who has not yet been apprehended, will be in no position to
contradict the former's assertions. Appellant ascribes ill motive to Mariquit. The latter allegedly
testified the way he did, because the former had driven him away without giving him anything to eat.
We agree with the trial court in assessing such argument as flimsy, when it ruled as follows:

"Anent the ill-motive, supra, ascribed by the Accused against MARIQUIT for testifying the
way he did against him in that 3 weeks prior to the incident, Accused has had the occasion to
drive away MARIQUIT without giving him anything to eat for reason that the food they had on
the table were just enough for his children and that MARIQUIT was admittedly the
beneficiary of the dole outs in kind and/or cash from Victim's brother MANUEL VALDOZ, this
was given scant consideration by this Court, finding the same to be flimsy may not good
enough reason for anyone to implicate to a commission of a heinous crime, an otherwise
innocent acquaintance. Furthermore, this Court had observed closely the conduct and
deportment of MARIQUIT on the witness stand and definitely it is not to be lightly supposed
that he would be capable of callously violating his conscience by blaming the murder of
Victim upon the Accused who he believed to be innocent thereof. Indeed there are
 authorities to the rule that the courts have always been cautious in dealing with the allegation
of ill-will on the part of witnesses because of the facility by which accused can concoct the
same."39

Second Issue:
Evaluation of the Antemortem Statement

Equally important is the fact that the evidence of the prosecution is corroborated not only by
Mariquit's positive identification of appellant, but also by the victim's antemortem statement given
both to the police and to Estrellita Carmelo, a co-worker. Such declaration identified appellant and
Balverde as the assailants.

Antemortem statements are governed by Section 37 of Rule 130 of the Rules of Court, which is
reproduced as follows:

"Sec. 37. Dying Declaration The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his death is the
subject of inquiry, as evidence of the cause and surrounding circumstances of such death."

A dying declaration, also known as an antemortem statement or a statement in articulo mortis, is

admissible under the following requisites: (1) death is imminent and the declarant is conscious of
that fact, (2) the declaration refers to the cause and the surrounding circumstances of such death,
(3) the declaration relates to a fact which the victim is competent to testify to, and (4) the declaration
is offered in a case wherein the declarant's death is the subject of the inquiry.40

Disputed in this case is the first requisite. The issue of whether a declaration was made under the
consciousness of an impending death is a matter of evidence. 41 It must be shown that such
declaration was made under a realization that one's demise or at least its imminence, not so much
its rapid occurrence, was at hand.42 This may be proven by the statement of the victim or inferred
from the nature and extent of the victim's wounds or other relevant circumstances. 43

Appellant specifically impugns the antemortem statement made by the victim before PO3 Alex
Barroga on October 12, 1998, alleging that it was not made under a consciousness of impending
death. That Valdoz was still strong, as testified to by his brother, is what appellant tries to impress
upon this Court, so as to negate consciousness of imminent death.

We are not persuaded by appellant's arguments. First, the testimony of the brother of Valdoz
regarding the latter's state of health relates to the days after the antemortem statement was made.
As clearly testified to by the brother of the victim, the former's conversation with the latter had
occurred between October 16 and 18, 1998; and the antemortem statement, on October 12, 1998.
The brother testified that, at the time, the victim seemed strong enough to even move and sway his
body to demonstrate how he had been stabbed. This fact, however, did not necessarily show that
when the antemortem statement was taken four days earlier, the victim was not under a
consciousness of death. The brother's testimony did not in any way negate the victim's
consciousness of impending death at the time the dying declaration was made.

Statement Reflects Consciousness of Death

Second and more important, the antemortem statement itself reflects Valdoz's consciousness of
impending death in this wise:
 "03. TANONG Sa palagay mo, ikamamatay mo ang tinamong sugat sa pagsaksak sa
iyo?

S Opo."44

Furthermore, judging from the nature and the extent of his wounds, there can be no other conclusion
than that the victim must have realized the seriousness of his condition.

Ma Cristina Freyra, the medico legal officer who had conducted the autopsy examination on the
victim, testified as to the degree and seriousness of the stab wounds suffered by the latter, as
follows:

"xxx xxx xxx

Q: [Y]ou mentioned madam witness that sta[b] wound No. 3 was not indicated here in
this Report No. M-1595-98, will you please tell the honorable court the nature of that stab
wound?

WITNESS:

A: [I]t was indicated on the left side of the abdomen and also fatal wound sir.

Q: [W]hy did you say it was also fatal wound?

A: [I]n fact all the wounds are fatal because they penetrated the left dome of the
diaphragm and the small intestines sir."45

Clearly, not only did the victim express in words his consciousness of his inevitable demise; the very
nature of his wounds indubitably generated a consciousness that death was near.

Finally, the fact that the victim did not expire right after his declaration, but survived seven days
thereafter, will not alter the probative force of his dying declaration. The occurrence of a declarant's
death immediately thereafter is not indispensable.46 The rule on dying declarations does not require
that the person "should be at the time in the throes of death, or that he should die immediately, or
within any specified time thereafter, in order to give the declaration probative force. Where a person
has been fatally wounded, is in sore distress therefrom, and believes that he will not recover and is
soon to die, his statement made in this belief relating to the cause of his injury is admissible, if it
appears that he subsequently died from the direct effects of the wound, although he may have
revived after making the statements or may have lived a considerable time thereafter, and may have
again begun to hope for recovery."47

It must also be noted that the victim made another antemortem statement to his co-worker, Estrellita
Carmelo. This oral statement passes the requisites of a dying declaration as discussed earlier. That
it was made under a consciousness of imminent death is without question, as shown by the witness'
testimony which we quote:

"xxx xxx xxx

Q: Upon arrival at the [e]ast [a]venue [m]edical [c]enter[,] what happened there?
 A: When I was inside the hospital Prudencio Valdoz was signaling me to come near him
sir.

Q: Where was he at the time the victim was signalling you to come near him?

A: Inside the operating room sir.

Q: Did you approach Prudencio Valdoz?

A: Yes sir.

Q: When you were already near him, what transpired?

A: I placed my ear directly in to his mouth and he said something although he was
suffering from pain.

Q: Did you ask any question to him?

A: Yes sir.

Q: What was that question?

A: Who stabbed him sir.

Q: And what was [the] answer?

A: Sir Rolando Mendoza and Reynaldo Balverde. Rolando Mendoza alias Patsy and
Reynaldo Balverde alias Jing-Jing.

Q: Now what else did the victim Prudencio Valdoz tell you?

A: Prudencio Valdoz told me, ate, baka mamatay ako sasabihin ko sa iyo kung sino ang
sumaksak sa akin, tandaan mo lang huwag mong kalimutan." 48

Third Issue:
Presence of Treachery

Be that as it may, we do not agree with the finding of the trial court that treachery attended the killing.
To prove treachery, the following must be shown (1) the employment of such means of execution as
would give the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate
and conscious adoption of the means of execution. 49 It is also the running case law that where
treachery is alleged, the manner of attack must be proven. Without any particulars as to the manner
in which the aggression commenced or how the act that resulted in the victim's death unfolded,
treachery cannot be appreciated.50 It is not sufficient that the victim was unarmed and that the means
employed by the malefactor brought the desired result. The prosecution must prove that appellant
deliberately and consciously adopted such means, method or manner of attack as would deprive the
victim of an opportunity for self-defense or retaliation. 51
In the case at bar, although the prosecution's principal witness testified that he actually witnessed
the stabbing, there was no statement to describe the circumstances surrounding the incident.
Neither did the prosecution show how the attack was commenced.

We have ruled in a litany of cases that treachery cannot be presumed; it must be proved by clear
and convincing evidence or as conclusively as the killing itself.52 The same degree of proof to dispel
any reasonable doubt is required before treachery may be considered as an aggravating or a
qualifying circumstance.53 Hence, where the circumstances surrounding either the manner of the
attack or how the aggression was commenced has not been proven, as in this case, the appellant
should be given the benefit of the doubt, and the crime should be considered only as homicide
defined and penalized under Article 249 of the Revised Penal Code.

This provision prescribes the penalty of reclusion temporal for homicide. There being no mitigating or
aggravating circumstance that can properly be appreciated, the penalty shall be imposed in its
medium period.

As regards appellant's pecuniary liabilities, we affirm the award of P50,000 as civil indemnity ex
delicto, consistent with current jurisprudence.54 This award needs no proof other than the
commission of the crime. Further, proven moral damages amounting to P40,000 are reasonable,
considering the grief suffered by the victim's mother, a 75-year-old widow, at the sudden loss of her
son who was her sole companion at home and the one supporting her. Moral damages which
include mental anguish, serious anxiety and wounded feelings may be recovered in criminal
offenses resulting in the victim's death.55 Likewise, we affirm the award of P65,000 stipulated56 actual
damages.

WHEREFORE, the appeal is PARTLY GRANTED. Appellant Rolando Mendoza is found guilty
beyond reasonable doubt of HOMICIDE and is sentenced to an indeterminate penalty of nine (9)
years of prision mayor as minimum to fifteen (15) years of reclusion temporal as maximum. He is
likewise ordered to pay the legal heirs of Prudencio Valdoz P50,000 as indemnity ex delicto; Mely
Cruz, P65,000 as actual damages; and Mrs. Beatriz Valdoz, moral damages in the amount of
P40,000. No pronouncement as to costs.

SO ORDERED.

Melo, Vitug, Sandoval-Gutierrez and Carpio, JJ ., concur.

PEOPLE OF THE PHILIPPINES, G.R. No. 158362

Plaintiff-Appellee,
Present:

CARPIO MORALES, Chairperson,

- versus - BRION,
BERSAMIN,
VILLARAMA, JR., and
GILBERTO VILLARICO, SR. @ SERENO, JJ.
BERTING, GILBERTO Promulgated:
VILLARICO, JR., JERRY
RAMENTOS, and RICKY April 4, 2011
 VILLARICO,
Accused-Appellants.
x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J:

The identification of the accused as the person responsible for the imputed crime is
the primary duty of the State in every criminal prosecution. Such identification, to
be positive, need not always be by direct evidence from an eyewitness, for reliable
circumstantial evidence can equally confirm it as to overcome the constitutionally
presumed innocence of the accused.

On appeal by the accused is the decision of the Court of Appeals (CA)

promulgated on June 6, 2003,[1] finding Gilberto Villarico, Sr., Gilberto Villarico,
Jr., Jerry Ramentos,[2] and Ricky Villarico guilty of murder for the killing of Haide
Cagatan, and imposing the penalty of reclusion perpetua on each of them, thereby
modifying the decision of the Regional Trial Court (RTC), Branch 16, in Tangub
City that had pronounced them guilty of homicide aggravated by dwelling.[3]

With treachery having attended the killing, we affirm the CA but correct the
civil liability to accord with pertinent law and jurisprudence.

Antecedents

On October 7, 1999, an information for murder was filed in the Regional

Trial Court in Misamis Occidental (RTC) against all the accused, [4] the accusatory
portion of which reads:

That on or about August 8, 1999, at about 7:50 oclock in the morning at

Barangay Bolinsong, Municipality of Bonifacio, Province of Misamis Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with intent
to kill, armed with a short firearms (sic), did then and there willfully, unlawfully,
feloniously suddenly and treacherously shoot HAIDE CAGATAN at the back
penetrating through the neck which cause(d) the instant death of said victim and
that he had no chance to avoid or defend himself from the attack.

CONTRARY TO LAW.
 All the accused pleaded not guilty at their December 15, 1999 arraignment.

Version of the Prosecution

At around 7:50 p.m. on August 8, 1999, Haide was busy preparing dinner in
the kitchen of his familys residence in Bolinsong, Bonifacio, Misamis Occidental.
The kitchen, located at the rear of the residence, had a wall whose upper portion
was made of three-feet high bamboo slats (sa-sa) and whose lower portion was
also made of bamboo slats arranged like a chessboard with four-inch gaps in
between. At that time, Haides sister-in-law Remedios Cagatan was attending to her
child who was answering the call of nature near the toilet. From where she was,
Remedios saw all the accused as they stood at the rear of the kitchen aiming their
firearms at the door Ricky Villarico was at the left side, and Gilberto, Jr. stood
behind him, while Gilberto, Sr. was at the right side, with Ramentos behind him.
When Gilberto, Jr. noticed Remedios, he pointed his gun at her, prompting
Remedios to drop to the ground and to shout to Lolita Cagatan, her mother-in-law
and Haides mother: Nay, Nay tawo Nay (Mother, mother, there are people outside,
mother). At that instant, Remedios heard three gunshots.[5]

Francisco Cagatan, the father of Haide, also heard the gunshots just as he
was coming out of the toilet, making him instinctively jump into a hole, from
where he was able to see and recognize Gilberto, Sr., Gilberto, Jr. and Ricky who
were then standing by the kitchen door. They were aiming their guns upward, and
soon after left together with Ramentos.[6]

Lolita also heard the gunshots while she was in the sala. She recalled that
Haide then came towards her from the kitchen, asking for help and saying: Tabang
kay gipusil ko ni Berting (I was shot by Berting).[7] At that, she and Remedios
brought the wounded Haide to Clinica Ozarraga, where he was treated for gunshot
wounds on his left scapular region (back of left shoulder) and right elbow. He
succumbed shortly thereafter due to hypovolemic shock or massive loss of blood.[8]

Version of the Defense

The accused denied the accusations and each proffered an alibi.

 Gilberto, Sr. claimed that he was sleeping in his home with a fever when he
heard a gunshot. He insisted that he learned that Haide had been shot only in the
next morning.[9] His denial and alibi were corroborated by his wife Carmelita [10] and
his daughter Jersel.[11]

Gilberto, Jr. testified that on the day of the incident, he went to Liloan,
Bonifacio, Misamis Occidental at around 5:00 p.m. to visit his girlfriend together
with Charlie Bacus and Randy Hernan. They stayed there until 9:00
p.m. Thereafter, they proceeded to Tiaman to attend the wake for one Helen
Oligario Cuizon, and were there for an hour. They then returned to Bolinsong and
spent the night in the house of Randy. It was only in the morning that Randys
father informed them that Haide had been shot. [12]

Ricky declared that he stayed throughout the whole evening of August 8,

1999 in the house of his aunt Flordeliza.[13] Myrna Hernan, a neighbor of
Flordeliza, corroborated his testimony.[14]

Ramentos alleged that he was drinking tuba with others at the store owned
by Cinderella Bacus at the time of the shooting; and that he went home at
around 9:00 p.m. after his group was done drinking. He did not recall hearing any
gunshots while drinking and came to know of the shooting only from a certain
Anecito Duyag on the following morning.

To discredit the testimony about Haide being able to identify his assailants,
the Defense presented Peter Ponggos, who narrated that he had been on board a
motorcycle (habal-habal) when Lolita and Remedios asked for his help; and that
he then aided Lolita and Remedios in bringing Haide to the hospital. According to
Peter, he asked Haide who had shot him, but Haide replied that there had been only
one assailant whom he did not recognize.[15]
Ruling of the RTC

After trial, the RTC convicted the four accused of homicide aggravated by
dwelling, disposing:[16]

WHEREFORE, premises considered, the Court finds all the accused guilty
beyond reasonable doubt of the crime of Homicide, with one aggravating
circumstance of dwelling, and applying the Indeterminate Sentence Law, hereby
sentences each one of them to a penalty of imprisonment ranging from 6 years
and 1 day, as its minimum to 17 years, 4 months and 1 day, as its maximum, to
 suffer the accessory penalties provided for by law, to pay jointly and solidarily,
the heirs of the victim P50,000.00, as civil liability and to pay the costs.

Let all the accused be credited of the time that they were placed in jail under
preventive imprisonment, applying the provisions of Art. 29 of the Revised Penal
Code, as amended.
SO ORDERED.

The RTC accorded faith to the positive identification of the accused by the
Prosecutions witnesses, and disbelieved their denial and alibis due to their failure
to show the physical improbability for them to be at the crime scene, for the
distances between the crime scene and the places where the accused allegedly were
at the time of the commission of the crime were shown to range from only 100 to
700 meters.[17] The RTC found, however, that the Prosecution was not able to prove
treachery because:

xxx The medical report of gunshot wound left scapular region which the doctor
interpreted to be at the back of the left shoulder is not sufficient to prove
treachery, it being susceptible to 2 different interpretations: one: that victim had
his back towards his assailants, and two: that he was actually facing them but he
turned around for cover upon seeing the armed group of Berting. The Court is
inclined to believe the second interpretation because the victim was able to see
and identify his assailants. Two prosecution witnesses testified that the victim
identified to them who shot him.[18]
Ruling of the CA

On intermediate review, the CA modified the RTCs decision, holding instead that
murder was established beyond reasonable doubt because the killing was attended
by treachery, viz: [19]

WHEREFORE, the appealed Decision is hereby MODIFIED. Pursuant to Section

13, paragraph 2 of Rule 124 of the Rules of Criminal Procedure, We render
JUDGMENT without entering it, as follows:

1. We find all accused guilty beyond reasonable doubt of

MURDER. Each accused is hereby SENTENCED TO SUFFER
the penalty of reclusion perpetua.

2. The Division Clerk of Court is hereby directed to CERTIFY and

ELEVATE the entire records of this case to the Supreme Court
for review.

SO ORDERED.[20]
 Citing People v. Valdez,[21] the CA explained that the attendance of treachery
did not depend on the position of the victim at the time of the attack, for the
essence of treachery was in the element of surprise the assailants purposely
adopted to ensure that the victim would not be able to defend himself. Considering
that the accused had purposely positioned themselves at night outside the door to
the kitchen from where they could see Haide, who was then busy preparing dinner,
through the holes of the kitchen wall, the CA concluded that Haide was thus left
unaware of the impending assault against him.

Issues

In this recourse, the accused raise the following errors:

I
THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING ACCUSED-
APPELLANTS OF MURDER DESPITE FAILURE OF THE PROSECUTION
TO PROVE THE IDENTITY OF THE ASSAILANT AS WELL AS ACCUSED-
APPELLANTS GUILT BEYOND REASONABLE DOUBT.

II
THE COURT OF APPEALS GRAVELY ERRED IN CONSIDERING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY, ON THE ASSUMPTION
THAT INDEED ACCUSED-APPELLANTS ARE GUILTY.

The accused contend that the Prosecution witnesses failed to positively

identify them as the persons who had actually shot Haide; that treachery was not
attendant because there was no proof showing that they had consciously and
deliberately adopted the mode of attacking the victim; and that assuming that they
committed the killing, they could only be convicted of homicide.

The decisive queries are, therefore, the following:

(a) Should an identification, to be positive, have to be made by a

witness who actually saw the assailants?

(b) Was treachery attendant in the killing of Haide as to qualify the

crime as murder?
 Ruling

We affirm the finding of guilt for the crime of murder, but modify the civil
liability.

1.
Positive identification refers to
proof of identity of the assailant

The first duty of the prosecution is not to prove the crime but to prove the
identity of the criminal, for, even if the commission of the crime can be
established, there can be no conviction without proof of the identity of the criminal
beyond reasonable doubt.[22] In that regard, an identification that does not preclude a
reasonable possibility of mistake cannot be accorded any evidentiary force. [23] The
intervention of any mistake or the appearance of any weakness in the identification
simply means that the accuseds constitutional right of presumption of innocence
until the contrary is proved is not overcome, thereby warranting an acquittal,
[24]
even if doubt may cloud his innocence.[25]Indeed, the presumption of innocence
constitutionally guaranteed to every individual is forever of primary importance,
and every conviction for crime must rest on the strength of the evidence of the
State, not on the weakness of the defense.[26]

The accused contend that the Prosecution witnesses did not actually see who
had shot Haide; hence, their identification as the malefactors was not positively
and credibly made.

We cannot uphold the contention of the accused.

The established circumstances unerringly show that the four accused were
the perpetrators of the fatal shooting of Haide. Their identification as his assailants
by Remedios and Francisco was definitely positive and beyond reasonable
doubt. Specifically, Remedios saw all the four accused near the door to the
kitchen immediately before the shots were fired and recognized who they were.
She even supplied the detail that Gilberto, Jr. had trained his firearm towards her
once he had noticed her presence at the crime scene. On his part, Francisco attested
to seeing the accused near the door to the kitchen holding their firearms right
after he heard the gunshots, and also recognized them.

The collective recollections of both Remedios and Francisco about seeing

the four accused standing near the door to the kitchen
immediately before and after the shooting of Haide inside the kitchen were
categorical enough, and warranted no other logical inference than that the four
accused were the persons who had just shot Haide. Indeed, neither Remedios nor
Francisco needed to have actually seen who of the accused had fired at Haide, for
it was enough that they testified that the four armed accused: (a) had strategically
positioned themselves by the kitchen door prior to the shooting of Haide; (b) had
still been in the same positions after the gunshots were fired; and (c) had
continuously aimed their firearms at the kitchen door even as they were leaving the
crime scene.

The close relationship of Remedios and Francisco with the victim as well as
their familiarity with the accused who were their neighbors assured the certainty of
their identification as Haides assailants. In Marturillas v. People,[27] the Court
observed that the familiarity of the witness with the assailant erased any doubt that
the witness could have erred; and noted that a witness related to the victim had a
natural tendency to remember the faces of the person involved in the attack on the
victim, because relatives, more than anybody else, would be concerned with
seeking justice for the victim and bringing the malefactor before the law.[28]

Moreover, the following portions of Lolitas testimony show that Haide

himself recognized and identified his assailants, to wit:

Atty. Fernandez:
Q. And where were you at that time when he was shot?
A. In the sala.
Q. Could you possibly tell the Honorable Court what actually took place when
your son was shot?
A. He came from the kitchen at that time when I heard gunreports, he said
Nay help me because I was shot by Berting.[29]
xxx
Atty. Anonat:
Q. And that affidavit was executed by you at the Bonifacio Police Station?
 A. Yes.
xxx
Q. And you affirm to the truth of what you have stated in this affidavit?
A. Yes.
Q. On question No. 7 you were asked in this manner Giunsa man nimo
pagkasayod nga sila maoy responsible sa kamatayon sa imong anak?
How do you know that they were responsible (for) the death of your
son? And your answer is this Tungod kay ang biktima nakasulti pa man
sa wala pa siya namatay ug ang iyang pulong mao nga TABANG NAY
KAY GIPUSIL KO NILA NI BERTING ug nasayod ako nga sila
gumikan sa akong mga testigos. which translated into English Because
the victim was able to talk before he died and the words which he told
me help me Nay I am shot by the group of Berting and I know this
because of my witnesses. [30]
xxx
The statement of Haide to his mother that he had just been shot by
the group of Berting uttered in the immediate aftermath of the shooting where he
was the victim was a true part of the res gestae. The statement was admissible
against the accused as an exception to the hearsay rule under Section 42, Rule 130
of the Rules of Court, which provides:

Section 42. Part of the res gestae. - Statements made by a person while a
startling occurrence is taking place or immediately prior or subsequent thereto
with respect to the circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part of the res
gestae. (36 a)

The term res gestae refers to those circumstances which are the undesigned
incidents of a particular litigated act and which are admissible when illustrative of
such act.[31] In a general way, res gestae includes the circumstances, facts, and
declarations that grow out of the main fact and serve to illustrate its character and
which are so spontaneous and contemporaneous with the main fact as to exclude
the idea of deliberation and fabrication.[32] The rule on res gestae encompasses the
exclamations and statements made by either the participants, victims, or spectators
to a crime immediately before, during, or immediately after the commission of the
crime when the circumstances are such that the statements were made as
a spontaneous reaction or utterance inspired by the excitement of the occasion and
there was no opportunity for the declarant to deliberate and to fabricate a false
statement.[33]
The test of admissibility of evidence as a part of the res gestae is whether the act,
declaration, or exclamation is so intimately interwoven or connected with the
principal fact or event that it characterizes as to be regarded a part of the principal
fact or event itself, and also whether it clearly negatives any premeditation or
purpose to manufacture testimony.[34] A declaration or an utterance is thus deemed
as part of the res gestae that is admissible in evidence as an exception to the
hearsay rule when the following requisites concur: (a) the principal act, the res
gestae, is a startling occurrence; (b) the statements were made before the declarant
had time to contrive or devise; and (c) the statements must concern the occurrence
in question and its immediately attending circumstances.[35]

We find that the requisites concurred herein. Firstly, the principal act the shooting
of Haide was a startling occurrence. Secondly, his statement to his mother about
being shot by the group of Berting was made before Haide had time to contrive or
to devise considering that it was uttered immediately after the shooting. And,
thirdly, the statement directly concerned the startling occurrence itself and its
attending circumstance (that is, the identities of the assailants). Verily, the
statement was reliable as part of the res gestae for being uttered in spontaneity and
only in reaction to the startling occurrence.

In the face of the positive identification of all the four accused, it did not
matter whether only one or two of them had actually fired the fatal shots. Their
actions indicated that a conspiracy existed among them. Indeed, a conspiracy exists
when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.[36] Direct proof of a previous agreement among the
accused to commit the crime is not necessary,[37] for conspiracy may be inferred
from the conduct of the accused at the time of their commission of the crime that
evinces a common understanding among them on perpetrating the crime.[38] Thus,
the concerted acts of the four manifested their agreement to kill Haide, resulting in
each of them being guilty of the crime regardless of whether he actually fired at the
victim or not. It is axiomatic that once conspiracy is established, the act of one is
the act of all;[39] and that all the conspirators are then liable as co-principals.[40]

But did not the fact that the name Berting without any surname being too generic
open the identification of the accused as the assailants to disquieting doubt about
their complicity?
We hold that there was no need for a surname to be attached to the nickname
Berting in order to insulate the identification by Haide from challenge. The
victims res gestaestatement was only one of the competent and reliable pieces of
identification evidence. As already shown, the accused were competently
incriminated also by Remedios and Francisco in a manner that warranted the
logical inference that they, and no others, were the assailants. Also, that Berting
was the natural nickname for a person whose given name was Gilberto, like herein
accused Gilberto, Sr. and Gilberto, Jr., was a matter of common knowledge in
the Philippines. In fine, the pieces of identification evidence, including Haides res
gestae statement, collaborated to render their identification unassailable.

Relevantly, the Court has distinguished two types of positive identification

in People v. Gallarde,[41] namely: (a) that by direct evidence, through an eyewitness
to the very commission of the act; and (b) that by circumstantial evidence, such as
where the accused is last seen with the victim immediately before or after the
crime. The Court said:

xxx Positive identification pertains essentially to proof of identity and not per
se to that of being an eyewitness to the very act of commission of the crime.
There are two types of positive identification. A witness may identify a suspect or
accused in a criminal case as the perpetrator of the crime as an eyewitness to the
very act of the commission of the crime. This constitutes direct evidence. There
may, however, be instances where, although a witness may not have actually
seen the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as for instance
when the latter is the person or one of the persons last seen with the victim
immediately before and right after the commission of the crime. This is the
second type of positive identification, which forms part of circumstantial
evidence, which, when taken together with other pieces of evidence constituting
an unbroken chain, leads to only fair and reasonable conclusion, which is that the
accused is the author of the crime to the exclusion of all others. If the actual
eyewitnesses are the only ones allowed to possibly positively identify a suspect or
accused to the exclusion of others, then nobody can ever be convicted unless there
is an eyewitness, because it is basic and elementary that there can be no
conviction until and unless an accused is positively identified. Such a proposition
is absolutely absurd, because it is settled that direct evidence of the commission of
a crime is not the only matrix wherefrom a trial court may draw its conclusion and
finding of guilt. If resort to circumstantial evidence would not be allowed to prove
identity of the accused on the absence of direct evidence, then felons would go
free and the community would be denied proper protection.[42]
To conclude, the identification of a malefactor, to be positive and sufficient
for conviction, does not always require direct evidence from an eyewitness;
otherwise, no conviction will be possible in crimes where there are no
eyewitnesses. Indeed, trustworthy circumstantial evidence can equally confirm the
identification and overcome the constitutionally presumed innocence of the
accused.

Faced with their positive identification, the four accused had to establish
convincing defenses. They opted to rely on denial and their respective alibis,
however, but both the RTC and the CA rightly rejected such defenses.

The rejection was warranted. Long judicial experience instructs that their
denial and alibis, being too easy to invent, could not overcome their positive
identification by credible Prosecution witnesses whose motives for the
identification were not shown to be ill or vile. Truly, a positive identification that is
categorical, consistent, and devoid of any showing of ill or vile motive on the part
of the Prosecution witnesses always prevails over alibi and denial that are in the
nature of negative and self-serving evidence.[43] To be accepted, the denial and alibi
must be substantiated by clear and convincing evidence establishing not only that
the accused did not take part in the commission of the imputed criminal act but
also that it was physically impossible for the accused to be at or near the place of
the commission of the act at or about the time of its commission. In addition, their
proffered alibis were really unworthy of credit because only the accused
themselves and their relatives and other intimates substantiated them.[44]
2.
The essence of treachery is in the mode of attack,
not in the relative position of the victim and the assailant

The RTC ruled out the attendance of treachery due to its persuasion that the victim
must have been facing his assailants at the time of the assault and was thus not
taken by surprise. The CA differed from the RTC, however, and stressed that
regardless of the position of the victim, the essence of treachery was the element of
surprise that the assailants purposely adopted to ensure that the victim was not able
to defend himself.[45]

We uphold the ruling of the CA.

There is treachery when: (a) at the time of the attack, the victim was not in a
position to defend himself; and (b) the accused consciously and deliberately
adopted the particular means, methods, or forms of attack employed by him. [46] The
essence of treachery lies in the suddenness of the attack that leaves the victim
unable to defend himself, thereby ensuring the commission of the offense. [47] It is
the suddenness of the attack coupled with the inability of the victim to defend
himself or to retaliate that brings about treachery; consequently, treachery may still
be appreciated even if the victim was facing the assailant.[48]

Here, the elements of treachery were present. His assailants gunned Haide
down while he was preoccupied in the kitchen of his own abode with getting
dinner ready for the household. He was absolutely unaware of the imminent deadly
assault from outside the kitchen, and was for that reason in no position to defend
himself or to repel his assailants.

The argument of the accused that the Prosecution did not show that they had
consciously and deliberately adopted the manner of killing Haide had no
substance, for the testimonies of Remedios and Francisco disclose the contrary.

