RULE 130 SECTION 1 OBJECT EVIDENCE

RULE 130

Rules of Admissibility

A. OBJECT (REAL) EVIDENCE

SECTION 1 . Object as evidence. Objects as evidence are those addressed to the senses of the
court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed
by the court. (1a)

G.R. Nos. 96123-24 March 8, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO MANALO Y CABISUELAS, accused-
appellant.

MELO, J.:

Accused-appellant Rodolfo Manalo prays for the reversal of the judgment of the Regional Trial Court of the
Fourth Judicial Region (Branch 31, City of San Pablo) in Criminal Cases No. 2740-SP and 2741-SP, which
pronounced him guilty beyond reasonable doubt of two separate counts of Murder and sentenced him in
each case to suffer the penalty of reclusion perpetua and to separately indemnify the heirs of the two victims
in the sum of P30,000.00, to pay P5,215.40 as actual damages to Marcelo Bonilla, the father and father-in-
law, respectively, of the victims Warlito Bonilla and Carlito Diomampo, and to pay the costs of suit (p. 116,
Rollo).

On March 9, 1982, two separate amended informations were filed by San Pablo Assistant City Fiscal Lourdes
M. Escondo charging accused-appellant with the crime of Murder committed as follows:

AMENDED INFORMATION

That on or about November 29, 1981, in the City of San Pablo, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, with
treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot
one WARLITO BONILLA with an unlicensed pistolized Colt Caliber .45, with Serial No. 362134, with
which the accused was then conveniently provided, thereby inflicting mortal wound upon the
person of said Warlito Bonilla which caused his immediate death.

CONTRARY TO LAW

AMENDED INFORMATION

That on or about November 29, 1981, in the City of San Pablo, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the accused above named, with intent to kill, with
treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot
one CARLITO DIOMAMPO with an unlicensed pistolized Colt Caliber .45, with Serial No. 362134, with
which the accused was then conveniently provided, thereby inflicting mortal wound upon the
person of said Carlito Diomampo which caused his immediate death.

CONTRARY TO LAW. (pp. 38-39, Rollo)

When arraigned, accused-appellant entered a plea of not guilty to both charges and after trial on the merits,
the trial court handed down its verdict in this wise.

WHEREFORE, in view of the foregoing facts and circumstances, this court, after a careful study of
the evidence adduced in each of the two above-entitled cases, hereby finds the accused herein,
RODOLFO MANALO Y CABISUELAS, guilty beyond reasonable doubt of the crime of MURDER in each
of the two above-entitled cases, committed in relation to a violation of Presidential Decree No. 1728
and, in accordance with provisions both of the Revised Penal Code and of Article III, Section 19(l) of
 the 1987 Constitution of the Republic of the Philippines, hereby sentences him to suffer the penalty
of imprisonment, consisting of RECLUSION PERPETUA, in each of the two above-entitled cases with
all accessory penalties in connection therewith, which shall be served by him in accordance with
law, and hereby orders him to indemnify the heirs of the deceased victim Carlito Diomampo in the
amount of Thirty Thousand Pesos (P30,000.00), Philippine Currency, as well as the heirs of the
deceased victim Warlito Bonilla in a similar amount and to pay the amount of Five Thousand Two
Hundred Fifteen Pesos and Forty Centavos (P5,215.40), Philippine Currency, as actual damages, to
Marcelo Bonilla, the father and father-in-law of the deceased victims Warlito Bonilla and Carlito
Diomampo, respectively, without subsidiary imprisonment, however, in case of insolvency; and to
pay the costs of suit in each of the two above-entitled cases.

The period of preventive imprisonment undergone by the accused shall be credited in the service of
his sentence in accordance with Article 29 of the Revised Penal Code as amended by Republic Act
No. 6127.

SO ORDERED. (p. 116, Rollo)

Accused-appellant urges reversal upon the following assigned errors:

The trial court erred in giving undue weight and credence to the uncorroborated, unreliable and
unbelievable testimony of prosecution witness Carlos Lacbay which was belied by no less than
another prosecution witness Dr. Francisco Perez, an unbiased and very credible witness.

II

The trial court erred in overlooking a vital fact that there is no physical evidence that appellant fired
a gun.

III

The trial court erred in convicting accused-appellant. (p. 6, Appellant's Brief, ff. p. 141, Rollo)

The People's version is summarized by the Solicitor General, thus:

At about 5:00 p.m. of November 29, 1981, witness Carlos Lacbay, a forty-eight year old sales agent
of TL Marketing Corporation and a resident of Barangay San Rafael, San Pablo City, visited Carlito
Diomampo at the latter's house at Villa Antonio Subdivision, San Pablo City . . . They partook of
some wine and camote and conversed about the motorcycle which Diomampo was interested in
buying [and after] about two (2) hours, Lacbay decided to leave. Diomampo and his brother-in-law,
Warlito Bonilla, offered to accompany him home. Thereupon, Lacbay rode on and drove his office
service motorcycle while Diomampo and Bonilla rode in tandem on their own motorcycle with
Diomampo driving it. (tsn, July 27, 1982, pp. 3-8).

Upon their arrival at Barangay San Rafael, San Pablo City, at about 7 p.m., Lacbay parked his
motorcycle in front of the Barleta Engineering Rebuilder Shop and unloaded the camote he brought
along with him. Diomampo and Bonilla likewise parked their own motorcycle in front of the said
shop. While they were thus parking, appellant Rodolfo Manalo, Lacbay's neighbor and co-resident of
the same barangay and also an acquaintance of Diomampo and Bonilla, arrived and invited
Diomampo and Bonilla to his house for a drink of wine to which the two (2) acceded after insisting
that Lacbay would go, as he did, with them. (Ibid., pp. 8-13)

From Barleta Engineering Rebuilder Shop along the highway, they walked along a pathway to the
house of appellant in the following order, namely: Diomampo and Bonilla were ahead, followed by
appellant who was, in turn, followed by Lacbay at about one (1) step behind, passing one (1) house
before reaching appellant's house. (Ibid).
 After Diomampo and Bonilla entered the house of appellant and were about to reach the interior
portion thereof, appellant, who was then at the doorway followed behind by Lacbay, suddenly and
without any warning shot Diomampo once on the head and then Bonilla also once on the temple at
a distance of about three (3) meters from behind, with a .45 caliber pistol with a magazine.
Diomampo and Bonilla fell down to the floor dead. Thereafter, appellant again fired one more [shot]
at Diomampo. Lacbay who was standing a meter behind appellant, was so shocked that he was
unable to move. Appellant told him that he shot Diomampo and Bonilla because Diomampo had
impregnated his daughter, Dina Manalo. Thereafter, appellant asked Lacbay to dig but the latter
refused. Thereupon, appellant warned him not to leave the place as he (appellant) would look for
somebody to do the digging, then left. (Ibid., pp. 17-19).

After appellant left him, Lacbay walked toward the place where his motorcycle and Diomampo's
motorcycle were parked. As he neared the said place, he saw appellant with Edelito Batralo,
another neighbor, returning. Lacbay surreptitiously pushed his motorcycle away without starting its
engine and rushed home. (Ibid., pp. 20-22).

The medico-legal examination conducted by Dr. Francisco Perez, City Health Officer of San Pablo
City, an the bodies of Diomampo and Bonilla which were dug from a shallow pit under the
"banggerahan" of appellant's house on December 1, 1981 revealed that both deceased sustained
gunshot wounds caused by a .45 caliber gun, described as follows: Diomampo a gunshot wound,
1 cm. in diameter, circular in shape, with smudge and located on the upper eyelid, directed
posteriorly, piercing the brain through the orbital fossa, fracturing the occipital bone of the skull,
with the slug embedded under the skin with pieces of bone fragments; as well as a closed,
depressed comminuted fracture of the maxilla on the left side of the face (Exhibit "B"); Bonilla a
gunshot wound, 0.9 cm. in diameter, located on the right tempo-parietal region, directed obliquely
and posteriorly towards the left, piercing the brain, fracturing the occipito-parietal region, skull, left,
with the slug embedded under the skin (Exhibit "F"). Both slugs were extracted by Dr. Perez and
were determined to be as those fired from a .45 caliber gun. The
proximate cause of death of each of two (2) victims was due to shock and hemorrhage secondary
to the gunshot wound. (tsn, May 2, 1983, pp. 11-18, 30). (pp. 3-8, Appellee's Brief, ff. 153, Rollo).

On the other hand, the defense maintains that accused-appellant is not responsible for the treacherous acts,
but that rather, he is just an unwilling witness to the horrible event perpetrated by persons unknown to him.
Accused-appellant asseverates that on that fateful day, after attending a meeting at the Iglesia ni Cristo
chapel, he went home and saw two unknown men in front of his house. One of them asked him if he was Ma
Rody and accused-appellant answered in the affirmative. The two then requested permission to stay for a
while to wait for somebody. A few moments later, prosecution witness Carlos Lacbay together with Carlito
Diomampo and Warlito Bonilla, arrived on board two motorcycles. Carlito and Warlito approached appellant
and the two unknown persons as Lacbay left saying "You two, stay there and I will bring this motorcycle
home."

Carlito, upon seeing the two unknown persons, sort of greeted them saying, "Boss", to which one of the two
unknown persons retorted, "Boss Ka ng Boss, busisi Ka namang putang-ina mo", at the same time striking
Carlito's face. After Carlito fell on his back the man who struck him drew a gun from his waist and shot
Carlito. Warlito rushed to Carlito but he was blocked by the other unknown man who boxed him on the face.
Warlito fell and while in the act of rising and "trying to draw something from his waist", he was shot on the
face by the other unknown man. Afterwards, the two unknown men asked accused-appellant whether he had
a spade, and answering in the negative, he was ordered to look for one. When accused-appellant returned
with a spade, the two men inquired where they could dig and accused-appellant pointed to a place under his
"banggerahan". The two men started digging but not before telling accused-appellant to keep watch as
somebody might arrive. About an hour later, the two men dumped the dead bodies of Carlito and Warlito into
the hole they dug. They then brought accused-appellant towards the highway and told him not tell anyone
about the incidents, otherwise his life and those of his children will be in jeopardy. (pp. 11-12, Appellant's
Brief, ff. p. 141, Rollo.)

We have examined with care the evidentiary record and We find that the same supports the judgment of the
trial court.

Under his first assigned error, accused-appellant tries to make capital out of the discrepancy between
Lacbay's testimony and the necropsy report and testimony of the City Health Officer concerning the distance
and the manner in which the victims were shot. Lacbay stated that accused-appellant was more or less three
meters away from the victims when he fired at them from behind. Dr. Francisco Perez, on the other hand,
testified that the assailant could not have been farther than eighteen inches owing to the gunpowder
smudge found on the wound of Carlito Diomampo. Dr. Perez also claimed that the victims sustained frontal
gunshot wounds indicating that they were shot while facing their assailant.