Remedios testimony about seeing the four accused taking positions near the
door to the kitchen immediately preceding the shooting of Haide was as follows:

Atty. Fernandez:
xxx
Q. Were you present when the late Haide Cagatan was shot?
A. Yes, I was present.
Q. Could you possibly tell the Court in what particular place you were when the
alleged incident took place?
A. I was in the ground floor.
Q. What were you doing there?
A. I attended my child (to) answer(ing) the call of his (sic) nature.
Q. Now, could you possibly describe before this Honorable Court, Mrs. Cagatan,
the exact event that took place when the alleged shooting incident took place
in your presence?
A. At that time, I attended my child (to) answer(ing) the call of (his) nature
and after doing that when I was about to stand up to go up I saw the
Villaricos was (sic) at the back of the kitchen.
Q. At the time you saw them was (sic) any one of them saw you likewise?
A. There was.
Q. Who was he?
A. Gilberto Villarico, Jr.
 Q. At that precise time when you saw them and one of them saw you, what
did Villarico, Jr. do?
A. He aimed his gun to me.
Q. Could you possibly demonstrate that to the Court?
A. (Witness demonstrated by squatting position)
Q. Now at that precise moment when you saw Villarico, Jr. on a squatting
position pointing his gun at you, what was the exact action that you did?
A. When he aimed his gun to me I immediately dropped to the ground.
xxx
Q. Since you were personally present could you still remember Mrs. Cagatan
how many gun burst you head at that precise moment when you
dropped to the ground because Villarico Jr. was aiming his gun at you.
How many gun burst did you hear?
A. Three gunbursts.
Q. Let us go back to the time when Villarico, Jr. pointed his gun to you. Do
you still remember what were the other accused doing or where were
they at that time?
A. I can remember.
Q. Please tell the Honorable Court.
A. Gilberto Villarico, Sr. was on the right side; Ricky Villarico was on the left
side and behind Gilberto Villarico, Sr. was Jerry Ramientos and behind
Ricky Villarico is (sic) Gilberto Villarico Jr.
Q. What were Ricky and Gilberto Villarico, Jr. doing at the time?
A. They were also dropping themselves on the ground and aimed their guns.
Q. To what particular object that they were aiming their guns?
A. To the door of our kitchen.

Q. How about Ramientos, where was he at that time when you saw the
accused pointing their guns towards the door of your kitchen?
A. Ramientos was standing behind Gilberto Villarico Sr.[49]

Likewise, Francisco saw the four accused in the same positions that
Remedios had seen them moments prior to the shooting. He claimed that they were
aiming their firearms at the kitchen and continued aiming their firearms even as
they were leaving the crime scene, viz:

Atty. Fernandez:
xxx
Q. Now you said that you saw all of the accused at the time when your late son
Haide Cagatan was murdered in the evening of August 8. Could you
possibly explain to this Honorable Court at the very first time what did you
see?
A. After I came from the toilet I was proceeding to the kitchen because Haide was
preparing food and he was calling for dinner. When Haide Cagatan was
calling for dinner and at the time I was proceeding to the door of the
kitchen, when I was near the door I heard the gun shots.
Q. At the time when you heard gunshots, what did you do?
A. I laid down flat on the ground while my head is (sic) looking up and there
I saw the 3 Villaricos bringing a revolver. They came from aiming their
guns towards upstairs and they are about to withdraw from that place
together with Jerry Ramientos.
xxx
Q. Now, since you said that you saw the accused Villaricos, could you possibly
tell the Court, what were their responsible position(s) in relation to the
door of the kitchen?
A. They were in shooting position as they aimed upward and they were
bringing revolver aiming upstairs.
Q. In relation to the door of the kitchen, could you possibly tell the Court
what were their responsible position at that time when you saw them?
A. The four of them were situated in front of the kitchen door. Villarico Jr.
and Villarico Sr. were facing each other while Ricky Villarico and Jerry
Ramientos were also facing each other.[50]

The testimonies of Remedios and Francisco on how and where the four
accused had deliberately and strategically positioned themselves could not but
reveal their deliberate design to thereby ensure the accomplishment of their design
to kill Haide without any possibility of his escape or of any retaliation from
him. Aptly did the CA observe:

A perusal of the information shows that treachery was properly alleged to qualify
the killing of Heide [sic] Cagatan to murder. The prosecution was likewise able to
prove treachery through the element of surprise rendering the victim unable to
 defend himself. In this case, the evidence shows that the victim, who was in the
kitchen preparing dinner, could be seen from the outside through the holes of the
wall. The witnesses consistently described the kitchens wall as three feet high
bamboo splits (sa-sa), accented with bamboo splits woven to look like a
chessboard with 4-inch holes in between. The accused-appellants, likewise,
positioned themselves outside the kitchen door at night where the victim could not
see them. When the accused-appellants shot him, he was caught unaware.[51]

3.
Penalty and Damages

There is no question that the CA justly pronounced all the four accused
guilty beyond reasonable doubt of murder, and punished them with reclusion
perpetua pursuant to Article 248[52] of the Revised Penal Code, in relation to Article
63, paragraph 2, of the Revised Penal Code, considering the absence of any generic
aggravating circumstance.

However, the CA did not explain why it did not review and revise the grant
by the RTC of civil liability in the amount of only P50,000.00. Thereby, the CA
committed a plainly reversible error for ignoring existing laws, like Article 2206 of
the Civil Code,[53] which prescribes a death indemnity separately from moral
damages, and Article 2230 of the Civil Code,[54] which requires exemplary damages
in case of death due to crime when there is at least one aggravating circumstance;
and applicable jurisprudence, specifically, People v. Gutierrez,[55] where we held
that moral damages should be awarded to the heirs without need of proof or
pleading in view of the violent death of the victim, and People v.Catubig,
[56]
where we ruled that exemplary damages were warranted whenever the crime
was attended by an aggravating circumstance, whether qualifying or ordinary.
Here, the aggravating circumstance of treachery, albeit attendant or qualifying in
its effect, justified the grant of exemplary damages.

Plain oversight might have caused both the RTC and the CA to lapse into the
serious omissions. Nonetheless, a rectification should now be made, for, indeed,
gross omissions, intended or not, should be eschewed. It is timely, therefore, to
remind and to exhort all the trial and appellate courts to be always mindful of and
to apply the pertinent laws and jurisprudence on the kinds and amounts of
indemnities and damages appropriate in criminal cases lest oversight and omission
will unduly add to the sufferings of the victims or their heirs. Nor should the
absence of specific assignment of error thereon inhibit the sua sponte rectification
of the omissions, for the grant of all the proper kinds and amounts of civil liability
to the victim or his heirs is a matter of law and judicial policy not dependent upon
or controlled by an assignment of error. An appellate tribunal has a broad
discretionary power to waive the lack of proper assignment of errors and to
consider errors not assigned,[57] for technicality should not be allowed to stand in
the way of equitably and completely resolving the rights and obligations of the
parties. Indeed, the trend in modern day procedure is to accord broad discretionary
power such that the appellate court may consider matters bearing on the issues
submitted for resolution that the parties failed to raise or that the lower court
ignored.[58]

Consistent with prevailing jurisprudence, we grant to the heirs of

Haide P75,000.00 as death indemnity;[59] P75,000.00 as moral damages;
[60]
and P30,000.00 as exemplary damages.[61] As clarified in People v. Arbalate,
[62]
damages in such amounts are to be granted whenever the accused are adjudged
guilty of a crime covered by Republic Act No. 7659, like the murder charged and
proved herein. Indeed, the Court, observing in People v. Sarcia,[63] citing People v.
Salome[64] and People v. Quiachon,[65]that the principal consideration for the award
of damages xxx is the penalty provided by law or imposable for the offense
because of its heinousness, not the public penalty actually imposed on the offender,
announced that:

The litmus test[,] therefore, in the determination of the civil indemnity is the
heinous character of the crime committed, which would have warranted the
imposition of the death penalty, regardless of whether the penalty actually
imposed is reduced to reclusion perpetua.

WHEREFORE, we affirm the decision promulgated on June 6, 2003 in

CA-G.R. CR No. 24711, finding GILBERTO VILLARICO, SR., GILBERTO
VILLARICO, JR., JERRY RAMENTOS, and RICKY VILLARICO guilty of
murder and sentencing each of them to suffer reclusion perpetua, subject to the
modification that they are held jointly and solidarily liable to pay to the heirs of the
late Haide Cagatan death indemnity of P75,000.00, moral damages of P75,000.00,
and exemplary damages of P30,000.00.

The accused shall pay the costs of suit.

SO ORDERED.
 LUCAS P. BERSAMIN

G.R. No. 96202. April 13, 1999]

ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS

and SOCOR CONSTRUCTION CORPORATION, respondents.

DECISION
MENDOZA, J.:

This petition for review on certiorari seeks a reversal of the decision [1] of the Court of
Appeals affirming the judgment[2] of the Regional Trial Court of Cebu City ordering
petitioner -

. . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine
Thousand Seven Hundred Seventeen Pesos and Seventy Five Centavos
(P299,717.75) plus interest thereon at 12% per annum from September 22,
1986, the date of the filing of the complaint until fully paid; to pay [private
respondent] the further sum of Ten Thousand Pesos (P10,000.00) for
reasonable attorneys fees; to pay the sum of Five Hundred Fifty Two Pesos
and Eighty Six Centavos (P552.86) for filing fees and to pay the costs of
suit. Since [private respondent] withdrew its prayer for an alias writ of
preliminary attachment vis-a-vis the [petitioners] counterbound, the incident on
the alias writ of preliminary attachment has become moot and academic.

The facts are as follows:

Petitioner Rosella D. Canque is a contractor doing business under the name and
style RDC Construction. At the time material to this case, she had contracts with the
government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of
Lutopan access road; and (c) the asphalting of Babag road in Lapulapu City. [3] In
connection with these projects, petitioner entered into two contracts with private
respondent Socor Construction Corporation. The first contract (Exh. A),[4] dated April 26,
1985, provided:

The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC

Construction) for the consideration hereinafter named, hereby agree as
follows:
 1. SCOPE OF WORK:
a. The Sub-Contractor agrees to perform and execute the Supply, Lay and Compact
Item 310 and Item 302;
b. That Contractor shall provide the labor and materials needed to complete the
project;
c. That the Contractor agrees to pay the Sub-Contractor the price of One Thousand
Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight Thousand Only
(P8,000.00) per Metric Ton of Item 302.
d. That the Contractor shall pay the Sub-Contractor the volume of the supplied Item
based on the actual weight in Metric Tons delivered, laid and compacted and
accepted by the MPWH;
e. The construction will commence upon the acceptance of the offer.
The second contract (Exh. B),[5] dated July 23, 1985, stated:

The Supplier (SOCOR Construction) and the Contractor (RDC Construction)

for the consideration hereinafter named, hereby agree as follows:

1. SCOPE OF WORK:
a. The Supplier agrees to perform and execute the delivery of Item 310 and Item 302 to
the jobsite for the Asphalting of DAS Access Road and the Front Gate of ACMDC,
Toledo City;
b. That the Contractor should inform or give notice to the Supplier two (2) days before
the delivery of such items;
c. That the Contractor shall pay the Supplier the volume of the supplied items on the
actual weight in metric tons delivered and accepted by the MPWH fifteen (15) days
after the submission of the bill;
d. The delivery will commence upon the acceptance of the offer.
On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a
revised computation,[6] for P299,717.75, plus interest at the rate of 3% a month,
representing the balance of petitioners total account of P2,098,400.25 for materials
delivered and services rendered by private respondent under the two
contracts. However, petitioner refused to pay the amount, claiming that private
respondent failed to submit the delivery receipts showing the actual weight in metric
tons of the items delivered and the acceptance thereof by the government. [7]
Hence, on September 22, 1986, private respondent brought suit in the Regional
Trial Court of Cebu to recover from petitioner the sum of P299,717.75, plus interest at
the rate of 3% a month.
In her answer, petitioner admitted the existence of the contracts with private
respondent as well as receipt of the billing (Exh. C), dated May 28, 1986. However, she
disputed the correctness of the bill
. . . considering that the deliveries of [private respondent] were not signed and
acknowledged by the checkers of [petitioner], the bituminous tack coat it
delivered to [petitioner] consisted of 60% water, and [petitioner] has already
paid [private respondent] about P1,400,000.00 but [private respondent] has
not issued any receipt to [petitioner] for said payments and there is no
agreement that [private respondent] will charge 3% per month interest.[8]

Petitioner subsequently amended her answer denying she had entered into sub-
contracts with private respondent.[9]
During the trial, private respondent, as plaintiff, presented its vice-president, Sofia
O. Sanchez, and Dolores Aday, its bookkeeper.
Petitioners evidence consisted of her lone testimony.[10]
On June 22, 1988, the trial court rendered its decision ordering petitioner to pay
private respondent the sum of P299,717.75 plus interest at 12% per annum, and costs.
It held:

. . . . [B]y analyzing the plaintiffs Book of Collectible Accounts particularly page

17 thereof (Exh. K) this Court is convinced that the entries (both payments
and billings) recorded thereat are credible. Undeniably, the book contains a
detailed account of SOCORs commercial transactions with RDC which were
entered therein in the course of business. We cannot therefore disregard the
entries recorded under Exhibit K because the fact of their having been made
in the course of business carries with it some degree of trustworthiness.
Besides, no proof was ever offered to demonstrate the irregularity of the said
entries thus, there is then no cogent reason for us to doubt their authenticity.[11]

The trial court further ruled that in spite of the fact that the contracts did not have
any stipulation on interest, interest may be awarded in the form of damages under
Article 2209 of the Civil Code.[12]
On appeal, the Court of Appeals affirmed. It upheld the trial courts reliance on
private respondents Book of Collectible Accounts (Exh. K) on the basis of Rule 130,
37[13] of the Rules of Court.
Hence, this appeal. Petitioner contends that
I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS ENTRIES
IN THE COURSE OF BUSINESS THE ENTRIES IN PRIVATE RESPONDENTS
BOOK OF COLLECTIBLE ACCOUNTS CONSIDERING THAT THE PERSON WHO
MADE SAID ENTRIES ACTUALLY TESTIFIED IN THIS CASE BUT
UNFORTUNATELY HAD NO PERSONAL KNOWLEDGE OF SAID ENTRIES.
II. THE DECISION OF THE RESPONDENT COURT SHOULD BE REVERSED AS IT
HAS ONLY INADMISSIBLE EVIDENCE TO SUPPORT IT.
 First. Petitioner contends that the presentation of the delivery receipts duly accepted
by the then Ministry of Public Works and Highways (MPWH) is required under the
contracts (Exhs. A and B) and is a condition precedent for her payment of the amount
claimed by private respondent. Petitioner argues that the entries in private respondents
Book of Collectible Accounts (Exh. K) cannot take the place of the delivery receipts and
that such entries are mere hearsay and, thus, inadmissible in evidence.[14]
We agree with the appellate court that the stipulation in the two contracts requiring
the submission of delivery receipts does not preclude proof of delivery of materials by
private respondent in some other way. The question is whether the entries in the Book
of Collectible Accounts (Exh. K) constitute competent evidence to show such
delivery. Private respondent cites Rule 130, 37 of the Rules of Court and argues that the
entries in question constitute entries in the course of business sufficient to prove
deliveries made for the government projects.This provision reads:

Entries in the course of business. Entries made at, or near the time of the
transactions to which they refer, by a person deceased, outside of the
Philippines or unable to testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such person made the
entries in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty.[15]

The admission in evidence of entries in corporate books requires the satisfaction of

the following conditions:
1. The person who made the entry must be dead, outside the country or unable to
testify;
2. The entries were made at or near the time of the transactions to which they refer;
3. The entrant was in a position to know the facts stated in the entries;
4. The entries were made in his professional capacity or in the performance of a
duty, whether legal, contractual, moral or religious; and
5. The entries were made in the ordinary or regular course of business or duty.[16]
As petitioner points out, the business entries in question (Exh. K) do not meet the
first and third requisites. Dolores Aday, who made the entries, was presented by private
respondent to testify on the account of RDC Construction. It was in the course of her
testimony that the entries were presented and marked in evidence. There was,
therefore, neither justification nor necessity for the presentation of the entries as the
person who made them was available to testify in court.

Necessity is given as a ground for admitting entries, in that they are the best
available evidence. Said a learned judge: What a man has actually done and
committed to writing when under obligation to do the act, it being in the course
of the business he has undertaken, and he being dead, there seems to be no
danger in submitting to the consideration of the court. The person who may be
called to court to testify on these entries being dead, there arises the
necessity of their admission without the one who made them being called to
court be sworn and subjected to cross-examination. And this is permissible in
order to prevent a failure of justice.[17]

Moreover, Aday admitted that she had no personal knowledge of the facts
constituting the entry. She said she made the entries based on the bills given to her. But
she has no knowledge of the truth or falsity of the facts stated in the bills. The deliveries
of the materials stated in the bills were supervised by an engineer for (such) functions.
[18]
The person, therefore, who has personal knowledge of the facts stated in the
entries, i.e., that such deliveries were made in the amounts and on the dates stated,
was the companys project engineer.The entries made by Aday show only that the
billings had been submitted to her by the engineer and that she faithfully recorded the
amounts stated therein in the books of account.Whether or not the bills given to Aday
correctly reflected the deliveries made in the amounts and on the dates indicated was a
fact that could be established by the project engineer alone who, however, was not
presented during trial. The rule is stated by former Chief Justice Moran, thus:

[W]hen the witness had no personal knowledge of the facts entered by him,
and the person who gave him the information is individually known and may
testify as to the facts stated in the entry which is not part of a system of entries
where scores of employees have intervened, such entry is not admissible
without the testimony of the informer.[19]

Second. It is nonetheless argued by private respondent that although the entries

cannot be considered an exception to the hearsay rule, they may be admitted under
Rule 132, 10[20] of the Rules of Court which provides:

SEC. 10. When witness may refer to memorandum. A witness may be allowed
to refresh his memory respecting a fact, by anything written by himself or
under his direction at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was fresh in his memory and he
knew that the same was correctly stated in the writing; but in such case the
writing must be produced and may be inspected by the adverse party, who
may, if he chooses, cross-examine the witness upon it, and may read it in
evidence. So, also, a witness may testify from such a writing, though he retain
no recollection of the particular facts, if he is able to swear that the writing
correctly stated the transaction when made; but such evidence must be
received with caution.

On the other hand, petitioner contends that evidence which is inadmissible for the
purpose for which it was offered cannot be admitted for another purpose. She cites the
following from Chief Justice Morans commentaries:
The purpose for which the evidence is offered must be specified. Where the
offer is general, and the evidence is admissible for one purpose and
inadmissible for another, the evidence should be rejected. Likewise, where the
offer is made for two or more purposes and the evidence is incompetent for
one of them, the evidence should be excluded. The reason for the rule is that
it is the duty of a party to select the competent from the incompetent in
offering testimony, and he cannot impose this duty upon the trial court. Where
the evidence is inadmissible for the purpose stated in the offer, it must be
rejected, though the same may be admissible for another purpose. The rule is
stated thus: If a party x x x opens the particular view with which he offers any
part of his evidence, or states the object to be attained by it, he precludes
himself from insisting on its operation in any other direction, or for any other
object; and the reason is, that the opposite party is prevented from objecting
to its competency in any view different from the one proposed.[21]

It should be noted, however, that Exh. K is not really being presented for another
purpose. Private respondents counsel offered it for the purpose of showing the amount
of petitioners indebtedness. He said:

Exhibit K, your Honor - faithful reproduction of page (17) of the book on

Collectible Accounts of the plaintiff, reflecting the principal
indebtedness of defendant in the amount of Two hundred ninety-nine
thousand seven hundred seventeen pesos and seventy-five centavos
(P299,717.75) and reflecting as well the accumulated interest of three
percent (3%) monthly compounded such that as of December 11,
1987, the amount collectible from the defendant by the plaintiff is Six
hundred sixteen thousand four hundred thirty-five pesos and seventy-
two centavos (P616,435.72);[22]

This is also the purpose for which its admission is sought as a memorandum to
refresh the memory of Dolores Aday as a witness. In other words, it is the nature of the
evidence that is changed, not the purpose for which it is offered.
Be that as it may, considered as a memorandum, Exh. K does not itself constitute
evidence. As explained in Borromeo v. Court of Appeals:[23]

Under the above provision (Rule 132, 10), the memorandum used to refresh
the memory of the witness does not constitute evidence, and may not be
admitted as such, for the simple reason that the witness has just the same to
testify on the basis of refreshed memory. In other words, where the witness
has testified independently of or after his testimony has been refreshed by a
memorandum of the events in dispute, such memorandum is not admissible
as corroborative evidence. It is self-evident that a witness may not be
corroborated by any written statement prepared wholly by him. He cannot be
more credible just because he supports his open-court declaration with written
statements of the same facts even if he did prepare them during the occasion
in dispute, unless the proper predicate of his failing memory is priorly laid
down. What is more, even where this requirement has been satisfied, the
express injunction of the rule itself is that such evidence must be received with
caution, if only because it is not very difficult to conceive and fabricate
evidence of this nature. This is doubly true when the witness stands to gain
materially or otherwise from the admission of such evidence . . . .[24]

As the entries in question (Exh. K) were not made based on personal knowledge,
they could only corroborate Dolores Adays testimony that she made the entries as she
received the bills.
Third. Does this, therefore, mean there is no competent evidence of private
respondents claim as petitioner argues? [25] The answer is in the negative. Aside from
Exh. K, private respondent presented the following documents:

1) Exhibit A - Contract Agreement dated 26 April 1985 which contract covers

both the Toledo wharf project and the Babag Road project in Lapulapu City.

2) Exhibit B - Contract Agreement dated 23 July 1985 which covers the DAS
Asphalting Project.

3) Exhibit C - Revised Computation of Billings submitted on May 28, 1986.

4) Exhibit D - an affidavit executed by [petitioner] to the effect that she has no

more pending or unsettled obligations as far as Toledo Wharf Road is
concerned.

5) Exhibit D-1 - Statement of Work Accomplished on the Road Restoration of

Cebu-Toledo wharf project.

6) Exhibit E - another affidavit executed by [petitioner] attesting that she has

completely paid her laborers at the project located at Babag, Lapulapu City

7) Exhibits F, G, G-1, G-2, G-3 - Premiums paid by [private respondent]

together with the receipts for filing fees.

8) Exhibits H, I, J - certifications issued by OIC, MPWH, Regional Office;

Lapulapu City, City Engineer; Toledo City Treasurers Office respectively,
proving that RDC construction has no more collectibles with all the said
government offices in connection with its projects.
10) Exhibit L - Bill No. 057 under the account of RDC Construction in the
amount of P153,382.75 dated August 24, 1985.

11) Exhibit M - Bill No. 069 (RDCs account), in the amount of P1,701,795.00
dated November 20, 1985.

12) Exhibit N - Bill No. 071 (RDCs account) in the amount of P47,250.00
dated November 22, 1985.

13) Exhibit O - Bill No. 079 (RDCs account) in the amount of P7,290.00 dated
December 6, 1985.

As the trial court found:

The entries recorded under Exhibit K were supported by Exhibits L, M, N, O

which are all Socor Billings under the account of RDC Construction. These
billings were presented and duly received by the authorized representatives of
defendant. The circumstances obtaining in the case at bar clearly show that
for a long period of time after receipt thereof, RDC never manifested its
dissatisfaction or objection to the aforestated billings submitted by
plaintiff. Neither did defendant immediately protest to plaintiffs alleged
incomplete or irregular performance.In view of these facts, we believe Art.
1235 of the New Civil Code is applicable.

Art. 1235. When the obligee accepts the performance, knowing its
incompleteness and irregularity and without expressing any protest or
objection, the obligation is deemed complied with.

FINALLY, after a conscientious scrutiny of the records, we find Exhibit D-1 (p.
85 record) to be a material proof of plaintiffs complete fulfillment of its
obligation.

There is no question that plaintiff supplied RDC Construction with Item 302
(Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310
(Bitunimous Concrete Surface Course) in all the three projects of the
latter. The Lutopan Access Road project, the Toledo wharf project and the
Babag-Lapulapu Road project.

On the other hand, no proof was ever offered by defendant to show the
presence of other contractors in those projects. We can therefore conclude
that it was Socor Construction Corp.ALONE who supplied RDC with
Bituminous Prime Coat, Bituminous Tack Coat and Bituminous Concrete
Surface Course for all the aforenamed three projects.[26]

Indeed, while petitioner had previously paid private respondent

about P1,400,000.00 for deliveries made in the past, she did not show that she made
such payments only after the delivery receipts had been presented by private
respondent. On the other hand, it appears that petitioner was able to collect the full
amount of project costs from the government, so that petitioner would be unjustly
enriched at the expense of private respondent if she is not made to pay what is her just
obligation under the contracts.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur.

G.R. No. 107518 October 8, 1998

PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner,

vs.
HONORABLE COURT OF APPEALS and MARIA EFIGENIA FISHING
CORPORATION, respondents.

ROMERO, J.:

A party is entitled to adequate compensation only for such pecuniary loss actually suffered and duly
proved. 1Indeed, basic is the rule that to recover actual damages, the amount of loss must not only be
capable of proof but must actually be proven with a reasonable degree of certainty, premised upon
competent proof or best evidence obtainable of the actual amount thereof. 2 The claimant is duty-bound to
point out specific facts that afford a basis for measuring whatever compensatory damages are borne. 3 A
court cannot merely rely on speculations, conjectures, or guesswork as to the fact and amount of
damages 4 as well as hearsay 5 or uncorroborated testimony whose truth is suspect. 6 Such are the
jurisprudential precepts that the Court now applies in resolving the instant petition.

The records disclose that in the early morning of September 21, 1977, the M/V Maria Efigenia
XV, owned by private respondent Maria Efigenia Fishing Corporation, was navigating the waters
near Fortune Island in Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided with
the vessel Petroparcel which at the time was owned by the Luzon Stevedoring Corporation (LSC).

After investigation was conducted by the Board of Marine Inquiry, Philippine Coast Guard
Commandant Simeon N. Alejandro rendered a decision finding the Petroparcel at fault. Based on
this finding by the Board and after unsuccessful demands on petitioner, 7 private respondent sued the
LSC and the Petroparcel captain, Edgardo Doruelo, before the then Court of First Instance of Caloocan
City, paying thereto the docket fee of one thousand two hundred fifty-two pesos (P1,252.00) and the legal
research fee of two pesos (P2.00). 8 In particular, private respondent prayed for an award of P692,680.00,
allegedly representing the value of the fishing nets, boat equipment and cargoes of M/V Maria Efigenia
XV, with interest at the legal rate plus 25% thereof as attorney's fees. Meanwhile, during the pendency of
the case, petitioner PNOC Shipping and Transport Corporation sought to be substituted in place of LSC
as it had already acquired ownership of the Petroparcel. 9
For its part, private respondent later sought the amendment of its complaint on the ground that the
original complaint failed to plead for the recovery of the lost value of the hull of M/V Maria Efigenia
XV. 10 Accordingly, in the amended complaint, private respondent averred that M/V Maria Efigenia XV had
an actual value of P800,000.00 and that, after deducting the insurance payment of P200,000.00, the
amount of P600,000.00 should likewise be claimed. The amended complaint also alleged that inflation
resulting from the devaluation of the Philippine peso had affected the replacement value of the hull of the
vessel, its equipment and its lost cargoes, such that there should be a reasonable determination thereof.
Furthermore, on account of the sinking of the vessel, private respondent supposedly incurred unrealized
profits and lost business opportunities that would thereafter be proven. 11

Subsequently, the complaint was further amended to include petitioner as a defendant 12 which the
lower court granted in its order of September 16,
1985. 13 After petitioner had filed its answer to the second amended complaint, on February 5, 1987, the
lower court issued a pre-trial order 14 containing, among other things, a stipulations of facts, to wit:

1. On 21 September 1977, while the fishing boat "M/V MARIA EFIGENIA" owned by
plaintiff was navigating in the vicinity of Fortune Island in Nasugbu, Batangas, on its
way to Navotas, Metro Manila, said fishing boat was hit by the LSCO tanker
"Petroparcel" causing the former to sink.

2. The Board of Marine Inquiry conducted an investigation of this marine accident

and on 21 November 1978, the Commandant of the Philippine Coast Guard, the
Honorable Simeon N. Alejandro, rendered a decision finding the cause of the
accident to be the reckless and imprudent manner in which Edgardo Doruelo
navigated the LSCO "Petroparcel" and declared the latter vessel at fault.

3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO),

executed in favor of PNOC Shipping and Transport Corporation a Deed of Transfer
involving several tankers, tugboats, barges and pumping stations, among which was
the LSCO Petroparcel.

4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered into
an Agreement of Transfer with co-defendant Lusteveco whereby all the business
properties and other assets appertaining to the tanker and bulk oil departments
including the motor tanker LSCO Petroparcel of defendant Lusteveco were sold to
PNOC STC.

5. The aforesaid agreement stipulates, among others, that PNOC-STC assumes,

without qualifications, all obligations arising from and by virtue of all rights it obtained
over the LSCO "Petroparcel".

6. On 6 July 1979, another agreement between defendant LUSTEVECO and PNOC-

STC was executed wherein Board of Marine Inquiry Case No. 332 (involving the sea
accident of 21 September 1977) was specifically identified and assumed by the latter.

7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by the
Ministry of National Defense, in its decision dismissing the appeal of Capt. Edgardo
Doruelo and Chief mate Anthony Estenzo of LSCO "Petroparcel".

8. LSCO "Petroparcel" is presently owned and operated by PNOC-STC and likewise

Capt. Edgardo Doruelo is still in their employ.
 9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and
imprudent manner in which LSCO Petroparcel was navigated by defendant Doruelo,
plaintiff suffered actual damages by the loss of its fishing nets, boat equipments (sic)
and cargoes, which went down with the ship when it sank the replacement value of
which should be left to the sound discretion of this Honorable Court.

After trial, the lower court 15 rendered on November 18, 1989 its decision disposing of Civil Case No. C-
9457 as follows:

WHEREFORE, and in view of the foregoing, judgment is hereby rendered in favor of

the plaintiff and against the defendant PNOC Shipping & Transport Corporation, to
pay the plaintiff:

a. The sum of P6,438,048.00 representing the value of the fishing

boat with interest from the date of the filing of the complaint at the
rate of 6% per annum;

b. The sum of P50,000.00 as and for attorney's fees; and

c. The costs of suit.