Accused-appellant is clutching at reeds. The variance in the distance from which the victims were shot is
insignificant and does not take into account that even as Lacbay said that accused-appellant was 3 meters
away from his victims when he fired, the distance would be considerably lessened because of the arm
extension when he fired. Then too, the relative positions of accused-appellant and the victims need not
necessarily be directly contradictory, one following the others according to Lacbay, and the victims facing
accused-appellant according to accused-appellant using the statement of Dr. Perez that the victims sustained
frontal gunshot wounds. It could very well have been that the dramatis personae were following each other,
but that as accused-appellant shot Diomampo and Bonilla, they turned towards or had their faces turned
towards accused-appellant. This could very well have been the case especially in regard to Bonilla the
second victim, for his natural reaction after accused-appellant fired the first time at Bonilla was to look at the
direction from which the shot was fired.

In any event, Lacbay's emphatic and positive identification of accused-appellant as the gunman deserves full
merit and weight despite any supposed inconsistency (People vs. Mesias, 199 SCRA 20 [1991]). Verily,
establishing the identity of the malefactor through the testimony of witnesses, is the heart and cause of the
prosecution. All other matters, albeit of considerable weight and importance, generally assume lesser
consequence, and in this regard, the identification by Lacbay of accused-appellant as the gunman is positive
and unshakeable.

The second assigned error would stress the alleged absence of physical evidence showing that accused-
appellant fired a gun. To this, We need only remark that such circumstance neither proves his innocence as
well. In fact, even if he were subjected to a paraffin test and the same yields a negative finding, it cannot be
definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for
the presence of nitrates as when the hands are washed before the test (People vs. Talingdan, 191 SCRA 333
[1990]; People v. Roallos, 113 SCRA 584 [1982]). The Court has even recognized the great possibility that
there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber
pistol (People vs. Rebullar, 188 SCRA 838 [1990]).

In answer to accused-appellant's last assigned error, which really is only a conclusion on his part, We find the
observations of the trial court persuasive and well-taken, portions of which are worth quoting, thus:

CARLOS LACBAY, who is the principal witness for the prosecution, has positively identified in court
the accused herein as the sole perpetrator of the killing of Carlito Diomampo and Warlito Bonilla. He
had vividly testified in court on the time, the place and the manner how said killings were
perpetrated by the accused . . .

. . . Lacbay, being a neighbor of the accused, can never be said to be a prejudiced or biased witness.
The accused himself testified that he does not know of any reason why Carlos Lacbay testified
against him inasmuch as, prior thereto, he never had any misunderstanding with him whatsoever.
While it might be contended that there was a little delay on the part of Carlos Lacbay in reporting
the aforestated killings to the police authorities concerned . . . he sufficiently explained this by
stating that because he was shocked, confused, and fearful . . . he had to wait and consult his "bilas"
who was then a member of the Philippine Marines.

xxx xxx xxx

. . . the accused executed an extrajudicial statement . . . (Exh. "I-17") wherein he admitted the
killings but sought to justify his acts by alleging that one of the victims Carlito Diomampo tried to
abuse his daughter. On direct testimony, however, . . . the accused testified that he did not shoot
the victims but there were two unidentified men who came to his place and were the ones
responsible for the killings. The accused has, thus, adopted two postures which are irreconcilable.
The accused, when he made a complete turnabout from his earlier statement given to the police,
renders himself totally incredible considering that his inconsistency was on a very material point
which is actually the heart of the case. The accused, by his own acts, rendered himself unworthy of
credit and belief.

xxx xxx xxx

 In the several letters (Exhs. "JJ" and "KK") sent by the accused to Mr. Marcelo Bonilla, the accused
has repeatedly begged Mr. Bonilla to agree to the amount of P14,000.00 which he was offering as a
settlement for the death of the two victims.

xxx xxx xxx

The accused, in his letter to Asst. City Fiscal Escondo . . . requested said Asst. Fiscal not to charge
him for Murder but only for Homicide because according to him, he did not have any intention to kill
the victims but was prompted to do so only because of circumstances beyond his control.

xxx xxx xxx

In one of the letters of the accused to Mr. Bonilla . . . he is asking for forgiveness for the offenses he
had committed. Again, We submit that when a person asks for forgiveness, then he is admitting that
he has committed something wrong . . . (pp. 104-105; 107; 109-110, Rollo)

Finally, one cannot but express wonder, if not bewilderment at the tale under which accused-appellant seeks
shelter. He presents the story of two persons, conveniently unknown to him and unseen by any other, doing
the slaying. The story is not even believable fiction. For who are the assailants who would, while waiting for
their victims, station themselves in front of the house not of the victims but of one whom they were not even
sure would at that precise moment be visited by the victims. And these killers would then ask the
homeowner (accused-appellant) if he is Ma Rody thereby not even attempting to hide their identities but
on the contrary, impressing into the memory of a witness their faces. Further, they would, after killing the
victims in front of accused-appellant, tarry around, ask accused-appellant to obtain a shovel, dig at a place
under accused-appellant's "banggerahan" which accused-appellant inexplicably offered. Surely, these are
not the acts of assassins, who, strangers as they are in the place, would naturally seek protection under that
very same anonymity, and not allow time for other persons to recognize them and later identify them. The
story of accused-appellant is nothing but an unbelievable concoction.

In view of overwhelming evidence supporting the trial court's judgment of conviction, We cannot reverse the
same. However, the civil indemnity should be increased to P50,000, conformably with current jurisprudence.

WHEREFORE, except for the slight modification whereby the civil indemnity to be paid by accused-appellant
to each set of heirs of the two victims is increased to Fifty Thousand Pesos (P50,000.00), the decision under
review is hereby AFFIRMED.

SO ORDERED.

Facts:

1. Accused Rolando Manalo for shooting one Warlito Bonillo and one Carlito Diomampo with an unlicensed
pistol Colt Caliber .45.

2. The conviction was the result of the filing of two (2) amended informations. The accused pleaded not
guilty. After trial on the merits the accused was found guilty beyond reasonable doubt of the crime of murder
in relation to PD 1728.

3. Witness Carlos Lacbay narrated that at about 5PM of Nov. 29, 1989 he visited one of the victims,
Diomampo, in the latter's house where they conversed over some wine and camote regarding the latter's
interest in buying a motorcycle. After 2 hours, witness Lacbay decided to leave, while Diomampo and a
brother-in-law offered to accompany him home. After this, Lacbay rode on his service motorcycle while
Diomampo and the other person (Bonilla) rode in tandem in their own motocycle.

4. When the group arrived at Bgy. San Rafael in San Pablo City at about 7 pm, and parked their motorcycles,
accused Manalo (an acquaintance of both victims) arrived and invited the victims to his house for some
drinks. The two acceded after insisting that Lacbay would go as he did, with them. As they were walking to
accused house, Bonilla and Diamampao walked ahead, with accused following close by and Lacbay behind
the latter.

5. After the victims entered the house of accused, the latter suddenly drew a .45 Caliber gun and shot
Diomampo once in the head and then Bonilla on the temple about 3 meters from behind. Both died
immediately, nevertheless, accused fired another shot at Diomampo. Lacbay who saw everything was so
shocked. The accused told him that he shot both because Diomampo had impregnated his daughter, Dina
Manalo. After this, accused asked Lacbay to dig, to which the latter refused. Finally, accused asked him not to
leave the place as he would look for someone to do the digging. Lacbay took this chance to flee the scene.
Subsequently, both the bodies of Bonilla and Diomampo were found buried in a shallow pit under the
'banggerahan' of accused' house.

6. The defense maintains the innocence of Manalo, arguing that he is merely a witness to the crime
perpetrated by two unknown assailants. According to the defense' version of the story, it was these two
unknown persons who killed both victims. Accordingle, the assailants were already waiting in the area for
Bonilla and Diomampo, then thereafter shot them.

RULING:

The court had examined the evidence and it found that it supported the judgement of the lower court.The
accused banks on the alleged absence of physical evidence showing that accused fired a gun. The court held
that this circumstance did not prove his innocence since even if a paraffin test would yield a negative result,
it is still possible for one to have fired a gun and washed his hands thereafter.The court also recognized the
great possibility that there will be no paraffin traces left in the hands when a bullet was fired from a .45
Caliber pistol, as held in the case of People vs. Rebullar (188 SCRA 838).

Finally, the lone witness to the crime, Lacbay has positively identified Manalo as the sole perpetrator of the
killing. Lacbay can never be said to be a prejudiced witness since he had no other motive nor
misunderstanding to maliciously testify against Manalo. The little delay in reporting the killings to the
authorities was due to the shock, confusion and fear of Lacbay and that he had to wait ans consult with a
relative who was a member of the Philippine marines.

More importantly, the accused Manalo has executed an extrajudicial statement admitting the killings but
which he later on withdrew during the trial. Accused adopted two irreconciliable stands that is actually the
heart of the case, rendering him unworthy of credit and belief. Accused also wrote several letters, one to Mr.
Marcela Bonilla offering money as settlement for the death of the two victims and then to Fiscal Escondo
requesting him no to charge murder but only homicide as he had no intention to kill the victims. In one of
these letters, he even asked forgiveness for the crime he had committed.

[G.R. No. 109775. November 14, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ENCARNACION MALIMIT alias MANOLO,
accused-appellant.

FRANCISCO, J.:

Appellant Jose Encarnacion Malimit, charged with i[1] and convicted of the special complex crime of robbery
with homicide,ii[2] was meted by the trial courtiii[3] the penalty of reclusion perpetua. He was also ordered to
indemnify the heirs of Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00) without subsidiary
imprisonment in case of insolvency, and to pay the cost. iv[4]

In this appeal, appellant asks for his acquittal alleging that the trial court committed the following errors, to
wit:

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE
PROSECUTION WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSED-APPELLANT AS THE
PERPETRATOR OF THE CRIME DESPITE THE FACT (SIC) THEY REVEALED THEIR ALLEGED KNOWLEDGE OF
THE CRIME MORE THAN FIVE MONTHS AFTER THE INCIDENT.

II

THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS ALTHOUGH THE
CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED.

III

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. v[5]

The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by the
evidence on record:
On April 15, 1991, around 8:00 oclock in the evening, [Onofre] Malaki was attending to his store. Malakis
houseboy Edilberto Batin, on the other hand, was busy cooking chicken for supper at the kitchen located at
the back of the store (TSN, June 19, 199 (sic), p. 14).

Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase chemical
for his rice farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately one hundred and
fifty (150) meters distant from Malakis store (Ibid., p. 24).

Meanwhile, Batin had just finished cooking and from the kitchen, he proceeded directly to the store to ask his
employer (Malaki) if supper is to be prepared. As Batin stepped inside the store, he was taken aback when he
saw appellant coming out of the store with a bolo (TSN, June 9, 1992, p. 14), while his boss, bathed in his
own blood, was sprawled on the floor struggling for his life (hovering between life and death) (Ibid.).

Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose Malimit (or
Manolo) rushing out through the front door of Malakis store with a blood-stained bolo (TSN, May 22, 1992, p.
29). Aided by the illumination coming from a pressure lamp (petromax) inside the store, Rondon clearly
recognized Malimit (Ibid., p. 22).

Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June 9, 1992,
p. 15). After a brief conversation, both Batin and Rondon rushed to the nearby house of Malakis brother-in-
law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki. Batin, along with Beloy,
went back to the store. Inside, they saw the lifeless body of Malaki in a pool of blood lying prostrate at the
floor. Beloy readily noticed that the stores drawer was opened and ransacked and the wallet of Malaki was
missing from his pocket (Ibid., pp. 16-17).vi[6]

In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio Rondon
and Edilberto Batin by pointing out their alleged delay in revealing what they knew about the incident. He
posits that while the crime took place on April 15, 1991, it was only on September 17, 1991 when these
witnesses tagged him as the culprit.

We find these contentions bereft of merit. Appellant haphazardly concluded that Rondon and Batin
implicated the appellant to this gruesome crime only on September 17, 1991. The aforementioned date
however, was merely the datevii[7]when Rondon and Batin executed their respective affidavits, viii[8] narrating
that they saw the appellant on the night of April 15, 1991 carrying a bolo stained with blood and rushing out
of Malakis store. As to appellants claim of delay, suffice it to state that extant from the records are ample
testimonial evidence negating appellants protestation, to wit: (1) after having discovered the commission of
the crime, Rondon and Batin immediately looked for Eutiquio Beloy, Malakis brother-in-law, and informed him
that appellant was the only person they saw running away from the crime scene; ix[9] (2) Beloy and Batin
reported the crime with the CAFGU detachment in their barangay where Batin declared that it was appellant
who robbed Malaki on that fateful night;x[10] and (3) Batin again made a similar statement later at the Silago
Police Station.xi[11]

Next, appellant derided the non-presentation by the prosecution of the police blotter which could prove if
appellant was indeed implicated right away by Batin to the crime. xii[12] We do not believe, however, that it
was necessary for the prosecution to present as evidence a copy of the aforementioned police blotter.
Neither was its non-presentation in court fatal to the prosecutions case. Entries in the police blotter are
merely corroborative evidence of the uncontroverted testimony of Batin that he identified the appellant as
the perpetrator of the crime before the Silago police. As such, its presentation as evidence is not
indispensable.xiii[13] Besides, if appellant believed that he was not identified therein, then he should have
secured a copy thereof from the Silago Police Station and utilized the same as controverting evidence to
impeach Batins credibility as witness.xiv[14] Having failed to do so, appellant cannot now pass the blame on
the prosecution for something which appellant himself should have done.

Even assuming arguendo that Rondon and Batin identified the appellant only on September 15, 1991, or
after the lapse of five months from commission of the crime, this fact alone does not render their testimony
less credible. The non-disclosure by the witness to the police officers of appellants identity immediately after
the occurrence of the crime is not entirely against human experience. xv[15] In fact the natural reticence of
most people to get involved in criminal prosecutions against immediate neighbors, as in this case, xvi[16] is of
judicial notice.xvii[17] At any rate, the consistent teaching of our jurisprudence is that the findings of the trial
court with regard to the credibility of witnesses are given weight and the highest degree of respect by the
appellate court.xviii[18] This is the established rule of evidence, as the matter of assigning values to the
testimony of witnesses is a function best performed by the trial court which can weigh said testimony in the
light of the witness demeanor, conduct and attitude at the trial. xix[19] And although the rule admits of certain
exceptions, namely: (1) when patent inconsistencies in the statements of witnesses are ignored by the trial
court, or (2) when the conclusions arrived at are clearly unsupported by the evidence, xx[20] we found none in
this case.
In his second assignment of error, appellant asseverates that the admission as evidence of Malakis
walletxxi[21] together with its contents, viz., (1) Malakis residence certificate;xxii[22] (2) his identification
card;xxiii[23] and (3) bunch of keys,xxiv[24] violates his right against self-incrimination.xxv[25] Likewise,
appellant sought for their exclusion because during the custodial investigation, wherein he pointed to the
investigating policemen the place where he hid Malakis wallet, he was not informed of his constitutional
rights.

We are not persuaded. The right against self-incrimination guaranteed under our fundamental law finds no
application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United States,xxvi[26] x x x is a
prohibition of the use of physical or moral compulsion, to extort communications from him x x x. It is simply
a prohibition against legal process to extract from the [accused]s own lips, against his will, admission of his
guilt.xxvii[27] It does not apply to the instant case where the evidence sought to be excluded is not an
incriminating statement but an object evidence. Wigmore, discussing the question now before us in his
treatise on evidence, thus, said:

If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances,
but also for his physical control in whatever form exercise, then, it would be possible for a guilty person to
shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to
employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling
the surrender of the evidential articles a clear reduction ad absurdum. In other words, it is not merely
compulsion that is the kernel of the privilege, *** but testimonial compulsion.xxviii[28]

Neither are we prepared to order the exclusion of the questioned pieces of evidence pursuant to the
provision of the Constitution under Article III, Section 12, viz:

(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.

x x x x x x x x x.

(3) Any confession or admission obtained in violation of this or Sec. 17 hereof, shall be inadmissible in
evidence against him.(Underscoring ours.)

xxxxxxxxx

These are the so-called Miranda rights so oftenly disregarded by our men in uniform. However, infractions
thereof render inadmissible only the extrajudicial confession or admission made during custodial
investigation. The admissibility of other evidence, provided they are relevant to the issue and is not
otherwise excluded by law or rules, xxix[29] is not affected even if obtained or taken in the course of custodial
investigation. Concededly, appellant was not informed of his right to remain silent and to have his own
counsel by the investigating policemen during the custodial investigation. Neither did he execute a written
waiver of these rights in accordance with the constitutional prescriptions. Nevertheless, these constitutional
short-cuts do not affect the admissibility of Malakis wallet, identification card, residence certificate and keys
for the purpose of establishing other facts relevant to the crime. Thus, the wallet is admissible to establish
the fact that it was the very wallet taken from Malaki on the night of the robbery. The identification card,
residence certificate and keys found inside the wallet, on the other hand, are admissible to prove that the
wallet really belongs to Malaki. Furthermore, even assuming arguendo that these pieces of evidence are
inadmissible, the same will not detract from appellants culpability considering the existence of other
evidence and circumstances establishing appellants identity and guilt as perpetrator of the crime charged.

We, now come to appellants third assignment of error where he demurs on the prosecutions evidence,
contending that they are insufficient to sustain his conviction.

Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a verdict of
conviction based on circumstantial evidence when the circumstances proved form an unbroken chain which
leads to a fair and reasonable conclusion pinpointing the accused, to the exclusion of all the others, as the
perpetrator of the crime.xxx[30] In order that circumstantial evidence may be sufficient to convict, the same
must comply with these essential requisites, viz., (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. xxxi[31] In this case, there were at least five (5) circumstances
constituting an unbroken chain of events which by their concordant combination and cumulative effect,
satisfy the requirements for the conviction of the appellant, xxxii[32] specifically: (1) appellant was seen by
Rondon and Batin, whose credibilities were untarnished, holding a bolo in his right hand and rushing out of
Malakis store seconds prior to their discovery of the crime; xxxiii[33] (2) Malaki sustained multiple stab
woundsxxxiv[34] and he died of cardiac arrest, secondary to severe external hemorrhage due to multiple stab
wounds;xxxv[35] (3) witness Elmer Ladica saw the appellant on August 6, 1991, accompanied by some
policemen, retrieve Malakis wallet underneath a stone at the seashore in Barangay Hingatungan; xxxvi[36] (4)
appellant himself admitted in his testimony that on August 6, 1991, he accompanied several policemen to
the seashore where he hid Malakis wallet; xxxvii[37] and (5) appellants flight and his subsequent disappearance
from Hingatungan immediately after the incident. xxxviii[38]

On the other hand, appellants version of the story does not inspire belief. He maintains that on that fateful
night he was in his house together with his wife. He claims that they had just arrived from a gambling spree
allegedly in the house of a certain Maui Petalcorin. Surprisingly, however, the defense did not bother to call
appellants wife to the witness stand to corroborate appellants alibi. Neither did it present as witness Maui
Petalcorin, or any other person who may have seen the appellant in the said place, if only to provide a
semblance of truth to this assertion. As the defense of alibi is weak in view of the positive identification of
the appellant by the prosecution witnesses, xxxix[39] it becomes weaker because of the unexplained failure of
the defense to present any corroboration.xl[40] Furthermore, proof that appellant was in his house when the
crime was committed is not enough. Appellant must likewise demonstrate that he could not have been
physically present at the place of the crime or in its vicinity, at the time of its commission. xli[41] In this case,
appellant himself admitted that his house was just about eighty (80) meters away from the house of
Malaki.xlii[42] It was, therefore, not impossible for him to have been physically present at the place of the
commission of the crime, as in fact, no evidence to negate this possibility was ever adduced by him at the
trial.

Appellants insistence that he merely found Malakis wallet by chance while gathering shells along the
seashore, and that he feared being implicated in the crime for which reason he hid the wallet underneath a
stone, hardly inspires belief. We are at a loss, just as the trial court was, as to why appellant should fear
being implicated in the crime if indeed he merely found Malakis wallet by chance. No inference can be drawn
from appellants purported apprehension other than the logical conclusion that appellant had knowledge of
the crime. Besides, proof that appellant is in possession of a stolen property gives rise to a valid presumption
that he stole the same.xliii[43]

In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly convicted by
the trial court of the special complex crime of robbery with homicide, defined and penalized under Article
294, paragraph 1 of the Revised Penal Code.

WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.
i

ii
iiiG.R. No. 101584. April 7, 1993.PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUCIANO JUMAMOY Y AORA, alias "JUNIOR", accused-appellant.

The Solicitor General for plaintiff-appellee.