The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case against
defendant Edgardo Doruelo is hereby DISMISSED, for lack of jurisdiction.

SO ORDERED.

In arriving at the above disposition, the lower court cited the evidence presented by private
respondent consisting of the testimony of its general manager and sole witness, Edilberto del
Rosario. Private respondent's witness testified that M/V Maria Efigenia XV was owned by private
respondent per Exhibit A, a certificate of ownership issued by the Philippine Coast Guard showing
that M/V Maria Efigenia XV was a wooden motor boat constructed in 1965 with 128.23 gross
tonnage. According to him, at the time the vessel sank, it was then carrying 1,060 tubs (baeras) of
assorted fish the value of which was never recovered. Also lost with the vessel were two cummins
engines (250 horsepower), radar, pathometer and compass. He further added that with the loss of
his flagship vessel in his fishing fleet of fourteen (14) vessels, he was constrained to hire the
services of counsel whom he paid P10,000 to handle the case at the Board of Marine Inquiry and
P50,000.00 for commencing suit for damages in the lower court.

As to the award of P6,438,048.00 in actual damages, the lower court took into account the following
pieces of documentary evidence that private respondent proffered during trial:

(a) Exhibit A certified xerox copy of the certificate of ownership

of M/V Maria Efigenia XV;

(b) Exhibit B a document titled "Marine Protest" executed by Delfin

Villarosa, Jr. on September 22, 1977 stating that as a result of the
collision, the M/V Maria Efigenia XV sustained a hole at its left side
that caused it to sink with its cargo of 1,050 baeras valued at
P170,000.00;
 (c) Exhibit C a quotation for the construction of a 95-footer trawler
issued by Isidoro A. Magalong of I. A. Magalong Engineering and
Construction on January 26, 1987 to Del Rosario showing that
construction of such trawler would cost P2,250,000.00;

(d) Exhibit D pro forma invoice No. PSPI-05/87-NAV issued by

E.D. Daclan of Power Systems, Incorporated on January 20, 1987 to
Del Rosario showing that two (2) units of CUMMINS Marine Engine
model N855-M, 195 bhp. at 1800 rpm. would cost P1,160,000.00;

(e) Exhibit E quotation of prices issued by Scan Marine Inc. on

January 20, 1987 to Del Rosario showing that a unit of Furuno
Compact Daylight Radar, Model FR-604D, would cost P100,000.00
while a unit of Furuno Color Video Sounder, Model FCV-501 would
cost P45,000.00 so that the two units would cost P145,000.00;

(f) Exhibit F quotation of prices issued by Seafgear Sales, Inc. on

January 21, 1987 to Del Rosario showing that two (2) rolls of nylon
rope (5" cir. X 300fl.) would cost P140,000.00; two (2) rolls of nylon
rope (3" cir. X 240fl.), P42,750.00; one (1) binocular (7 x 50),
P1,400.00, one (1) compass (6"), P4,000.00 and 50 pcs. of floats,
P9,000.00 or a total of P197,150.00;

(g) Exhibit G retainer agreement between Del Rosario and F.

Sumulong Associates Law Offices stipulating an acceptance fee of
P5,000.00, per appearance fee of P400.00, monthly retainer of
P500.00, contingent fee of 20% of the total amount recovered and
that attorney's fee to be awarded by the court should be given to Del
Rosario; and

(h) Exhibit H price quotation issued by Seafgear Sales, Inc. dated

April 10, 1987 to Del Rosario showing the cost of poly nettings as: 50
rolls of 400/18 3kts. 100md x 100mtrs., P70,000.00; 50 rolls of
400/18 5kts. 100md x 100mtrs., P81,500.00; 50 rolls of 400/18 8kts.
100md x 100mtrs., P116,000.00, and 50 rolls of 400/18 10kts. 100md
x 100mtrs., P146,500 and baera (tub) at P65.00 per piece or a total
of P414,065.00.

The lower court held that the prevailing replacement value of P6,438,048.00 of the fishing boat and
all its equipment would regularly increase at 30% every year from the date the quotations were
given.

On the other hand, the lower court noted that petitioner only presented Lorenzo Lazaro, senior
estimator at PNOC Dockyard & Engineering Corporation, as sole witness and it did not bother at all
to offer any documentary evidence to support its position. Lazaro testified that the price quotations
submitted by private respondent were "excessive" and that as an expert witness, he used the
quotations of his suppliers in making his estimates. However, he failed to present such quotations of
prices from his suppliers, saying that he could not produce a breakdown of the costs of his estimates
as it was "a sort of secret scheme." For this reason, the lower court concluded:

Evidently, the quotation of prices submitted by the plaintiff relative to the replacement
value of the fishing boat and its equipments in the tune of P6,438,048.00 which were
 lost due to the recklessness and imprudence of the herein defendants were not
rebutted by the latter with sufficient evidence. The defendants through their sole
witness Lorenzo Lazaro relied heavily on said witness' bare claim that the amount
afore-said is excessive or bloated, but they did not bother at all to present any
documentary evidence to substantiate such claim. Evidence to be believed must not
only proceed from the mouth of the credible witness, but it must be credible in itself.
(Vda. de Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970).

Aggrieved, petitioner filed a motion for the reconsideration of the lower court's decision contending
that: (1) the lower court erred in holding it liable for damages; that the lower court did not acquire
jurisdiction over the case by paying only P1,252.00 as docket fee; (2) assuming that plaintiff was
entitled to damages, the lower court erred in awarding an amount greater than that prayed for in the
second amended complaint; and (3) the lower court erred when it failed to resolve the issues it had
raised in its memorandum. 16 Petitioner likewise filed a supplemental motion for reconsideration
expounding on whether the lower court acquired jurisdiction over the subject matter of the case despite
therein plaintiff's failure to pay the prescribed docket fee. 17

On January 25, 1990, the lower court declined reconsideration for lack of merit. 18 Apparently not
having received the order denying its motion for reconsideration, petitioner still filed a motion for leave to
file a reply to private respondent's opposition to said motion. 19 Hence, on February 12, 1990, the lower
court denied said motion for leave to file a reply on the ground that by the issuance of the order of
January 25, 1990, said motion had become moot and academic. 20

Unsatisfied with the lower court's decision, petitioner elevated the matter to the Court of Appeals
which, however, affirmed the same in toto on October 14, 1992. 21 On petitioner's assertion that the
award of P6,438,048.00 was not convincingly proved by competent and admissible evidence, the Court of
Appeals ruled that it was not necessary to qualify Del Rosario as an expert witness because as the owner
of the lost vessel, "it was well within his knowledge and competency to identify and determine the
equipment installed and the cargoes loaded" on the vessel. Considering the documentary evidence
presented as in the nature of market reports or quotations, trade journals, trade circulars and price lists,
the Court of Appeals held, thus:

Consequently, until such time as the Supreme Court categorically rules on the
admissibility or inadmissibility of this class of evidence, the reception of these
documentary exhibits (price quotations) as evidence rests on the sound discretion of
the trial court. In fact, where the lower court is confronted with evidence which
appears to be of doubtful admissibility, the judge should declare in favor of
admissibility rather than of non-admissibility (The Collector of Palakadhari, 124
[1899], p. 13, cited in Francisco, Revised Rules of Court, Evidence, Volume VII, Part
I, 1990 Edition, p. 18). Trial courts are enjoined to observe the strict enforcement of
the rules of evidence which crystallized through constant use and practice and are
very useful and effective aids in the search for truth and for the effective
administration of justice. But in connection with evidence which may appear to be of
doubtful relevancy or incompetency or admissibility, it is the safest policy to be
liberal, not rejecting them on doubtful or technical grounds, but admitting them
unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection
places them beyond the consideration of the court. If they are thereafter found
relevant or competent, can easily be remedied by completely discarding or ignoring
them. (Banaria vs. Banaria, et al., C.A. No. 4142, May 31, 1950; cited in
Francisco, Supra). [Emphasis supplied].

Stressing that the alleged inadmissible documentary exhibits were never satisfactorily rebutted by
appellant's own sole witness in the person of Lorenzo Lazaro, the appellate court found that
petitioner ironically situated itself in an "inconsistent posture by the fact that its own witness,
admittedly an expert one, heavily relies on the very same pieces of evidence (price quotations)
appellant has so vigorously objected to as inadmissible evidence." Hence, it concluded:

. . . The amount of P6,438,048.00 was duly established at the trial on the basis of
appellee's documentary exhibits (price quotations) which stood uncontroverted, and
which already included the amount by way of adjustment as prayed for in the
amended complaint. There was therefore no need for appellee to amend the second
amended complaint in so far as to the claim for damages is concerned to conform
with the evidence presented at the trial. The amount of P6,438,048.00 awarded is
clearly within the relief prayed for in appellee's second amended complaint.

On the issue of lack of jurisdiction, the respondent court held that following the ruling in Sun
Insurance Ltd. v. Asuncion, 22 the additional docket fee that may later on be declared as still owing the
court may be enforced as a lien on the judgment.

Hence, the instant recourse.

In assailing the Court of Appeals' decision, petitioner posits the view that the award of P6,438,048 as
actual damages should have been in light of these considerations, namely: (1) the trial court did not
base such award on the actual value of the vessel and its equipment at the time of loss in 1977; (2)
there was no evidence on extraordinary inflation that would warrant an adjustment of the
replacement cost of the lost vessel, equipment and cargo; (3) the value of the lost cargo and the
prices quoted in respondent's documentary evidence only amount to P4,336,215.00; (4) private
respondent's failure to adduce evidence to support its claim for unrealized profit and business
opportunities; and (5) private respondent's failure to prove the extent and actual value of damages
sustained as a result of the 1977 collision of the vessels. 23

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury sustained. They proceed from a sense of natural
justice and are designed to repair the wrong that has been done, to compensate for the injury
inflicted and not to impose a penalty. 24 In actions based on torts or quasi-delicts, actual damages
include all the natural and probable consequences of the act or omission complained of. 25 There are two
kinds of actual or compensatory damages: one is the loss of what a person already possesses (dao
emergente), and the other is the failure to receive as a benefit that which would have pertained to him
(lucro cesante). 26 Thus:

Where goods are destroyed by the wrongful act of the defendant the plaintiff is
entitled to their value at the time of destruction, that is, normally, the sum of money
which he would have to pay in the market for identical or essentially similar goods,
plus in a proper case damages for the loss of use during the period before
replacement. In other words, in the case of profit-earning chattels, what has to be
assessed is the value of the chattel to its owner as a going concern at the time and
place of the loss, and this means, at least in the case of ships, that regard must be
had to existing and pending engagements, . . .

. . . . If the market value of the ship reflects the fact that it is in any case virtually
certain of profitable employment, then nothing can be added to that value in respect
of charters actually lost, for to do so would be pro tanto to compensate the plaintiff
twice over. On the other hand, if the ship is valued without reference to its actual
future engagements and only in the light of its profit-earning potentiality, then it may
be necessary to add to the value thus assessed the anticipated profit on a charter or
 other engagement which it was unable to fulfill. What the court has to ascertain in
each case is the "capitalised value of the vessel as a profit-earning machine not in
the abstract but in view of the actual circumstances," without, of course, taking into
account considerations which were too remote at the time of the loss. 27 [Emphasis
supplied].

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is
required to prove the actual amount of loss with reasonable degree of certainty premised upon
competent proof and on the best evidence available. 28 The burden of proof is on the party who would
be defeated if no evidence would be presented on either side. He must establish his case by a
preponderance of evidence which means that the evidence, as a whole, adduced by one side is superior
to that of the other. 29 In other words, damages cannot be presumed and courts, in making an award must
point out specific facts that could afford a basis for measuring whatever compensatory or actual damages
are borne. 30

In this case, actual damages were proven through the sole testimony of private respondent's general
manager and certain pieces of documentary evidence. Except for Exhibit B where the value of the
1,050 baeras of fish were pegged at their September 1977 value when the collision happened, the
pieces of documentary evidence proffered by private respondent with respect to items and
equipment lost show similar items and equipment with corresponding prices in early 1987 or
approximately ten (10) years after the collision. Noticeably, petitioner did not object to the exhibits in
terms of the time index for valuation of the lost goods and equipment. In objecting to the same
pieces of evidence, petitioner commented that these were not duly authenticated and that the
witness (Del Rosario) did not have personal knowledge on the contents of the writings and neither
was he an expert on the subjects thereof. 31 Clearly ignoring petitioner's objections to the exhibits, the
lower court admitted these pieces of evidence and gave them due weight to arrive at the award of
P6,438,048.00 as actual damages.

The exhibits were presented ostensibly in the course of Del Rosario's testimony. Private respondent
did not present any other witnesses especially those whose signatures appear in the price
quotations that became the bases of the award. We hold, however, that the price quotations are
ordinary private writings which under the Revised Rules of Court should have been proffered along
with the testimony of the authors thereof. Del Rosario could not have testified on the veracity of the
contents of the writings even though he was the seasoned owner of a fishing fleet because he was
not the one who issued the price quotations. Section 36, Rule 130 of the Revised Rules of Court
provides that a witness can testify only to those facts that he knows of his personal knowledge.

For this reason, Del Rosario's claim that private respondent incurred losses in the total amount of
P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare
assertion, it should be supported by independent evidence. Moreover, because he was the owner of
private respondent corporation 32 whatever testimony he would give with regard to the value of the lost
vessel, its equipment and cargoes should be viewed in the light of his self-interest therein. We agree with
the Court of Appeals that his testimony as to the equipment installed and the cargoes loaded on the
vessel should be given credence 33 considering his familiarity thereto. However, we do not subscribe to
the conclusion that his valuation of such equipment, cargo and the vessel itself should be accepted as
gospel truth. 34We must, therefore, examine the documentary evidence presented to support Del
Rosario's claim as regards the amount of losses.

The price quotations presented as exhibits partake of the nature of hearsay evidence considering
that the persons who issued them were not presented as witnesses. 35 Any evidence, whether oral or
documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but
on the knowledge of another person who is not on the witness stand. Hearsay evidence, whether
objected to or not, has no probative value unless the proponent can show that the evidence falls within
the exceptions to the hearsay evidence rule. 36 On this point, we believe that the exhibits do not fall under
any of the exceptions provided under Sections 37 to 47 of Rule 130. 37

It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and the like"
under Section 45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court of Appeals
considered private respondent's exhibits as "commercial lists." It added, however, that these exhibits
should be admitted in evidence "until such time as the Supreme Court categorically rules on the
admissibility or inadmissibility of this class of evidence" because "the reception of these
documentary exhibits (price quotations) as evidence rests on the sound discretion of the trial
court." 38 Reference to Section 45, Rule 130, however, would show that the conclusion of the Court of
Appeals on the matter was arbitrarily arrived at. This rule states:

Commercial lists and the like. Evidence of statements of matters of interest to

persons engaged in an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of any relevant
matter so stated if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them there.

Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a statement of
matters of interest to persons engaged in an occupation; (2) such statement is contained in a list,
register, periodical or other published compilation; (3) said compilation is published for the use of
persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the
same occupation.

Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and H 39 are not
"commercial lists" for these do not belong to the category of "other published compilations" under Section
45 aforequoted. Under the principle of ejusdem generis, "(w)here general words follow an enumeration of
persons or things, by words of a particular and specific meaning, such general words are not to be
construed in their widest extent, but are to be held as applying only to persons or things of the same kind
or class as those specifically mentioned." 40 The exhibits mentioned are mere price quotations issued
personally to Del Rosario who requested for them from dealers of equipment similar to the ones lost at
the collision of the two vessels. These are not published in any list, register, periodical or other
compilation on the relevant subject matter. Neither are these "market reports or quotations" within the
purview of "commercial lists" as these are not "standard handbooks or periodicals, containing data of
everyday professional need and relied upon in the work of the occupation." 41 These are simply letters
responding to the queries of Del Rosario. Thus, take for example Exhibit D which reads:

January 20, 1987

PROFORMA INVOICE NO. PSPI-05/87-NAV

MARIA EFIGINIA FISHING CORPORATION

Navotas, Metro Manila

Attention: MR. EDDIE DEL ROSARIO

Gentlemen:

In accordance to your request, we are pleated to quote our Cummins Marine Engine,
to wit.
 Two (2) units CUMMINS Marine Engine model N855-
M, 195 bhp. at 1800 rpm., 6-cylinder in-line, 4-stroke
cycle, natural aspirated, 5 1/2 in. x 6 in. bore and
stroke, 855 cu. In. displacement, keel-cooled, electric
starting coupled with Twin-Disc Marine gearbox model
MG-509, 4.5:1 reduction ratio, includes oil cooler,
companion flange, manual and standard accessories
as per attached sheet.

Price FOB Manila P580,000.00/unit

Total FOB Manila P1,160,000.00

TERMS : CASH

DELIVERY : 60-90 days from date of order.

VALIDITY : Subject to our final confirmation.

WARRANTY : One (1) full year against factory defect.

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n

To be sure, letters and telegrams are admissible in evidence but these are, however, subject to the
general principles of evidence and to various rules relating to documentary evidence. 42 Hence, in one
case, it was held that a letter from an automobile dealer offering an allowance for an automobile upon
purchase of a new automobile after repairs had been completed, was not a "price current" or "commercial
list" within the statute which made such items presumptive evidence of the value of the article specified
therein. The letter was not admissible in evidence as a "commercial list" even though the clerk of the
dealer testified that he had written the letter in due course of business upon instructions of the dealer. 43

But even on the theory that the Court of Appeals correctly ruled on the admissibility of those letters
or communications when it held that unless "plainly irrelevant, immaterial or incompetent," evidence
should better be admitted rather than rejected on "doubtful or technical grounds," 44 the same pieces
of evidence, however, should not have been given probative weight. This is a distinction we wish to point
out. Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to
considered at all. 45 On the other hand, the probative value of evidence refers to the question of whether
or not it proves an issue. 46 Thus, a letter may be offered in evidence and admitted as such but its
evidentiary weight depends upon the observance of the rules on evidence. Accordingly, the author of the
letter should be presented as witness to provide the other party to the litigation the opportunity to question
him on the contents of the letter. Being mere hearsay evidence, failure to present the author of the letter
renders its contents suspect. As earlier stated, hearsay evidence, whether objected to or not, has no
probative value. Thus:

The courts differ as to the weight to be given to hearsay evidence admitted without
objection. Some hold that when hearsay has been admitted without objection, the
same may be considered as any other properly admitted testimony. Others maintain
that it is entitled to no more consideration than if it had been excluded.
 The rule prevailing in this jurisdiction is the latter one. Our Supreme Court held that
although the question of admissibility of evidence can not be raised for the first time
on appeal, yet if the evidence is hearsay it has no probative value and should be
disregarded whether objected to or not. "If no objection is made" quoting Jones on
Evidence "it (hearsay) becomes evidence by reason of the want of such objection
even though its admission does not confer upon it any new attribute in point of
weight. Its nature and quality remain the same, so far as its intrinsic weakness and
incompetency to satisfy the mind are concerned, and as opposed to direct primary
evidence, the latter always prevails.

The failure of the defense counsel to object to the presentation of incompetent

evidence, like hearsay evidence or evidence that violates the rules of res inter alios
acta, or his failure to ask for the striking out of the same does not give such evidence
any probative value. But admissibility of evidence should not be equated with weight
of evidence. Hearsay evidence whether objected to or not has no probative value. 47

Accordingly, as stated at the outset, damages may not be awarded on the basis of hearsay
evidence. 48

Nonetheless, the non-admissibility of said exhibits does not mean that it totally deprives private
respondent of any redress for the loss of its vessel. This is because in Lufthansa German Airlines v.
Court of Appeals, 49 the Court said:

In the absence of competent proof on the actual damage suffered, private

respondent is "entitled to nominal damages which, as the law says, is adjudicated in
order that a right of the plaintiff, which has been violated or invaded by defendant,
may be vindicated and recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered." [Emphasis supplied].

Nominal damages are awarded in every obligation arising from law, contracts, quasi-contracts, acts
or omissions punished by law, and quasi-delicts, or in every case where property right has been
invaded. 50 Under Article 2223 of the Civil Code, "(t)he adjudication of nominal damages shall preclude
further contest upon the right involved and all accessory questions, as between the parties to the suit, or
their respective heirs and assigns."

Actually, nominal damages are damages in name only and not in fact. Where these are allowed,
they are not treated as an equivalent of a wrong inflicted but simply in recognition of the existence of
a technical injury. 51However, the amount to be awarded as nominal damages shall be equal or at least
commensurate to the injury sustained by private respondent considering the concept and purpose of such
damages. 52 The amount of nominal damages to be awarded may also depend on certain special reasons
extant in the case. 53

Applying now such principles to the instant case, we have on record the fact that petitioner's
vessel Petroparcel was at fault as well as private respondent's complaint claiming the amount of
P692,680.00 representing the fishing nets, boat equipment and cargoes that sunk with the M/V
Maria Efigenia XV. In its amended complaint, private respondent alleged that the vessel had an
actual value of P800,000.00 but it had been paid insurance in the amount of P200,000.00 and,
therefore, it claimed only the amount of P600,000.00. Ordinarily, the receipt of insurance payments
should diminish the total value of the vessel quoted by private respondent in his complaint
considering that such payment is causally related to the loss for which it claimed compensation. This
Court believes that such allegations in the original and amended complaints can be the basis for
determination of a fair amount of nominal damages inasmuch as a complaint alleges the ultimate
facts constituting the plaintiffs cause of
action. 54 Private respondent should be bound by its allegations on the amount of its claims.

With respect to petitioner's contention that the lower court did not acquire jurisdiction over the
amended complaint increasing the amount of damages claimed to P600,000.00, we agree with the
Court of Appeals that the lower court acquired jurisdiction over the case when private respondent
paid the docket fee corresponding to its claim in its original complaint. Its failure to pay the docket
fee corresponding to its increased claim for damages under the amended complaint should not be
considered as having curtailed the lower court's jurisdiction. Pursuant to the ruling in Sun Insurance
Office, Ltd. (SIOL) v. Asuncion, 55 the unpaid docket fee should be considered as a lien on the judgment
even though private respondent specified the amount of P600,000.00 as its claim for damages in its
amended complaint.

Moreover, we note that petitioner did not question at all the jurisdiction of the lower court on the
ground of insufficient docket fees in its answers to both the amended complaint and the second
amended complaint. It did so only in its motion for reconsideration of the decision of the lower court
after it had received an adverse decision. As this Court held in Pantranco North Express, Inc. v.
Court of Appeals, 56 participation in all stages of the case before the trial court, that included invoking its
authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the
court's jurisdiction. Notably, from the time it filed its answer to the second amended complaint on April 16,
1985, 57 petitioner did not question the lower court's jurisdiction. It was only on December 29,
1989 58 when it filed its motion for reconsideration of the lower court's decision that petitioner raised the
question of the lower court's lack of jurisdiction. Petitioner thus foreclosed its right to raise the issue of
jurisdiction by its own inaction.

WHEREFORE, the challenged decision of the Court of Appeals dated October 14, 1992 in CA-G.R.
CV No. 26680 affirming that of the Regional Trial Court of Caloocan City, Branch 121, is hereby
MODIFIED insofar as it awarded actual damages to private respondent Maria Efigenia Fishing
Corporation in the amount of P6,438,048.00 for lack of evidentiary bases therefor. Considering the
fact, however, that: (1) technically petitioner sustained injury but which, unfortunately, was not
adequately and properly proved, and (2) this case has dragged on for almost two decades, we
believe that an award of Two Million (P2,000,000.00) 59 in favor of private respondent as and for
nominal damages is in order.

No pronouncement as to costs.

SO ORDERED.

Kapunan and Purisima, JJ., concur.

Narvasa, C.J., is on leave.

JOWEL SALES, G.R. No. 133154
Petitioner,

Present:

PANGANIBAN, J., Chairman

SANDOVAL-GUTIERREZ,
CORONA,
- versus - CARPIO MORALES, and
GARCIA, JJ.

Promulgated:

CYRIL A. SABINO,
Respondent. December 9, 2005
x-----------------------------------------------------------------------------------x
DECISION

GARCIA, J.:

Assailed and sought to be set aside in this petition for review

on certiorari under Rule 45 of the Rules of Court are the following
issuances of the Court of Appeals (CA) in CA-G.R. SP No. 44078, to
wit:
1. Decision[1] dated January 20, 1998, affirming an earlier order of the
Regional Trial Court, Branch 152, National Capital Judicial
Region, which admitted the deposition of one Buaneres Corral as
part of respondents evidence in an action for damages; and

2. Resolution[2] dated March 22, 1998, denying petitioners motion for

reconsideration.

Briefly, the facts may be stated as follows:

On February 20, 1995, in the Regional Trial Court (RTC)
at Pasig City, Metro Manila, herein respondent Cyril A. Sabino filed
an amended complaint[3] for damages against, among others,
herein petitioner Jowel Sales, driver of the vehicle involved in the
accident which ultimately caused the death of respondents son,
Elbert.

Before any responsive pleading could be filed, respondent, as

plaintif a quo, notified the defendants that he will take the
deposition of one Buaneres Corral before the Clerk of
Court, RTC- Pasig City.

On December 27, 1995 and resumed on January 3, 1996, the

deposition on oral examination of Buaneres Corral was taken
before the Clerk of Court of Pasig, in the presence and with the
active participation of petitioners counsel, Atty. Roldan Villacorta,
who even lengthily cross-examined the deponent. In the course of
trial, respondent had the deposition of Buaneres Corral marked as
her Exhibits DD[4] and EE[5], with submarkings.
Upon conclusion of her evidentiary presentation, respondent
made a Formal Ofer of Exhibits, [6] among which are Exhibits DD
and EE. Likewise ofered in evidence as Exhibit BB [7] is a
certification from the Bureau of Immigration attesting to the May
28, 1996 departure for abroad of Buaneres Corral via Flight No. PR
658.

Petitioner opposed the admission of Exhs. DD and EE and

even asked that they be expunged from the records on the
ground that the jurisdictional requirements for their admission
under Section 4, Rule 23 of the Rules of Court, infra, were not
complied with. He also downplayed the evidentiary value of
Exhibit BB for reasons he would repeat in this petition.

In its order of February 3, 1997,[8] the trial court admitted,

among other evidence, respondents Exhibits DD, EE and BB. With
his motion for reconsideration[9] having been denied by the court
in its subsequent order of March 25, 1997, [10] petitioner went
on certiorari to the Court of Appeals in CA-G.R. SP No. 44078,
imputing grave abuse of discretion on the part of the trial court in
admitting in evidence the deposition in question (Exhibits DD and
EE).

As stated at the threshold hereof, the appellate court, in the

herein assailed decision dated January 20, 1998, [11] upheld the
trial court and efectively denied due course to and dismissed
petitioners recourse, explaining, inter alia, that petitioners active
participation, through counsel, during the taking of subject
deposition and adopting it as his own exhibits, has thereby
estopped him from assailing the admissibility thereof as part of
respondents evidence. His motion for reconsideration having been
denied by the appellate court in its equally assailed resolution
of March 22, 1998, petitioner is now with us via the instant
petition, raising the following issues of his own formulation:
1. Whether or not the requirements of Section 4, Rule 24 (now
Section 3) of the Revised Rules of Court were satisfied by the
respondent when it presented a certification attesting to the fact that
deponent has left the country but silent as to whether or not at the time
his deposition was offered in evidence is in the Philippines

2. Whether or not the petitioner in cross-examining the deponent

during the taking of his deposition waived any and all objections in
connection therewith.[12]

The petition lacks merit.

Section 4, Rule 23[13] of the Rules of Court, upon which

petitioner mounts his challenge to the admission in evidence of
the subject deposition, pertinently reads:
SEC. 4. Use of depositions.- At the trial . . . any part or all of a
deposition, so far as admissible under the rules of evidence, may be used
against any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any of the
following provisions:
 xxx xxx xxx

(c) The deposition of a witness, whether or not a party, may be

used by any party for any purpose if the court finds: (1) that the witness
is dead; or (2) that the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or hearing, or is out
of the Philippines, unless it appears that his absence was procured
by the party offering the deposition; or (3) that the witness is unable
to attend or testify because of age, sickness, infirmity, or
imprisonment; or (4) that the party offering the deposition has been
unable to procure the attendance of the witness by subpoena; or (5)
upon application and notice, that such exception circumstances exist
and with due regard to the importance of presenting the testimony
of witnesses orally in open court, to allow the deposition to be
used. (Emphasis supplied).

It is petitioners posture that none of the above conditions

exists in this case to justify the admission in evidence of
respondents Exhibits DD and EE. Hence, it was error for the
appellate court to have upheld the admission thereof by the trial
court. Discounting the probative value of the certification from the
Bureau of Immigration (Exh. BB) that deponent Buaneres Corral
departed for abroad on May 28, 1996, petitioner argues that said
certification merely proves the fact of Corral having left the
country on the date therein mentioned. It does not, however,
establish that he has not returned since then and is unavailable to
be present in court to personally testify.

While depositions may be used as evidence in court

proceedings, they are generally not meant to be a substitute for
the actual testimony in open court of a party or witness. Stated a
bit diferently, a deposition is not to be used when the deponent is
at hand.[14] Indeed, any deposition ofered during a trial to prove
the facts therein set out, in lieu of the actual oral testimony of the
deponent in open court, may be opposed and excluded on the
ground of hearsay. However, depositions may be used without the
deponent being called to the witness stand by the proponent,
provided the existence of certain conditions is first satisfactorily
established. Five (5) exceptions for the admissibility of a
deposition are listed in Section 4, Rule 23, supra, of the Rules of
Court. Among these is when the witness is out of the Philippines.

The trial court had determined that deponent Bueneres

Corral was abroad when the ofer of his deposition was made. This
factual finding of absence or unavailability of witness to testify
deserves respect, having been adequately substantiated. As it
were, the certification by the Bureau of Immigration Exh. BB-
provides that evidentiary support. Accordingly, the attribution of
grave abuse of discretion on the part of the trial court must be
struck down. It has been said to be customary for courts to accept
statements of parties as to the unavailability of a witness as a
predicate to the use of depositions. [15] Had deponent Buaneres
Corral indeed returned to the Philippines subsequent to his
departure via Flight No. PR 658, petitioner could have presented
evidence to show that such was the case. As it is, however, the
petitioner does not even assert the return as a fact, only ofering
it as a possibility since no contrary proof had been adduced.

Given the foregoing perspective, the second issue of

whether or not petitioner is estopped from objecting to the use of
Corrals deposition as part of respondents evidence is really no
longer determinative of the outcome of this case, and need not
detain us long. Suffice it to state that, as a rule, the inadmissibility
of testimony taken by deposition is anchored on the ground that
such testimony is hearsay, i.e., the party against whom it is
ofered has no opportunity to cross-examine the deponent at the
time his testimony is ofered. But as jurisprudence teaches, it
matters not that opportunity for cross-examination was aforded
during the taking of the deposition; for normally, the opportunity
for cross-examination must be accorded a party at the time the
testimonial evidence is actually presented against him during the
trial or hearing.[16] In fine, the act of cross-examining the deponent
during the taking of the deposition cannot, without more, be
considered a waiver of the right to object to its admissibility as
evidence in the trial proper. In participating, therefore, in the
taking of the deposition, but objecting to its admissibility in court
as evidence, petitioner did not assume inconsistent positions. He
is not, thus, estopped from challenging the admissibility of the
deposition just because he participated in the taking thereof.

Lest it be overlooked, Section 29, Rule 23 of the Rules of

Court, no less, lends support to the conclusion just made. In gist,
it provides that, while errors and irregularities in depositions as to
notice, qualifications of the officer conducting the deposition, and
manner of taking the deposition are deemed waived if not
objected to before or during the taking of the deposition,
objections to the competency of a witness or the competency,
relevancy, or materiality of testimony may be made for the first
time at the trial and need not be made at the time of the taking of
the deposition, unless they could be obviated at that point. [17]

While perhaps a bit anti-climactic to state at this

point, certiorari will not lie against an order admitting or rejecting
a deposition in evidence, the remedy being an appeal from the
final judgment.[18] For this singular reason alone, the appellate
court could have had already dismissed herein petitioners
invocation of its certiorari jurisdiction.

WHEREFORE, the instant petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice
 THIRD DIVSION

PEOPLE OF THE PHILIPPINES, G.R. No. 178301

Plaintif/Appellee,
Present:

- versus - YNARES-SANTIAGO,
J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
ROLANDO Botong MALIBIRAN NACHURA, and
Accused, PERALTA, JJ.

and BEVERLY TIBO-TAN, Promulgated:

Accused/Appellant. April 24, 2009
x------------------------------------------------------
----x

DECISION
AUSTRIA-MARTINEZ:

For review is the November 13, 2006 Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 02167 which affirmed the Joint
Decision[2] dated September 23, 2003 of the Regional Trial Court (RTC),
Special Court for Heinous Crimes, Branch 156, of Pasig City, Metro
Manila, finding Rolando Botong Malibiran (Rolando) and Beverly Tibo-
Tan (appellant) guilty of Murder and Parricide, respectively, and
sentencing them to sufer the penalty of reclusion perpetua.

The conviction arose from the death of Reynaldo Tan (Reynaldo)

on February 5, 1995. The antecedents that led to Reynaldo's death,
however, go way back in the 70's when Reynaldo left his common-law
wife, Rosalinda Fuerzas (Rosalinda), and their two (2) children, Jessie
and Reynalin, in Davao, and went to Manila to seek greener
pastures. While in Manila, Reynaldo met and had a relationship with
appellant. They eventually married in 1981. Reynaldo and appellant
begot three (3) children Renevie, Jag-Carlo and Jay R.

In 1984, Reynaldo's and Rosalinda's paths crossed again and they

resumed their relationship. This led to the souring of Reynaldo's
relationship with appellant; and in 1991, Reynaldo moved out of the
conjugal house and started living again with Rosalinda, although
Reynaldo maintained support of and paternal ties with his children.
On that fateful day of February 5, 1995, Reynaldo and appellant were
in Greenhills with their children for their usual Sunday gallivant. After
finishing lunch at the Kimpura restaurant, the family separated at
around 2:00 o'clock in the afternoon to do some shopping. Later, they
regrouped and purchased groceries at Unimart. At around 4:00
o'clock in the afternoon, the family stepped out of the shopping mall
and Reynaldo proceeded to the parking lot to get his red Honda
Accord, while the rest of his family stayed behind and waited.
Immediately thereafter, the family heard an explosion coming from the
direction where Reynaldo parked his car. Appellant and Renevie got
curious and proceeded to the parking lot. There, they saw the Honda
Accord burning, with Reynaldo lying beside the driver's seat, burning,
charred and bleeding profusely. A taxi driver named Elmer Paug
(Elmer) appeared and pulled Reynaldo out of the car. Reynaldo was
then rushed to the Cardinal Santos Medical Hospital where he
eventually died because of the severe injuries he sustained.[3] The
underlying cause of his death was Multiple Fracture & Multiple Vascular
Injuries Secondary to Blast Injury.[4]

An investigation was conducted by the police after which two

separate Informations for Murder and Parricide, dated September 10,
1997, were filed against appellant, Rolando and one Oswaldo Banaag
(Oswaldo).

The Information in Criminal Case No. 113065-H accused Rolando

and Oswaldo of the crime of Murder, to wit:
 On February 5, 1995, in San Juan, Metro Manila and within the jurisdiction of
this Honorable Court, the accused, conspiring and confederating with Beverly
Tibo-Tan, and three other individuals whose identities are still unknown, did
then and there willfully, unlawfully, and feloniously, with intent to kill,
treachery, evidence (sic) premeditation and with the use of explosion, plan,
plant the explosive, and kill the person of Reynaldo C. Tan, by placing said
grenades on the drivers side of his car, and when said victim opened his car,
an explosion happened, thereby inflicting upon the latter mortal wound which
was the direct and immediate cause of his death.

The accused Oswaldo, without having participated in said crime of murder as

principal, did and there willfully, unlawfully and feloniously take part, as an
accomplice, in its commission, by cooperating in the execution of the ofense
by previous and simultaneous acts.

Contrary to law.[5]

The Information in Criminal Case No. 113066-H accused appellant of

the crime of Parricide, to wit:

On February 5, 1995, in San Juan Metro Manila and within the jurisdiction of
this Honorable Court, the accused, while still married to Reynaldo C. Tan, and
such marriage not having been annulled and dissolved by competent
authority, conspiring and confederating with Rolando V. Malibiran, and three
other individuals whose identities are still unknown, did then and there
willfully, unlawfully and feloniously with intent to kill, treachery, evidence (sic)
premeditation and with the use of explosion, plan, plant the explosive, and kill
the person Reynado C. Tan, by placing said grenades on the drivers side of his
car, and when said victim opened his car, an explosion happened, thereby
inflicting upon the latter mortal wound which was the direct and immediate
cause of his death.

Contrary to law.[6]
Rolando and appellant pleaded not guilty on arraignment.[7] Their co-
accused, Oswaldo, was later discharged and utilized as one of the
prosecution witnesses.

The prosecution presented Jessie Tan, Inspector Silverio Dollesin, Elmer

Paug, Police Inspector Wilson Lachica, Supervising Investigating Agent
Reynaldo Olasco, Rosalinda Fuerzas, Janet Pascual (Janet), and
Oswaldo, as its witnesses.

For its part, the defense presented the following witnesses, namely:
Renevie Tan, Romulo Bruzo (Romulo), Tessie Luba, Emily Cuevas, Jose
Ong Santos, Victorino Feliz, Virgilio Dacalanio and accused Rolando.
Appellant did not testify in her behalf.

The RTC summed up the testimonies, as follows:

THE EVIDENCE FOR THE PROSECUTION

1. Jessie Tan, a son of Reynaldo with Rosalinda Fuerzas, testified that he moved
to Manila from Davao in 1985 to study at the instance of his father Reynaldo
and to enable then to bring back time that had been lost since his father left his
mother Rosalinda and the latters children in Davao (TSN, Jan. 27, p.14); In
1991 Reynaldo moved to their house because his relationship with Beverly was
worsening, and to exacerbate matters, Beverly had then a lover named Rudy
Pascua or Pascual, a contractor for the resthouse of Reynaldo. Reynaldo and
Beverly were then constantly quarreling over money (TSN, February 10, 1999,
pp. 28-29); Jessie had heard the name of Rolando Malibiran sometime in 1994
because one day, Reynaldo came home before dinner feeling mad since he
found Rolando Malibiran inside the bedroom of Beverly at their White Plains
residence; Reynaldo had his gun with him at the time but Malibiran ran away
(TSN, January 27, 1999, pp. 19-21). He eventually came to learn about more
details on Rolando Malibiran from Oswaldo Banaag, the family driver
of Beverly who was in the house at White Plains at the time of the incident
(Ibid, p. 22). One night in December of the same year (1994) Jessie overheard
Reynaldo talking to Beverly over the phone, with the latter fuming mad. After
the phone conversation he asked his father what happened because the latter
was already having an attack of hypertension and his father told him that
Beverly threatened him and that he, (Reynaldo) will not benetit from his money
if he will continue his move for separation (p. 40 ibid). This threat was taped by
Reynaldo in his conversation with Beverly (Exh. B) Jessie himself has received
threat of his life over the phone in 1989 (p. 30 ibid).

At the lounge at Cardinal Santos Hospital, on the day of the mishap, Jessie
testified on the emotional state of his mother Rosalinda while in said Hospital;
that she was continuously crying while she was talking to Jessies uncle. When
asked where Beverly was and her emotional state, he said that Beverly was also
at the lounge of the said hospital, sometimes she is seated and then she would
stand up and then sit again and then stand up again. He did not see her cry hindi
ko po syang nakitang umiyak (pp. 52-23 ibid). When asked if his father had
enemies when he was alive, he said he knows of no one (p.54 ibid). Jessie was
informed by his mother (Rosalinda) few months after the death of Reynaldo that
there was a letter by Rosalinda addressed to his uncle which stated that if
something happened to him, Beverly has a hand in it (p. 56 ibid, Exh. D Letter
dated March 24, 1999)

On cross examination, he admitted having gone to Mandaluyong City Jail and

talked with Oswaldo Banaag about latters claim that both accused have planned
to kill his father. When asked if he knows the consequences if Beverly is
convicted, on the matter of Conjugal Partition of Property, Jessie knows
that Beverlys share would be forfeited. Counsel confirmed Jessies request of
whatever property of his father remaining shall shared equally by the legitimate
and illegitimate children. Thus, Jessie confirmed as the agreement between
them (p. 28, March 24, 1999 TSN).

2. Mr. Salonga, a locksmith in Greenhills Supermarket whose work area is at

the entrance door of the grocery of Unimart testified that he can duplicate any
key of any car in five (5) minutes. And that he is accessible to any one passing
to Greenhills Shopping Complex (p. 45, March 24, 1999 TSN). The Honda Car
representative on the other hand testified that the Honda Accord of the deceased
has no alarm, that the Honda Accord key can be duplicated without
difficulty. And the keyless entry device of the said vehicle can be duplicated
(pp. 46-47 ibid, Stipulation. Order p. 335 record Vol. 1).

3. Insperctor Selverio Dollesin, the Chief of the Bomb Disposal Unit of the
Eastern Police District, and the Police Officer who conducted the post aftermath
report of the incident whose skills as an expert was uncontroverted, testified that
the perpetrator knew who the intended vicitim was and has reliable information
as to his position when opening the vehicle. If the intended victim does not
usually drive and usually sits on the rear portion of the vehicle (p. 49, April 14,
1999 TSN) Inspector Dollesins conclusion states that the device (bomb) was
placed in front of the vehicle in between the drivers seat and the front door
because the perpetrator had information about the victims movements,
otherwise he could have placed the device underneath the vehicle, in the rear
portion of the vehicle or in any part thereof (p. 53 ibid). He testified that persons
who have minimal knowledge can set up the explosive in the car in five (5)
minutes (p. 65 ibid). The explosion will commence at about 4-7 seconds (p. 66
ibid).
 4. Elmer Paug, the taxi driver, testified that on February 5, 1995 he
was just dropping a passenger to Greenhills Shopping Complex when he heard
a loud explosion at the parking level. Being curious of the incident he hurriedly
went out to look for a parking, then proceeded to the area where the explosion
occurred. He saw a man wearing a shirt and short who is about to give
assistance to a man who was a down on the ground bloodied. Finding that the
man could not do it on his own, Elmer rushed through to give aid. He held both
arms of the victim, grabbed him in the wrists and dragged him out and brought
him farther to the burning car. (pp. 7 July 7, 1999 TSN). The man lying on the
pavement has burnt fingers and hair, chest bloodied and skin already sticking to
Elmers clothes (p. 8 Ibid). He noticed two women at about two armlength from
the car where he was. The younger woman shouted Daddy, Daddy, kaya mo
iyan. She was crying had wailing (p. 10 ibid). He said that the older woman
gestured her left hand exclaimed in a not so loud voice wala bang tutulong sa
amin? while her right hand clutched her shoulder bag (p. 11 ibid). When asked
if the older woman appears to be alarmed, Elmer testified that he cannot say,
and said she looked normal; he did not notice her crying. Neither of the two
female rendered assistance to drag the victim, they just followed him when he
pulled him out. The older woman never touched the victim. (p. 12
ibid). Considering that his Taxi is quite far where the victim was lying, he
flagged a taxi, and the victim was brought to Cardinal Santos Hospital (pp. 15-
16 ibid).

On cross examination, he was asked what the meaning of normal is, and he said
natural Parang walang nangyari It looks like nothing happened (p. 42 ibid). Her
was uncertain as to whether the two females joined the deceased in the taxi cab
(p. 43) as he left.

5. Police Inspector Wilson Lachica testified that he was the police officer who
investigated the case. In the Cardinal Santos Hospital he was able to interview
Beverly Tan. He asked her name, address, name of the victim, how the incident
happened and who their companions were. She answered those questions in a
calm manner (p. 13, Sept. 21, 1999 TSN). As per his observation which was
told to his superiors, he has not seen remorse on the part of the victim, (meaning
the wife) for an investigator that is unusual. Based on his more than six years of
experience as an investigator, whenever a violent crime happened, usually those
relatives and love ones appears hysterical, upset and restless. Her reaction at the
time according to him is not normal, considering that the victim is her
husband. He interviewed persons close to the victim even at the wake at Paz
Funeral in Quezon City. He was able to interview the daughter of the lady-
accused; the other lady and family or relatives of the victim, the same with the
driver of the lady accused. He came to know the identity of the policeman
linked with the lady accused, named Rolando Malibiran. He testified that he
obtained the information that he desired from the widow nonchalantly and
marked with blithe unconcern, which in his observation is unusual since she is
supposed to be the one who would diligently push through in the
investigation. When asked the level of interest as regards accused Malibiran,
witness testified that because of the manner of the commission of the crime
through the use of explosives, only a trained person can do that job (pp. 15-16
ibid).

6. Supervising Investigating Agent Reynaldo Olasco testified that his only

observation on the demeanor of Beverly Tan is that she did not give her
statement readily without the assistance of her counsel which for the
investigator is quite irregular. Considering that she is the legal wife, he could not
see the reason why Beverly would bring a counsel when she is supposed to be
the complainant in the case (p. 11, April 5, 2000 TSN).He testified that after
having interviewed a representative from Honda, they had set aside the
possibility that it was a third party who used pick lock in order to have access to
the Honda Accord and the presumption is that the duplicate key or the main key
was used in opening the car. The assessment was connected with the statement
of Renevie that she heard the clicking of all the locks of the Honda Accord,
which she was sure of when they left the car in the parking lot (p. 12 ibid) In
1998 they arrested Rolando Malibiran in Candelaria Quezon, he was fixing his
owner type jeep at that time. The arresting officers waited for Beverly Tan, and
after thirty minutes they were able to arrest Beverly Tan on the same place (p
8, May 31, 2000 TSN). They searched the premises of the place where they
reside and found a white paper which he presumed to be kulam because theres
some oracle words inscribe in that white piece of paper and at the bottom is
written the same of Jessie (pp. 8-9 ibid). On cross examination, he admitted that
70% of the information on the case was given by Oswaldo Banaag through the
persistence of the NBI which convinced him to help solve the case. It was
disclosed to the investigating officer after he was released, thats the only time he
gave in to the request (p. 14, may 31, 2000 TSN). As to how the NBI operatives
effected the arrest, it was through an information from the Lucena Sub-Office
(p. 17, Ibid).

7. Rosalinda Fuerzas testified that her life in Makati was medyo magulo lnag
kase nanggugulo sya sa amin. When asked who this siya was, she
said Beverly. That one day Beverly called on her and harassed her, and one day
she received a murder letter threatening that she (Rosalinda) would be around
the newspaper saying that she would be killed, like what they did in the news
papers, puputu-putulin iyong mga dodo o anuman dahil mang-aagaw daw ako
(Rosalinda) ng asawa (p. 11 ibid, June 27, 2000 TSN). She stated that her
husband wanted to separate with Beverly because he found out that the latter
has paramour named Rudy Pascua contractor of Jollibee (pp. 13-14 ibid). She
had never seen Beverly appeared to be lonely when her husband was then
kidnapped. A telephone conversation with Beverly was recorded by Reynaldo
which was a quarrel regarding money. In the Cardinal Santos Hospital, she did
not see Beverlys appearance to be lonely but appeared to be a criminal,
and Beverly did not cry (pp. 13-17 ibid). She mentioned the letter of Reynaldo
that if something happened to him, Beverly is the one who killed him (p. 26
Ibid; pp. 24-25, Exh. D, Vol. 1-A Record).

8. Janet Pascual testified that she was able to know Rolando Malibiran, because
on March 1993 when she was in White Plains, Beverly showed her a picture of
him (Malibiran) and said to her that he is her boy friend. Witness told her that he
was handsome. She was close to Beverly that she frequently stayed in White
Plains when Beverly and Reynaldo is no longer living in the same roof. They
played mahjong, chat and has heard Beverlys hurtful emotions by reason of her
philandering husband Reynaldo. Beverly told her of how she felt bad against
underwear not intented for her (p. 9, Oct. 11, 2000 TSN); that on August 1994,
Malibiran told Beverly that he has a kumapre who knows how to make kulam
for an amount of P10,000.00. That Reynaldo would just sleep and never wake
up. Witness testified that they went to Quiapo to buy the needed ingredients but
nothing happened (p. 14 Ibid). The accused wanted to kill Reynaldo in a way
that they would not be suspected of having planned it, and for him just to die of
bangungot. She testified that they wanted to separate their properties but it did
not push through, referring to Beverly and Reynaldo. That Beverly heard of the
house being built in Corinthian intended for Rosalinda and family. In July 1994
Malibiran told witness testified that she heard this on their way to Batangas, it
was Beverlys birthday (p. 16 ibid). On October 1994 she asked by Malibiran to
convince Beverly to marry him, this was asked at the time when Beverly was
in Germany (p. 17 ibid).

When asked whether Beverly and Rolando ever got married the witness
testified that the two got married on November 8, 1994. (p. 155 Vol. 1-A
records Exh. JJ Certificate of Marriage). That she executed an affidavit of
corroborating witnesses for Beverly and Malibiran to facilitate the processing of
their exemption in obtaining marriage license requirement (p. 128 Ibid; Exh.
BB). She is an employee of the Municipality of San Juan. After getting married
they discussed how Malibiran would get inside the car of Reynaldo. On
December of 1994, Beverly was able to duplicate Reynaldos key at the time
when they have shopped for many things, Reynaldo asked her to bring the
goods to the car in the compartment as the kids would still shop (p. 17
ibid). After having done so, she proceeded to a key duplicator in Virra Mall and
had the key duplicated. Thereafter on the succeeding days or weeks, she was
able to give the duplicate to Malibiran. That they would use the grenade since
Malibiran has one in his house but his only problem is how to get inside the car
and place the grenade (p. 18, Oct. 11, 2000 TSN; Vide p. 35 ibid)

As to when the killing would take place, the witness heard that they will
do it during the baptism of the child of Gloria, Rolando Malibirans sister. They
chose that date so that they would not be suspected of anything and that pictures
would be taken in the baptism to reflect that Malibiran took part in the same (pp.
17-18 ibid). During Reynaldos internment when asked whether Beverly looked
sad, witness said that she did not see her sad (p. 20 ibid). On February 8, 1995,
during the wake, witness met Malibiran in a canteen in White Plains and they
rode a Canter owned by Beverly, on the road while the vehicle was cruising
along Katipunan avenue near Labor Hospital, Malibiran told her among others
that on the day he placed a grenade on Reynaldos car he saw a security guard
roving and so what he did was to hurriedly tie the wire in the grenade (p. 21
ibid) not connected with the wire unlike the one intended for Reynaldo which
has a connection (p. 21 ibid). As far as she knows, there were four or five
grenades placed. She told this secret to another friend so that in case something
happened to her, it was the doing of Malibiran and Beverly.

On Cross examination, she was asked whether Malibiran did it alone, she said
that he has a look out as what Malibiran told him (p. 26 ibid). When confronted
why she was testifying only now, she said she was bothered by her
conscience. As to how did she get the information of key duplication, she said
that it was told to her by Beverly (p. 35 ibid). It was also disclosed that she did
ask Atty. Morales for a sum of P5,000.00 for he to buy medicine.

9. Oswaldo Banaag (or Banaag) testified that Beverly told him that she
and Malibiran had a relationship (p. 39, April 1994 TSN). He testified that on
April 10, 1994 Beverly asked him to look for a hired gunman, if he could not
find one, he just look for a poison that would kill Reynaldo, ten thousand
(P10,000.00) pesos was given him for this (p. 14 Ibid). In his sworn statement
he said that Beverly asked him to seek means for Reynaldo to die. That she will
pay any amount just for him to get out of her life. He has driven for her in going
to Hilltop Police Station, Taytay Rizal to see Rolando Malibiran. That Malibiran
blames Beverly of the reason why Reynaldo is still alive and then volunteered
himself to remedy the situation, that he would seek a man that would kill
Reynaldo he made an example of a man they killed and threw in Antipolo
Bangin with Beverly, Malibiran and two other persons who appear to be
policeman because they have something budging in their waste [sic] which is
assumed to be a gun, they went to Paombong Bulacan via Malabon. He heard
that they would fetch a man in Bulacan that knows how to place a bomb in a
vehicle. Near the sea they talked to a person thereat. From Paombong they rode
a banca and went to an islet where the planning was discussed as to how much
is the fee and how the killing will be had. They ordered him to return back to
the vehicle and just fetched them in Binangonan.

He swore that on February 5, 1995 around 10:30 a.m. Beverly asked

one of her siblings to call Reynaldo for them to be picked up because every
Sunday, the family would go out for recreation. Around 12:00 pm he was asked
by Beverly to follow where they will go and when they are already parked, he
was instructed to fetch Malibiran in Caltex, Katipunan near Shakeys and bring
them to the place where Reynaldo was parked. In the Caltex station he saw
Malibiran with two persons who looked like policemen and another person he
previously saw in Bulacan. He drove the L300 Van, and brought them to the
parking lot where Reynaldos Honda Car was parked and Malibiran told him just
drove [sic] in the area and come back. At around 3:00 p.m. after half an hour he
saw Malibiran and company and I picked them up. He heard from the person in
Bulacan Ayos na, siguradong malinis ito. Then he was asked to drive them to
Hilltop Police Station. He discovered the death of Reynaldo when he saw and
read newspaper, he called Beverly to confirm this incident and he was asked to
be hired again and drove for her. When he was in White Plains already, he was
asked by Beverly and Malibiran not to squeal what he knows of, otherwise, his
life will just be endangered. That Beverly and Malibiran were lovers since
March 1993, when they met each other in a piggery in Marikina. There was an
incident that Reynaldo saw Malibiran in their own bedroom, and there was
almost a gunshot incident, he was there because he was asked to drive the
vehicle. Beverly Tans source of money was from Reynaldo Tan, that he
(Banaag) was asked frequently by Beverly who in turn would give it to
Malibiran (Exh. y, pp. 122-125 Vol. 1-A, Sworn Statement November 29,
1996).

On March 29, 1996 he was no longer driving for Beverly because he

was arrested by the Presidential Anti-Crime Commission for his alleged
involvement in the kidnapping of the father of the classmate of Renevie Tan. He
was later on acquitted (p. 16, Feb. 20, 2001 TSN) and released from
incarceration on May 7, 1997. When asked whether Jessie Tan helped him to be
acquitted in the kidnapping case, he said no (p. 16 ibid).
 On Cross examination, he was asked how many times did Jessie Tan
visit him in prison, he said that it was Atty. Olanzo who visited him for about six
times and that he saw Jessie when he was already out of jail (pp. 24-25 ibid). He
testified that there was one incident when Reynaldo and Mabiliran almost had a
shootout in the bedroom downstairs because Malibiran was inside the bedroom
where Beverly was, Reynaldo have a gun at that time bulging in his waste [sic]
(p. 40 ibid).

Further on Cross, he testified that sometime in June 1994, he with

Beverly went to Hilltop Police Station and fetched Malibiran and company to
go to Paombong Bulacan, they passed by Malabon before going to
Bulacan. When they reached the bridge near the sea, they rode a banca, about
six of them plus the one rowing the boar towards an Island. In the Island, there
was one person waiting (p. 44-45 ibid). he stayed there for just for about ten
(10) minutes, and during that period, at about one arms length he overheard their
conversation concerning a man to bring the bomb in the car. When asked who
was in the banca then, he said it was Beverly, Botong (Malibiran), Janet and the
man they picked up at Hilltop. He was told to return the L300 and just wait for
them in Binangonan, hence he rode a banca to return to the bridge and then
drove the L300 Van towards Binangonan (p. 50 ibid). When asked if he knows
that Malibiran is engaged in the fishing business of bangus, he had no idea (p.
45 ibid).

DEFENSE EVIDENCE

For the defense, in opposition to the testimony of Elmer Paug, it called to the
witness stand Renevie Tan. She testified that she believe that her mother
(Beverly) did not kill her dad because she was with them at the time of the
incident (p. 6 Feb. 5, 2002 TSN). That it is not true that they did nothing when
his dad was lying on the ground at the time of the incident. That her mom
screamed at that time and did tried to pull her dad who was under the car that
she kept going around to find a safer place to pull him out because the car was
burning and so they could not pick her dad without burning. Her mother tried
crawling underneath the car so she can reach him but he pulled her mom aside
and pulled dad risking himself from burning (p. 11 ibid) She found out that the
person who helped them was the taxi driver, Elmer Paug.

That a driver of a Ford Fiera or Toyota Tamaraw of some kind of

delivery van boarded her dad with her mom and headed for Cardinal Santos
Hospital. She said that if is not true that her mom appeared unaffected or acting
normal as if nothing happened. That it is likewise not true when Elmer Paug
said that he alone carried her dads body, and said that there was another man
who helped put her dad on the car (p. 14 ibid). She swore that her mom was
shocked and was crying at that time (pp. 112-115, Exh. U Sworn Statement of
Renevie Tan). She admitted that it was only the taxi driver who pulled out his
dad from the danger area to a safer place at about four (4) meters, while Elmer
Paug was dragging her dad, they where there following him (p. 43 February 5,
2002, TSN). That she touched her father when they where (p. 45 ibid). It was
confirmed in her testimony that it was the taxi drivers who looked for a taxi cab
( p. 46 ibid). She asked if she observed whether her mom carried a portion of
her dads body or arms, hands, legs or buttocks of her father, she said she could
not remember (p. 7-8, February 12, 2002 TSN). When asked whether her mom
has a shoulder bag at that time, she could not remember.

She testified that her parents keep quarreling to each other may be in
1988-89 and stopped in 1991. it was a once a month quarrel (pp. 23-24 ibid). A
certain Janet Pascual frequently stayed in their house in the months of October
1994 until February of 1995, and her moms relationship with Janet was cordial
(pp. 27-28, ibid). As regards to Malibiran, she knows him at the month of
August or September of 1994 but no knowledge of a marriage that took place
between her mom and Malibiran on November of the same year (p. 30 ibid).

Romulo Bruzo, the security guard of Tan Family at White Plains testified
that there was an offer of half a million to him by an unknown person and a
demand for him to leave the employ of Beverly Tan and a threat to his life
should he testify before the Court. He testified that Banaag was a family driver
of the Tan in White Plains from March 1993 until August 1994, after said date,
he was taken by Reynaldo Tan as driver at Winreach. He testifies that the
statement of Oswaldo Banaag that he came over to White Plains on February 5,
1995, drove the L300 Van and followed the family to Greenhills Shopping
Complex is false.Because at that time, the L300 was still parked inside White
Plains, it was just a concocted statement of Banaag because he has a grudge on
Mrs. Tan as she did not help him when he was incarcerated in Camp Crame
(p.47-48 ibid).

He was told by Banaag that they were supposed to kidnap the three
siblings of Beverly Tan but he took pity on them because Beverly is a nice
person to him. He stated that Jessie Tan helped him to be acquitted (p. 49 ibid)
and promised good job and house to live in.

As regards Janet Pascual, he testified that he had an altercation with her (Janet)
because there was an instruction for him by Renevie for Janet not to let inside
the house. That Janet got mad at them because she is not been [sic] treated the
way Renevies mom did not to her. Likewise, Renevie has refused to give
her P5,000.00 allowance as her mom did before to Janet for the latters medicine
(pp. 50-51).

On account of said incident, she made a threatening remark that if she

will not be treated fairly and the P5,000.00 allowance be not given to her, she
will go to the Tan Brother and she will testify Mrs. Tan.When asked whom she
was angry of Bruzo said it was against Renevie and Atty. Morales. She was
angry with the latter because she thought that Atty. Morales was telling Renevie
not to give her allowance anymore and refuse access inside the white plains (p.
51 ibid).

When asked if he knows Malibiran, he said that he was able to join him
twice when there was a delivery of rejected bread for fish feeds in
Bulacan. That he saw him eight (8) times in a month in 1994 and just twice a
week in the month of August, September and October of said year. (p. 52
ibid). He also saw him on July of 1994 on the occasion of Beverlys Birthday.
 That on February 5, 1994, Beverly called on him to relay to Roger to
fetch the three kids in Green Hills. When asked the tone of Beverly at the time
of the phone call, he said the tone was that she was scared and confused (p. 63
ibid)

Tessie Luba, the caretaker of Manila Memorial Park testified that she
was paid by Beverly to take care of the tomb of Reynaldo and that in some
points in time Jessie took over and later her services were not availed of
anymore (p. 23, April 30, 2002 TSN) That she saw Beverly with Banaag on
November 1996 (p. 8 ibid) and Jessie with Banaag in one occasion in going to
the tomb on November 1997 (p. 47 ibid) and in April 2001 (p. 20 ibid).