Eladio M. Jala for accused appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACTS OF THE TRIAL COURT, ENTITLED TO GREAT RESPECT.
The issue of credibility is to be resolved primarily by the trial court because it is in a better position to decide the question, having heard the
witnesses and observed their deportment and manner of testifying during the trial. Thus, its findings on the matter of the credibility of witnesses
are entitled to the highest respect and will not be disturbed on appeal in the absence of any showing that it overlooked, misunderstood or
misapplied some facts or circumstances of weight or substance which would have affected the result of the case.

2. ID.; ID.; ID.; ABSENCE OF ILL MOTIVE BOLSTERS CREDIBILITY. In the absence of evidence manifesting any ill motive on the part
of the witnesses for the prosecution, it logically follows that no such improper motive could have existed and that, corollarily, their testimonies are
worthy of full faith and credit. Indeed, if an accused had nothing to do with the crime, it is against the natural order of events and of human nature
and against the presumption of good faith that a prosecution witness would falsely testify against the former.

3. ID.; CRIMINAL PROCEDURE; PRESENTATION OF WITNESSES FOR THE STATE, PREROGATIVE OF THE PROSECUTION. The
prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused,
suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution.

4. ID.; EVIDENCE; NON-PRESENTATION OF CORROBORATIVE WITNESSES DOES NOT CONSTITUTE SUPPRESSION OF

EVIDENCE. The non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the
prosecution's case.

5. ID.; ID.; CASES WHERE ADVERSE PRESUMPTION FROM NON-SUPPRESSION OF EVIDENCE NOT APPLICABLE. The adverse
presumption from a suppression of evidence is not applicable when (1) the suppression is not wilful; (2) the evidence suppressed or withheld is
merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege.
Moreover, if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the
prosecution, he should have compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses.

6. ID.; ID.; CREDIBILITY; NOT AFFECTED BY MINOR INCONSISTENCIES. Discrepancies on minor matters do not impair the essential
integrity of the prosecution's evidence as a whole or detract from the witnesses' honesty. These inconsistencies, which may be caused by the
natural fickleness of memory, even tend to strengthen rather than weaken the credibility of prosecution witnesses because they erase any suspicion
of rehearsed testimony. What is important is that the testimonies agree on the essential facts and that the respective versions corroborate and
substantially coincide with each other to make a consistent and coherent whole.

7. ID.; CRIMINAL PROCEDURE; REQUISITE FOR CONVICTION; PRODUCTION OF WEAPON USED, NOT A CONDITION SINE QUA
NON. For conviction to lie, it is enough that the prosecution establishes by proof beyond reasonable doubt that a crime was committed and that
the accused is the author thereof. The production of the weapon used in the commission of the crime is not a condition sine qua non for the
discharge of such a burden for the weapon may not have been recovered at all from the assailant.

8. ID.; EVIDENCE; CREDIBILITY; ALIBI; CANNOT PREVAIL POSITIVE IDENTIFICATION. The defense of alibi cannot prevail over the
positive identification of the accused.

9. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; MEANS, METHODS OR FORM EMPLOYED WHICH DIRECTLY
AND SPECIALLY INSURED ITS COMMISSION; CASE AT BAR. The killing was indeed attended by the qualifying circumstance of
treachery, which is duly alleged in the information. The mode, manner and means of attack adopted by the accused insured the accomplishment of
his purpose, i.e., the killing of the victim without giving the latter any opportunity to defend himself or resist the attack. The firing of the gun at
the victim was so sudden and unexpected that the latter, who was unarmed, was caught totally unprepared to defend himself or retaliate. There is
treachery when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

10. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; MAY NOT BE INVOKED WHEN OFFENSES PUNISHED BY
DIFFERENT LAWS; CASE AT BAR. The killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for
(a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal
Code. The accused cannot plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished
by a special law while the second Murder or Homicide is punished by the Revised Penal Code.

11. CRIMINAL LAW; PENALTIES; RECLUSION PERPETUA NOT THE SAME AS LIFE IMPRISONMENT. The words "or life
imprisonment" following "reclusion perpetua" in the dispositive portion of the decision should be deleted, for the latter is not the same as life
imprisonment.

12. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH RAISED TO P50,000.00. In line with the prevailing jurisprudence, the indemnity
awarded by the trial court should be increased from P30,000.00 to P50,000.00.

DECISION

DAVIDE, JR., J p:

Two (2) separate informations for "Murder" and "Qualified Illegal Possession of Firearm and Ammunitions (sic)" were filed by the Office of the
Provincial Fiscal of Bohol with the Regional Trial Court (RTC) of Tagbilaran City against accused Luciano Jumamoy y Aora, alias Junior; they
were docketed as Criminal Case No. 5064 and Criminal Case No. 5065, respectively, and were raffled off to Branch 3 thereof.

The information for Murder reads:

"That on or about the 1st day of April, 1987, in barangay Poblacion, municipality of Inabanga, province of Bohol, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused without justifiable cause or motive, with intent to kill, and with evident
premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault, and shoot with the use of an unlicensed
firearm one Rolando Miel without giving opportunity to the latter to prepare for his defense, thereby inflicting upon the vital parts of the body of
the latter, serious physical injuries which caused his instantaneous 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.

City of Tagbilaran, August 14, 1987." 1

while that for Qualified Illegal Possession of Firearm and Ammunitions (sic) relates:

"That, on or about the 1st day of April, 1987, in barangay Poblacion, municipality of Inabanga, province of Bohol, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, with intent to possess a firearm with ammunitions (sic), did then and there
willfully, unlawfully and criminally keep, carry and have in his possession, custody and control a (sic) gun still of unknown make and caliber, and
at least three (3) rounds of live ammunitions (sic), without first obtaining the necessary permit or license to possess the said firearm and
ammunitions (sic) or permit to carry the same from competent authorities, and which firearm was used by the said accused in committing the
crime of murder wherein the victim was one Rolando Miel; to the damage and prejudice of the Republic of the Philippines.

Acts committed contrary to the provisions of Sec. 878 and 887 of the Administrative Code in relation to Sec. 2692, of the same Code as amended
by Republic Act No. 4 and as further amended by PD No. 1866.

City of Tagbilaran, August 14, 1987." 2

No bond was recommended in both cases for the temporary liberty of the accused.

Upon his arraignment on 10 December 1987, the accused entered a plea of not guilty in each case. 3

Upon motion of the prosecution, the two (2) cases were consolidated and jointly heard.
The prosecution presented Dr. Hector Enriquez, Bonifacio Ayag, Lino Gudes, Jr., Artemio Panganiban, Jr. (Supervising Ballistician, NBI, Region
VII), Alfredo Alforque, Sgt. Misericordio Sapong, Rodrigo Aparicio, Pfc. Segundo Requirme and Felisa Miel as witnesses for its evidence in
chief, and Leandro Tirol and Luisito dela Torre for purposes of rebuttal. On the other hand, the defense presented the accused, Manuelito Cajes
and Ramon Micutuan as its witnesses for its evidence in chief, and the accused himself in surrebuttal.

After trial, the court a quo promulgated on 18 July 1991 its judgment, dated 27 June 1991, 4 finding the accused guilty beyond reasonable doubt
of the crimes charged. The dispositive portion of the decision reads:

"WHEREFORE, in view of the foregoing premises, this Court finds accused Luciano Jumamoy y Aora, alias Junior, guilty beyond reasonable
doubt for (sic) the crimes of Murder and Qualified Illegal Possession of Firearm and Ammunitions (sic) in the foregoing Criminal Cases Nos.
5064 and 5065 and, consequently hereby imposes upon him the penalty of reclusion perpetua or life imprisonment in each of the aforesaid
criminal cases.

He is further ordered to indemnify the heirs of the deceased Rolando Miel by way of actual civil indemnity in the amount of P7,800 (Exhibit C-1)
and, further, the amount of P30,000 by way of moral damages.

Without pronouncement as to costs.

BE IT SO ORDERED." 5

The evidence for the prosecution, upon which the trial court based its decision, is summarized in the People's Brief as follows:

"Appellant Luciano Jumamoy and the victim Rolando Miel were once friends and belonged to the same 'barkada' until sometime in 1970 when
the former was stabbed by the latter on his left forearm. As a result, appellant's left arm was deformed, despite medical attendance, because the
main vein of his left arm was severely cut. Since then the two had not met each other, as the victim avoided appellant (sic) (p. 2, tsn, April 3,
1989).

In the evening of April 1, 1987, the victim and his younger brother Edgar, together with three other companions, went to the Cultural Center of
Inabanga, Bohol, where a 'disco' dance was being held in connection with the commencement exercises of St. Paul Academy. However, upon
reaching the premises of the Center, the victim's brother and a companion stayed behind and sat on a concrete bench, as the victim and their other
companions proceeded (p. 2, tsn, Nov. 11, 1988; p. 4, tsn, June 26, 1990).

Upon reaching the Center, the victim and his companions joined three other members of their 'barkada' watching the disco outside. The victim and
three of his friends were leaning against a concrete post of the Center conversing and watching the 'disco,' when all of a sudden appellant
appeared in front obliquely to the right of the victim and fired three (3) successive shots at the latter, who slumped and fell to the ground (pp. 2-7,
tsn, July 6, 1988; pp. 2-5, tsn, Nov. 11, 1988).

Thereafter, the people inside and outside the Center scampered for safety (p. 7, tsn, July 6, 1988; p. 5, tsn, Nov. 11, 1988). However, on his way to
escape, appellant passed by the victim's brother Edgardo and a companion who were then sitting on a bench about 60 meters away from the
Center. When appellant got near the two, the former poked his gun at the victim's brother, and uttered, 'Unsa, laban ka?' ('What now, are you
taking sides?'). The two remained silent, as appellant ran behind a house and into the 1-3, tsn, June 26, 1990).

Meanwhile, the victim's sister Zeny, who was then inside the Center, came to his (sic) brother's rescue. With the help of other people, she brought
her brother to a hospital, but the latter expired before arrival thereat (p. 9, tsn, July 6, 1988; pp 8-9, tsn, Nov. 11, 1988).

Dr. Hector Enriquez, who conducted an examination on the victim's cadaver, issued a Medico-Legal Report (Exhibit "A"), wherein he described
the four (4) gunshot wounds sustained by the victim. Although he found four (4) gunshot wounds on the victim's body, Dr. Enriquez reported that
it was possible that the victim was shot at only three (3) times since the 4th wound on the right forearm was through and through; hence, the same
bullet may have also caused the 2nd wound which penetrated the 'subcostal margin, midclavicular line, right' (pp. 1-2, tsn, Feb. 24, 1978).

The doctor deduced that based in (sic) the locations of the wounds, the assailant must have been in front obliquely to the right of the victim when
the former shot the latter. He also opined that since he did not notice the presence of powder burns on the victim and the downward trajectory of
the bullets, the assailant must have been more than two (2) feet away from, and taller or stood on a higher level than the victim. Furthermore, of
the four (4) wounds sustained by the victim, he considered wound No. 1 along the '7th ICS, anterior axillary line, right,' and wound No. 2
penetrating the 'subcostal margin, mid-clavicular line, right' as fatal, which caused the victim's death (pp. 2-3, Ibid.).

Dr. Enriquez also recovered from the victim's body one (1) slug (p. 3. Ibid.), which, when examined by the NBI Supervising Ballistician of
Region VII stationed at Cebu City, was found to have been fired from a .38-caliber firearm, probably a homemade (paltik) firearm, caliber .38 (pp.
1-3, tsn, August 23, 1988).

Upon request, Sgt. Misericordio Sapong of the Bohol PC Command issued a certification (Exhibit "E") that appellant was never issued a permit or
license to possess or carry a firearm (p. 1, tsn, Nov. 11, 1988)." 6
The trial court disregarded the accused's defense of alibi. The latter testified that he had left Inabanga, Bohol for Cebu City on 29 March 1987 to
look for employment; he claims to have boarded a motor banca, the M/B Roxan, which left for Cebu City from Buenavista, Bohol at 9:00 o'clock
in the morning of that date. The motor banca supposedly reached Cebu City at 11:00 o'clock on the same day. He recounts that he stayed in the
house of a friend, Feliciano Cenita, in Pasil, Cebu City from 1 April to 4 April 1987. While in Cebu City, he drove, as a reserve driver, the
passenger jeepney owned and driven by Cenita under the so-called boundary system. In the evening of 4 April 1987, Jumamoy avers that he took
a boat, the M/V Sweet Roro, for Manila and stayed in the house of his brother Abundio in Mandaluyong, Metro Manila. He stayed there for seven
(7) months and departed for Inabanga only upon hearing that he had been named a suspect in the killing of Rolando Miel; he arrived in Inabanga
on 9 November 1987. 7

The accused did not, however, present Feliciano Cenita as a witness despite his (accused's) repeated manifestation of his intention to do so and the
court's liberality in granting his request for postponement for the said purpose. Instead, "out of the blue, the accused . . . presented one Ramon
Micutuan . . . to corroborate his claim that in the evening of April 1, 1987, he was in Cebu City driving a passenger jeepney." 8 Commenting on
the accused's defense, the trial court declared:

"It is a well-settled rule that alibi as a defense is weak although the Courts should not take a negative attitude in some cases as against the accused,
if the defense of alibi reveals the truth. Alibi is also entitled to credit if the accused is not positively identified by the prosecution witnesses.
Moreover, the accused claiming alibi as a defense must prove that it was impossible for him to be at the place at the time of the commission
because he was elsewhere during the incident.

The records in this case will show that at the time of the incident, at the time of the police investigation, during the preliminary investigation
before the Municipal Circuit Trial Court of Inabanga-Buenavista as well as in the trial proper, the accused was positively identified by the
prosecution witnesses.

It was established by the prosecution that the prosecution witnesses and the accused knew and were familiar with each other from the time they
attained the age of reason because they lived in adjacent barangays located in the same municipality. It was also established by the prosecution
that at the time of the incident there were several 'blinking' dancing lights at the cultural center because of the ongoing disco dance. In fact, there
was another light an electric bulb of 25 watts which was placed at the concrete post where the victim and some of the prosecution witnesses
were then leaning against. That electric bulb was very near to the victim and the accused at the time of the incident.

During the hearing proper as well as during the investigation conducted by the police and before the municipal circuit trial court during the
preliminary investigation, all the prosecution eyewitnesses pointed without hesitancy to the accused as the murderer of the victim, and during the
trial before this Court there was not even one witness wavered of (sic) his identification of the accused as the author of the crime.

To the mind of the Court, the accused's evidence of alibi cannot be believed, the same being clearly an afterthought or afterwit because while the
accused himself and his witness Manuelito Cajes positively declared during the presentation of the defense evidence in chief that it was on March
29, 1987 that they were on board MB Roxan together from Buenavista, Bohol, to Cebu City, the owner of the MB Roxan, Engr. Leandro Tirol,
however, declared on rebuttal that it was impossible for the accused to have boarded on the said vessel on March 29, 1987, that date being a
Sunday and that MB Roxan did not have any voyage from Buenavista, Bohol, to Cebu City on that date because it was not legally authorized to
do so. So that on surrebuttal, the accused conveniently changed the date March 29, 1987 to probably March 30, 1987." 9

Accused thus appeals the said judgment of conviction 10 and in his Appellant's Brief, claims that the trial court committed the following errors:

"I THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED-
APPELLANT BEYOND REASONABLE DOUBT IN THE TWO CASES.

II THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE TWO CRIMES OF MURDER AND
QUALIFIED ILLEGAL POSSESSION OF FIREARM AND SENTENCING HIM THE (sic) PENALTY OF RECLUSION PERPETUA IN
EACH OF THE SAID TWO CRIMES." 11

The assigned errors were discussed in eight (8) short paragraphs, to wit:

"Let us try to assess the testimonies of the alleged eyewitnesses of the prosecution.

Originally there were six (6) alleged eyewitnesses for the prosecution. Surprisingly, only three (3) took the witness stand and testified. The
suppression (sic) of the testimonies of the other three (3) alleged eyewitnesses raises some doubts that their testimonies would mixed (sic) up the
evidence for the prosecution.

The testimonies of the three (3) alleged eyewitnesses who actually testified were inconsistent with each other. Each of the three witnesses
presented different versions as to the source of light that lighted the place of the incident. They were not united as to whether the place was
sufficiently lighted that enabled (sic) them to identify the accused.
The inconsistencies of the three witnesses only prove that they are not telling the truth. They wanted to hide the truth that the place of incident
was dark, and they could not identify the person or persons who shot and killed the victim.

Another doubtful testimony is about the description of the firearm allegedly used by the assailant. One witness said that the firearm used by the
accused was a short firearm, but on cross-examination the same witness declared that he did not actually see the firearm. What he saw was the
sparkling lights that came out from the barrel of the firearm after it was fired (Page 4, TSN, August 24, 1988). If the witness saw the sparks, then
the place must be dark.

Alfredo Alforque, one of the prosecution witnesses who claimed to have seen the shooting, made the following doubtful testimonies (sic):

Q While in that position, you said Luciano Jumamoy suddenly appeared. From what direction did he come?

A From behind us, passing our right side walking towards Rolando Miel (Page 7, TSN, Oct. 4, 1988).

However, on cross-examination, he changed his answer when he made the following answer:

Q You did not notice immediately the accused when (sic) he suddenly arrived?

A I noticed him because he suddenly arrived from behind. He was running (Page 9, TSN, Oct. 4, 1988).

The serious and material inconsistencies of the testimonies of prosecution witnesses only proves (sic) that said witnesses were lying. Their
testimonies were all fabricated. They were planted witnesses. They have to testify falsely in order to help the family of their fallen close friend.

On the other hand, the firearm alleged to have been used by the accused in killing the victim was not presented in court during the trial. Its caliber
and make was (sic) never established by sufficient evidence, so that there is no basis to convict the accused for illegal (sic) possession of firearm."

It is at once obvious that the instant appeal is bereft of any merit. The accused's failure to point out to this Court, with specific references to the
transcripts of the stenographic notes of the testimonies of the witnesses, the so-called inconsistencies committed by the three (3) prosecution
witnesses, and to make statements of facts, though he started the Appellant's Brief with the heading "Statement of Facts And of the Case," 12
betrays an honest realization of the futility of this appeal and not merely the lack of diligence or zeal in the pursuit thereof which, incidentally, is
likewise eloquently evidenced therein.

The instant appeal rests principally on the issue of the credibility of the witnesses for the prosecution and, to a lesser extent, on the alleged
suppression of evidence and failure to present in evidence the firearm used by the accused.

It is settled that the issue of credibility is to be resolved primarily by the trial court because it is in a better position to decide the question, having
heard the witnesses and observed their deportment and manner of testifying during the trial. Thus, its findings on the matter of the credibility of
witnesses are entitled to the highest respect and will not be disturbed on appeal in the absence of any showing that it overlooked, misunderstood
or misapplied some facts or circumstances of weight or substance which would have affected the result of the case. 13

We have carefully reviewed the records and the transcripts of the stenographic notes of the testimonies of the witnesses and find nothing therein to
warrant a reversal of the findings of fact of the trial court. The meticulous care with which the court a quo summarized and analyzed, in its 31-
page decision, the testimonies of the witnesses of both parties during the direct and cross examinations attests to its impartial disposition of the
cases in the light of applicable jurisprudence. That the accused was positively identified by prosecution witnesses Lino Gudes, Alfredo Alforque
and Rodrigo Aparicio is beyond dispute. These three had known the accused long before the incident; moreover, the place where the shooting took
place, the cultural center, was sufficiently lighted. Nor was any motive ascribed by the accused to these witnesses to show why they would falsely
testify against him. In the absence of evidence manifesting any ill motive on the part of the witnesses for the prosecution, it logically follows that
no such improper motive could have existed and that, corollarily, their testimonies are worthy of full faith and credit. 14 Indeed, if an accused had
nothing to do with the crime, it is against the natural order of events and of human nature and against the presumption of good faith that a
prosecution witness would falsely testify against the former. 15

The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused,
suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. 16 If the
prosecution has several eyewitnesses, as in the instant case, the prosecutor need not present all of them but only as many as may be needed to
meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may,
therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses
would not constitute suppression of evidence and would not be fatal to the prosecution's case. 17 Besides, there is no showing that the
eyewitnesses who were not presented in court as witnesses were not available to the accused. We reiterate the rule that the adverse presumption
from a suppression of evidence is not applicable when (1) the suppression is not wilful; (2) the evidence suppressed or withheld is merely
corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege. 18 Moreover,
if the accused believed that the failure, to present the other witnesses was because their testimonies would be unfavorable to the prosecution, he
should have compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses. 19
The claimed inconsistencies are on minor if not inconsequential or trivial, matters. Settled is the rule that discrepancies on minor matters do not
impair the essential integrity of the prosecution's evidence as a whole or detract from the witnesses honesty. These inconsistencies which may be
caused by the natural fickleness of memory, even tend to strengthen rather than weaken the credibility of prosecution witnesses because they erase
any suspicion of rehearsed testimony. What is important is that the testimonies agree on the essential facts and that the respective versions
corroborate and Substantially coincide with each other to make a consistent and coherent whole. 20

Nor can We agree with the accused that it was indispensable for the prosecution to introduce and offer in evidence the firearm which was used in
the killing of the victim. There is no law or rule of evidence which requires the prosecution to do so; there is also no law which prescribes that a
ballistics examination be conducted to determine the source and trajectory of the bullets. For conviction to lie it is enough that the prosecution
establishes by proof beyond reasonable doubt that a crime was committed and that the accused is the author thereof. The production of the
weapon used in the commission of the crime is not a condition sine qua non for the discharge of such a burden for the weapon may not have been
recovered at all from the assailant. If the rule were to be as proposed by the accused, many criminals would go scot-free and much injustice would
be caused to the victims of crimes, their families and society. In the instant case, it was established with moral certainty that the accused attacked,
assaulted and shot the victim Rolando Miel with an unlicensed firearm, thereby inflicting upon the latter multiple gunshot wounds which caused
his death. Such proof was all that was needed for the conviction of the accused.