Emily Cuevas, one of the friends of Beverly testified that Janet Pascual is
a back fighter and a traitor, that Janet tried to convince her to testify against
Beverly and if witness will be convinced, Janet will receive a big amount of
money about three (3) million from another source. Testified that it is not true
that Beverly and Malibiran orchestrated or masterminded the death of
Reynaldo, and that Janet testified because she needed money because she is sick
and diabetic (p. 7, May 21, 2002 TSN). She knows such fact by heart that they
are innocent and that they are good people (p. 20 ibid).

Victorino Felix, a police officer testified that Malibiran is a member of

the Aquarius Multi-Purpose Cooperative, a cooperative that is engaged in the
culture of fish particularly Bangus at Laguna De Bay particularly Bagumbong,
Binangonan, Laguna.

He testified that sometime in 1994, he together with Malibiran waited at

Tropical Hut, Cainta for them to be picked up for Bulacan to purchase
fingerlings. They were fetched by an L300 Van driven by Oswaldo Banaag and
they were around six or seven at that time that headed first to Dampalit,
Malabon, Metro Manila to meet the owner of the fish pond, finding that the
owner thereof was already in Bulacan they proceeded thereat, at Taliptip,
Bulacan. In said place, they left the L300 Van along the bridge, near the sea and
from there they rode a motor banca in going to the fingerlings ponds. He
testified that Oswaldo was not with them in going to the pond from Taliptip (pp.
11-13, Sept. 3, 2002 TSN). When asked where he was, he said he drove the
L300 back (p. 14 ibid). The pond was about three kilometers from Talilip, and
they were able to buy fingerlings, loaded it in another water transport going to
Laguna Lake from Bulacan traversing Pasig River and thereafter they returned
back to Binangonan (p. 15 ibid).

On Cross, he testified that has met Banaag many times because he used
to deliver rejected for bangus feeds, but said that it was only once when Banaag
drove with him, that is sometimes in 1994 (p. 20 ibid).he testified that Malibiran
together with him went to Talilip, Bulacan to procure some fingerlings
sometime in June 1995 to mid 1996 (Joint Order, Sept. 3, 2002, p. 366 Vol. III
record).

Virgilio Dacanilao testified that on February 5, 1995 at about 12:00 noon he

was at the residence of one Gloria Malibiran Santos and from there, he saw
accused Rolando Malibiran together with his wife and children, witness parents-
in-law and sisters-in-law. When asked who his parents-in-law is, he said
Fernando Malibiran and Jovita Malibiran, the parents of Rolando Malibiran (p.
5, Sept. 17, 2002 TSN). He said that they left the occasion at
around 5:00pm and at that time, accused Malibiran, with Boy Santos and
Eduardo was still playing pusoy. When asked if there was such a time that
Malibiran left the house of Gloria Santos, he said, he did not go out of the house
sir (pp. 5-7 ibid).

On Cross examination, it was disclosed that he knows Malibiran at the

time witness was still his wife, the sister of Malibiran, that was sometime in
1988. when asked if he considered Malibiran to be close to him as the brother of
his wife, he said yes sir (p. 10 ibid). Asked if his relationship with him is such
that he would place Malibiran in a difficult situation, he answered, it depends on
the situation (p. 11 ibid). Witness was asked how long it would take to reach
Unimart Supermarket from his residence in Malanday, he estimate it to be more
or less half an hour (p. 13 ibid). He testified that no game was ever stop [sic] on
the reason that they have to wait for Malibiran.

Said witness testimony was corroborated by Jose Ong Santos, the father
of the child who was baptized on said occasion. He testified that he played
pusoy with Malibiran at around 2:00pm, until 6:30 to 7:00 pm and there was
never a time that Malibiran left the table where they were playing except when
he feels like peeing (p. 10 July 16, 2002 TSN). It was estimated at abut five
times, and it took him about three to five minutes everytime he would rise to pee
and return to the table. That Malibiran may have left their house at
around 6:30 or 7:00 in the evening on February 5, 1995 (p. 11, ibid)

On Cross examination, he testified that the idea of baptism was rushly

scheduled, because he won in a cockfight three to four days before the baptism
of his child at about February 1 or 2 of 1995. That amount was
about P50,000.00 (pp. 20-21 ibid). Malibiran did not take any participation in
the baptism nor was he present at the church, but was already at the reception
with his family, for lunch. He testified that Malibiran left by call of nature, to
pee, about four to five times and a span of five minutes (p. 31 ibid).

Accused Rolando Malibiran in his Counter-Affidavit said that he does

intelligence work for seven years. He doesnt know Banaag as to reckless
discuss a supposed plot to kill somebody within his hearing. That would be
inconsistent with the entire training and experience as a police
officer. Especially when the expertise is intelligence work. Banaag drove for
them in June or July 1995 not in June of 1994 (for months after the death of
Reynaldo) [pp. 147-152, Exh. HH Vol. 1-a record].

He testified that he met Banaag sometime in the last quarter of 1993 at the
piggery of Beverly Tan (pp. 12-13, Oct. 8, 2002 TSN). He admitted that he was
with Banaag using the L300 Van of Beverly in one occasion, in 1994 when they
purchased fingerlings from Bulacan. They procured the same because their
cooperative was culturing bangus in Barangay Bombon, Binangonan, Rizal (pp.
14-15). He testified that in Bulacan, Banaag was left at the foot of the bridge
where the L300 was parked (p. 19 ibid) and heard that Beverly told Banaag to
go back, in White Plains (p. 21, ibid). After procuring the fingerlings, they rode
a big banca called pituya then they went back to Pritil, Binangonan. In Pritil,
they waited for Banaag (P. 26 ibid).
He denied having met Janet Pascual on Wednesday at about February 8,
1995 because since Tuesday (February 7, 1995) he was already confined in the
Camp by Order of his Unit Commander, Chief Inspector Florentin Sipin (p. 5,
January 21, 2003 TSN) because he was under investigation by the Presidential
Anti-Crime Commission. He admitted that he met Beverly in the last quarter of
1993 (p. 8, October 22, 2002) but denied having intimate relations with her (p.
21 ibid).

He testified that he met Janet Pascual only once, on November 1994, but said
that they never talked (p. 12, November 12, 2002 TSN). He denied having
married Beverly Tan nor did he ever requested Janet Pascual to secure a license
for them to get married. He denied having had a trip with Janet in Bulacan and
admitted that he went to Zamables once, with Beverly, kids and yaya as well as
his father (p. 25, ibid), that was sometime in 1994, before Reynaldo died. He
testified that he used his own vehicle with his father in going to Zamables. He
denied seeing Reynaldo; he said he just heard him based on his conversation
with Beverly Tan which took place in the piggery in Marikina. In sum, the place
of incidents where he managed to meet and talk with Beverly Tan was in the
piggery in Marikina; at Camp station in Taytay Rizal; in Bulacan when they
procured fingerlings in Binangonan; Malabon; Zambales; White Plains and
Cainta. (pp. 30; 32; 35 ibid).

He testified that he was arrested in Candelaria Quezon on December 1998 (p.

11 January 21, 2003) but denied living with Beverly Tan at the time of the
arrest. He said he just saw Beverly thirty (30) minutes after his arrest in the
town proper of Candelaria, Quezon (P. 21, ibid). He denied that he uttered the
remark its better to kill Rene since you are not benefiting from him (p. 38 ibid);
never have access to grenades; never asked Beverly Tan how he could get inside
Reynaldos Car never claimed to be a sharp shooter and had never went to
Batangas uttering the remarks mentioned by Janet Pascual nor went to Batangas
at the time of Beverlys birthday.
 On Cross examination, he said that he never talk to Janet at the time of his
restriction and thereafter. He had no commercial dealing with Janet nor have
any romantic relations with her (p. 8, ibid). It was only when the case was filed
he was able to talk to her (p. 5, February 4, 2003 TSN). He testified that he
evaded arrest because there was a pending petition for review filed by his
lawyer before the Department of Justice despite the fact that there is an existing
warrant of arrest which he found out at the end of 1997 (p. 15 ibid).

On September 23, 2003, the RTC found Rolando guilty of Murder and appellant, of
Parricide. The dispositive portion of the Joint Decision reads as follows:

WHEREFORE, the Court finds both accused guilty beyond reasonable doubt as
charged. Accused Rolando Malibiran for the crime of Murder in Criminal Case
No. 113065-H and accused Beverly Tibo-Tan for Parricide in Criminal Case No.
113066-H defined and penalized under Article 248 and Article 246,
respectively, of the Revised Penal Code, as amended, in relation to Republic
Act No. 7659 with the attendant circumstances of treachery, evident
premeditation and use of explosion and sentencing both accused the
supreme penalty of DEATH, and ordering them to pay jointly and severally to
the heirs of Reynaldo Tan the amount of Fifty Thousand (P50,000.00) Pesos as
indemnity for death, Eighty Thousand (P80,000.00) Pesos as actual damages;
Fifty Thousand (P50,000.00) as moral damages; and to pay the costs.

SO ORDERED.[8]

Appellant then appealed to this Court; the appeal was, however,

referred to the CA pursuant to People v. Mateo.[9]

In its Decision dated November 13, 2006, the CA affirmed the Decision
of the RTC. The CA, however, took judicial notice of Republic Act No.
9346 prohibiting the imposition of the death penalty and thus reduced
the penalty to reclusion perpetua. The dispositive portion of the said
Decision reads as follows:

WHEREFORE, premises considered, the joint decision dated September

23, 2003 of the Regional Trial Court, Special Court for Heinous Crimes, Branch
156, Pasig City in Criminal Case No. 113065-H for Murder and Criminal Case
No. 113066-H for Parricide is hereby AFFIRMED with Modification in that the
supreme penalty of death imposed on both accused-appellants is hereby
reduced to RECLUSION PERPETUA.

SO ORDERED.[10]

As manifested by the Office of the Solicitor General (OSG), Rolando did

not file a Motion for Reconsideration or a Notice of Appeal from the CA
Decision.[11] For all intents and purposes, the judgment of conviction as
to Rolando became final and executory on December 14, 2006. This
was confirmed by CA Resolution dated January 29, 2007, which noted
that pursuant to the report dated January 23, 2007 of the Judicial
Records Division that no motion for reconsideration or notice of appeal
had been filed by counsel for appellant Rolando Malibiran, entry of
judgment is issued against said appellant x x x.[12]

This review shall therefore pertain only to appellant Beverly Tibo-Tan's

conviction.

Appellant and the OSG were required by the Court in its Resolution
dated October 3, 2007 to file supplemental briefs, if they so
desired. The OSG filed a Manifestation and Motion that it would no
longer file any supplemental brief. As regards appellant, records show
that, as of even date, she had not filed any supplemental brief, despite
due notice.[13]

In the Brief she filed with the Court prior to the endorsement of the
case to the CA, appellant raised the following assignment of errors:

I.

THE REGIONAL TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT

BEVERLY TIBO TAN GUILTY OF THE CRIME OF PARRICIDE BASED MERELY ON
CIRCUMSTANCIAL EVIDENCE, THE REQUISITES THEREOF NOT HAVING BEEN
SUBSTANTIALLY ESTABLISHED;

II.

THE REGIONAL TRIAL COURT SHOULD HAVE NOT APPRECIATED THE

TESTIMONY OF PROSECUTION WITNESS OSWALDO BANAAG AS ITS BASIS
FOR ESTABLISHING CONSPIRACY BETWEEN ACCUSED-APPELLANT MALIBIRAN
AND ACCUSED-APPELLANT BEVERLY TAN, SUCH TESTIMONY BEING HEARSAY
ON SOME PARTS AND REPLETE WITH INCONSISTENCIES; [14]

Before proceeding to the merits of appellant's arguments, the Court

takes note of the RTC's observation regarding appellant's stoic stance
during and after the incident and her non-presentation as witness. The
RTC took this negatively against appellant. The Court difers therefrom.

Appellant's seeming indiference or lack of emotions cannot be

categorically quantified as an indicium of her guilt. There is no hard
and fast gauge for measuring a person's reaction or behavior when
confronted with a startling, not to mention horrifying, occurrence. It has
already been stated that witnesses of startling occurrences react
diferently depending upon their situation and state of mind, and there
is no standard form of human behavioral response when one is
confronted with a strange, startling or frightful experience. The
workings of the human mind placed under emotional stress are
unpredictable, and people react diferently some may shout, some
may faint and others may be shocked into insensibility.[15]

Also, appellant's failure to testify in her defense should not be taken

against her. The Court preserves the rule that an accused has the right
to decline to testify at the trial without any inference of guilt drawn
from his failure to be on the witness stand.[16] The constitutional right to
be presumed innocent still prevails.

This notwithstanding, the totality of the circumstantial evidence

presented against appellant justifies her conviction of the crime of
Parricide.

Appellant claims that the circumstantial evidence proven during trial

only shows that there was a possibility that appellant may have
conspired with Rolando, but nevertheless claims that it came short of
proving her guilt beyond reasonable doubt.[17]

Appellant further argues that the testimony of Oswaldo was in some

parts hearsay and replete with inconsistencies.[18] Specifically,
appellant contends that the testimony of Oswaldo that he overheard a
conversation between Malibiran (Rolando) and Beverly (appellant) that
they will fetch a man in Bulacan that knows how to place a bomb in a
vehicle is hearsay.[19] Likewise, in her Reply Brief,[20] appellant claims
that the testimony of Janet is hearsay.

Contrary to the claim of appellant, the testimonies of Oswaldo and

Janet are not covered by the hearsay rule.

The hearsay rule states that a witness may not testify as to what he
merely learned from others either because he was told, or he read or
heard the same. This is derived from Section 36, Rule 130, Revised
Rules of Court, which requires that a witness can testify only to those
facts that he knows of or comes from his personal knowledge, that is,
that are derived from his perception. Hearsay testimony may not be
received as proof of the truth of what he has learned.[21]

The law, however, provides for specific exceptions to the hearsay

rule. One is the doctrine of independently relevant statements, where
only the fact that such statements were made is relevant, and the
truth or falsity thereof is immaterial. The hearsay rule does not apply;
hence, the statements are admissible as evidence. Evidence as to the
making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be circumstantially
relevant as to the existence of such a fact.[22] The witness who testifies
thereto is competent because he heard the same, as this is a matter of
fact derived from his own perception, and the purpose is to prove
either that the statement was made or the tenor thereof.[23]
In this case, Oswaldo's testimony that he overhead a conversation
between Rolando and appellant that they would fetch a man in
Bulacan who knew how to place a bomb in a vehicle is admissible, if
only to establish the fact that such statement was made and the tenor
thereof. Likewise, Janet may testify on matters not only uttered in her
presence, since these may be considered as independently relevant
statements, but also personally conveyed to her by appellant and
Rolando.

Appellant further argues that Oswaldo's testimony to the efect that he

drove the L300 van of the Tan family and brought Rolando to the
parking lot where Reynaldos Honda Accord was parked, was refuted by
defense witness Romulo, the security guard of the Tan family. Romulo
testified that the L300 van never left White Plains on the day of the
incident.[24]

While the defense may have presented Security Guard Romulo to

refute the testimony of Oswaldo, it is settled that when credibility is in
issue, the Supreme Court generally defers to the findings of the trial
court, considering that it was in a better position to decide the
question, having heard the witnesses themselves and observed their
deportment during trial.[25] Thus, in the absence of any palpable error,
this Court defers to the trials court's impression and conclusion that, as
between Oswaldo and Romulo, the former's testimony deserved more
weight and credence.

There is nothing on record to convince the Court to depart from the

findings of the RTC. On the contrary, the testimony of Janet as
corroborated by Oswaldo, though circumstantial, leaves no doubt that
appellant had in fact conspired with Rolando in bringing about the
death of her husband Reynaldo. As a rule of ancient respectability now
molded into tradition, circumstantial evidence suffices to convict, only
if the following requisites concur: (a) there is more than one
circumstance; (b) the facts from which the inferences are derived are
proven; and (c) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.[26]

The case of the prosecution was primarily built around the strength of
the testimonies of Janet and Oswaldo. The salient portions of Janet's
testimony are extensively quoted hereunder:
Q. Anything else significant that happened in the remaining of 1994, Ms.
Pascual?

A. After they were married, they talked about what they're gonna do for Rene.

Q. Where did they discuss it?

A. Inside the car, Botong was asking Beverly how would he be able
to get inside the car since he has no key and Beverly said that
she can do something about it and so it was in the last week of
November 1994 of first week of December 1994 when they
shopped for so many things.

Q. Who is (sic) with him?

A. Rene, Beverly and her three kids. Rene asked her since Rene and kids
would still shop, Rene asked her to brings the goods to the car in the
compartment.

Q. And then?
A. And after Beverly placed the things inside the compartment, she
had with her the key, she proceeded to a key duplicator in Virra
Mall and had the key duplicated.

Q. When did she give the key to Malibiran, if you know?

A. That was already December, I cannot recall the exact date, sir.

Q. Why did Mr. Malibiran need the key?

A. Because they planned, since they cannot use the gun Butch said
that they would use grenade instead because he had a grenade
in his house. But their only problem is how to get inside the car.

COURT:

Who is Butch?

A. Mr. Malibiran, your Honor.

COURT

Butch and Botong are one and the same person?

A. Yes, your Honor.

Q. Did they discuss how, where and when they would planted the grenade in
the car of Rene?

A. I heard from them that they would do it during the baptismal of the child of
Gloria who is the sister of Butch.

Q. And Butch is Botong?

A. Botong, sir.
Q. Do you know when that binyag when supposed to be held?

A. The baptismal be held on February 5, 1995, sir.

Q. Why did they choose that date of the binyag?

A. So that if a picture was taken during the baptism, there would be witnesses
that they were in the baptism, they would not be suspected that they
have something to do with that.[27]

xxxx

Q. What day of the week was this?

A. Sunday, Ma'm.

Q. What kind of kind [sic] was duplicated?

A. The key in the new car of Rene the Honda Accord.

Court:

But in the first place, you were not there when it was
duplicated? How you were [sic] able to know that it was indeed
duplicated?

A. Because after Beverly had duplicated the key, she told me that
she was able to have the key duplicated and she told me how
she did it and she told me that she will give the key to Butch.

Q. Did she show you the duplicated key?

A. Ginanoon niya lang.

 Q. What does it looked [sic] like?

A. Iyong mahaba na malaki. Hindi ko na inano basta susi, nag-iisa.

Q. On what occasion did she tell you about this?

A. None, I was just in White Plains.

Q. When was this?

A. That was December, 1994.

Q. What was their decision when they will execute the plan?

A. It will be during the baptismal of the child of Gloria because Butch is one of
the sponsors.[28] (Emphasis Supplied)

In addition, Oswaldo testified on the occurrences on the day of the

incident, in this wise:

Q: Why did you go to Greenhills?

A. I was told by Ate Beverly to follow them wherever they go.

Q. What time did she tell you to go there?

A. After lunch, sir.

Q. What vehicle did you use to follow her?

A. L300, sir.

Q. Upon whose instruction?

A. Ate Beverly, sir.

Q. Did you in fact follow her?

A. Yes, sir.

Q. What time did they reach. the[W]hiteplains?

A. Almost 1 o'clock, sir.

Q. Incidentally, who was with Beverly?

A. Kuya Rene Tan, Beverly Tan, Renebie, Jag and JR.

Q. What car did they use?

A. Honda Accord.

Q. Color?

A. Red, sir.

Q. Who drived [sic]?

A. Kuya Rene, sir.

Q. What part of Greenhills did they go?

A. The parking lot infront [sic] of Unimart, sir.

Q. What did you do when they come [sic] to Greenhills?

A. When I found out they already parked and Kuya Rene got in I
went straight to Katipunan.

Q. Why?

A. Because I was told by Ate to fetch Botong.

Q. Where in Katipunan?

A. In Caltex near Shakeys.

COURT

Who is Botong?

A. Rolando Malibiran, Your Honor.

Q. The accused in this case?

A. Yes, your Honor. [29]

xxxx

Q. You picked up Malibiran at Caltex on February 5, 1995?

A. Yes, sir.

Q. What time was that?

A. Around 2 o'clock, sir.

Q. Who if any was with him?

A. Two guys. One whom I saw in [sic] Bulacan and the one whom
we sinakay at Hilltop.

Q. When did you go in [sic] Bulacan?

A. In June 1994, sir.

Q. With whom?
A. Botong, Beverly, Janet, I and two guys in Hilltop because that is the
instruction of Beverly.

Q. Do you know the name of the two guys from Hilltop?

A. If given the chance I can recognize them but I do not know them by name.

Q. What did you do in Bulacan?

A. We went to the Island near the sea.

Q. What did you do at that Island?

A. They talked to a person.

Q. What if you know the date [sic] all about?

A. As far as I remember they talked about the plans about the killing
of Kuya Rene.[30]

xxxx

Q. Where did they ride on Feb. 5, 1995?

A. In Katipunan, sir.

Q. What did they ride?

A. L300 that I was driving, sir.

Q. Where if any did you go after picking them up?

A. From Caltex we proceeded to Greenhills.

Q. Why?

A. Because that is the instruction of Ate Beverly. Where they were, I

will drop them there.

Q. Did you do that?

A. Yes, sir.

Q. Where exactly did you drop them on?

A. In the place where Kuya Rene was parked.[31]

xxxx

COURT: x x x What happened while they were inside the vehicle while you
were going back to the place as instructed by Beverly?

A. After that I brought them where the car of Kuya Rene was parked, Your
Honor. Before they alighted, Botong asked, dito na ba?[32]

Atty. Rondain:

So you replied Opo, dyan po pumasok si Kuya Rene?

A. After I alighted they just go [sic] around.

Q. Where?

A. In Greenhills, sir.
 Q. Then, what happened?

A. After half an hour I saw Kuya Botong, the three of them. Then
they stopped me and the three of them boarded the vehicle.

Q. What happened?

A. After they boarded, the man from Bulacan said, ano pare, malinis
na paggawa nito. Then, I was told by Botong to bring them to
Hilltop.[33]

Based on the foregoing, the testimonies of Janet and Oswaldo clearly

link appellant to the planning of the crime. True, as intimated by
appellant, she may not have been at the scene of the crime at the
time of the explosion;[34] but then again, if she was, then she would
have sufered the same fate as Reynaldo. Moreover, the nature of the
crime and the manner of its execution, i.e., via a booby trap, does not
demand the physical presence of the perpetrator at the very time of its
commission. In fact, the very manner in which it was carried out
necessitated prior scheming and execution for it to succeed. Thus,
appellant's absence from the actual scene of the crime does not
negate conspiracy with Rolando in plotting the death of her husband. A
conspiracy exists even if not all the parties committed the same act,
but the participants performed specific acts that indicated unity of
purpose in accomplishing a criminal design.[35] Moreover, direct proof
of previous agreement to commit an ofense is not necessary to prove
conspiracy -- conspiracy may be proven by circumstantial evidence.[36]

The testimonies of Janet and Oswaldo established the following

set of circumstances which, if taken collectively, show the guilt of
appellant: that appellant and Rolando conspired, planned and agreed
to kill Reynaldo using a grenade; that appellant duplicated the key to
the red Honda Accord of Reynaldo so that Rolando could gain access to
the car; that appellant thereafter gave the duplicate key to Rolando;
that on February 5, 1995, appellant told Oswaldo to follow the red
Honda Accord of Reynaldo until the latter parked the car; that
appellant told Oswaldo to thereafter pick up Rolando at Katipunan and
bring the latter to where Reynaldo parked his red Honda
Accord. Reynaldo died soon after due to injuries he sustained from an
explosion caused by grenades planted in his car.

Another notable fact is that according to the expert opinion of

Inspector Selverio Dollesin, Chief of the Bomb Disposal Unit of the
Eastern Police District, the perpetrator had information about the
victim's movements. Dollesin also observed that the perpetrator knew
his intended victim, since the grenade was specifically placed in
between the driver's seat and the front door. That the perpetrator
knew the victim's movements was further corroborated by the
affidavits executed by the Tan children, Renevie[37] and Jag Carlo[38],
attesting that while they spent their Sundays with their father, this was
the only time that they spent a Sunday in Greenhills. Only someone
who had close personal contact with Reynaldo would know his
movements, where the car would be parked, and that he was the one
who usually drove the red Honda Accord, such that it was precisely
positioned to ensure damage to the intended victim.

There is no doubt that, based on the testimony of Janet, it was Rolando

who planted the grenades inside the car of Reynaldo, to wit:
Q. Where did you go?

A. When I was inside the Canter, Botong (Rolando) was asking me while the
vehicle was moving slowly. He asked me what happened in the funeral
parlor.

Q. And what did you say?

A. I told him that Major Penalosa called me for an interview but I did not say
anything.

Then were already in front of the V. Luna Hospital.

COURT

What Hospital?

A. V. Luna, your Honor, along Katipunan.

COURT

Luna in Katipunan?

A. V. Luna is going to Katipunan, your Honor. It was Labor Hospital, your

Honor and not V. Luna. Then Botong told me that on the day he
placed the grenade, he was seeing a guard roving and so what
he did since he was already perspiring at that time he hurriedly
tied the wire in the grenade.

Atty. Rondain:

Iqoute na lang natin.

COURT

Dinali-dali niyang ibinuhol ang alambre. That's her term.[39] (Emphasis

Supplied)
What sealed appellant's fate was that, as observed by the RTC, there
were already outstanding warrants of arrest against appellant and
Rolando as early as September 11, 1997; yet they evaded arrest and
were only arrested on December 4, 1998.[40] It is well settled that flight,
when unexplained, is a circumstance from which an inference of guilt
may be drawn. The wicked flee, even when no man pursueth; but the
righteous are as bold as a lion. [41] Appellant did not even profer the
slightest explanation for her flight.

All told, this Court is convinced beyond a reasonable doubt that

appellant is guilty of the crime as charged. Moreover, considering the
manner in which appellant and Rolando planned and executed the
crime, the RTC was correct in appreciating the aggravating
circumstances of treachery, evident premeditation, and use of
explosives. Thus, appellant is guilty of the crime of Parricide as
provided in the Revised Penal Code, to wit:

Article 246. Parricide- Any person who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants, or
descendants, or his spouse, shall be guilty of parricide and shall be
punished by reclusion perpetua to death. (Emphasis Supplied)

Moreover, the Revised Penal Code provides for death as the proper
penalty:

Article 63. Rules for the application of indivisible penalties.

xxxx
 In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:

When in the commission of the deed there is present only one

aggravating circumstance, the greater penalty shall be applied.

However, as observed by the CA, with the efectivity of Republic Act

(R.A.) No. 9346 entitled An Act Prohibiting the Imposition of Death
Penalty in the Philippines on June 24, 2006, the imposition of the
penalty of death has been prohibited. Thus, the proper penalty to be
imposed on appellant as provided in Section 2, paragraph (a) of said
law is reclusion perpetua.[42] The applicability of R.A. No. 9346 is
undeniable in view of the principle in criminal law that favorabilia sunt
amplianda adiosa restrigenda. Penal laws that are favorable to the
accused are given retroactive efect.[43]

In addition, appellant is not eligible for parole pursuant to Section 3 of R.A. No. 9346,
which states:

SECTION 3. Persons convicted with reclusion perpetua, or those whose

sentences will be reduced to reclusion perpetua, by reason of this Act, shall
not be eligible for parole under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.

Lastly, as to the award of damages, the RTC awarded the following amounts:
(1) P50,000.00 as civil indemnity for death, (2) P80,000.00 as actual damages, and
(3) P50,000.00 as moral damages.
In the recent case of People v. Regalario,[44] the Court stated:

While the new law prohibits the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still death and the offense is still
heinous. Consequently, the civil indemnity for the victim is still P75,000.00. x x
x the said award is not dependent on the actual imposition of the death penalty
but on the fact that qualifying circumstances warranting the imposition of the
death penalty attended the commission of the offense.

As to the award of moral and exemplary damages x x x. Moral damages are

awarded despite the absence of proof of mental and emotional suffering of the
victim's heirs. As borne out by human experience, a violent death invariably and
necessarily brings about emotional pain and anguish on the part of the victim's
family. If a crime is committed with an aggravating circumstance, either
qualifying or generic, an award of exemplary damages is justified under Article
2230 of the New Civil Code. This kind of damage is intended to serve as
deterrent to serious wrongdoings and as vindication of undue sufferings and
wanton invasion of the rights of an injured, or as a punishment for those guilty
of outrageous conduct. However, consistent with recent jurisprudence on
heinous crimes where the imposable penalty is death but reduced to reclusion
perpetua pursuant to Republic Act No. 9346, the award of moral damages
should be increased from P50,000.00 to P75,000.00 while the award of
exemplary damages should be increased from P25,000.00 toP30,000.00.

Consistent therewith, the RTC's award should be modified: the civil indemnity should be
increased to P75,000.00, and moral damages to P75,000.00.

Moreover, although not awarded by the RTC and pursuant to Regalario, exemplary
damages in the amount of P30,000.00 is likewise warranted because of the presence of the
aggravating circumstances of intent to kill, treachery, evident premeditation and the use of
explosives. The imposition of exemplary damages is also justified under Art. 2229 of the
Civil Code in order to set an example for the public good.[45]

However, the award of P80,000.00 by the RTC as actual damages is deleted for lack of
competent evidence to support it. Only substantiated and proven expenses, or those that
appear to have been genuinely incurred in connection with the death, wake or burial of the
victim will be recognized by the court.[46] In lieu thereof, appellant should pay temperate
damages in the amount of P25,000.00, said amount being awarded in homicide or murder
cases when no evidence of burial and funeral expenses is presented in the trial court, [47] and
in accordance with prevailing jurisprudence.[48] Under Article 2224 of the Civil Code,
temperate damages may be awarded when the Court finds that some pecuniary loss has
been suffered but its amount cannot, from the nature of the case, be proved with certainty.