Against the overwhelming evidence consisting of his positive identification as the author of Rolando Miel's death, accused has nothing to offer
but alibi. It is a fundamental judicial dictum that the defense of alibi cannot prevail over the positive identification of the accused. 21 Besides, his
alibi is obviously fabricated. He was caught lying through his teeth when during rebuttal, it was shown through the testimony of Leandro Tirol,
owner of the M/B Roxan, that he (Jumamoy) could not have left as he had vigorously insisted on board the said vessel for Cebu City on 29
March 1987 because the same was not authorized by its franchise to travel on that day, a Sunday. In an effort to dodge this fatal blow, the accused
took the witness stand on surrebuttal to change the date of his supposed departure to 30 March 1987. 22 Moreover, despite his assurances that he
would present as his witness Feliciano Cenita of Pasil, Cebu City in whose house he allegedly stayed from 1 April to 7 April 1987 for which
reason the trial court accommodated his requests for postponements, accused never did so. No acceptable explanation had been offered to justify
the failure of the said prospective witness to come to the rescue of the accused. Thus, the inevitable conclusion is that either this Cenita is a
fictitious person or that, if he exists, he was unwilling to support the accused's claim of alibi. If the accused had gone to Cebu City at all, it must
have been after the incident not to look for employment as he claimed, but to evade arrest. In fact, it appears that on 7 April 1987, he left for
Manila.

The trial court correctly convicted the accused of Murder under Article 248 of the Revised Penal Code in Criminal Case No. 5064. The killing
was indeed attended by the qualifying circumstance of treachery, which is duly alleged in the information. The mode, manner and means of attack
adopted by the accused insured the accomplishment of his purpose, i.e., the killing of the victim without giving the latter any opportunity to
defend himself or resist the attack. The firing of the gun at the victim was so sudden and unexpected that the latter, who was unarmed, was caught
totally unprepared to defend himself or retaliate. There is treachery when the offender commits any of the crimes against persons employing
means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. 23

Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866 penalizes, inter alia, the unlawful possession of firearms or
ammunition with reclusion temporal in its maximum period to reclusion perpetua. However, under the second paragraph thereof, the penalty is
increased to death if homicide or murder is committed with the use of an unlicensed firearm. It may thus be loosely said that homicide or murder
qualifies the offense because both are circumstances which increase the penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense. If this were to be so, an anomalous absurdity would result whereby a more serious crime defined and penalized under the
Revised Penal Code will be absorbed by a statutory offense, one which is merely malum prohibitum. Hence, the killing of a person with the use of
an unlicensed firearm may give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either
Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated otherwise, the
rule against double jeopardy cannot be invoked as the first is punished by a special law while the second Murder or Homicide is punished
by the Revised Penal Code. 24 Considering, however, that the imposition of the death penalty is prohibited by the Constitution, the proper
imposable penalty would be the penalty next lower in degree, or reclusion perpetua. 25

The trial court also correctly imposed the penalty of reclusion perpetua in Criminal Case No. 5065. However, the words "or life imprisonment"
following "reclusion perpetua" in the dispositive portion of the decision should be deleted, for the latter is not the same as life imprisonment. 26

In line with the prevailing jurisprudence, the indemnity awarded by the trial court should be increased from P30,000.00 to P50,000.00.

WHEREFORE, the Decision of Branch 3 of the Regional Trial Court of Tagbilaran City in Criminal Case No. 5064 and Criminal Case No. 5065
finding the accused LUCIANO JUMAMOY y AORA, alias "JUNIOR," guilty of the crimes charged therein, is hereby AFFIRMED subject to
the modification as to the indemnity which is increased from P30,000.00 to P50,000.00 and the deletion of the words "life imprisonment" from
the dispositive portion thereof.

Costs against the accused.

SO ORDERED.

People vs. Flores 328 S 461

 Rule 130 SECTION 2- DOCUMENTARY EVIDENCE

iv
B. DOCUMENTARY EVIDENCE Sec. 2 . Documentary evidence. Documents as evidence consist of
writing or any material containing letters, words, numbers, figures, symbols or other modes of written
expression offered as proof of their contents. (n)

BANK OF THE PHILIPPINE ISLANDS vs. JESUSA P. REYES and CONRADO B. REYES
[G.R. No. 157177, February 11, 2008]

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul the Decision [1]
of the Court of Appeals (CA) dated October 29, 2002 as well as its Resolution [2] dated February 12, 2003, which affirmed with
modification the Decision of the Regional Trial Court (RTC) of Makati, Branch 142, in Civil Case No. 91-3453, [3] requiring
Bank of Philippine Islands (petitioner) to return to spouses Jesusa P. Reyes and Conrado B. Reyes (respondents) the amount of
P 100,000.00 plus interest and damages.

The conflicting versions of the parties are aptly summarized by the trial court, to wit:
 On December 7, 1990 at around 2:00 p.m., plaintiff Jesusa Reyes together with her daughter, Joan
Reyes, went to BPI Zapote Branch to open an ATM account, she being interested with the ongoing
promotions of BPI entitling every depositor with a deposit amounting to P 2,000.00 to a ticket with a car as
its prize to be raffled every month.

She was accommodated, in lieu of the bank manager Mr. Nicasio, by Cicero Capati (Pats) who was
an employee of the bank and in charge of the new accounts and time deposits characteristically described as
having homosexual inclinations. They were entertained by Capati and were made to sit at a table occupied by
a certain Liza.

Plaintiff informed Capati that they wanted to open an ATM account for the amount of P 200,000.00,
P 100,000.00 of which shall be withdrawn from her exiting savings account with BPI bank which is account
no. 0233-2433-88 and the other P 100,000.00 will be given by her in cash.

Capati allegedly made a mistake and prepared a withdrawal slip for P 200,00.00 to be withdrawn
from her existing savings account with said bank and the plaintiff Jesusa Reyes believing in good faith that
Capati prepared the papers with the correct amount signed the same unaware of the mistakes in figures.

While she was being entertained by Capati, her daughter Joan Reyes was filling up the signature
cards and several other forms.

Minutes later after the slips were presented to the teller, Capati returned to where the plaintiff was
seating and informed the latter that the withdrawable balance could not accommodate P 200,000.00.

Plaintiff explained that she is withdrawing the amount of P 100,000.00 only and then changed and
correct the figure two (2) into one (1) with her signature super-imposed thereto signifying the change,
afterwhich the amount of P 100,000.00 in cash in two bundles containing 100 pieces of P 500.00 peso bill
were given to Capati with her daughter Joan witnessing the same. Thereafter Capati prepared a deposit slip
for P 200,000.00 in the name of plaintiff Jesusa Reyes with the new account no. 0235-0767-48 and brought
the same to the teller's booth.

After a while, he returned and handed to the plaintiff her duplicate copy of her deposit to account
no. 0235-0767-48 reflecting the amount of P 200,000.00 with receipt stamp showing December 7, as the date.
Plaintiff and daughter then left.

On December 14, 1990, Mrs. Jesusa received her express teller card from said bank.

Thereafter on December 26, 1990, plaintiff left for the United States (Exhs. T, U- U-1) and returned
to Manila on January 31, 1991 (Exhs. V-V-1).

When she went to her pawnshop, she was made aware by her statement of account sent to her by
BPI bank that her ATM account only contained the amount of P 100,000.00 with interest.

She then sent her daughter to inquire, however, the bank manager assured her that they would look
into the matter.

On February 6, 1991, plaintiff instructed Efren Luna, one of her employees, to update her savings
account passbook at the BPI with the folded deposit slip for P 200,000.00 stapled at the outer cover of said
passbook. After presenting the passbook to be updated and when the same was returned, Luna noticed that the
deposit slip stapled at the cover was removed and validated at the back portion thereof.

Thereafter, Luna returned with the passbook to the plaintiff and when the latter saw the validation,
she got angry.

Plaintiff then asked the bank manager why the deposit slip was validated, whereupon the manager
assured her that the matter will be investigated into.

When no word was heard as to the investigation made by the bank, Mrs. Reyes sent two (2) demand
letters thru her lawyer demanding return of the missing P 100,000.00 plus interest (Exhs. B and C). The same
was received by defendant on July 25, 1991 and October 7, 1991, respectively.

The last letter prompted reply from defendant inviting plaintiff to sit down and discuss the problem.

The meeting resulted to the bank promising that Capati will be submitted to a lie detector test.

Plaintiff, however, never learned of the result of said test. Plaintiff filed this instant case.
 Defendant on the other hand claimed that Bank of the Philippine Island admitted that Jesusa Reyes
had effected a fund transfer in the amount of P 100,000.00 from her ordinary savings account to the express
teller account she opened on December 7, 1990 (Exhs. 3 to 3-C), however, it was the only amount she
deposited and no additional cash deposit of P 100,000.00 was made. That plaintiff wanted to effect the
transfer of P 200,000.00 but the balance in her account was not sufficient and could not accommodate the
same. Plaintiff thereafter agreed to reduce the amount to be withdrawn from P 200,000.00 to P 100,000.00
with plaintiffs signature superimposed on said corrections; that the original copy of the deposit slip was also
altered from P 200,000.00 to P 100,000.00, however, instead of plaintiff signing the same, the clerk-in-charge
of the bank, in this case Cicero Capati, signed the alteration himself for Jesusa Reyes had already left
without signing the deposit slip. The documents were subsequently machine validated for the amount of
P 100,000.00 (Exhs. 2 and 4).

Defendant claimed that there was actually no cash involved with the transactions which happened
on December 7, 1990 as contained in the banks teller tape (Exhs.1 to 1-C).