Finally, Section 11, Rule 122 of the Rules of Court provides that:

An appeal taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate court is favorable
and applicable to the latter.

Since Rolando did not appeal the decision of the CA, only portions of this judgment that
are favorable to Rolando may affect him. On the other hand, portions of this judgment that
are unfavorable to Rolando cannot apply to him. Thus, he cannot be made liable to pay for
exemplary damages, as the same were not awarded by the RTC. [49] However, he benefits
from this Court's finding that, instead of actual damages, only temperate damages should
be awarded to the heirs of the victim.
WHEREFORE, the Court of Appeals Decision dated November 13, 2006 and
Resolution dated September 23, 2003, finding appellant Beverly Tibo-Tan guilty beyond
reasonable doubt of Parricide and sentencing her to suffer the penalty of RECLUSION
PERPETUA are hereby AFFIRMED. Appellant is ineligible for parole and is further
ordered to pay, jointly and severally with Rolando Malibiran, the heirs of Reynaldo Tan the
amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00
as temperate damages. In addition, appellant is solely liable to pay the heirs of Reynaldo
Tan the amount of P30,000.00 as exemplary damages.

Costs de oficio.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation. 5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. 8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino. 10
The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than
1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella. 12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding. 13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during
its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000. 15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion. 20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope. 26 There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

 MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter: 31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1wphi1.nt

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government. 36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39
On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act. 41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et
al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December
4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio
with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the
petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting
documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.
 III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of

prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question. 57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966. 66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
" it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity
from suit. They also involve the correct calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that
"it is emphatically the province and duty of the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace." 85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities Vice President
(Macapagal).
 '3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement." 89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound.
 The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacaang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency." 93
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as it
may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to
render service for that would be a violation of his constitutional right. 94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII." 95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;

2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;

3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS
A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION
 WHEREAS, as a consequence of the people's loss of confidence on the ability of former
President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S
NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:
 "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS
OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following Taada v.
Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to
which full discretionary authority has been delegated to the Legislative xxx branch of the
government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a
lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot
pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The
question is political in nature and addressed solely to Congress by constitutional fiat. It is a
political issue, which cannot be decided by this Court without transgressing the principle of
separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese
citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E.
Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila,
respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
 clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself." 105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages," 106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong." 107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?
 Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune
from suit or from being brought to court during the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the impeachment process against the petitioner
has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a
condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in
the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan 112 and related
cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and
graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio." 119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases. 125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat. 126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.
 At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must
be allegation and proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at a bar, the records do not show that the
trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
 b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.

c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors.
Their long experience in criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they considered any extra-
record evidence except evidence properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel
on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis
supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof. 131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1wphi1.nt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors. 134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

A.M. NO. 004-07-SC November 21, 2000

RULE ON EXAMINATION OF A CHILD WITNESS

Section 1. Applicability of the Rule. - Unless otherwise provided, this Rule shall govern the
examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime.
It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses.

Section 2. Objectives. - The objectives of this Rule are to create and maintain an environment that
will allow children to give reliable and complete evidence, minimize trauma to children, encourage
children to testify in legal proceedings, and facilitate the ascertainment of truth.

Section 3. Construction of the Rule. - This Rule shall be liberally construed to uphold the best
interests of the child and to promote maximum accommodation of child witnesses without prejudice
to the constitutional rights of the accused.

Section 4. Definitions. -

(a) A "child witness" is any person who at the time of giving testimony is below the age of
eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but
is found by the court as unable to fully take care of himself or protect himself from abuse,
neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or
condition.

(b) "Child abuse" means physical, psychological, or sexual abuse, and criminal neglect as
defined in Republic Act No. 7610 and other related laws.

(c) "Facilitator" means a person appointed by the court to pose questions to a child.

(d) "Record regarding a child" or "record" means any photograph, videotape, audiotape, film,
handwriting, typewriting, printing, electronic recording, computer data or printout, or other
memorialization, including any court document, pleading, or any copy or reproduction of any
of the foregoing, that contains the name, description, address, school, or any other personal
identifying information about a child or his family and that is produced or maintained by a
public agency, private agency, or individual.

(e) A "guardian ad litem" is a person appointed by the court where the case is pending for a
child who is a victim of, accused of, or a witness to a crime to protect the best interests of the
said child.

(f) A "support person" is a person chosen by the child to accompany him to testify at or
attend a judicial proceeding or deposition to provide emotional support for him.

(g) "Best interests of the child" means the totality of the circumstances and conditions as are
most congenial to the survival, protection, and feelings of security of the child and most
encouraging to his physical, psychological, and emotional development. It also means the
 least detrimental available alternative for safeguarding the growth and development of the
child.

(h) "Developmental level" refers to the specific growth phase in which most individuals are
expected to behave and function in relation to the advancement of their physical, socio-
emotional, cognitive, and moral abilities.

(i) "In-depth investigative interview" or "disclosure interview" is an inquiry or proceeding

conducted by duly trained members of a multidisciplinary team or representatives of law
enforcement or child protective services for the purpose of determining whether child abuse
has been committed.

Section 5. Guardian ad litem. -

(a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a
witness to a crime to promote the best interests of the child. In making the appointment, the
court shall consider the background of the guardian ad litem and his familiarity with the
judicial process, social service programs, and child development, giving preference to the
parents of the child, if qualified. The guardian ad litem may be a member of the Philippine
Bar. A person who is a witness in any proceeding involving the child cannot be appointed as
a guardian ad litem.

(b) The guardian ad litem:

(1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a
child participates;

(2) Shall make recommendations to the court concerning the welfare of the child;

(3) Shall have access to all reports, evaluations, and records necessary to effectively
advocate for the child, except privileged communications;

(4) Shall marshal and coordinate the delivery of resources and special services to the
child;

(5) Shall explain, in language understandable to the child, all legal proceedings,
including police investigations, in which the child is involved;

(6) Shall assist the child and his family in coping with the emotional effects of crime
and subsequent criminal or non-criminal proceedings in which the child is involved;

(7) May remain with the child while the child waits to testify;

(8) May interview witnesses; and

(9) May request additional examinations by medical or mental health professionals if

there is a compelling need therefor.

(c) The guardian ad litem shall be notified of all proceedings but shall not participate in the
trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the
 guardian ad litem is a lawyer, he may object during trial that questions asked of the child are
not appropriate to his developmental level.

(d) The guardian ad litem may communicate concerns regarding the child to the court
through an officer of the court designated for that purpose.

(e) The guardian ad litem shall not testify in any proceeding concerning any information,
statement, or opinion received from the child in the course of serving as a guardian ad litem,
unless the court finds it necessary to promote the best interests of the child.

(f) The guardian ad litem shall be presumed to have acted in good faith in compliance with
his duties described in sub-section (b).

Section 6. Competency. - Every child is presumed qualified to be a witness. However, the court
shall conduct a competency examination of a child, motu proprio or on motion of a party, when it
finds that substantial doubt exists regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

(a) Proof of necessity. - A party seeking a competency examination must present proof of
necessity of competency examination. The age of the child by itself is not a sufficient basis
for a competency examination.

(b) Burden of proof. - To rebut the presumption of competence enjoyed by a child, the burden
of proof lies on the party challenging his competence.

(c) Persons allowed at competency examination. Only the following are allowed to attend a
competency examination:

(1) The judge and necessary court personnel;

(2) The counsel for the parties;

(3) The guardian ad litem;

(4) One or more support persons for the child; and

(5) The defendant, unless the court determines that competence can be fully
evaluated in his absence.

(d) Conduct of examination. - Examination of a child as to his competence shall be

conducted only by the judge. Counsel for the parties, however, can submit questions to the
judge that he may, in his discretion, ask the child.

(e) Developmentally appropriate questions. - The questions asked at the competency

examination shall be appropriate to the age and developmental level of the child; shall not be
related to the issues at trial; and shall focus on the ability of the child to remember,
communicate, distinguish between truth and falsehood, and appreciate the duty to testify
truthfully.

(f) Continuing duty to assess competence. - The court has the duty of continuously
assessing the competence of the child throughout his testimony.
Section 7. Oath or affirmation. - Before testifying, a child shall take an oath or affirmation to tell the
truth.

Section 8. Examination of a child witness. - The examination of a child witness presented in a

hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer, the answers of the witness shall be given orally.

The party who presents a child witness or the guardian ad litem of such child witness may, however,
move the court to allow him to testify in the manner provided in this Rule.

Section 9. Interpreter for child. -

(a) When a child does not understand the English or Filipino language or is unable to
communicate in said languages due to his developmental level, fear, shyness, disability, or
other similar reason, an interpreter whom the child can understand and who understands the
child may be appointed by the court, motu proprio or upon motion, to interpret for the child.

(b) If a witness or member of the family of the child is the only person who can serve as an
interpreter for the child, he shall not be disqualified and may serve as the interpreter of the
child. The interpreter, however, who is also a witness, shall testify ahead of the child.

(c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation.

Section 10. Facilitator to pose questions to child. -

(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the
child is unable to understand or respond to questions asked. The facilitator may be a child
psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader,
parent, or relative.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose
questions to the child only through the facilitator. The questions shall either be in the words
used by counsel or, if the child is not likely to understand the same, in words that are
comprehensible to the child and which convey the meaning intended by counsel.

(c) The facilitator shall take an oath or affirmation to pose questions to the child according to
the meaning intended by counsel.

Section 11. Support persons. -

(a) A child testifying at a judicial proceeding or making a deposition shall have the right to be
accompanied by one or two persons of his own choosing to provide him emotional support.

(1) Both support persons shall remain within the view of the child during his
testimony.

(2) One of the support persons may accompany the child to the witness stand,
provided the support person does not completely obscure the child from the view of
the opposing party, judge, or hearing officer.
 (3) The court may allow the support person to hold the hand of the child or take other
appropriate steps to provide emotional support to the child in the course of the
proceedings.

(4) The court shall instruct the support persons not to prompt, sway, or influence the
child during his testimony.

(b) If the support person chosen by the child is also a witness, the court may disapprove the
choice if it is sufficiently established that the attendance of the support person during the
testimony of the child would pose a substantial risk of influencing or affecting the content of
the testimony of the child.

(c) If the support person who is also a witness is allowed by the court, his testimony shall be
presented ahead of the testimony of the child.

Section 12. Waiting area for child witnesses. - The courts are encouraged to provide a waiting
area for children that is separate from waiting areas used by other persons. The waiting area for
children should be furnished so as to make a child comfortable.

Section 13. Courtroom environment. - To create a more comfortable environment for the child, the
court may, in its discretion, direct and supervise the location, movement and deportment of all
persons in the courtroom including the parties, their counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place
other than the witness chair. The witness chair or other place from which the child testifies may be
turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile
view of the child during the testimony of the child. The witness chair or other place from which the
child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if
he chooses to look at them, without turning his body or leaving the witness stand. The judge need
not wear his judicial robe.

Nothing in this section or any other provision of law, except official in-court identification provisions,
shall be construed to require a child to look at the accused.

Accommodations for the child under this section need not be supported by a finding of trauma to the
child.

Section 14. Testimony during appropriate hours. - The court may order that the testimony of the
child should be taken during a time of day when the child is well-rested.

Section 15. Recess during testimony. -

The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and
re-cross examinations as often as necessary depending on his developmental level.

Section 16. Testimonial aids. - The court shall permit a child to use dolls, anatomically-correct
dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him
in his testimony.

Section 17. Emotional security item. - While testifying, a child shall be allowed to have an item of
his own choosing such as a blanket, toy, or doll.
Section 18. Approaching the witness. - The court may prohibit a counsel from approaching a child
if it appears that the child is fearful of or intimidated by the counsel.

Section 19. Mode of questioning. - The court shall exercise control over the questioning of children
so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form
appropriate to the developmental level of the child, (3) protect children from harassment or undue
embarrassment, and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.

Section 20. Leading questions. - The court may allow leading questions in all stages of
examination of a child if the same will further the interests of justice.

Section 21. Objections to questions. - Objections to questions should be couched in a manner so

as not to mislead, confuse, frighten, or intimidate the child.

Section 22. Corroboration. - Corroboration shall not be required of a testimony of a child. His
testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment
subject to the standard of proof required in criminal and non-criminal cases.

Section 23. Excluding the public. - When a child testifies, the court may order the exclusion from
the courtroom of all persons, including members of the press, who do not have a direct interest in
the case. Such an order may be made to protect the right to privacy of the child or if the court
determines on the record that requiring the child to testify in open court would cause psychological
harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate
due to embarrassment, fear, or timidity. In making its order, the court shall consider the
developmental level of the child, the nature of the crime, the nature of his testimony regarding the
crime, his relationship to the accused and to persons attending the trial, his desires, and the
interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during trial is of such character as to be offensive to
decency or public morals. The court may also, on motion of the accused, exclude the public from
trial, except court personnel and the counsel of the parties.

Section 24. Persons prohibited from entering and leaving courtroom. - The court may order that
persons attending the trial shall not enter or leave the courtroom during the testimony of the child.

Section 25. Live-link television testimony in criminal cases where the child is a victim or a
witness. -

(a) The prosecutor, counsel or the guardian ad litem may apply for an order that the
testimony of the child be taken in a room outside the courtroom and be televised to the
courtroom by live-link television.

Before the guardian ad litem applies for an order under this section, he shall consult the
prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding
the necessity of applying for an order. In case the guardian ad ltiem is convinced that the
decision of the prosecutor or counsel not to apply will cause the child serious emotional
trauma, he himself may apply for the order.
The person seeking such an order shall apply at least five (5) days before the trial date,
unless the court finds on the record that the need for such an order was not reasonably
foreseeable.

(b) The court may motu proprio hear and determine, with notice to the parties, the need for
taking the testimony of the child through live-link television.

(c) The judge may question the child in chambers, or in some comfortable place other than
the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and
counsel for the parties. The questions of the judge shall not be related to the issues at trial
but to the feelings of the child about testifying in the courtroom.

(d) The judge may exclude any person, including the accused, whose presence or conduct
causes fear to the child.

(e) The court shall issue an order granting or denying the use of live-link television and
stating the reasons therefor. It shall consider the following factors:

(1) The age and level of development of the child;

(2) His physical and mental health, including any mental or physical disability;

(3) Any physical, emotional, or psychological injury experienced by him;

(4) The nature of the alleged abuse;

(5) Any threats against the child;

(6) His relationship with the accused or adverse party;

(7) His reaction to any prior encounters with the accused in court or elsewhere;

(8) His reaction prior to trial when the topic of testifying was discussed with him by
parents or professionals;

(9) Specific symptoms of stress exhibited by the child in the days prior to testifying;

(10) Testimony of expert or lay witnesses;

(11) The custodial situation of the child and the attitude of the members of his family
regarding the events about which he will testify; and

(12) Other relevant factors, such as court atmosphere and formalities of court
procedure.

(f) The court may order that the testimony of the child be taken by live-link television if there
is a substantial likelihood that the child would suffer trauma from testifying in the presence of
the accused, his counsel or the prosecutor as the case may be. The trauma must be of a
kind which would impair the completeness or truthfulness of the testimony of the child.
 (g) If the court orders the taking of testimony by live-link television:

(1) The child shall testify in a room separate from the courtroom in the presence of
the guardian ad litem; one or both of his support persons; the facilitator and
interpreter, if any; a court officer appointed by the court; persons necessary to
operate the closed-circuit television equipment; and other persons whose presence
are determined by the court to be necessary to the welfare and well-being of the
child;

(2) The judge, prosecutor, accused, and counsel for the parties shall be in the
courtroom. The testimony of the child shall be transmitted by live-link television into
the courtroom for viewing and hearing by the judge, prosecutor, counsel for the
parties, accused, victim, and the public unless excluded.

(3) If it is necessary for the child to identify the accused at trial, the court may allow
the child to enter the courtroom for the limited purpose of identifying the accused, or
the court may allow the child to identify the accused by observing the image of the
latter on a television monitor.

(4) The court may set other conditions and limitations on the taking of the testimony
that it finds just and appropriate, taking into consideration the best interests of the
child.

(h) The testimony of the child shall be preserved on videotape, digital disc, or other similar
devices which shall be made part of the court record and shall be subject to a protective
order as provided in section 31(b).

Section 26. Screens, one-way mirrors, and other devices to shield child from accused. -

(a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child
or that a screen or other device be placed in the courtroom in such a manner that the child
cannot see the accused while testifying. Before the guardian ad litem applies for an order
under this section, he shall consult with the prosecutor or counsel subject to the second and
third paragraphs of section 25(a) of this Rule. The court shall issue an order stating the
reasons and describing the approved courtroom arrangement.

(b) If the court grants an application to shield the child from the accused while testifying in
the courtroom, the courtroom shall be arranged to enable the accused to view the child.

Section 27. Videotaped deposition. -

(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be
taken of the testimony of the child and that it be recorded and preserved on videotape.
Before the guardian ad litem applies for an order under this section, he shall consult with the
prosecutor or counsel subject to the second and third paragraphs of section 25(a).

(b) If the court finds that the child will not be able to testify in open court at trial, it shall issue
an order that the deposition of the child be taken and preserved by videotape.

(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and
shall be ruled upon at the time of the taking of the deposition. The other persons who may be
permitted to be present at the proceeding are:

(1) The prosecutor;

(2) The defense counsel;

(3) The guardian ad litem;

(4) The accused, subject to sub-section (e);

(5) Other persons whose presence is determined by the court to be necessary to the
welfare and well-being of the child;

(6) One or both of his support persons, the facilitator and interpreter, if any;

(7) The court stenographer; and

(8) Persons necessary to operate the videotape equipment.

(d) The rights of the accused during trial, especially the right to counsel and to confront and
cross-examine the child, shall not be violated during the deposition.

(e) If the order of the court is based on evidence that the child is unable to testify in the
physical presence of the accused, the court may direct the latter to be excluded from the
room in which the deposition is conducted. In case of exclusion of the accused, the court
shall order that the testimony of the child be taken by live-link television in accordance with
section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary
that the child be able to view an image of the accused.

(f) The videotaped deposition shall be preserved and stenographically recorded. The
videotape and the stenographic notes shall be transmitted to the clerk of the court where the
case is pending for safekeeping and shall be made a part of the record.

(g) The court may set other conditions on the taking of the deposition that it finds just and
appropriate, taking into consideration the best interests of the child, the constitutional rights
of the accused, and other relevant factors.

(h) The videotaped deposition and stenographic notes shall be subject to a protective order
as provided in section 31(b).

(i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in
section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23
of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped
deposition of the child in lieu of his testimony at the trial. The court shall issue an order
stating the reasons therefor.

(j) After the original videotaping but before or during trial, any party may file any motion for
additional videotaping on the ground of newly discovered evidence. The court may order an
additional videotaped deposition to receive the newly discovered evidence.
Section 28. Hearsay exception in child abuse cases. - A statement made by a child describing
any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

(a) Before such hearsay statement may be admitted, its proponent shall make known to the
adverse party the intention to offer such statement and its particulars to provide him a fair
opportunity to object. If the child is available, the court shall, upon motion of the adverse
party, require the child to be present at the presentation of the hearsay statement for cross-
examination by the adverse party. When the child is unavailable, the fact of such
circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time,
content and circumstances thereof which provide sufficient indicia of reliability. It shall
consider the following factors:

(1) Whether there is a motive to lie;

(2) The general character of the declarant child;

(3) Whether more than one person heard the statement;

(4) Whether the statement was spontaneous;

(5) The timing of the statement and the relationship between the declarant child and
witness;

(6) Cross-examination could not show the lack of knowledge of the declarant child;

(7) The possibility of faulty recollection of the declarant child is remote; and

(8) The circumstances surrounding the statement are such that there is no reason to
suppose the declarant child misrepresented the involvement of the accused.

(c) The child witness shall be considered unavailable under the following situations:

(1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will
be exposed to severe psychological injury; or

(2) Is absent from the hearing and the proponent of his statement has been unable to
procure his attendance by process or other reasonable means.

(d) When the child witness is unavailable, his hearsay testimony shall be admitted only if
corroborated by other admissible evidence.

Section 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure

interviews in child abuse cases. - The court may admit videotape and audiotape in-depth
investigative or disclosure interviews as evidence, under the following conditions:

(a) The child witness is unable to testify in court on grounds and under conditions
established under section 28 (c).
 (b) The interview of the child was conducted by duly trained members of a multidisciplinary
team or representatives of law enforcement or child protective services in situations where
child abuse is suspected so as to determine whether child abuse occurred.

(c) The party offering the videotape or audiotape must prove that:

(1) the videotape or audiotape discloses the identity of all individuals present and at
all times includes their images and voices;

(2) the statement was not made in response to questioning calculated to lead the
child to make a particular statement or is clearly shown to be the statement of the
child and not the product of improper suggestion;

(3) the videotape and audiotape machine or device was capable of recording
testimony;

(4) the person operating the device was competent to operate it;

(5) the videotape or audiotape is authentic and correct; and

(6) it has been duly preserved.

The individual conducting the interview of the child shall be available at trial for examination by any
party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an
opportunity to view or listen to it and shall be furnished a copy of a written transcript of the
proceedings.

The fact that an investigative interview is not videotaped or audiotaped as required by this section
shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of
the child. It may, however, be considered in determining the reliability of the statements of the child
describing abuse.

Section 30. Sexual abuse shield rule. -

(a) Inadmissible evidence. - The following evidence is not admissible in any criminal
proceeding involving alleged child sexual abuse:

(1) Evidence offered to prove that the alleged victim engaged in other sexual
behavior; and

(2) Evidence offered to prove the sexual predisposition of the alleged victim.

(b) Exception. - Evidence of specific instances of sexual behavior by the alleged victim to
prove that a person other than the accused was the source of semen, injury, or other
physical evidence shall be admissible.

A party intending to offer such evidence must:

(1) File a written motion at least fifteen (15) days before trial, specifically describing the
evidence and stating the purpose for which it is offered, unless the court, for good cause,
requires a different time for filing or permits filing during trial; and
 (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before
the hearing of the motion.

Before admitting such evidence, the court must conduct a hearing in chambers and afford the child,
his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and
the record of the hearing must be sealed and remain under seal and protected by a protective order
set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except
with his consent.

Section 31. Protection of privacy and safety. -

(a) Confidentiality of records. - Any record regarding a child shall be confidential and kept
under seal. Except upon written request and order of the court, a record shall only be
released to the following:

(1) Members of the court staff for administrative use;

(2) The prosecuting attorney;

(3) Defense counsel;

(4) The guardian ad litem;

(5) Agents of investigating law enforcement agencies; and

(6) Other persons as determined by the court.

(b) Protective order. - Any videotape or audiotape of a child that is part of the court record
shall be under a protective order that provides as follows:

(1) Tapes may be viewed only by parties, their counsel, their expert witness, and the
guardian ad litem.

(2) No tape, or any portion thereof, shall be divulged by any person mentioned in
sub-section (a) to any other person, except as necessary for the trial.

(3) No person shall be granted access to the tape, its transcription or any part thereof
unless he signs a written affirmation that he has received and read a copy of the
protective order; that he submits to the jurisdiction of the court with respect to the
protective order; and that in case of violation thereof, he will be subject to the
contempt power of the court.

(4) Each of the tape cassettes and transcripts thereof made available to the parties,
their counsel, and respective agents shall bear the following cautionary notice:

"This object or document and the contents thereof are subject to a protective order
issued by the court in (case title) , (case number) . They shall not be examined,
inspected, read, viewed, or copied by any person, or disclosed to any person, except
as provided in the protective order. No additional copies of the tape or any of its
portion shall be made, given, sold, or shown to any person without prior court order.
 Any person violating such protective order is subject to the contempt power of the
court and other penalties prescribed by law."

(5) No tape shall be given, loaned, sold, or shown to any person except as ordered
by the court.

(6) Within thirty (30) days from receipt, all copies of the tape and any transcripts
thereof shall be returned to the clerk of court for safekeeping unless the period is
extended by the court on motion of a party.

(7) This protective order shall remain in full force and effect until further order of the
court.

(c) Additional protective orders. - The court may, motu proprio or on motion of any party, the
child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect
the privacy of the child.

(d) Publication of identity contemptuous. - Whoever publishes or causes to be published in

any format the name, address, telephone number, school, or other identifying information of
a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an
immediate family of the child shall be liable to the contempt power of the court.

(e) Physical safety of child; exclusion of evidence. - A child has a right at any court
proceeding not to testify regarding personal identifying information, including his name,
address, telephone number, school, and other information that could endanger his physical
safety or his family. The court may, however, require the child to testify regarding personal
identifying information in the interest of justice.

(f) Destruction of videotapes and audiotapes. - Any videotape or audiotape of a child

produced under the provisions of this Rule or otherwise made part of the court record shall
be destroyed after five (5) years have elapsed from the date of entry of judgment.

(g) Records of youthful offender. - Where a youthful offender has been charged before any
city or provincial prosecutor or before any municipal judge and the charges have been
ordered dropped, all the records of the case shall be considered as privileged and may not
be disclosed directly or indirectly to anyone for any purpose whatsoever.

Where a youthful offender has been charged and the court acquits him, or dismisses the case or
commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603,
all the records of his case shall also be considered as privileged and may not be disclosed directly or
indirectly to anyone except to determine if a defendant may have his sentence suspended under
Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968
or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful
offender concerned shall not be held under any provision of law to be guilty of perjury or of
concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact
related thereto in response to any inquiry made to him for any purpose.

"Records" within the meaning of this sub-section shall include those which may be in the files of the
National Bureau of Investigation and with any police department or government agency which may
have been involved in the case. (Art. 200, P. D. No. 603)
Section 32. Applicability of ordinary rules. - The provisions of the Rules of Court on deposition,
conditional examination of witnesses, and evidence shall be applied in a suppletory character.

Section 33. Effectivity. - This Rule shall take effect on December 15, 2000 following its publication
in two (2) newspapers of general circulation.

G.R. No. 144656 May 9, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-appellant.

PER CURIAM:

This is an appeal from the decision1 of the Regional Trial Court, Branch 88, Cavite City, sentencing
Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the
amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of
a 9-year old child, Daisy Diolola, in Rosario, Cavite on July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide
alleged:

"That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario,
Province of Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the
above-named accused, with lewd design, by means of force and intimidation, did then and
there, willfully, unlawfully and feloniously have sexual intercourse with DAISY DIOLOLA Y
DITALO, a nine-year old child against the latter's will and while raping the said victim, said
accused strangled her to death."

"CONTRARY TO LAW."2

Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not
guilty to the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim's mother; Dr.
Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of
Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorney's Office; Pet Byron Buan, NBI Forensic
Biologist; Aida Viloria-Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite
police station; and Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of the victim.

The victim's mother, Ma. Nida Diolola, testified that at around 1:00 o'clock in the afternoon of July 10,
1999, she sent her 9-year old daughter Daisy Diolola to their neighbor's house in Pilapil, Ligtong I,
Rosario, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her
lessons. Aimee's house, where accused-appellant was also staying, is about four to five meters
away from Daisy's house. Ma. Nida saw her daughter go to the house of her tutor. She was wearing
pink short pants and a white sleeveless shirt. An hour later, Daisy came back with accused-
appellant. They were looking for a book which accused-appellant could copy to make a drawing or a
poster that Daisy would submit to her teacher. After finding the book, Daisy and accused-appellant
went back to the latter's house. When Ma. Nida woke up at about 5:30 o'clock after an afternoon
nap, she noticed that Daisy was not yet home. She started looking for her daughter and proceeded
to the house of Aimee, Daisy's tutor. Aimee's mother told Ma. Nida that Daisy was not there and that
Aimee was not able to help Daisy with her lessons because Aimee was not feeling well as she had
her menstrual period. Ma. Nida looked for Daisy in her brother's and sister's houses, but she was not
there, either. At about 7:00 o'clock that evening, Ma. Nida went back to her neighbor's house, and
there saw accused-appellant, who told her that Daisy had gone to her classmate's house to borrow a
book. But, when Ma. Nida went there, she was told that Daisy had not been there. Ma. Nida went to
the dike and was told that they saw Daisy playing at about 3:30 o'clock in the afternoon. Jessiemin
Mataverde also told Ma. Nida that Daisy was playing in front of her house that afternoon and even
watched television in her house, but that Daisy later left with accused-appellant.

Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a
Saturday, until the early morning of the following day, June 11, 1999, a Sunday, but their search
proved fruitless. Then, at about 10:00 o'clock in the morning of June 11, 1999, she was informed that
the dead body of her daughter was found tied to the root of an aroma tree by the river after the
"compuerta" by a certain Freddie Quinto. The body was already in the barangay hall when Ma. Nida
saw her daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her
neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario
police. The other barangay officers fetched accused-appellant from his house and took him to the
barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico Vallejo as the
probable suspect since he was with the victim when she was last seen alive. 3

Another witness, Jessiemin Mataverde, testified that at around 3:00 o'clock in the afternoon of that
day, she saw Daisy playing with other children outside her house. She asked Daisy and her
playmates to stop playing as their noise was keeping Jessiemin's one-year old baby awake. Daisy
relented and watched television instead from the door of Jessiemin's house. About five minutes later,
accused-appellant came to the house and told Daisy something, as a result of which she went with
him and the two proceeded towards the "compuerta."