Defendant further claimed that when they subjected Cicero Capati to a lie detector test, the latter passed the
same with flying colors (Exhs. 5 to 5-C), indicative of the fact that he was not lying when he said that there really was
no cash transaction involved when plaintiff Jesusa Reyes went to the defendant bank on December 7, 1990; defendant
further alleged that they even went to the extent of informing Jesusa Reyes that her claim would not be given credit
(Exh. 6) considering that no such transaction was really made on December 7, 1990. [4]

On August 12, 1994, the RTC issued a Decision [5] upholding the versions of respondents, the dispositive portion of which
reads:

WHEREFORE, premises considered, the Court finds in favor of the plaintiff Jesusa P. Reyes and
Conrado Reyes and against defendant Bank of the Philippine Islands ordering the latter to:

1. Return to plaintiffs their P 100,000.00 with interest at 14% per annum from December 7, 1990;
2. Pay plaintiffs P 1,000,000.00 as moral damages;
2. Pay plaintiffs P 350,000.00 as exemplary damages;
3. Pay plaintiffs P 250,000.00 for and attorney's fees. [6]

The RTC found that petitioner's claim that respondent Jesusa deposited only P 100,000.00 instead of P 200,000.00 was
hazy; that what should control was the deposit slip issued by the bank to respondent, for there was no chance by which
respondent could write the amount of P 200,000.00 without petitioner's employee noticing it and making the necessary
corrections; that it was deplorable to note that it was when respondent Jesusa's bankbook was submitted to be updated after the
lapse of several months when the alleged error claimed by petitioner was corrected; that Article 1962 of the New Civil Code
provides that a deposit is constituted from the moment a person receives a thing belonging to another with the obligation of
safely keeping it and of returning the same; that under Article 1972, the depositary is obliged to keep the thing safely and to
return it when required to the depositor or to his heirs and successors or to the person who may have been designated in the
contract.

Aggrieved, petitioner appealed to the CA which in a Decision dated October 29, 2002 affirmed the RTC decision with
modification as follows:

Nonetheless, the award of 14% interest per annum on the missing P 100,000.00 can stand some
modification. The interest thereon should be 12% per annum, reckoned from May 12, 1991, the last day of
the five day-grace period given by plaintiff-appellees' counsel under the first demand letter dated May 6,
1991 (Exhibit B), or counted from May 7, 1991, the date when defendant-appellant received said letter.
Interest is demandable when the obligation consist in the payment of money and the debtor incurs in delay.

Also, we have to reduce the P 1 million award of moral damages to a reasonable sum of P 50,000.00.
Moral damages are not intended to enrich a plaintiff at the expense of a defendant. They are awarded only to
enable the injured party to obtain means, diversion, or amusements that will serve to alleviate the moral
suffering he has undergone, by reason of the defendant's culpable action. The award of moral damages must
be proportionate to the suffering inflicted.

In addition, we have to delete the award of P 350,000.00 as exemplary damages. The absence of
malice and bad faith, as in this case, renders the award of exemplary damages improper.
 Finally, we have to reduce the award of attorney's fees to a reasonable sum of P 30,000.00, as the
prosecution of this case has not been attended with any unusual difficulty.

WHEREFORE, with the modifications thus indicated, the judgment appealed from is in all other
respects AFFIRMED. Without costs. [7]

In finding petitioner liable for the missing P 100,000.00, the CA held that the RTC correctly gave credence to the
testimonies of respondent Jesusa and Joan Reyes to the effect that aside from the fund transfer of P 100,000.00 from Jesusa's
savings account, Jesusa also made a cash deposit of P 100,000.00 in the afternoon of December 7, 1990; that it is unlikely for
these two to concoct a story of falsification against a banking institution of the stature of petitioner if their claims were not
true; that the duplicate copy of the deposit slip showed a deposit of P 200,000.00; this, juxtaposed with the fact that it was not
machine-validated and the original copy altered by the bank's clerk from P 200,000.00 to P 100,000.00 with the altered amount
validated, is indicative of anomaly; that even if it was bank employee Cicero Capati who prepared the deposit slip, Jesusa stood
her ground and categorically denied having any knowledge of the alteration therein made; that petitioner must account for the
missing P 100,000.00 because it was the author of the loss; that banks are engaged in business imbued with public interest and
are under strict obligation to exercise utmost fidelity in dealing with its clients, in seeing to it that the funds therein invested or
by them received are properly accounted for and duly posted in their ledgers.

Petitioner's motion for reconsideration was denied in a Resolution dated February 12, 2003.

Hence, the present petition on the following grounds:

A. In affirming the decision of the trial court holding BPI liable for the amount of P 100,000.00
representing an alleged additional deposit of respondents, the Honorable Court of Appeals gravely
abused its discretion by resolving the issue based on a conjecture and ignoring physical evidence in
favor of testimonial evidence.

B. The Court of Appeals gravely abused its discretion, being as it is contrary to law, in holding BPI liable
to respondents for the payment of interest at the rate of 12% per annum.

C. This Honorable Court gravely abused its discretion, being as it is contrary to law, in holding BPI liable
for moral damages and attorney's fees at the reduced amounts of P 50,000.00 and P 30,000.00,
respectively. [8]

The main issue for resolution is whether the CA erred in sustaining the RTC's finding that respondent Jesusa made an
initial deposit of P 200,000.00 in her newly opened Express Teller account on December 7, 1990.

The issue raises a factual question. The Court is not a trier of facts, its jurisdiction being limited to reviewing only
errors of law that may have been committed by the lower courts. [9] As a rule, the findings of fact of the trial court when
affirmed by the CA are final and conclusive and cannot be reviewed on appeal by this Court, as long as they are borne out by
the record or are based on substantial evidence. [10] Such rule however is not absolute, but is subject to well-established
exceptions, which are: 1) when the inference made is manifestly mistaken, absurd or impossible; 2) when there is a grave abuse
of discretion; 3) when the finding is grounded entirely on speculations, surmises or conjectures; 4) when the judgment of the
CA is based on a misapprehension of facts; 5) when the findings of facts are conflicting; 6) when the CA, in making its
findings, went beyond the issues of the case, and those findings are contrary to the admissions of both appellant and appellee;
7) when the findings of the CA are contrary to those of the trial court; 8) when the findings of fact are conclusions without
citation of specific evidence on which they are based; 9) when the CA manifestly overlooked certain relevant facts not disputed
by the parties and which, if properly considered, would justify a different conclusion; and 10) when the findings of fact of the
CA are premised on the absence of evidence and are contradicted by the evidence on record. [11] We hold that this case falls
under exception Nos. 1, 3, 4, and 9 which constrain us to resolve the factual issue.
 It is a basic rule in evidence that each party to a case must prove his own affirmative allegations by the degree of
evidence required by law. [12] In civil cases, the party having the burden of proof must establish his case by preponderance of
evidence, [13] or that evidence which is of greater weight or is more convincing than that which is in opposition to it. It does
not mean absolute truth; rather, it means that the testimony of one side is more believable than that of the other side, and that
the probability of truth is on one side than on the other. [14]

Section 1, Rule 133 of the Rules of Court provides the guidelines for determining preponderance of evidence, thus:

SECTION 1. Preponderance of evidence, how determined .- In civil cases, the party having the
burden of proof must establish his case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts
and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the
probability or improbability of their testimony, their interest or want of interest, and also their personal
credibility so far as the same legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number.

For a better perspective on the calibration of the evidence on hand, it must first be stressed that the judge who had
heard and seen the witnesses testify was not the same judge who penned the decision. Thus, not having heard the testimonies
himself, the trial judge or the appellate court would not be in a better position than this Court to assess the credibility of
witnesses on the basis of their demeanor.

Hence, to arrive at the truth, we thoroughly reviewed the transcripts of the witnesses' testimonies and examined the
pieces of evidence on record.

After a careful and close examination of the records and evidence presented by the parties, we find that respondents
failed to successfully prove by preponderance of evidence that respondent Jesusa made an initial deposit of P 200,000.00 in her
Express Teller account.

Respondent Jesusa and her daughter Joan testified that at the outset, respondent Jesusa told Capati that she was
opening an Express Teller account for P 200,000.00; that she was going to withdraw and transfer P 100,000.00 from her savings
account to her new account, and that she had an additional P 100,000.00 cash. However, these assertions are not borne out by
the other evidence presented. Notably, it is not refuted that Capati prepared a withdrawal slip [15] for P 200,000.00. This is
contrary to the claim of respondent Jesusa that she instructed Capati to make a fund transfer of only P 100,000.00 from her
savings account to the Express Teller account she was opening. Yet, respondent Jesusa signed the withdrawal slip. We find it
strange that she would sign the withdrawal slip if her intention in the first place was to withdraw only P 100,000.00 from her
savings account and deposit P 100,000.00 in cash with her.

Moreover, respondent Jesusa's claim that she signed the withdrawal slip without looking at the amount indicated
therein fails to convince us, for respondent Jesusa, as a businesswoman in the regular course of business and taking ordinary
care of her concerns, [16] would make sure that she would check the amount written on the withdrawal slip before affixing her
signature. Significantly, we note that the space provided for her signature is very near the space where the amount of
P 200,000.00 in words and figures are written; thus, she could not have failed to notice that the amount of P 200,000.00 was
written instead of P 100,000.00.
 The fact that respondent Jesusa initially intended to transfer the amount of P 200,000.00 from her savings account to
her new Express Teller account was further established by the teller's tape presented as petitioner's evidence and by the
testimony of Emerenciana Torneros, the teller who had attended to respondent Jesusa's transactions.