Jessiemin testified that at around 5:00 o'clock that afternoon, while she and her daughter were in
front of a store across the street from her house, accused-appellant arrived to buy a stick of
Marlboro cigarette. Accused-appellant had only his basketball shorts on and was just holding his
shirt. They noticed both his shorts and his shirt were wet. After lighting his cigarette, accused-
appellant left.4

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 o'clock in the
afternoon of July 10, 1999, while she and her husband and children were walking towards the
"compuerta" near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio
who said that it was a good day for catching milkfish (bangus). For this reason, according to this
witness, they decided to get some fishing implements. She said they met accused-appellant Gerrico
Vallejo near the seashore and noticed that he was uneasy and looked troubled. Charito said that
accused-appellant did not even greet them, which was unusual. She also testified that accused-
appellant's shorts and shirt (sando) were wet, but his face and hair were not.5

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la
Cruz, Jr. responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza.
When they arrived, Daisy's body was already in the barangay hall. SPO1 Cuevas took photographs
of the body. At that time, Daisy was wearing pink short pants and a dirty white panty with a dirty
white sleeveless shirt wrapped around her neck. The body was afterwards taken to the Samson
Funeral Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie
Quinto was fishing near the compuerta when he accidentally hit the body of Daisy, which was in the
mud and tied to the root of an aroma tree.
Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and
Esting, were also taken into custody because they were seen with accused-appellant in front of the
store in the late afternoon of July 10 1999. Later, however, the two were released. Based on the
statements of Jessiemin Mataverde and Charito Paras-Yepes, the policemen went to the house of
accused-appellant at about 4:00 o'clock in the afternoon of July 11, 1999 and recovered the white
basketball shirt, with the name Samartino and No. 13 printed at the back, and the violet basketball
shorts, with the number 9 printed on it, worn by accused-appellant the day before. The shirt and
shorts, which were bloodstained, were turned over to the NBI for laboratory examination. 6

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o'clock in the evening of
July 11, 1999, he conducted a physical examination of accused-appellant. His findings 7 showed the
following:

"PHYSICAL FINDINGS:

"Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0
cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet,
plantar aspects; right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms.
"Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
"Lacerations, left ring finger, posterior aspect, 0.3 cm.
"(Living Case No. BMP-9902, p. 101, records)"

At about 10:00 o'clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario,
Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following
postmortem findings:8

"Body in early stage of postmortem decomposition characterized by foul odor, eyes and
tongue protruding, bloating of the face and blister formation.

"Washerwoman's hands and feet.

"Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused
abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms.,
neck (nailmarks) anterior aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect, middle 3rd
3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0
cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0
cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms. knees, right, 3.0 x 2.0
cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle 3rd 3.0 x 2.5 cms.
foot right, dorsal aspect.

"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.

"Fracture, tracheal rings.

"Hemorrhages, interstitial, neck, underneath, nailmarks. "Petechial hemorrhages,

subendocardial, subpleural.

"Brain and other visceral organs are congested.

"Stomach, contains rice and other food particles.

 "CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

"GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and
congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and
9:00 o'clock positions, edges with blood clots." [Autopsy Report No. BTNO-99-152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and
murder at past 10:00 o'clock in the evening of June 11, 1999. The mayor said he immediately
proceeded to the municipal jail, where accused-appellant was detained, and talked to the latter.
Accused-appellant at first denied having anything to do with the killing and rape of the child. The
mayor said he told accused-appellant that he could not help him if he did not tell the truth. At that
point, accused-appellant started crying and told the mayor that he killed the victim by strangling her.
Accused-appellant claimed that he was under the influence of drugs. The mayor asked accused-
appellant if he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as his lawyer.
When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and took him
to the police station about 11:00 o'clock that evening. 9

Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said that upon arriving at the police
station, he asked accused-appellant if he wanted his services as counsel in the investigation. After
accused-appellant assented, Atty. Leyva testified that he "sort of discouraged" the former from
making statements as anything he said could be used against him. But, as accused-appellant was
willing to be investigated, Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the
investigator, informed accused-appellant of his constitutional rights to remain silent and to be
assisted by counsel and warned him that any answer he gave could and might be used against him
in a court of law. PO2 Garcia asked questions from accused-appellant, who gave his answers in the
presence of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read it
and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication that
accused-appellant had been maltreated by the police. In his sworn statement (Exh. M), accused-
appellant confessed to killing the victim by strangling her to death, but denied having molested her.10

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples
from accused-appellant in his office for laboratory examination to determine his blood type. Likewise,
the basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the
victim's clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of
the Rosario, Cavite police for the purpose of determining the presence of human blood and its
groups.11

The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to
belong to Group "O". The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with
patches "Grizzlies" in front and "SAMARTINO" at the back; (2) one (1) violet no. 9 athletic basketball
short pants; (3) one (1) white small "Hello Kitty" T-shirt with reddish brown stains; (4) one (1) "cut"
pink short pants with reddish brown stains; (5) one (1) "cut" dirty white small panty with reddish
brown stains, were all positive for the presence of human blood showing the reactions of Group
"A".12

Pet Byron Buan also testified that before he took the blood samples, he had a conversation with
accused-appellant during which the latter admitted that he had raped and later killed the victim by
strangulation and stated that he was willing to accept the punishment that would be meted out on
him because of the grievous offense he had committed. Mr. Buan observed that accused-appellant
was remorseful and was crying when he made the confession in the presence of SPO1 Amoranto at
the NBI laboratory.13
When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of
July 13, 1999 in Cavite City, accused-appellant had with him a handwritten confession which he had
executed inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant
admitted not only that he killed the victim but that he had before that raped her. Accused-appellant
said he laid down the victim on a grassy area near the dike. He claimed that she did not resist when
he removed her undergarments but that when he tried to insert his penis into the victim's vagina, she
struggled and resisted. Accused-appellant said he panicked and killed the child. He then dumped her
body in the shallow river near the "compuerta" and went home.14

Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office, testified that at noon of July 13,
1999, while she was in their office in Cavite City, Prosecutor Itoc came together with accused-
appellant and some policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant
about his confession. Atty. Agbunag read the document, informed accused-appellant of his
constitutional rights, and warned him that the document could be used against him and that he could
be convicted of the case against him, but, according to her, accused-appellant said that he had
freely and voluntarily executed the document because he was bothered by his conscience. Accused-
appellant, assisted by Atty. Agbunag, then affixed his signature to the document and swore to it
before Prosecutor Itoc.15

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron
Buan took buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair
samples from the parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The samples
were submitted to the DNA Laboratory of the NBI for examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens
collected by Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during
the autopsy contained the DNA profiles of accused-appellant and the victim. 16

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee
Vallejo. Their testimonies show that at about 1:00 o'clock in the afternoon of July 10, 1999, accused-
appellant, Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario,
Cavite when Daisy Diolola came to ask accused-appellant to draw her school project. After making
the request, Daisy left.17 Accused-appellant did not immediately make the drawing because he was
watching television. Accused-appellant said that he finished the drawing at about 3:00 o'clock in the
afternoon and gave it to the victim's aunt, Glory. He then returned home to watch television again.
He claimed he did not go out of the house until 7:00 o'clock in the evening when he saw Ma. Nida,
who was looking for her daughter. Accused-appellant said he told her that he had not seen Daisy.
After that, accused-appellant said he went to the "pilapil" and talked with some friends, and, at about
8:00 o'clock that evening, he went home.

At 9:00 o'clock in the morning of July 11, 1999, barangay officials fetched accused-appellant from his
house and took him to the barangay hall, where he was asked about the disappearance of Daisy. He
claimed that he did not know anything about it. Accused-appellant was allowed to go home, but, at
11:00 o'clock that morning, policemen came and invited him to the police headquarters for
questioning. His mother went with him to the police station. There, accused-appellant was asked
whether he had something to do with the rape and killing of Daisy. He denied knowledge of the
crime.

At 4:00 o'clock that afternoon, accused-appellant accompanied the police to his house to get the
basketball shorts and shirt he was wearing the day before, which were placed together with other
dirty clothes at the back of their house. According to accused-appellant, the police forced him to
admit that he had raped and killed Daisy and that he admitted having committed the crime to stop
them from beating him up. Accused-appellant claimed the police even burned his penis with a lighted
cigarette and pricked it with a needle.

Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the
investigation room of the police station and told him that they would help him if he told the truth. Atty.
Leyva asked him whether he wanted him to be his counsel, and accused-appellant said he
answered in the affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-
appellant claimed that, although he admitted to Mayor Abutan and Atty. Leyva the commission of the
crime, this was because the police had maltreated him. Accused-appellant said he did not tell the
mayor or Atty. Leyva that he had been tortured because the policemen were around and he was
afraid of them. It appears that the family of accused-appellant transferred their residence to Laguna
on July 12, 1999 because of fear of reprisal by residents of their barangay.18 According to accused-
appellant, Mayor Abutan and Atty. Leyva were not present when he gave his confession to the police
and signed the same. Accused-appellant claims that although Exhibit "N" was in his own
handwriting, he merely copied the contents thereof from a pattern given to him by the police. 19

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense
charged. The dispositive portion of its decision reads:

"WHEREFORE, in view of all the foregoing considerations, the Court finds the accused
Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with
Homicide, as charged in the Information, accordingly hereby sentences him to the supreme
penalty of DEATH. The accused is directed to indemnify the heirs of the victim in the amount
of P100,000.00 as civil indemnity and P50,000.00 as moral damages.

"SO ORDERED."20

Hence this appeal. Accused-appellant contends that:

"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT

OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE
CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.

"II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE
ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING
HEARSAY IN NATURE.

"III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE

VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-
APPELLANT DESPITE THE FACT THAT THE SAME WAS OBTAINED THROUGH FORCE
AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM DURING HIS
CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE HIM
EFFECTIVE LEGAL ASSISTANCE."

We find accused-appellant's contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available, provided sufficient

circumstantial evidence is presented by the prosecution to prove beyond reasonable doubt that the
accused committed the crime.21 In rape with homicide, the evidence against an accused is more
often than not circumstantial. This is because the nature of the crime, where only the victim and the
rapist would have been present at the time of its commission, makes the prosecution of the offense
particularly difficult since the victim could no longer testify against the perpetrator. Resort to
circumstantial evidence is inevitable and to demand direct evidence proving the modality of the
offense and the identity of the perpetrator is unreasonable.22

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to
sustain a conviction if:

"(a) there is more than one circumstance;

"(b) the facts from which the inferences are derived are proven; and

"(c) the combination of all circumstances is such as to produce conviction beyond

reasonable doubt."23

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt
of accused-appellant:

1. The victim went to Aimee Vallejo's house, where accused-appellant was residing, at 1:00
o'clock in the afternoon of July 10, 1999, for tutoring.

2. At around 2:00 o'clock in the afternoon, accused-appellant and Daisy went together to the
latter's house to get a book from which the former could copy Daisy's school project. After
getting the book, they proceeded to accused-appellant's residence.

3. From accused-appellant's house, Daisy then went to the house of Jessiemin Mataverde
where she watched television. Accused-appellant thereafter arrived and whispered
something to Daisy, and the latter went with him towards the "compuerta."

4. At about 4:30 o'clock in the afternoon, the spouses Iluminado and Charito Yepes saw
accused-appellant coming out of the "compuerta," with his clothes, basketball shorts, and t-
shirt wet, although his face and hair were not. According to these witnesses, he looked pale,
uneasy, and troubled (balisa). He kept looking around and did not even greet them as was
his custom to do so.

5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with
dynamite) was docked by the seashore.

6. A little before 5:00 o'clock in the afternoon, Jessiemin Mataverde also saw accused-
appellant buying a Marlboro cigarette from a store. Jessiemen also noticed that accused-
appellant's clothes were wet but not his face nor his hair.

7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told
by accused-appellant that Daisy had gone to her classmate Rosario's house. The
information proved to be false.

8. Daisy's body was found tied to an aroma tree at the part of the river near the "compuerta."

9. During the initial investigation, accused-appellant had scratches on his feet similar to
those caused by the thorns of an aroma tree.
 10. The clothes which accused-appellant wore the day before were bloodstained. The
bloodstains on accused-appellant's clothes and on Daisy's clothes were found positive of
human blood type "A."

11. Accused-appellant has blood type "O."

12. The vaginal swabs from Daisy's body contained her DNA profile as well as that of
accused-appellant.

Accused-appellant contends that the bloodstains found on his garments were not proven to have
been that of the victim as the victim's blood type was not determined.

The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of
both accused-appellant's and the victim's clothing yielded bloodstains of the same blood type
"A".24 Even if there was no direct determination as to what blood type the victim had, it can
reasonably be inferred that the victim was blood type "A" since she sustained contused abrasions all
over her body which would necessarily produce the bloodstains on her clothing. 25 That it was the
victim's blood which predominantly registered in the examination was explained by Mr. Buan, thus: 26

"ATTY. ESPIRITU

Q: But you will agree with me that more probably than not, if a crime is being
committed, and it results in a bloody death, it is very possible that the blood of the victim and
the blood of the assailant might mix in that particular item like the t-shirt, shorts or pants?

A: It is possible when there is a huge amount of blood coming from the victim and the
suspect, Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one
which will register. For example, if there is more blood coming from the victim, that blood will
be the one to register, on occasions when the two blood mix.

Q: But in these specimens number 1 to 5, it is very clear now that only type A and no
type O blood was found?

A: Yes, sir."

Accused-appellant also questions the validity of the method by which his bloodstained clothes were
recovered. According to accused-appellant, the policemen questioned him as to the clothes he wore
the day before. Thereafter, they took him to his house and accused-appellant accompanied them to
the back of the house where dirty clothes were kept.27 There is no showing, however, that accused-
appellant was coerced or forced into producing the garments. Indeed, that the accused-appellant
voluntarily brought out the clothes sought by the police becomes more convincing when considered
together with his confessions. A consented warrantless search is an exception to the proscription in
Section 2 of Article III of the Constitution. As we have held, the consent of the owner of the house to
the search effectively removes any badge of illegality.28

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by
accused-appellant. He argues that the prosecution failed to show that all the samples submitted for
DNA testing were not contaminated, considering that these specimens were already soaked in
smirchy waters before they were submitted to the laboratory.
DNA is an organic substance found in a person's cells which contains his or her genetic code.
Except for identical twins, each person's DNA profile is distinct and unique. 29

When a crime is committed, material is collected from the scene of the crime or from the victim's
body for the suspect's DNA. This is the evidence sample. The evidence sample is then matched with
the reference sample taken from the suspect and the victim.30

The purpose of DNA testing is to ascertain whether an association exists between the evidence
sample and the reference sample.31 The samples collected are subjected to various chemical
processes to establish their profile.32 The test may yield three possible results:

1) The samples are different and therefore must have originated from different sources
(exclusion). This conclusion is absolute and requires no further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the samples have
similar DNA types (inconclusive). This might occur for a variety of reasons including
degradation, contamination, or failure of some aspect of the protocol. Various parts of the
analysis might then be repeated with the same or a different sample, to obtain a more
conclusive result; or

3) The samples are similar, and could have originated from the same source (inclusion). 33 In
such a case, the samples are found to be similar, the analyst proceeds to determine the
statistical significance of the Similarity.34

In assessing the probative value of DNA evidence, therefore, courts should consider, among others
things, the following data: how the samples were collected, how they were handled, the possibility of
contamination of the samples, the procedure followed in analyzing the samples, whether the proper
standards and procedures were followed in conducting the tests, and the qualification of the analyst
who conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the
smears taken from the victim as well as the strands of hair and nails taken from her tested negative
for the presence of human DNA,35 because, as Ms. Viloria-Magsipoc explained:

"PROSECUTOR LU:

Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of

the victim and of the accused gave negative results for the presence of human DNA. Why is
it so? What is the reason for this when there are still bloodstains on the clothing?

A: After this Honorable Court issued an Order for DNA analysis, serological methods
were already conducted on the said specimens. And upon inquiry from Mr. Buan and as far
as he also knew of this case, and we also interviewed the mother who came over to the
laboratory one time on how was the state of the specimens when they were found out. We
found that these specimens were soaked in smirchy water before they were submitted to the
laboratory. The state of the specimens prior to the DNA analysis could have hampered the
preservation of any DNA that could have been there before. So when serological methods
were done on these specimens, Mr. Byron could have taken such portion or stains that were
only amenable for serological method and were not enough for DNA analysis already. So
negative results were found on the clothings that were submitted which were specimens no.
1 to 5 in my report, Sir.
 Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim
also proved negative for human DNA, why is it so?

A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear
on the slide was very, very dry and could have chipped off. I already informed Dr. Vertido
about it and he confirmed the state of the specimen. And I told him that maybe it would be
the swab that could help us in this case, Sir. And so upon examination, the smears geared
negative results and the swabs gave positive results, Sir.

Q: How about specimen no. 7, the hair and nails taken from the victim, why did they
show negative results for DNA?

A: The hair samples were cut hair. This means that the hair did not contain any root. So
any hair that is above the skin or the epidermis of one's skin would give negative results as
the hair shaft is negative for DNA. And then the nails did not contain any subcutaneous cells
that would be amenable for DNA analysis also, Sir.

Q: So it's the inadequacy of the specimens that were the reason for this negative result,
not the inadequacy of the examination or the instruments used?

A: Yes, Sir."

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that
the samples had been contaminated, which accounted for the negative results of their examination.
But the vaginal swabs taken from the victim yielded positive for the presence of human DNA. Upon
analysis by the experts, they showed the DNA profile of accused-appellant: 36

"PROSECUTOR LU:

Q: So based on your findings, can we say conclusively that the DNA profile of the
accused in this case was found in the vaginal swabs taken from the victim?

A: Yes, Sir.

Q: That is very definite and conclusive?

A: Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion than that
accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or
circumstances which are proved are not only consistent with the guilt of the accused but also
inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct
evidence in its effect upon the court.37 This is how it is in this case.

Second. Accused-appellant challenges the validity of the oral and written confessions presented as
evidence against him. He alleges that the oral confessions were inadmissible in evidence for being
hearsay, while the extrajudicial confessions were obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:
 "(1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel,
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

"(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.

"(3) Any confession or admission obtained in violation of this or Section 17 shall be

inadmissible in evidence against him."

There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1)
coerced confessions, the product of third degree methods such as torture, force, violence, threat,
and intimidation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements,
given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same
section.38

Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to
NBI Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights
as these were made by one already under custodial investigation to persons in authority without the
presence of counsel. With respect to the oral confessions, Atty. Leyva testified: 39

"PROSECUTOR LU:

Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with
him?

A: Yes, Sir.

Q: Did you ask him whether he really wants you to represent or assist him as a lawyer
during that investigation?

A: I did, as a matter of fact, I asked him whether he would like me to represent him in
that investigation, Sir.

Q: And what was his answer?

A: He said "yes".

Q: After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used against him, so
it's a sort of discouraging him from making any statement to the police, Sir."

Upon cross-examination, Atty. Leyva testified as follows: 40

Q: You stated that you personally read this recital of the constitutional rights of the
accused?
 A: Yes, Sir.

Q: But it will appear in this recital of constitutional rights that you did not inform the
accused that the statement that he will be giving might be used against him in a court of
justice?

A: I did that, Sir.

Q: But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

ATTY ESPIRITU

The only thing that is stated here is that "Maaaring gamitin pabor o laban sa iyo."

COURT

Let the witness answer.

A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but
the truth."

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan, 41 it is
also confirmed by accused-appellant who testified as follows: 42

"ATTY. ESPIRITU:

Q: Did Atty. Leyva explain to you the meaning and significance of that document which
you are supposed to have executed and signed?

A: Yes, Sir.

Q: What did Atty. Leyva tell you?

A: That they are allowing me to exercise my constitutional right to reveal or narrate all
what I know about this case, Sir.

Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that
statement?

A: Yes, Sir.

Q: And did he tell you that what you would be giving is an extra-judicial confession?

A: Yes, Sir."
Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the
statements he was to make as well as the written confessions he was to execute. Neither can he
question the qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To
be an effective counsel, a lawyer need not challenge all the questions being propounded to his
client. The presence of a lawyer is not intended to stop an accused from saying anything which
might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion
as would lead the accused to admit something false. Indeed, counsel should not prevent an accused
from freely and voluntarily telling the truth.43

Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty.
Leyva before the latter acted as his defense counsel.44 And counsel who is provided by the
investigators is deemed engaged by the accused where the latter never raised any objection against
the former's appointment during the course of the investigation but, on the contrary, thereafter
subscribed to the veracity of his statement before the swearing officer.45 Contrary to the assertions of
accused-appellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a legal
adviser of Mayor Renato Abutan.46

Accused-appellant contends that the rulings in People vs. Andan47 and People vs. Mantung48 do not
apply to this case. We disagree. The facts of these cases and that of the case at bar are similar. In
all these cases, the accused made extrajudicial confessions to the municipal mayor freely and
voluntarily. In all of them, the extrajudicial confessions were held admissible in evidence, being the
spontaneous, free, and voluntary admissions of the guilt of the accused. We note further that the
testimony of Mayor Abutan was never objected to by the defense.

Indeed, the mayor's questions to accused-appellant were not in the nature of an interrogation, but
rather an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor
Abutan testified:49

"PROSECUTOR LU:

Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did
he tell you?

A: At first he said that he did not do that. That was the first thing he told me. Then I told
him that I will not be able to help him if he will not tell me the truth.

Q: And what was the reply of the accused?

A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: And what exactly did he tell you about the incident?

A: I asked him, "Were you under the influence of drugs at that time"?

Q: What else did he tell you?

A: I told him, "What reason pushed you to do that thing?" x x x

Q: Please tell us in tagalog, the exact words that the accused used in telling you what
happened.
 A: He told me that he saw the child as if she was headless at that time. That is why he
strangled the child, Sir. ("Ang sabi niya po sa 'kin, nakita niya raw 'yung bata na parang
walang ulo na naglalakad. Kaya po sinakal niya.")

xxx xxx xxx

COURT:

Q: When you told the accused that you will help him, what kind of help were you
thinking at that time?

A: I told him that if he will tell the truth, I could help give him legal counsel.

Q: And what was the answer of the accused?

A: Yes, he will tell me the truth, Your Honor."

In People vs. Mantung,50 this Court said:

"Never was it raised during the trial that Mantung's admission during the press conference
was coerced or made under duress. As the records show, accused-appellant voluntarily
made the statements in response to Mayor Marquez' question as to whether he killed the
pawnshop employees. Mantung answered in the affirmative and even proceeded to explain
that he killed the victims because they made him eat pork. These circumstances hardly
indicate that Mantung felt compelled to own up to the crime. Besides, he could have chosen
to remain silent or to do deny altogether any participation in the robbery and killings but he
did not; thus accused-appellant sealed his own fate. As held in People v. Montiero, a
confession constitutes evidence of high order since it is supported by the strong presumption
that no person of normal mind would deliberately and knowingly confess to a crime unless
prompted by truth and his conscience."

And in People vs. Andan, it was explained:

"Thus, it has been held that the constitutional procedures on custodial investigation do not
apply to a spontaneous statement, not elicited through questioning by the authorities, but
given in an ordinary manner whereby appellant orally admitted having committed the crime.
What the Constitution bars is the compulsory disclosure of incriminating facts or confessions.
The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the
state as would lead the accused to admit something false, not prevent him from freely and
voluntarily telling the truth."51

For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet
Byron Buan is admissible. Accused-appellant would have this Court exclude this confession on the
ground that it was uncounselled and that Mr. Buan, who initiated the conversation with accused-
appellant, was part of the NBI. The issue concerning the sufficiency of the assistance given by Atty.
Leyva has already been discussed. On the other hand, the questions put by Mr. Buan to accused-
appellant were asked out of mere personal curiosity and clearly not as part of his tasks. As Buan
testified:52

"PROSECUTOR LU:
 Q: What was the subject of your conversation with him?

A: It is customary when we examine the accused. During the examination, we talk to

them for me to add knowledge on the case, Sir.

Q: What did you talk about during your conversation?

A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.

Q: And what was the reply of the accused?

A: He said yes, Sir.

Q: What else did you ask the accused?

A: I remember that while asking him, he was crying as if feeling remorse on the killing,
Sir.

....

Q: And it was you who initiated the conversation?

A: Yes, Sir.

Q: Do you usually do that?

A: Yes, Sir. We usually do that.

Q: Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any
information either on the victim or from the suspect will help me personally. It's not an SOP,
Sir."

The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and
is, therefore, admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the
ground that these were extracted from him by means of torture, beatings, and threats to his life. The
bare assertions of maltreatment by the police authorities in extracting confessions from the accused
are not sufficient. The standing rule is that "where the defendants did not present evidence of
compulsion, or duress nor violence on their person; where they failed to complain to the officer who
administered their oaths; where they did not institute any criminal or administrative action against
their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their
bodies; and where they did not have themselves examined by a reputable physician to buttress their
claim," all these will be considered as indicating voluntariness.53 Indeed, extrajudicial confessions are
presumed to be voluntary, and, in the absence of conclusive evidence showing that the declarant's
consent in executing the same has been vitiated, the confession will be sustained. 54
Accused-appellant's claim that he was tortured and subjected to beatings by policemen in order to
extract the said confession from him is unsupported by any proof:55

"ATTY. ESPIRITU:

Q: Did they further interrogate you?

A: Yes, sir.

Q: What else did they ask you?

A: They were asking me the project, Sir.

Q: What else?

A: That is the only thing, Sir.

Q: Who was doing the questioning?

A: The investigator, Sir.

Q: How many were they inside that room?

A: Five, Sir.

Q: They are all policemen?

A: Yes, Sir.

xxx xxx xxx

Q: Until what time did they keep you inside that room?

A: Up to 11:00 in the evening, Sir.

Q: Between 10:30 in the morning up to 11:00 o'clock in the evening, what did you do
there?

A: They were interrogating and forcing me to admit something, Sir.

Q: In what way did they force you to admit something?

A: They were mauling me, Sir.

Q: The 5 of them?

A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the questioning?
 A: Yes, Sir.

Q: In what way did they hurt you?

A: They burned my private part with a lighted cigarette butt and pierced me with a
needle, Sir.

Q: Who did these things to you?

A: Mercado, Sir.

Q: Who is this Mercado?

A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?

A: No, Sir.

Q: Were you asked to undress or you were forced to do that?

A: They forced me to remove my clothes, Sir.

Q: In what way did they force you to remove your clothes?

A: They were asking me to take off the pants which I was wearing at the time, Sir.

Q: Did they do anything to you to force you to remove your pants?

A: Yes, Sir.

Q: What?

A: They boxed me, Sir.

Q: What else, if any?

A: They hit me with a piece of wood, Sir.

Q: What did you feel when your private part was burned with a cigarette butt?

A: It was painful, Sir.

Q: In what part of your body were you pricked by a needle?

A: At my private part, Sir."

These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay
in the municipal hall from 10:00 o'clock in the morning until 11:00 o'clock that night of July 10, 1999,
during which time he was boxed, tortured, and hit with a piece of wood by policemen to make him
admit to the crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at
about 9:00 o'clock in the evening of the same day. While the results show that accused-appellant did
sustain injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified: 56

"PROSECUTOR LU:

Q: What were your findings when you conducted the physical examination of the
suspect?

A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the
suspect, and I also found hematoma on the left ring finger, posterior aspect and at the same
time, a laceration on the left ring finger.

xxx xxx xxx

Q: In your findings, it appears that the accused in this case suffered certain physical
injuries on his person like this abrasion on the thigh, right anterior lateral aspect lower third of
the knee, what could have caused this injury?

A: Abrasions are usually caused when the skin comes in contact with a rough surface,
Sir. Hematoma are usually caused by a blunt instrument or object and laceration is the
forcible contact of the skin from that blunt object.

Q: I am particularly interested in your findings hematoma on the left ring finger, posterior
aspect and laceration left ring finger posterior aspect, what could have caused those injuries
on the accused?

A: My opinion to these hematoma and laceration found on the said left ring finger was
that it was caused by a bite, Sir."

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have
found more than mere abrasions and hematoma on his left finger. Dr. Vertido's findings are more
consistent with the theory that accused-appellant sustained physical injuries as a result of the
struggle made by the victim during the commission of the rape in the "compuerta."

At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible,
the circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all
reasonable doubt. The prosecution witnesses presented a mosaic of circumstances showing
accused-appellant's guilt. Their testimonies rule out the possibility that the crime was the handiwork
of some other evil mind. These witnesses have not been shown to have been motivated by ill will
against accused-appellant.

On the other hand, no other witness not related to accused-appellant was ever called to corroborate
his claim. The defense presented only accused-appellant's sister, Aimee Vallejo, to corroborate his
story. We have held time and again that alibi cannot prosper if it is established mainly by the
accused and his relatives, and not by credible persons. 57 It is well settled that alibi is the weakest of
all defenses as it is easy to contrive and difficult to disprove. For this reason, this Court looks with
caution upon the defense of alibi, especially when, as in this case, it is corroborated only by relatives
or friends of the accused.58
Article 266-B of the Revised Penal Code provides that "When by reason or on the occasion of the
rape, homicide is committed, the penalty shall be death." 59 Therefore, no other penalty can be
imposed on accused-appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court,
Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond
reasonable doubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of
DEATH and directing him to indemnify the heirs of the victim in the amount of P100,000.00 as civil
indemnity and P50,000.00 as moral damages, is hereby AFFIRMED.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the
finality of this decision, let the records of this case be forthwith forwarded to the President of the
Philippines for the possible exercise of the pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.
De Leon, Jr., J., abroad, on official business.

SECOND DIVISION
JESSE U. LUCAS, G.R. No. 190710

Petitioner,
Present:

CARPIO, J.,

Chairperson,

NACHURA,
- versus -
PERALTA,

ABAD, and

MENDOZA, JJ.

Promulgated:
 JESUS S. LUCAS, June 6, 2011

Respondent.

x----------------------------------------------------------------------------------------------
x

DECISION

NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA

testing order? In this petition for review on certiorari, we address
this question to guide the Bench and the Bar in dealing with a
relatively new evidentiary tool. Assailed in this petition are the
Court of Appeals (CA) Decision[1] dated September 25, 2009 and
Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to

Establish Illegitimate Filiation (with Motion for the Submission of
Parties to DNA Testing)[2] before the Regional Trial Court (RTC),
Branch 72, Valenzuela City. Petitioner narrated that, sometime in
1967, his mother, Elsie Uy (Elsie), migrated
to Manila from Davao and stayed with a certain Ate Belen (Belen)
who worked in a prominent nightspot in Manila. Elsie would
oftentimes accompany Belen to work. On one occasion, Elsie got
acquainted with respondent, Jesus S. Lucas, at Belens workplace,
and an intimate relationship developed between the two. Elsie
eventually got pregnant and, on March 11, 1969, she gave birth
to petitioner, Jesse U. Lucas. The name of petitioners father was
not stated in petitioners certificate of live birth. However, Elsie
later on told petitioner that his father is respondent. On August 1,
1969, petitioner was baptized at San Isidro Parish, Taft
Avenue, Pasay City. Respondent allegedly extended financial
support to Elsie and petitioner for a period of about two years.
When the relationship of Elsie and respondent ended, Elsie
refused to accept respondents ofer of support and decided to
raise petitioner on her own. While petitioner was growing up, Elsie
made several attempts to introduce petitioner to respondent, but
all attempts were in vain.