The teller's tape, [17] Exhibit 1 unequivocall y shows the following data :

151159 07DEC90 1370 288A 233324299

151245 07DEC90 1601 288A 233243388

***200000.00 [18]
BIG AMOUNT
151251 07DEC90 1601 288J 233243388
***200000.00
151309 07DEC90 1601 288A 233243388
***200000.00
PB BALANCE ERROR
BAL. 229,257.64

151338 07DEC90 1601 288A 233243388

***200000.00
BIG AMOUNT
151344 07DEC90 1601 288J 233243388
***200000.00
151404 07DEC90 1601 288A 233243388
***200000.00
TOD

151520 07DEC90 1601 288A 233320145

***2000.00
151705 07DEC90 1789 288A 233324299
***22917.00
151727 07DEC90 1601 288A 233243388
***100000.00
BIG AMOUNT
151730 07DEC90 1601 288J 233243388
***100000.00
151746 07DEC90 1601 288A 233243388
***100000.00 [19]
151810 07DEC90 1370 288A 235076748
151827 07DEC90 1790 288A 235076748
***100000.00 ***100000.00 [20]

151903 07DEC90 1301 288A 233282405

151914 07DEC90 1690 288A 235008955
***1778.05
152107 07DEC90 1601 288A 3333241381
***5000.00
152322 07DEC90 1601 288A 233314374
***2000.00
152435 07DEC90 1370 288A 235076764
152506 07DEC90 1790 288A 235076764
***4000.00 ***4000.00
152557 07DEC90 1601 288A 233069469
***2000.00
152736 07DEC90 1601 288A 233254584
***2000.00
152849 07DEC90 0600 288A 231017585
***3150.00 686448
152941 07DEC90 1790 288A 3135052255
***2800.00 ***2800.00
153252 07DEC90 1601 288A 233098264
(Emphasis supplied)

The first column shows the exact time of the transactions; the second column shows the date of the transactions; the
third column shows the bank transaction code; the fourth column shows the teller's code; and the fifth column shows the client's
account number. The teller's tape reflected various transactions involving different accounts on December 7, 1990 which
included respondent Jesusa's Savings Account No. 233243388 and her new Express Teller Account No. 235076748. It shows
that respondent Jesusa's initial intention to withdraw P 200,000.00, not P 100,000.00, from her Savings Account No. 233324299
was begun at 3 o'clock, 12 minutes and 45 seconds as shown in Exhibit 1-c.

In explaining the entries in the teller's tape, Torneros testified that when she was processing respondent Jesusa's
withdrawal in the amount of P 200,000.00, her computer rejected the transaction because there was a discrepancy; [21] thus, the
word BIG AMOUNT appeared on the tape. Big amount means that the amount was so big for her to approve, [22] so she keyed
in the amount again and overrode the transaction to be able to process the withdrawal using an officer's override with the
latter's approval. [23] The letter J appears after Figure 288 in the fourth column to show that she overrode the transaction. She
then keyed again the amount of P 200,000.00 at 3 o'clock 13 minutes and 9 seconds; however, her computer rejected the
transaction, because the balance she keyed in based on respondent Jesusa's passbook was wrong; [24] thus appeared the phrase
balance error on the tape, and the computer produced the balance of P 229,257.64, and so she keyed in the withdrawal of
P 200,000.00. [25] Since it was a big amount, she again had to override it, so she could process the amount. However, the
withdrawal was again rejected for the reason TOD, overdraft, [26] which meant that the amount to be withdrawn was more than
the balance, considering that there was a debited amount of P 30,935.16 reflected in respondent Jesusa's passbook, reducing the
available balance to only P 198,322.48. [27]

Torneros then called Capati to her cage and told him of the insufficiency of respondent Jesusa's balance. [28] Capati
then motioned respondent Jesusa to the teller's cage; and when she was already in front of the teller's cage, Torneros told her
that she could not withdraw P 200,000.00 because of overdraft; thus, respondent Jesusa decided to just withdraw P 100,000.00.
[29]

This explains the alteration in the withdrawal slip with the superimposition of the figure 1 on the figure 2 and the
change of the word two to one to show that the withdrawn amount from respondent Jesusa's savings account was only
P 100,000.00, and that respondent Jesusa herself signed the alterations.

The teller's tape showed that the withdrawal of the amount of P 100,000.00 by fund transfer was resumed at 3 o'clock
17 minutes and 27 seconds; but since it was a big amount, there was a need to override it again, and the withdrawal/fund
transfer was completed. At 3 o'clock 18 minutes and 27 seconds, the amount of P 100,000.00 was deposited to respondent
Jesusa's new Express Teller Account No. 235076748.

The teller's tape definitely establishes the fact of respondent Jesusa's original intention to withdraw the amount of
P 200,000.00, and not P 100,000.00 as she claims, from her savings account, to be transferred as her initial deposit to her new
Express Teller account, the insufficiency of her balance in her savings account, and finally the fund transfer of the amount of
P 100,000.00 from her savings account to her new Express Teller account. We give great evidentiary weight to the teller's tape,
considering that it is inserted into the bank's computer terminal, which records the teller's daily transactions in the ordinary
course of business, and there is no showing that the same had been purposely manipulated to prove petitioner's claim.

Respondent Jesusa's bare claim, although corroborated by her daughter, that the former deposited P 100,000.00 cash in
addition to the fund transfer of P 100,000.00, is not established by physical evidence. While the duplicate copy of the deposit
slip [30] was in the amount of P 200,000.00 and bore the stamp mark of teller Torneros, such duplicate copy failed to show that
there was a cash deposit of P 100,000.00. An examination of the deposit slip shows that it did not contain any entry in the
breakdown portion for the specific denominations of the cash deposit. This demolishes the testimonies of respondent Jesusa and
her daughter Joan.

Furthermore, teller Torneros's explanation of why the duplicate copy of the deposit slip in the amount of P 200,000.00
bore the teller's stamp mark is convincing and consistent with logic and the ordinary course of business. She testified that
Capati went to her cage bringing with him a withdrawal slip for P 200,000.00 signed by respondent Jesusa, two copies of the
deposit slip for P 200,000.00 in respondent Jesusa's name for her new Express Teller account, and the latter's savings passbook
reflecting a balance of P 249,657.64 [31] as of November 19, 1990. [32] Thus, at first glance, these appeared to Torneros to be
sufficient for the withdrawal of P 200,000.00 by fund transfer. Capati then got her teller's stamp mark, stamped it on the
duplicate copy of the deposit slip, and gave the duplicate to respondent Jesusa, while the original copy [33] of the deposit slip
was left in her cage. [34] However, as Torneros started processing the transaction, it turned out that respondent Jesusa's balance
was insufficient to accommodate the P 200,000.00 fund transfer as narrated earlier.

Since respondent Jesusa had signed the alteration in the withdrawal slip and had already left the teller's counter
thereafter and Capati was still inside the teller's cage, Torneros asked Capati about the original deposit slip and the latter told
her, Ok naman iyan, [35] and Capati superimposed the figures 1 on 2 on the deposit slip [36] to reflect the initial deposit of
P 100,000.00 for respondent Jesusa's new Express Teller account and signed the alteration. Torneros then machine-validated the
deposit slip. Thus, the duplicate copy of the deposit slip, which bore Torneross stamp mark and which was given to respondent
Jesusa prior to the processing of her transaction, was not machine-validated unlike the original copy of the deposit slip.

While the fact that the alteration in the original deposit slip was signed by Capati and not by respondent Jesusa herself
was a violation of the bank's policy requiring the depositor to sign the correction, [37] nevertheless, we find that respondents
failed to satisfactorily establish by preponderance of evidence that indeed there was an additional cash of P 100,000.00
deposited to the new Express Teller account.

Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy
evidence. [38] We have, on many occasions, relied principally upon physical evidence in ascertaining the truth. Where the
physical evidence on record runs counter to the testimonial evidence of the prosecution witnesses, we consistently rule that the
physical evidence should prevail. [39]

In addition, to uphold the declaration of the CA that it is unlikely for respondent Jesusa and her daughter to concoct a
false story against a banking institution is to give weight to conjectures and surmises, which we cannot countenance.

In fine, respondents failed to establish their claim by preponderance of evidence. Considering the foregoing, we find
no need to tackle the other issues raised by petitioner.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated October 29, 2002 as well as its
Resolution dated February 12, 2003 are hereby REVERSED and SET ASIDE. The complaint filed by respondents, together
with the counterclaim of petitioner, is DISMISSED.

No costs SO ORDERED.

FACTS:

On December 7, 1990, respondent Jesusa Reyes together with her daughter, went to BPI Zapote Branch to open an
ATM account.

Respondent informed one of petitioners employees, Mr. Capati, that they wanted to open an ATM account for the
amount of P200,000.00, P100,000.00 of which shall be withdrawn from her exiting savings account with BPI bank
which is account no. 0233-2433-88 and the other P100,000.00 will be given by her in cash.

Capati allegedly made a mistake and prepared a withdrawal slip for P200,00.00 to be withdrawn from her existing
savings account with said bank and the respondent believing in good faith that Capati prepared the papers with the
correct amount signed the same unaware of the mistakes in figures.

Minutes later after the slips were presented to the teller, Capati returned to where the respondent was seating and
informed the latter that the withdrawable balance could not accommodate P200,000.00.

Respondent explained that she is withdrawing the amount of P100,000.00 only and then changed and correct the
figure two (2) into one (1) with her signature super-imposed thereto signifying the change, afterwhich the amount of
P100,000.00 in cash in two bundles containing 100 pieces of P500.00 peso bill were given to Capati with her
daughter Joan witnessing the same. Thereafter Capati prepared a deposit slip for P200,000.00 in the name of
resondent Jesusa Reyes with the new account no. 0235-0767-48 and brought the same to the teller's booth.

After a while, he returned and handed to the respondent her duplicate copy of her deposit to account no. 0235-
0767-48 reflecting the amount of P200,000.00 with receipt stamp showing December 7, as the date.

Later on, respondent would become aware that her ATM account only contained the amount of P100,000.00 with
interest. Hence, she filed an action before the RTC.

Petitioner claimed that there was actually no cash involved with the transactions which happened on December 7,
1990 as contained in the banks teller tape.

On August 12, 1994, the RTC issued a Decision upholding the versions of respondents.

Aggrieved, petitioner appealed to the CA which affirmed the RTC decision with modification

ISSUE:

Whether the CA erred in sustaining the RTC's finding that respondent Jesusa made an initial deposit of P200,000.00
in her newly opened Express Teller account on December 7, 1990.

HELD:

It is a basic rule in evidence that each party to a case must prove his own affirmative allegations by the degree of
evidence required by law. In civil cases, the party having the burden of proof must establish his case by
preponderance of evidence, or that evidence which is of greater weight or is more convincing than that which is in
opposition to it. It does not mean absolute truth; rather, it means that the testimony of one side is more believable
than that of the other side, and that the probability of truth is on one side than on the other.

For a better perspective on the calibration of the evidence on hand, it must first be stressed that the judge who had
heard and seen the witnesses testify was not the same judge who penned the decision. Thus, not having heard the
testimonies himself, the trial judge or the appellate court would not be in a better position than this Court to assess
the credibility of witnesses on the basis of their demeanor.

Hence, to arrive at the truth, we thoroughly reviewed the transcripts of the witnesses' testimonies and examined
the pieces of evidence on record.

After a careful and close examination of the records and evidence presented by the parties, we find that
respondents failed to successfully prove by preponderance of evidence that respondent Jesusa made an initial
deposit of P200,000.00 in her Express Teller account.

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