Attached to the petition were the following: (a) petitioners

certificate of live birth; (b) petitioners baptismal certificate; (c)
petitioners college diploma, showing that he graduated from Saint
Louis University in Baguio City with a degree in Psychology; (d) his
Certificate of Graduation from the same school; (e) Certificate of
Recognition from the University of the Philippines, College of
Music; and (f) clippings of several articles from diferent
newspapers about petitioner, as a musical prodigy.

Respondent was not served with a copy of the petition.

Nonetheless, respondent learned of the petition to establish
filiation. His counsel therefore went to the trial court on August
29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear
the Case. Hence, on September 3, 2007, the RTC, finding the
petition to be sufficient in form and substance, issued the
Order[3] setting the case for hearing and urging anyone who has
any objection to the petition to file his opposition. The court also
directed that the Order be published once a week for three
consecutive weeks in any newspaper of general circulation in
the Philippines, and that the Solicitor General be furnished with
copies of the Order and the petition in order that he may appear
and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September

3, 2007 Order, respondent filed a Special Appearance and
Comment. He manifested inter alia that: (1) he did not receive the
summons and a copy of the petition; (2) the petition was
adversarial in nature and therefore summons should be served on
him as respondent; (3) should the court agree that summons was
required, he was waiving service of summons and making a
voluntary appearance; and (4) notice by publication of the
petition and the hearing was improper because of the
confidentiality of the subject matter.[4]

On September 14, 2007, respondent also filed a Manifestation and

Comment on Petitioners Very Urgent Motion to Try and Hear the
Case. Respondent reiterated that the petition for recognition is
adversarial in nature; hence, he should be served with summons.

After learning of the September 3, 2007 Order, respondent filed a

motion for reconsideration. [5] Respondent averred that the petition
was not in due form and substance because petitioner could not
have personally known the matters that were alleged therein. He
argued that DNA testing cannot be had on the basis of a mere
allegation pointing to respondent as petitioners father. Moreover,
jurisprudence is still unsettled on the acceptability of DNA
evidence.
On July 30, 2008, the RTC, acting on respondents motion for
reconsideration, issued an Order[6] dismissing the case. The court
remarked that, based on the case of Herrera v. Alba,[7] there are
four significant procedural aspects of a traditional paternity action
which the parties have to face: a prima facie case, affirmative
defenses, presumption of legitimacy, and physical resemblance
between the putative father and the child. The court opined that
petitioner must first establish these four procedural aspects
before he can present evidence of paternity and filiation, which
may include incriminating acts or scientific evidence like blood
group test and DNA test results. The court observed that the
petition did not show that these procedural aspects were present.
Petitioner failed to establish a prima facie case considering that
(a) his mother did not personally declare that she had sexual
relations with respondent, and petitioners statement as to what
his mother told him about his father was clearly hearsay; (b) the
certificate of live birth was not signed by respondent; and (c)
although petitioner used the surname of respondent, there was no
allegation that he was treated as the child of respondent by the
latter or his family. The court opined that, having failed to
establish a prima facie case, respondent had no obligation to
present any affirmative defenses. The dispositive portion of the
said Order therefore reads:
WHEREFORE, for failure of the petitioner to establish
compliance with the four procedural aspects of a
traditional paternity action in his petition, his motion for
the submission of parties to DNA testing to establish
paternity and filiation is hereby DENIED. This case is
DISMISSED without prejudice.

SO ORDERED.[8]

Petitioner seasonably filed a motion for reconsideration to the

Order dated July 30, 2008, which the RTC resolved in his favor.
Thus, on October 20, 2008, it issued the Order [9]setting aside the
courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order
dated July 30, 2008 is hereby reconsidered and set aside.

Let the Petition (with Motion for the Submission of

Parties to DNA Testing) be set for hearing on January 22,
2009 at 8:30 in the morning.

xxxx

SO ORDERED.[10]

This time, the RTC held that the ruling on the grounds relied upon
by petitioner for filing the petition is premature considering that a
full-blown trial has not yet taken place. The court stressed that
the petition was sufficient in form and substance. It was verified,
it included a certification against forum shopping, and it
contained a plain, concise, and direct statement of the ultimate
facts on which petitioner relies on for his claim, in accordance
with Section 1, Rule 8 of the Rules of Court. The court remarked
that the allegation that the statements in the petition were not of
petitioners personal knowledge is a matter of evidence. The court
also dismissed respondents arguments that there is no basis for
the taking of DNA test, and that jurisprudence is still unsettled on
the acceptability of DNA evidence. It noted that the new Rule on
DNA Evidence[11] allows the conduct of DNA testing, whether at
the courts instance or upon application of any person who has
legal interest in the matter in litigation.
 Respondent filed a Motion for Reconsideration of Order dated
October 20, 2008 and for Dismissal of Petition, [12] reiterating that
(a) the petition was not in due form and substance as no
defendant was named in the title, and all the basic allegations
were hearsay; and (b) there was no prima facie case, which made
the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19,
2009, and rescheduled the hearing.[13]

Aggrieved, respondent filed a petition for certiorari with the

CA, questioning the Orders dated October 20, 2008 and January
19, 2009.

On September 25, 2009, the CA decided the petition

for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is

hereby GRANTED for being meritorious. The assailed
Orders dated October 20, 2008 and January 19, 2009 both
issued by the Regional Trial Court, Branch 172 of
Valenzuela City in SP. Proceeding Case No. 30-V-07 are
REVERSED and SET ASIDE. Accordingly, the case
docketed as SP. Proceeding Case No. 30-V-07 is
DISMISSED.[14]

The CA held that the RTC did not acquire jurisdiction over the
person of respondent, as no summons had been served on him.
Respondents special appearance could not be considered as
voluntary appearance because it was filed only for the purpose of
questioning the jurisdiction of the court over respondent.
Although respondent likewise questioned the courts jurisdiction
over the subject matter of the petition, the same is not equivalent
to a waiver of his right to object to the jurisdiction of the court
over his person.

The CA remarked that petitioner filed the petition to

establish illegitimate filiation, specifically seeking a DNA testing
order to abbreviate the proceedings. It noted that petitioner failed
to show that the four significant procedural aspects of a
traditional paternity action had been met. The CA further held
that a DNA testing should not be allowed when the petitioner has
failed to establish a prima facie case, thus:

While the tenor [of Section 4, Rule on DNA Evidence] appears

to be absolute, the rule could not really have been intended to
trample on the substantive rights of the parties. It could have
not meant to be an instrument to promote disorder,
harassment, or extortion. It could have not been intended to
legalize unwarranted expedition to fish for evidence. Such will
be the situation in this particular case if a court may at any
time order the taking of a DNA test. If the DNA test in
compulsory recognition cases is immediately available to the
petitioner/complainant without requiring first the presentation
of corroborative proof, then a dire and absurd rule would result.
Such will encourage and promote harassment and extortion.

xxxx

At the risk of being repetitious, the Court would like to stress

that it sees the danger of allowing an absolute DNA testing to a
 compulsory recognition test even if the plaintif/petitioner
failed to establish prima facie proof. x x x If at anytime, motu
proprio and without pre-conditions, the court can indeed order
the taking of DNA test in compulsory recognition cases, then
the prominent and well-to-do members of our society will be
easy prey for opportunists and extortionists. For no cause at
all, or even for [sic] casual sexual indiscretions in their younger
years could be used as a means to harass them. Unscrupulous
women, unsure of the paternity of their children may just be
taking the chances-just in case-by pointing to a sexual partner
in a long past one-time encounter. Indeed an absolute and
unconditional taking of DNA test for compulsory recognition
case opens wide the opportunities for extortionist to prey on
victims who have no stomach for scandal.[15]

Petitioner moved for reconsideration. On December 17,

2009, the CA denied the motion for lack of merit. [16]

In this petition for review on certiorari, petitioner raises the

following issues:
I.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN

IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER
THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME
WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.

I.A

WHETHER OR NOT THE COURT OF APPEALS

ERRED WHEN IT RULED THAT JURISDICTION
WAS NOT ACQUIRED OVER THE PERSON OF
THE RESPONDENT.
 I.B

WHETHER OR NOT THE COURT OF APPEALS

ERRED WHEN IT FAILED TO REALIZE THAT THE
RESPONDENT HAD ALREADY SUBMITTED
VOLUNTARILY TO THE JURISDICTION OF THE
COURT A QUO.

I.C

WHETHER OR NOT THE COURT OF APPEALS

ERRED WHEN IT ESSENTIALLY RULED THAT THE
TITLE OF A PLEADING, RATHER THAN ITS BODY,
IS CONTROLLING.

II.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN

IT ORDERED THE DISMISSAL OF THE PETITION BY REASON
OF THE MOTION (FILED BY THE PETITIONER BEFORE THE
COURT A QUO) FOR THE CONDUCT OF DNA TESTING.

II.A

WHETHER OR NOT THE COURT OF APPEALS

ERRED WHEN IT ESSENTIALLY RULED THAT DNA
TESTING CAN ONLY BE ORDERED AFTER THE
PETITIONER ESTABLISHES PRIMA FACIE PROOF
OF FILIATION.

III.
 WHETHER OR NOT THE COURT OF APPEALS ERRED WITH
ITS MISPLACED RELIANCE ON THE CASE OF HERRERA
VS. ALBA,

ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT

PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY
ACTION.[17]

Petitioner contends that respondent never raised as issue in his

petition for certiorari the courts lack of jurisdiction over his
person. Hence, the CA had no legal basis to discuss the same,
because issues not raised are deemed waived or abandoned. At
any rate, respondent had already voluntarily submitted to the
jurisdiction of the trial court by his filing of several motions asking
for affirmative relief, such as the (a) Motion for Reconsideration of
the Order dated September 3, 2007; (b) Ex Parte Motion to
Resolve Motion for Reconsideration of the Order dated November
6, 2007; and (c) Motion for Reconsideration of the Order dated
October 20, 2008 and for Dismissal of Petition. Petitioner points
out that respondent even expressly admitted that he has waived
his right to summons in his Manifestation and Comment on
Petitioners Very Urgent Motion to Try and Hear the Case. Hence,
the issue is already moot and academic.

Petitioner argues that the case was adversarial in nature.

Although the caption of the petition does not state respondents
name, the body of the petition clearly indicates his name and his
known address. He maintains that the body of the petition is
controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing should
not be a reason for the dismissal of the petition since it is not a
legal ground for the dismissal of cases. If the CA entertained any
doubt as to the propriety of DNA testing, it should have simply
denied the motion.[18] Petitioner points out that Section 4 of the
Rule on DNA Evidence does not require that there must be a prior
proof of filiation before DNA testing can be ordered. He adds that
the CA erroneously relied on the four significant procedural
aspects of a paternity case, as enunciated in Herrera v. Alba.
[19]
Petitioner avers that these procedural aspects are not
applicable at this point of the proceedings because they are
matters of evidence that should be taken up during the trial. [20]

In his Comment, respondent supports the CAs ruling on most

issues raised in the petition for certiorari and merely reiterates his
previous arguments. However, on the issue of lack of jurisdiction,
respondent counters that, contrary to petitioners assertion, he
raised the issue before the CA in relation to his claim that the
petition was not in due form and substance. Respondent denies
that he waived his right to the service of summons. He insists that
the alleged waiver and voluntary appearance was conditional
upon a finding by the court that summons is indeed required. He
avers that the assertion of affirmative defenses, aside from lack of
jurisdiction over the person of the defendant, cannot be
considered as waiver of the defense of lack of jurisdiction over
such person.

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial

court were orders denying respondents motion to dismiss the
petition for illegitimate filiation. An order denying a motion to
dismiss is an interlocutory order which neither terminates nor
finally disposes of a case, as it leaves something to be done by
the court before the case is finally decided on the merits. As such,
the general rule is that the denial of a motion to dismiss cannot
be questioned in a special civil action for certiorari, which is a
remedy designed to correct errors of jurisdiction and not errors of
judgment. Neither can a denial of a motion to dismiss be the
subject of an appeal unless and until a final judgment or order is
rendered. In a number of cases, the court has granted the
extraordinary remedy of certiorari on the denial of the motion to
dismiss but only when it has been tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction. [21] In the
present case, we discern no grave abuse of discretion on the part
of the trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were

(a) the courts lack of jurisdiction over his person due to the
absence of summons, and (b) defect in the form and substance of
the petition to establish illegitimate filiation, which is equivalent
to failure to state a cause of action.

We need not belabor the issues on whether lack of

jurisdiction was raised before the CA, whether the court acquired
jurisdiction over the person of respondent, or whether respondent
waived his right to the service of summons. We find that the
primordial issue here is actually whether it was necessary, in the
first place, to serve summons on respondent for the court to
acquire jurisdiction over the case. In other words, was the service
of summons jurisdictional? The answer to this question depends
on the nature of petitioners action, that is, whether it is an
action in personam, in rem, or quasi in rem.
 An action in personam is lodged against a person based on
personal liability; an action in rem is directed against the thing
itself instead of the person; while an action quasi in rem names a
person as defendant, but its object is to subject that person's
interest in a property to a corresponding lien or obligation. A
petition directed against the "thing" itself or the res, which
concerns the status of a person, like a petition for
adoption, annulment of marriage, or correction of entries in the
birth certificate, is an action in rem.[22]

In an action in personam, jurisdiction over the person of the

defendant is necessary for the court to validly try and decide the
case. In a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction
on the court, provided that the latter has jurisdiction over
the res. Jurisdiction over the resis acquired either (a) by the
seizure of the property under legal process, whereby it is brought
into actual custody of the law, or (b) as a result of the institution
of legal proceedings, in which the power of the court is recognized
and made efective. [23]

The herein petition to establish illegitimate filiation is an

action in rem. By the simple filing of the petition to establish
illegitimate filiation before the RTC, which undoubtedly had
jurisdiction over the subject matter of the petition, the latter
thereby acquired jurisdiction over the case. An in rem proceeding
is validated essentially through publication. Publication is notice to
the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any
sort to the right sought to be established. [24] Through publication,
all interested parties are deemed notified of the petition.
 If at all, service of summons or notice is made to the
defendant, it is not for the purpose of vesting the court with
jurisdiction, but merely for satisfying the due process
requirements.[25] This is but proper in order to aford the person
concerned the opportunity to protect his interest if he so chooses.
[26]
Hence, failure to serve summons will not deprive the court of
its jurisdiction to try and decide the case. In such a case, the lack
of summons may be excused where it is determined that the
adverse party had, in fact, the opportunity to file his opposition,
as in this case. We find that the due process requirement with
respect to respondent has been satisfied, considering that he has
participated in the proceedings in this case and he has the
opportunity to file his opposition to the petition to establish
filiation.

To address respondents contention that the petition should

have been adversarial in form, we further hold that the herein
petition to establish filiation was sufficient in form. It was indeed
adversarial in nature despite its caption which lacked the name of
a defendant, the failure to implead respondent as defendant, and
the non-service of summons upon respondent. A proceeding
is adversarial where the party seeking relief has given legal
warning to the other party and aforded the latter an opportunity
to contest it.[27] In this petitionclassified as an action in remthe
notice requirement for an adversarial proceeding was likewise
satisfied by the publication of the petition and the giving of notice
to the Solicitor General, as directed by the trial court.

The petition to establish filiation is sufficient in substance. It

satisfies Section 1, Rule 8 of the Rules of Court, which requires the
complaint to contain a plain, concise, and direct statement of the
ultimate facts upon which the plaintif bases his claim. A fact is
essential if it cannot be stricken out without leaving the statement
of the cause of action inadequate. [28] A complaint states a cause
of action when it contains the following elements: (1) the legal
right of plaintif, (2) the correlative obligation of the defendant,
and (3) the act or omission of the defendant in violation of said
legal right.[29]

The petition sufficiently states the ultimate facts relied upon

by petitioner to establish his filiation to respondent. Respondent,
however, contends that the allegations in the petition were
hearsay as they were not of petitioners personal knowledge. Such
matter is clearly a matter of evidence that cannot be determined
at this point but only during the trial when petitioner presents his
evidence.

In a motion to dismiss a complaint based on lack of cause of

action, the question submitted to the court for determination is
the sufficiency of the allegations made in the complaint to
constitute a cause of action and not whether those allegations of
fact are true, for said motion must hypothetically admit the truth
of the facts alleged in the complaint. [30]
The inquiry is confined to the four corners of the complaint, and
no other.[31] The test of the sufficiency of the facts alleged in the
complaint is whether or not, admitting the facts alleged, the court
could render a valid judgment upon the same in accordance with
the prayer of the complaint.[32]

If the allegations of the complaint are sufficient in form and

substance but their veracity and correctness are assailed, it is
incumbent upon the court to deny the motion to dismiss and
require the defendant to answer and go to trial to prove his
defense. The veracity of the assertions of the parties can be
ascertained at the trial of the case on the merits. [33]

The statement in Herrera v. Alba[34] that there are four

significant procedural aspects in a traditional paternity case which
parties have to face has been widely misunderstood and
misapplied in this case. A party is confronted by these so-called
procedural aspects during trial, when the parties have presented
their respective evidence. They are matters of evidence that
cannot be determined at this initial stage of the proceedings,
when only the petition to establish filiation has been filed. The
CAs observation that petitioner failed to establish a prima
facie casethe first procedural aspect in a paternity caseis
therefore misplaced. A prima facie case is built by a partys
evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss

the lack of a prima facie case vis--vis the motion for DNA testing
since no evidence has, as yet, been presented by petitioner. More
essentially, it is premature to discuss whether, under the
circumstances, a DNA testing order is warranted considering that
no such order has yet been issued by the trial court. In fact, the
latter has just set the said case for hearing.

At any rate, the CAs view that it would be dangerous to allow

a DNA testing without corroborative proof is well taken and
deserves the Courts attention. In light of this observation, we find
that there is a need to supplement the Rule on DNA Evidence to
aid the courts in resolving motions for DNA testing order,
particularly in paternity and other filiation cases. We, thus,
address the question of whether a prima facie showing is
necessary before a court can issue a DNA testing order.
 The Rule on DNA Evidence was enacted to guide the Bench
and the Bar for the introduction and use of DNA evidence in the
judicial system. It provides the prescribed parameters on the
requisite elements for reliability and validity (i.e., the proper
procedures, protocols, necessary laboratory reports, etc.), the
possible sources of error, the available objections to the
admission of DNA test results as evidence as well as the probative
value of DNA evidence. It seeks to ensure that the evidence
gathered, using various methods of DNA analysis, is utilized
efectively and properly, [and] shall not be misused and/or abused
and, more importantly, shall continue to ensure that DNA analysis
serves justice and protects, rather than prejudice the public. [35]

Not surprisingly, Section 4 of the Rule on DNA Evidence

merely provides for conditions that are aimed to safeguard the
accuracy and integrity of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. The

appropriate court may, at any time, either motu
proprio or on application of any person who has a legal
interest in the matter in litigation, order a DNA testing.
Such order shall issue after due hearing and notice to the
parties upon a showing of the following:

(a) A biological sample exists that is relevant to the

case;

(b) The biological sample: (i) was not previously

subjected to the type of DNA testing now
requested; or (ii) was previously subjected to DNA
testing, but the results may require confirmation
for good reasons;

(c) The DNA testing uses a scientifically valid

technique;
 (d) The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case; and

(e) The existence of other factors, if any, which the

court may consider as potentially afecting the
accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without

need of a prior court order, at the behest of any party,
including law enforcement agencies, before a suit or
proceeding is commenced.

This does not mean, however, that a DNA testing order will
be issued as a matter of right if, during the hearing, the said
conditions are established.

In some states, to warrant the issuance of the DNA testing

order, there must be a show cause hearing wherein the applicant
must first present sufficient evidence to establish a prima
facie case or a reasonable possibility of paternity or good cause
for the holding of the test. [36] In these states, a court order for
blood testing is considered a search, which, under their
Constitutions (as in ours), must be preceded by a finding of
probable cause in order to be valid. Hence, the requirement of
a prima facie case, or reasonable possibility, was imposed in civil
actions as a counterpart of a finding of probable cause. The
Supreme Court of Louisiana eloquently explained

Although a paternity action is civil, not criminal, the

constitutional prohibition against unreasonable searches
and seizures is still applicable, and a proper showing of
sufficient justification under the particular factual
circumstances of the case must be made before a court
 may order a compulsory blood test. Courts in various
jurisdictions have difered regarding the kind of
procedures which are required, but those jurisdictions
have almost universally found that a preliminary showing
must be made before a court can constitutionally order
compulsory blood testing in paternity cases. We agree,
and find that, as a preliminary matter, before the court
may issue an order for compulsory blood testing, the
moving party must show that there is a reasonable
possibility of paternity. As explained hereafter, in cases in
which paternity is contested and a party to the action
refuses to voluntarily undergo a blood test, a show cause
hearing must be held in which the court can determine
whether there is sufficient evidence to establish a prima
facie case which warrants issuance of a court order for
blood testing.[37]

The same condition precedent should be applied in our

jurisdiction to protect the putative father from mere harassment
suits. Thus, during the hearing on the motion for DNA testing, the
petitioner must present prima facie evidence or establish a
reasonable possibility of paternity.

Notwithstanding these, it should be stressed that the

issuance of a DNA testing order remains discretionary upon the
court. The court may, for example, consider whether there is
absolute necessity for the DNA testing. If there is already
preponderance of evidence to establish paternity and the DNA
test result would only be corroborative, the court may, in its
discretion, disallow a DNA testing.
 WHEREFORE, premises considered, the petition
is GRANTED. The Court of Appeals Decision dated September 25,
2009 and Resolution dated December 17, 2009
are REVERSED and SET ASIDE. The Orders dated October 20,
2008 and January 19, 2009 of
the Regional Trial Court of Valenzuela City are AFFIRMED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice
G.R. No. 182835 April 20, 2010

RUSTAN ANG y PASCUA, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.

DECISION

ABAD, J.:

This case concerns a claim of commission of the crime of violence against women when a former
boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it.

The Indictment

The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial
Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act
or Republic Act (R.A.) 9262 in an information that reads:

That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines
and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and
feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS)
using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend,
whereby the face of the latter was attached to a completely naked body of another woman making it
to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture
thereby causing substantial emotional anguish, psychological distress and humiliation to the said
Irish Sagud.1

The Facts and the Case

The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan
were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became
"on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had
taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him.

Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with
him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and
told Rustan to take on his responsibility to the other woman and their child. Irish changed her
cellphone number but Rustan somehow managed to get hold of it and sent her text messages.
Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-
8084768. Irish replied to his text messages but it was to ask him to leave her alone.

In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a
picture of a naked woman with spread legs and with Irishs face superimposed on the figure (Exhibit
A).2 The senders cellphone number, stated in the message, was 0921-8084768, one of the numbers
that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they
were in Baguio in 2003 (Exhibit B).3

After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it
would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the
picture he sent through the internet. One of the messages he sent to Irish, written in text messaging
shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng
chatter."4

Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police
supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture
and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada,
Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the
waiting police officers intercepted and arrested him. They searched him and seized his Sony
Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police
station, he shouted at Irish: "Malandi ka kasi!"

Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in
information technology and computer graphics. He said that it was very much possible for one to lift
the face of a woman from a picture and superimpose it on the body of another woman in another
picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and
the body belonged to just one person.

Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was
not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake
and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained
how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson
P900 seized from Rustan.

For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003
and their relation lasted until December of that year. He claimed that after their relation ended, Irish
wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that
time (later his wife) was already pregnant, Irish walked out on him.

Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort
as she needed his help in selling her cellphone. When he arrived at the place, two police officers
approached him, seized his cellphone and the contents of his pockets, and brought him to the police
station.

Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a
prankster who was sending her malicious text messages. Rustan got the senders number and,
pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages
from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the
obscene messages appeared to have originated from his cellphone number. Rustan claims that it
was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a
woman whom he identified as Irish (Exhibits 2 to 7).5

Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish sent the six pictures. Michelle
claims that she received the pictures and hid the memory card (Exhibit 8) that contained them
because she was jealous and angry. She did not want to see anything of Irish. But, while the woman
in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the face
of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman in
those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed.

After trial, the RTC found Irishs testimony completely credible, given in an honest and spontaneous
manner. The RTC observed that she wept while recounting her experience, prompting the court to
comment: "Her tears were tangible expression of pain and anguish for the acts of violence she
suffered in the hands of her former sweetheart. The crying of the victim during her testimony is
evidence of the credibility of her charges with the verity borne out of human nature and
experience."6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the
violation of Section 5(h) of R.A. 9262.

On Rustans appeal to the Court of Appeals (CA),7 the latter rendered a decision dated January 31,
2008,8affirming the RTC decision. The CA denied Rustans motion for reconsideration in a resolution
dated April 25, 2008. Thus, Rustan filed the present for review on certiorari.

The Issues Presented

The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message
the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological
distress, and humiliation on her in violation of Section 5(h) of R.A. 9262.

The subordinate issues are:

1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is
defined in R.A. 9262;

2. Whether or not a single act of harassment, like the sending of the nude picture in this
case, already constitutes a violation of Section 5(h) of R.A. 9262;

3. Whether or not the evidence used to convict Rustan was obtained from him in violation of
his constitutional rights; and
 4. Whether or not the RTC properly admitted in evidence the obscene picture presented in
the case.

The Courts Rulings

Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person
against a woman with whom he has or had a sexual or dating relationship. Thus:

SEC. 3. Definition of Terms. As used in this Act,

(a) "Violence against women and their children" refers to any act or a series of acts
committed by any person against a woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or illegitimate, within or without the
family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.

xxxx

Section 5 identifies the act or acts that constitute violence against women and these include
any form of harassment that causes substantial emotional or psychological distress to a
woman. Thus:

SEC. 5. Acts of Violence Against Women and Their Children. The crime of violence against
women and their children is committed through any of the following acts:

xxxx

h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that

alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts:

xxxx

5. Engaging in any form of harassment or violence;

The above provisions, taken together, indicate that the elements of the crime of violence against
women through harassment are:

1. The offender has or had a sexual or dating relationship with the offended woman;

2. The offender, by himself or through another, commits an act or series of acts of

harassment against the woman; and

3. The harassment alarms or causes substantial emotional or psychological distress to her.

One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a
"dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation
where the parties are romantically involved over time and on a continuing basis during the course of
the relationship. Thus:
(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the
benefit of marriage or are romantically involved over time and on a continuing basis during the
course of the relationship. A casual acquaintance or ordinary socialization between two individuals in
a business or social context is not a dating relationship. (Underscoring supplied.)

Here, Rustan claims that, being "romantically involved," implies that the offender and the offended
woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites
Websters Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal
meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He
romanced her."

But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies
a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it
used the noun "romance" to describe a couples relationship, i.e., "a love affair."9

R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of
acts committed by any person against a woman x x x with whom the person has or had a
sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating
relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines
"sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing
of a common child." The dating relationship that the law contemplates can, therefore, exist even
without a sexual intercourse taking place between those involved.

Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety
(away-bati), their romance cannot be regarded as having developed "over time and on a continuing
basis." But the two of them were romantically involved, as Rustan himself admits, from October to
December of 2003. That would be time enough for nurturing a relationship of mutual trust and love.

An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking
place does not mean that the romantic relation between the two should be deemed broken up during
periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when
she could not reply to Rustans messages, he would get angry at her. That was all. Indeed, she
characterized their three-month romantic relation as continuous.10

Two. Rustan argues that the one act of sending an offensive picture should not be considered a form
of harassment. He claims that such would unduly ruin him personally and set a very dangerous
precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes
violence against women. This means that a single act of harassment, which translates into violence,
would be enough. The object of the law is to protect women and children. Punishing only violence
that is repeatedly committed would license isolated ones.

Rustan alleges that todays women, like Irish, are so used to obscene communications that her
getting one could not possibly have produced alarm in her or caused her substantial emotional or
psychological distress. He claims having previously exchanged obscene pictures with Irish such that
she was already desensitized by them.

But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not
impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It
is doubtful if the woman in the picture was Irish since her face did not clearly show on them.

Michelle, Rustans wife, claimed that she deleted several other pictures that Irish sent, except
Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2
to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not
have time to delete them.11 And, if she thought that she had deleted all the pictures from the memory
card, then she had no reason at all to keep and hide such memory card. There would have been
nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for
her to keep it for several years, given that as she said she was too jealous to want to see anything
connected to Irish. Thus, the RTC was correct in not giving credence to her testimony. 1avvphi1

Secondly, the Court cannot measure the trauma that Irish experienced based on Rustans low regard
for the alleged moral sensibilities of todays youth. What is obscene and injurious to an offended
woman can of course only be determined based on the circumstances of each case. Here, the
naked woman on the picture, her legs spread open and bearing Irishs head and face, was clearly an
obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish, who is not
in the pornography trade, would be scandalized and pained if she sees herself in such a picture.
What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post
it in the internet for all to see. That must have given her a nightmare.

Three. Rustan argues that, since he was arrested and certain items were seized from him without
any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that
the prosecution did not present in evidence either the cellphone or the SIM cards that the police
officers seized from him at the time of his arrest. The prosecution did not need such items to prove
its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900
cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference.

Actually, though, the bulk of the evidence against him consisted in Irishs testimony that she received
the obscene picture and malicious text messages that the senders cellphone numbers belonged to
Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone
numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to
Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the confiscated
cellphone and SIM cards to prove that Rustan sent those messages.

Moreover, Rustan admitted having sent the malicious text messages to Irish. 13 His defense was that
he himself received those messages from an unidentified person who was harassing Irish and he
merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone
number of the unidentified person who sent the messages to him to authenticate the same. The RTC
did not give credence to such version and neither will this Court. Besides, it was most unlikely for
Irish to pin the things on Rustan if he had merely tried to help her identify the sender.

Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an
electronic document. Thus, it should be authenticated by means of an electronic signature, as
provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for
the first time before this Court. The objection is too late since he should have objected to the
admission of the picture on such ground at the time it was offered in evidence. He should be
deemed to have already waived such ground for objection.14

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic
Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings. 15

In conclusion, this Court finds that the prosecution has proved each and every element of the crime
charged beyond reasonable doubt.
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in
CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice