G.R. No.

L-35283 November 5, 1932

JULIAN DEL ROSARIO, plaintiff-appellant,

vs.
MANILA ELECTRIC COMPANY, defendant-appellee.

Vicente Sotto for appellant.

Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for appellee.

STREET, J.:

This action was instituted by Julian del Rosario for the purpose of recovering damages from the
Manila Electric Company for the death of his son, Alberto del Rosario, resulting from a shock from a
wire used by the defendant for the transmission of electricity. The accident occurred on Dimas-Alang
Street, in the municipality of Caloocan, Province of Rizal. Damages are claimed in the complaint in
the amount of P30,000. Upon hearing the cause the trial court absolved the defendant, and the
plaintiff appealed.

Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble developed in a wire used by the
defendant on Dimas-Alang Street for the purpose of conducting electricity used in lighting the City of
Manila and its suburbs. Jose Noguera, who had charge of a tienda nearby, first noticed that the wire
was burning and its connections smoking. In a short while the wire parted and one of the ends of the
wire fell to the ground among some shrubbery close to the way. As soon as Noguera took
cognizance of the trouble, he stepped into a garage which was located nearby and asked Jose Soco,
the timekeeper, to telephone the Malabon station of the Manila Electric Company that an electrical
wire was burning at that place. Soco transmitted the message at 2.25 p.m. and received answer
from the station to the effect that they would send an inspector. From the testimony of the two
witnesses mentioned we are justified in the conclusion that information to the effect that the electric
wire at the point mentioned had developed trouble was received by the company's servant at the
time stated. At the time that message was sent the wire had not yet parted, but from the testimony of
Demetrio Bingao, one of the witnesses for the defense, it is clear that the end of the wire was on the
ground shortly after 3 p.m.

At 4 p. m. the neighborhood school was dismissed and the children went home. Among these was
Alberto del Rosario, of the age of 9 years, who was a few paces ahead of two other boys, all
members of the second grade in the public school. These other two boys were Jose Salvador, of the
age of 8, and Saturnino Endrina, of the age of 10. As the three neared the place where the wire was
down, Saturnino made a motion as if it touch it. His companion, Jose Salvador, happened to be the
son of an electrician and his father had cautioned him never to touch a broken electrical wire, as it
might have a current. Jose therefore stopped Saturnino, telling him that the wire might be charged.
Saturnino yielded to this admonition and desisted from his design, but Alberto del Rosario, who was
somewhat ahead, said, I have for some time been in the habit of touching wires ("Yo desde hace
tiempo cojo alambres"). Jose Salvador rejoined that he should into touch wires as they carry a
current, but Alberto, no doubt feeling that he was challenged in the matter, put out his index finger
and touch the wire. He immediately fell face downwards, exclaiming "Ay! madre". The end of the
wire remained in contact with his body which fell near the post. A crowd soon collected, and some
one cut the wire and disengaged the body. Upon being taken to St. Luke's Hospital the child was
pronounced dead.
The wire was an ordinary number 6 triple braid weather proof wire, such as is commonly used by the
defendant company for the purpose of conducting electricity for lighting. The wire was cased in the
usual covering, but this had been burned off for some distance from the point where the wire parted.
The engineer of the company says that it was customary for the company to make a special
inspection of these wires at least once in six months, and that all of the company's inspectors were
required in their daily rounds to keep a lookout for trouble of this kind. There is nothing in the record
indicating any particular cause for the parting of the wire.
lawphil.net

We are of the opinion that the presumption of negligence on the part of the company from the
breakage of this wire has not been overcome, and the defendant is in our opinion responsible for the
accident. Furthermore, when notice was received at the Malabon station at 2.25 p. m., somebody
should have been dispatched to the scene of the trouble at once, or other measures taken to guard
the point of danger; but more than an hour and a half passed before anyone representing the
company appeared on the scene, and in the meantime this child had been claimed as a victim.

It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to his
immature years and the natural curiosity which a child would feel to do something out of the ordinary,
and the mere fact that the deceased ignored the caution of a companion of the age of 8 years does
not, in our opinion, alter the case. But even supposing that contributory negligence could in some
measure be properly imputed to the deceased, — a proposition upon which the members of the
court do not all agree, — yet such negligence would not be wholly fatal to the right of action in this
case, not having been the determining cause of the accident. (Rakes vs. Atlantic, Gulf and Pacific
Co., 7 Phil., 359.)

With respect to the amount of damages recoverable the majority of the members of this court are of
the opinion that the plaintiff is entitled to recover P250 for expenses incurred in connection with the
death and burial of the boy. For the rest, in accordance with the precedents cited in Astudillo vs.
Manila Electric Company (55 Phil., 427), the majority of the court are of the opinion that the plaintiff
should recover the sum of P1,000 as general damages for loss of service.

The judgment appealed from is therefore reversed and the plaintiff will recover of the defendant the
sum of P1,250, with costs of both instances. So ordered.
G.R. No. L-30302 August 14, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee,

vs.
SERGIO MALIWANAG, JESUS VILLEZA, and EULOGIO JALOS, defendants, JESUS
VILLEZA, defendant and appellant.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L.
Quiroz and Solicitor Octavio R. Ramirez for plaintiff-appellee.

Roberto J. Ignacio for defendant-appellant.

ESGUERRA, J.:p

Appeal from the judgment of the Court of First Instance of Oriental Mindoro finding accused Jesus Villeza guilty of murder for the death of
Esmeraldo Fernando, and sentencing him as follows:

WHEREFORE, accused Sergio Maliwanag and Eulogio Jalos are hereby acquitted, on ground of
reasonable doubt. Accused Jesus Villeza is hereby found guilty and convicted of the crime of murder
and is sentenced to suffer the penalty of life imprisonment, and condemned to pay an indemnity in
the amount of TEN THOUSAND PESOS (P10,000.00) to the heirs of deceased Esmeraldo
Fernando, and the costs.

There are two conflicting versions of what really happened on that fatal day of
November 9, 1965, in Barrio Sta. Brigida, Municipality of Mansalay, Oriental Mindoro,
when the deceased, Esmeraldo Fernando, was shot to death. According to the
prosecution, at about 11:00 o'clock in the morning of election day, November 9, 1965,
the accused Jesus Villeza, Eulogio Jalos, Municipal policemen, and Sergio
Maliwanag, Municipal Mayor, all of Mansalay, Oriental Mindoro, were seen in front of
Sta. Brigida Elementary School fully armed. Accused Jesus Villeza, in police uniform,
approached the deceased, Esmeraldo Fernando, who was then standing and
conversing with some people just outside the schoolhouse which was then used as
polling place for Precinct No. 7 at barrio Sta. Brigida, Mansalay, Oriental Mindoro.
After saying "requiza" he immediately shot the deceased notwithstanding the latter's
having raised his hands. Subsequently, accused policeman Eulogio Jalos also fired a
shot at Fernando, hitting him on his body. The other accused, Mayor Sergio
Maliwanag, also fired his pistol at the deceased but the latter was not hit.

Upon the other hand, Jesus Villeza put up the theory of self-defense, while Eulogio
Jalos and Sergio Maliwanag, denied any participation in the killing. The defense
version is as follows: that shortly after the arrival of the three accused, Mayor Sergio
Maliwanag and policemen Jesus Villeza and Eulogio Jalos, at Sta. Brigida
Elementary School on November 9, 1965, Jesus Villeza noticed a commotion near
the polling place; that thereafter Edgardo Artiza, Chairman of the Board of Election
Inspectors of Precinct No. 7 of Sta. Brigida, handed to Villeza an order of arrest to be
enforced against whoever was creating trouble; that Villeza saw the deceased,
Esmeraldo Fernando, dragging by the neck one Salvador Balani; that when Villeza
approached Fernando to arrest him, the latter swung a balisong knife at him but only
his uniform was hit; that at this juncture Villeza shot Fernando and when Fernando
attempted to stab him again, Villeza shot the deceased for the second time; that at
 this precise moment, accused ŠEulogio Jalos fired his gun in the air to scare the
relatives of the deceased who were approaching Villeza; that Mayor Maliwanag was
at the Nacionalista Party headquarters taking his lunch when the shooting incident
happened; that Jesus Villeza admitted that he was the only one responsible in
inflicting the two fatal wounds that caused the death of Esmeraldo Fernando, and
that he acted in complete self-defense at the time of the shooting.

After the hearing, the trial court acquitted Sergio Maliwanag and Eulogio Jalos but convicted Jesus
Villeza of murder and sentenced him to reclusion perpetua (life imprisonment). Hence this appeal by
Villeza.

Appellant Jesus Villeza assigned three errors allegedly committed by the trial court, as follows:

1. In finding that the balisong knife of the deceased given to Chief of Police Quejada
who, in turn, gave it to Capt. Medina, was a planted or fabricated piece of evidence,
along with the alleged torn shirt of Jesus Villeza, for the purpose of showing self-
defense;

2. In not finding that Jesus Villeza acted in complete self-defense when he fatally
shot and killed Esmeraldo Fernando;

3. In not acquitting appellant Jesus Villeza.

As regards the first assigned error, appellant Jesus Villeza argues by quoting the following findings
of the lower court, viz:

All the above circumstances bearing on the question as to whether or not victim
Fernando was actually armed with a balisong knife immediately before and during
the incident strongly point, in the mind of this Court, that the balisong knife given to
Chief of Police Quejada, who in turn, gave it to Capt. Medina, was a planted or
fabricated piece of evidence, along with the alleged torn shirt of Villeza, for the
purpose of showing self-defense by accused Villeza.(page 27, decision)

He claims that from the above-quoted finding of the lower court it is admitted by the trial court that
there was a balisong knife given to Police Chief Quejada who in turn gave it to Capt. Medina.
However, the lower court concluded that the same was a planted or a fabricated piece of evidence,
along with the alleged torn shirt of Villeza. To us this conclusion of the lower court is not supported
by any evidence, oral or documentary. On the contrary, the testimony of appellant Villeza,
corroborated by that of witness Salvador Balani, establishes that Esmeraldo Fernando was armed
with a balisong knife which he used on that occasion in stabbing appellant Villeza who, fortunately,
was only hit in his uniform which was slashed as a result thereof. This testimony was neither
contradicted nor rebutted. The finding, of the lower court that the aforementioned balisong knife
surrendered by Villeza was planted has simply no basis and the lower court committed an error in so
concluding.

But the prosecution assails appellant's claim that the deceased was armed with a balisong knife as
he (Villeza) failed to produce that knife in Court as well as the alleged receipt issued to him therefor
by the police department. The prosecution relies on People vs. Saturnino, L-2972, April 29, 1955,
where it was held that when the bolo allegedly wielded by the deceased was not produced in
evidence, such omission renders incredible the claim of appellant that it was he who was sought to
be stabbed.

We do not see eye to eye with the prosecution. There is no evidence to show that the accused was
in possession of the balisong knife and had deliberately suppressed it in evidence. On the contrary it
was clearly shown that the accused surrendered said balisong knife to the authorities just after the
incident.1 How could he suppress something he did not have in his possession?

The conclusion of the trial court that the balisong knife was a planted or fabricated piece of evidence
is neutralized by the fact that the deceased, Esmeraldo Fernando, had a balisong knife on that
occasion and used it against one Salvador Balani who testified to this effect and was never
contradicted by anybody.

Salvador Balani said:

Q. On November 9, 1965, at about 11:00 o'clock in the morning, do

you remember where you were?

A. I was at the polling place at Sta. Brigida.

Q. Do you know the number of the polling place (sic precinct)?

A. Yes, sir.

Q. What is the number of that precinct?

A. Precinct No. 7, sir.

Q. Why were you in that particular place on that day?

A. I wanted to cast my vote, sir.

Q. Are you a registered voter of that precinct?

A. Yes, sir.

Q. Were you able to vote on that particular day?

A. No, sir.

Q. Why were you not able to vote?

A. I am a Nacionalista and my brother is a Nacionalista leader. I was

not allowed to cast my vote by Esmeraldo Fernando.

Q. Do you know the first name of this Esmer Fernando?

A. Esmeraldo Fernando, sir.

Q. What happened? Tell us if any thing occurred?

 A. After having been seen by the elder brother of Esmeraldo
Fernando, I was kicked by the former on my belly.

Q. Do you know the name of that brother of Esmeraldo, who kicked

you?

A. Yes, sir.

Q. What is the name?

A. Valerio Fernando, sir.

Q. What happened after Valerio Fernando, as you said, kick you?

A. I was boxed by Esmeraldo Fernando here, (Witness indicating a

place immediately below the left ear) and then said Esmeraldo
Fernando again struck me with the handle of the balisong knife on the
right shoulder.

Q. What happened next?

A. After having been struck with the handle of the balisong

knife, Valerio Fernando run and got a piece of bamboo and he hit me
on my left arm and my right side of my waist. (t.s.n. pages 14-15, Vol.
7; emphasis supplied)

This testimony of witness Salvador Balani is supported by that of Dr. Esperidion Sucgang, the
physician who treated Balani after he was mauled by the deceased.

Esperidion Sucgang said:

Q. This first finding that you had in this exhibit — To whom it may
concern: "This is to certify that Salvador Balani, 25 years old, married
and resident of Pasig, came to my house for treatment for the
following: Swelling with ecchymosis about two inches in diameter on
the lower lateral portion of the right neck. Swelling with slight
ecchymosis and scratches about one inch in diameter on the upper
portion of the left shoulder. Slight swelling on the left buttock. He
complains of pain all over the body and severe headache, and
difficulty of opening his mouth. He could hardly talk. It will take from
five to seven days treatment to have these healed." Will you tell us,
doctor, what is the possible cause of this wound No. 1 — swelling
with ecchymosis about two inches in diameter on the lower lateral
portion of the right neck? .

A. It may be due to hard instrument, sir.

Q. When you say "hard instrument" you mean to say that instrument
hit the portion of the body of Balani as appearing herein?

A. Yes, sir.
 Q. Could this be possibly be caused when a closed balisong is being
stabbed on the particular portion of the body?

A. Yes, sir. (t.s.n. page 3, Vol. 8)

As to the torn police uniform shirt of appellant, the record shows that when he was asked to wear or
fit said shirt, it was observed that it was loose and did not closely cling to his body. Jesus Villeza
testified:

A. If I show you a khaki cloth can you identify the same? .

Q. Yes, sir.

A. I am showing to you this khaki upper shirt which has already been
marked Exh. "4", please tell us if you know the same?

Q. (Witness examining Exh. "4") This is it, sir.

A. At this stage, your Honor, I will request that the witness wear the
same for demonstration, if possible, your Honor.

Court: Granted.

(Witness putting on the shirt, Exh. "4", tacking the same inside his pants)

xxx xxx xxx

Atty. Andrada (counsel for the accused)

At this stage, your Honor, to make a clarification as to the nature of what the accused
was then wearing, his under shirt, I want it to appear of record as to the undershirt
not being worn by the accused, Villeza. I notice that shirt is loose, not too close to the
body. (t.s.n. pages 15 & 75, Vol. 10, emphasis supplied)

From the foregoing, it may be concluded that when Esmeraldo Fernando made the swinging stab
blow against appellant Jesus Villeza, only the latter's police uniform shirt was caught by the blade of
the knife because the shirt did not closely fit his body.

There are eloquent proofs that undercut the finding of the lower court that the balisong knife and the
torn police uniform were planted or fabricated pieces of evidence. We reject its conclusion on this
point as unsupported and unfounded.

II

The second issue to be resolved is whether or not Jesus Villeza acted in complete self-defense
when he fatally shot and killed Esmeraldo Fernando.

Under Article 11 of the Revised Penal Code, criminal liability is not incurred by:
 Any one who acts in defense of his person or rights, provided that the following
circumstances concur:

First: Unlawful aggression;

Second: Reasonable necessity of the means employed to prevent or repel it;

Third: Lack of sufficient provocation on the part of the person defending himself.

That it was not appellant but the deceased, Esmeraldo Fernando, who was the aggressor, appellant
Villeza calls the attention of this Court to the following indisputable facts:

(a) That appellant Jesus Villeza was wearing his police uniform at the time of the
incident in question;

(b) That from the findings of the lower court it was conclusively shown that there was
no conspiracy among Jesus Villeza and co-accused Jalos and Maliwanag; .

(c) That appellant Villeza, according to the findings of the lower court, only followed
the order of the Chairman of the Board of Inspectors, Mr. Edgardo Artiza, the head
teacher of Bo. Sta. Brigida, who positively stated under oath that he ordered the
herein appellant to arrest the person or persons who were making trouble, which
order of arrest was marked as Exhibit "3-A". That, in pursuance of the order of arrest
issued by the Chairman of the Board of Inspectors, Villeza confronted the deceased
Esmeraldo Fernando while he was dragging Salvador Balani on that particular date
of November 9, 1965, and the testimony of Salvador Balani as to the assault against
him by the deceased had never been rebutted or contradicted by the prosecution;

(d) That there is no evidence presented by the prosecution showing that Esmeraldo
Fernando was not armed with a balisong knife on that occasion; hence the positive
testimony of appellant Jesus Villeza corroborated by defense witness Salvador
Balani that the deceased Fernando was then carrying such knife deserves more
weight than the finding of the lower court that the balisong knife surrendered by
appellant Villeza was planted.

The facts above set forth show that the deceased, Esmeraldo Fernando, instead of appellant Villeza,
was the aggressor as he used his balisong knife against both Salvador Balani and the appellant.

There was reasonable necessity of the means employed to repel the aggression from the deceased
as the appellant's only recourse in defending himself was to use his service pistol against one who
wielded a deadly balisong knife.

Appellant acted in compliance with the lawful order of the Chairman of the Board of Inspectors to
arrest those who were creating trouble and he was simply discharging his duties as a peace officer
when he attempted to arrest the deceased who, together with his brother, was then maltreating
Salvador Balani. This fact was never refuted or denied by any of the prosecution witnesses. These
circumstances indicate that no provocation whatsoever came from appellant Jesus Villeza, and that
he acted in complete self-defense when he fatally shot Esmeraldo Fernando.

The prosecution claims further that since appellant Jesus Villeza invoked self-defense, it was
incumbent upon him to prove by clear and convincing evidence that the killing was justified,
otherwise conviction would follow from his admission that he killed the victim; that appellant
miserably failed to produce such clear and convincing evidence to support his plea of self-defense,
and that it was proven that the deceased was simply standing and conversing with someone when
appellant approached him saying, "requiza" and immediately fired at him when the hands of the
deceased were already raised, thereby committing murder qualified by treachery.

The circumstances leading to the shooting incident are undisputably as follows: that at the time the
shooting took place, appellant who was a peace officer was in full police uniform; that before the
actual shooting, the deceased was making trouble near the polling place of Precinct No. 7, Sta.
Brigida Elementary School, by assaulting and dragging one Salvador Balani; that the Chairman of
the Board of Inspectors of said Precinct gave appellant an order of arrest (Exhibit "3-A")2 to be
carried out against whoever was causing trouble; that in the performance of his duty appellant
attempted to arrest the victim but instead of surrendering to the former the latter opened a balisong
knife and attacked the appellant; that it was only the police uniform that was caught by the blow from
the deceased and that appellant shot the victim when the latter missed the former in stabbing him;
that when the victim attempted again to stab the accused, he fired at him again, and that two
gunshot wounds caused the death of the victim.

Under the above circumstances, appellant's version meets the requirement that evidence to
establish self-defense must be clear and convincing. The unlawful attack perpetrated against
appellant by the victim when he resisted the attempt of the appellant as a peace officer to arrest him
for creating trouble near the polling place by drawing a balisong knife and swinging it against the
appellant shows that the victim was determined to kill the accused. If the victim had no intention to
harm the appellant, he would not have drawn his balisong knife nor resisted arrest. There was,
therefore, actual aggression and danger to the life and safety of the appellant when he shot the
victim to death.

The evidence for the prosecution falls short of that requisite sufficiency and certainty which can
persuade the human mind to agree with the conclusion of guilt. .

What we said in People vs. Alto, L-18660-61, November 29, 1968, 26 SCRA p. 342, 365, is indeed
relevant hereto:

As a salutary proposition, this Court usually desists from disturbing the conclusions
of the trial court on the credibility of witnesses, in deference to the rule that the lower
Court, having seen and heard the witnesses and observed their demeanor and
manner of testifying, is in a better position to appreciate the evidence. But this
doctrine must bow to the superior and immutable rule the guilt of the accused must
be proved beyond a reasonable doubt, because the law presumes that a defendant
is innocent, and this presumption must prevail unless overtuned by competent and
credible proof to sustain a moral certainty as to the guilt of the appellant. (Emphasis
supplied)

Discussion of the third and last assigned errors has become unnecessary in view of the conclusion
we have reached. .

WHEREFORE, the appealed judgment is reversed and the accused-appellant, Jesus Villeza, is
hereby acquitted and ordered released from the custody of the law. .
G.R. No. L-38042

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO ALCANTARA and MANUEL GUINTO, accused, MANUEL GUINTO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pio B. Merida for accused-appellant.

CRUZ, J.:

Before the horrified eyes of his two children, then aged sixteen and ten, Felipe Avendano was
attacked from behind and hacked twice with bolos, one in the head and another in the shoulder.
Within minutes he was dead. However, we have yet to write finish to this case, which began on June
29, 1963. The full accounting of that tragic night is still to be made.

One of those accused of the offense has since been convicted and is now serving a life
sentence. 1 In this case, we deal with Manuel Guinto who, like Pedro Alcantara, has been sentenced
to reclusion perpetua as a co-conspirator in the murder of Avendano. 2 The third one, Enrique
Cagsawa, is still at large.

As found by the trial court, * the incident happened during a benefit dance in barrio Enriqueta,
Lavezares, Samar. Avendano was standing by the window and cooling himself, having just enjoyed
the exertions of the dance, when three men, who were standing by the bamboo grove behind him,
suddenly pounced upon him. 3 The first assailant was Guinto, who administered the fatal blow in the
head with a "kinogan" bolo. 4 Almost simultaneously, Alcantara made the second slash on the
shoulder with his "menasbad," another kind of bolo. 5 The third man, Enrique Cagsawa, was about to
strike when he was deterred by the screams of Lydia Avendano, the victim's daughter. 6Immediately
thereafter, the three assailants escaped. 7

The above findings were based mainly on the eyewitness accounts of the victim's two children, who
were near their father when he was killed. 8 Their mother, who was also presented by the
prosecution, testified as to the events that transpired after the killing. 9 Two other witnesses, Antonio
Martires and Dr. Arturo Dubongco, described the wounds inflicted on the victim, the latter declaring
that the one in the head was fatal without medical treatment but the second was not, barring
complications. 10

In his defense, the accused-appellant denied any part in the slaying, insisting that he was in fact one
of those who stayed by the corpse after the stabbing and got the knife from the victim's hand on
orders of the barrio captain. Lydia saw him as he was giving the weapon to the said officer, which
must have given her the impression that Guinto was one of the killers. 11 He was corroborated by
Victorino Escalderon and Lucas Puedan, who both declared they saw Juan Alcantara slash the
victim twice. 12

The accused-appellant lays much stress on the inconsistencies in the testimony of Lydia Avendano,
who claims to have witnessed her father's slaying. The flaw, it is argued, is that whereas she
declared in her sworn statement dated July 2, 1963, 13 that Pedro Alcantara slashed her father twice,
she later testified that the victim was attacked first by Guinto, who hacked him in the head, and then
by Alcantara, who dealt the second blow. 14

We do not believe that this inconsistency should detract from the veracity of Lydia's testimony, which,
standing by itself, appears to be a truthful narration of Avendano's death. It is not unlikely that when
she made the sworn statement, this young girl had not yet recovered from the shock and trauma of
witnessing her father's violent death only four days before. It is entirely possible she was still
confused and had not yet collected her thoughts at that time and so could not make a completely
accurate account of how her father was killed.

Moreover, as Moore correctly serves, "an affidavit being taken ex parte, is almost always incomplete
and often inaccurate, sometimes from partial suggestion, and sometimes from want of suggestion
and inquiries, without the aid of which the witness may be unable to recall the connected collateral
circumstances necessary for the correction of the first suggestion of his memory and for his accurate
recollection of all that belongs to the subject. 15

Significantly, Carlos Avendano's own testimony tallied in all material points with that made by his
elder sister, as well it should. 16 They were only a short distance from their father when he was killed
and they saw every detail of the brutal slaying by the light of the three gas lamps by the doorway and
in the dance hall. 17 While time may have blurred the sharp focus of their recollections, the memory of
that fatal night-and especially the killers of their father-can hardly be blotted out of their minds.

The accused-appellant's insistence that he was the one who stayed by Avendano's body was further
belied by the victim's wife, Felisa, who testified that she saw Guinto and his companions running
away from the direction of the dance hall where, unknown to her then, her husband had just been
killed. 18

The crime was committed in 1963 but it was only ten years later that Guinto was arrested and
prosecuted as in the meantime he could not be located. Both he and Cagsawa had disappeared,
leaving Alcantara to face the music alone, as it were. Guinto now claims he was in Enriqueta all the
time until 1967, when he transferred to barrio Maravilla, also in Lavezares. There he stayed for one
year before going to Manila, from where he returned to Enriqueta in 1970. 19

Felisa denies this, arguing that if that were so she would have demanded his arrest, as she
immediately did when she learned of his return to Lavezares in 1973. 20 In fact, a warrant of arrest
had been issued against Guinto as early as 1964 but it could not be served because he could not be
found. In his return dated October 27, 1964, the municipal chief of police certified that "Manuel
Guinto went to Manila after the commission of the crime, 21 and his successor, in another return
dated February 28, 1966, declared that "the whole municipality was almost combed for the arrest of
Enrique Cagsawa and Manuel Guinto and according to information said persons is (sic) at Manila.22

Caught in this obvious lie, the accused-appellant has to explain now why he left so precipitately after
the commission of the crime, of which he claims to be innocent. Assuming that his sudden departure,
while suspicious, was innocent, he would have come back earlier, having heard of the charge
against him — as he must have — to clear his name.

The defense cites the reliability of witnesses Puedan and Escalderon, aged sixty-four and eighty-four,
respectively, and both municipal officials who, it is argued, would not have perjured themselves just
to save Guinto. Perhaps so. On the other hand, no ill motive has been imputed to the Avendano
children in testifying against the accused-appellant, with whom their family was apparently on good
terms until the killing. At any rate, faced with the question of credibility, the trial judge, who had the
chance to observe the witnesses and assess their demeanor on the stand, opted to believe the
prosecution witnesses. We shall abide by that preference absent a showing of any abuse of
discretion.

The accused is entitled to be presumed innocent, but only until the contrary is proved. In this case,
we believe with the trial court that the guilt of Manuel Guinto has been established beyond
reasonable doubt and so he is not entitled to a reversal. We sustain the finding that in conspiracy
with each other the accused-appellant and his two companions treacherously attacked Felipe
Avendano, with Guinto himself administering the fatal blow in the victim's head. The crime is murder,
without any aggravating, or mitigating circumstances, for which the penalty is reclusion perpetual.
The civil indemnity is, however, increased to P30,000.00.

WHEREFORE, the judgment appealed from is AFFIRMED as above modified, with costs against the
accused-appellant. It is so ordered.
G.R. No. L-26647 August 15, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AQUILINO PACALA and TRANQUILINO PACALA, JR. alias CHACOY, defendants-appellants.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro
and Solicitor Enrique M. Reyes for plaintiff-appellee.

Silvino no B. Agudo and Jose J Estrella, Jr. for defendants-appellants.

ANTONIO, J.:p

Automatic Review of the Death Penalty imposed by the Court of First Instance of Samar, Branch I, 13th Judicial District, upon Cipriano
Saberon, Patricio Pacala and Aquilino Pacala, and appeal of the sentence of reclusion perpetua imposed by the same court upon Tranquilino
Pacala, Jr., for the death of Jose Bacsal, in Criminal Case No. 6897, for Robbery with Homicide.

During the pendency of this appeal, appellants Cipriano Saberon and Patricio Pacala died in the
New Bilibid Prisons, Muntinlupa, Rizal, the former as an aftermath of a riot committed in prison and
the latter as a consequence of sickness, and the cases against them were dismissed on February 13,
1969 and October 15, 1972, respectively.

This decision is, therefore, confined to the appeal of Aquilino Pacala and Tranquilino Pacala, Jr., the
only two remaining appellants in the case.

It is undisputed that on the evening of November 17, 1964, Jose Bacsal was killed by a group of
armed men near his hut in Sitio Binotong, of Barrio Guintarcan, of the town of Villareal, Province of
Samar. Binotong is adjacent to Sitio Burabod, and both are situated along the coast, and are
accessible either by sea or land. The deceased was a farmer of some substance who had just had
his old house demolished for the purpose of building on the same site a bigger one of stronger
materials. In the meantime a small hut with roof and with the floor a meter above the ground, without
walls, was constructed nearby where the deceased and his son stayed to guard the construction
materials piled near the place and to supervise the construction of the house. The hut was about 130
meters from the seashore.

Roque Bacsal, 25 years of age, fisherman, son of the deceased, recounting the incident, testified
that at about 7:30 o'clock on the evening of November 17, 1964, he and his father were in the
aforesaid hut listening over the radio, when they noticed the presence of five men who immediately
surrounded the hut. As the moon was very bright, he was able to recognize the five men as the
brothers Patricio Pacala, Aquilino Pacala, Francisco Pacala and Tranquilino Pacala, Jr., who were
his former classmates, and their uncle, Cipriano Saberon. When Cipriano Saberon fired his pistol, he
and his father immediately jumped from the hut into the ground and ran. He himself ran to the trail
leading to Burabod and hid behind some tall grasses and bushes about sixty meters from the hut.
When he heard his father shouting for help, he made his way through the bushes and saw, a few
meters away, his father, Jose Bacsal, being held by Cipriano Saberon. As he was thus being held,
Patricio Pacala stabbed Jose Bacsal on the right side below his armpit. After Bacsal was wounded,
Cipriano Saberon released his hold. When the victim started to run, however, Francisco Pacala went
after him and slashed him on the back with his bolo. At this juncture, the accused, including the two
appellants, surrounded the wounded Jose Bacsal. Appellant Aquilino Pacala was holding a firearm
pointed forward. Appellant Tranquilino Pacala, Jr., who is also known by the name of Ambrosio alias
Chacoy, was holding a bolo. Although the deceased was already prostrate on the ground,
Tranquilino Pacala, Jr., apparently in response to the orders of Cipriano Saberon, who told his
companions, "Finish him so he won't speak," repeatedly boloed the victim on the forehead.
Afterwards, the five men left the victim and proceeded in the direction of the hut. When he was
certain that the assailants had already left the place, Roque Bacsal approached his father and tried
to assist him. The victim was groaning with pain. In the meantime, in response to shouts for help, the
barrio captain, Victoriano Fortaleza, arrived at the scene of the incident. As the barrio captain
attended to the needs of the wounded man, Roque proceeded to their hut. According to him, that
was the time he discovered that his transistor radio, worth P130.00, which he had left on the floor,
and the wooden trunk, where their clothing and cash in the amount of P1,700.00 were kept, were
already missing.

Teresa Ocenar Bacsal, wife of the deceased and mother of Roque, also testified that they counted
the money earlier that day, with the intention of using it for the purchase of galvanized iron sheets for
the roofing of their house; and that she and Roque had intended to take the bus for Catbalogan the
next day to buy iron sheets.

Victoriano Fortaleza, barrio captain of Burabod, Villareal, Samar, confirmed the fact that he went to
the aid of the Bacsal s when he heard their shouts for help. Thus, he declared, on the evening of
November 17, 1964, while he was relaxing in the balcony of his house to enjoy the bright moonlight,
he heard shouts for help emanating from the direction of the hut of the Bacsals. But before he could
reach the hut, he found on the way Jose Bacsal, seriously wounded and lying on the ground about
twenty (20) brazas from the schoolhouse. Upon hearing Jose Bacsal faintly utter, "I'll die," he asked
him who wounded him. The latter could only say "Patricio and Francisco" before he died. Fortaleza
then proceeded to the town of Villareal to report the incident to the municipal authorities. In view of
this information, the police of Villareal got the body of the deceased and brought it to the poblacion
for autopsy.

Modesto Leyson, a 49-year old farmer living in Sitio Burabod, confirmed the presence of the Pacala
brothers and Cipriano Saberon at the scene of the incident during the night in question. He declared
that he knows Aquilino Pacala, Patricio Pacala and Tranquilino Pacala, who is also known as
Ambrosio Pacala, since their childhood days, and that Tranquilino, Aquilino, Patricio and Francisco
Pacala are all brothers of the full blood, while Cipriano Saberon is their uncle. On the evening of
November 17, 1964, while he was fishing in the sea near Nabu-an Point of Barrio Burabod, of the
town of Villareal, he saw Tranquilino Pacala, Aquilino Pacala, Patricio Pacala, Cipriano Saberon and
Francisco Pacala aboard a banca pass by. He saw the Pacalas land on the shore and observed
them moving towards the direction of the hut of Jose Bacsal. After a while, he heard two (2) gun
reports. Upon hearing these, he decided to go home and report the matter to the barrio captain. The
barrio captain then borrowed his motorboat and fetched the chief of police to investigate the incident.
He explained that he was able to recognize the Pacalas and Cipriano Saberon because it was bright
moonlight and they were only four (4) brazas from the outrigger of his boat when they passed him.

The post-mortem findings indicated that the cause of death was profuse internal hemorrhage as a
result of several wounds inflicted upon the deceased Jose Bacsal, to wit:

HEAD: Face; conjunctiva and tongue pale. — Stab wound — 1 inch wide, bony deep
located at the right parietal region.

— Stab wound — 1 inch wide, bony deep located at the temporal region, right.

— Contusion with Abrasion — ½ inch at the back.

 THORAX: Stab wound (front) exit 1 inch left chest 4 inches below the nipple; (back)
right scapular region 1-½ inches 5 inches deep.

LUMBAR REGION: Stab wound — 5 inches directed upward anteriorly and to the left.

EXTREMITIES: No sign of Physical Injuries.

INTERNAL FINDINGS: Abdominal cavity filled with blood (about 3 cups). The
stomach was wounded through and through. Wounding of the abdominal aorta, lower
portion of the left lung was wounded. (Exhibit "A".)

As a result of the investigation conducted by the chief of police of Villareal, a criminal complaint was
filed by him in the Justice of the Peace Court of the said municipality on December 5, 1964 against
Aquilino Pacala, Patricio Pacala, Francisco Pacala, Cipriano Saberon y Pacala and Ambrosio
Pacala alias "Chacoy" for robbery with homicide.

After the accused had waived their right to the second stage of the preliminary investigation, the
case was elevated to the Court of First Instance for trial.

In the meantime, Francisco Pacala died. Consequently, only Patricio Pacala, Aquilino Pacala,
Ambrosio Pacala alias Tranquilino, and Cipriano Saberon were charged for the crime by the
Provincial Fiscal.

Patricio Pacala admitted having killed the deceased with the assistance of his brother Francisco
Pacala, now also deceased. He testified that during the evening in question, there was a heavy rain
with strong winds, consequently, he and his brother Francisco were constrained to seek shelter
inside the hut of the deceased. When the deceased arrived, however, he became angry upon seeing
them inside his hut, drew his bolo and chased Patricio and his brother away from the hut. He
pursued the two until they reached their banca and, upon overtaking Patricio, the deceased Jose
Bacsal stabbed Patricio on the back. In response to his shouts for help, his elder brother Francisco
Pacala got hold of a paddle and hit Jose Bacsal with it, causing the latter to fall on top of a stone.
After Bacsal had fallen, he (Patricio) got the bolo of the victim and used it to stab the victim. He
claimed that the wounds on the head of Jose Bacsal might have been caused by the sharp rocks
when Bacsal fell. He denied that his brothers Aquilino and Tranquilino and his uncle Cipriano
Saberon participated in the commission of the crime. Patricio Pacala further declared that as a result
of the incident, he and his brother Francisco did not continue anymore to Guintarcan to visit their
mother as they had originally intended to do.

Both Aquilino and Tranquilino Pacala denied involvement in the crime in question and interposed the
defense of alibi. According to Aquilino Pacala, he could not have been in Sitio Binotong of Barrio
Guintarcan, Villareal, Samar, on the evening of November 17, 1964 because he was then residing
with his wife at Barrio Bagakay, San Miguel, Leyte, his wife being a native of the place. After sawing
logs in the concession of Diosdado Asoy, at 4:00 o'clock in the afternoon of that day, he remained in
his house until the following morning. He stated that on December 17, 1964, he was arrested by the
constabulary and detained, but he was not investigated. He admitted that Patricio Pacala, Francisco
Pacala and Tranquilino Pacala are his brothers.

Tranquilino Pacala, 18 years of age, also testified that on the night of November 17, 1964 he was in
Catbalogan, as he had been living there since the month of October, 1964 up to December, 1964,
when he was arrested by the constabulary authorities. On that date (November 17, 1964), he was in
the house of Didang Villanueva in Catbalogan, Samar. He claimed that he had to leave Villareal,
Samar, because he could not find any work there. Upon his arrival in Catbalogan sometime in
October, 1964, he was allegedly employed as a pedicab driver.

Julita Solayco also testified in support of the alibi of Cipriano Saberon.

Cipriano Saberon, however, did not take the witness stand.

On the basis of the foregoing evidence, the trial court convicted the appellants for the crime of
robbery with homicide and imposed upon them the penalties aforestated. .

Appellants contend in this appeal that (1) the commission of the crime of robbery was not sufficiently
proven; (2) the testimonies of Roque Bacsal and Modesto Leyson are not entitled to credence
because they are either contradictory, uncorroborated or improbable; and (3) the proceedings before
the trial court are null and void in view of the absence of any certification in the information that a
preliminary investigation was conducted by the Provincial Fiscal.

1. In connection with the robbery aspect of the crime charged, two things must be borne in mind: first,
that there were no eyewitnesses to the alleged robbery; and second, that none of the things
allegedly stolen, namely, the transistor radio and the trunk purportedly containing the sum of
P1,700.00 was ever recovered. If there was, therefore, any evidence to support the charge of
robbery, the same was entirely circumstantial in character.

Roque Bacsal testified that the five accused surrounded the hut, and after Saberon fired his pistol,
he and his father jumped from the hut into the ground and ran to a place about sixty meters away
where his father was overtaken and attacked by said accused, and, afterwards, the latter left and
proceeded towards the direction of the hut. Roque then went to the succor of his father and tried to
assist him until Victoriano Fortaleza, the barrio captain, arrived. It was only after the arrival of the
barrio captain that Roque was able to return to their hut, and discovered that the radio and the trunk
where the money was kept were missing.

It is evident from the foregoing that no iota of evidence had been presented showing that appellants
and their companions knew of the existence of the money in the amount of P1,700.00, or of the
place where it was allegedly kept, much less is there any positive proof that when they went to the
place of the victim their intention was to rob the latter. It would seem, therefore, that the trial court's
conclusion that it has been "established beyond peradventure of doubt that, taking advantage of the
night, five men decided to rob the deceased whom they knew to have some money in the trunk. ...,"
is based on a mere inference, or conjecture and not upon positive evidence. It is well-settled that in
order to sustain a conviction for the crime of robbery with homicide, it is necessary that the robbery
itself be proven as conclusively as any other essential element of a crime. In order for the crime of
robbery with homicide to exist, it is necessary that it be clearly established that a robbery has
actually taken place, and that, as a consequence or on the occasion of such robbery, a homicide be
committed. Where the evidence does not conclusively prove the robbery, the killing of the victim
would, therefore, be classified either as a simple homicide or murder, depending upon the absence
or presence of any qualifying circumstance, and not the complex offense of robbery with homicide.1

2. In contrast to the paucity of proof on the commission of the robbery is the clear and positive
identification of appellants as among the group of five men who attacked the deceased Jose Bacsal.

Modesto Leyson had known the five accused for a long time because they were from Guintarcan,
while he was from Burabod, which are separated by a distance of only about one kilometer. It is not
disputed that on the night of November 17, 1964, he was fishing in his boat at Point Nabu-an,
Burabod, Villareal, Samar, about 100 meters away from Jose Bacsal's hut. He testified that the five
accused, who were aboard another boat, passed by his boat, and it was from a distance of about
four (4) brazas that he was able to recognize them as the moon was then bright at that time. He also
declared that he saw the five disembark from the boat and head in the direction of the hut of Jose
Bacsal; and, shortly thereafter, he heard two gun reports coming from that direction.

The other witness, Roque Bacsal, had known four of the accused — the Pacala brothers — for a
long time, for they were once his classmates. He positively identified the appellants as among those
who attacked his father.

No improper motive has been shown why either of these two prosecution witnesses would falsely
implicate any of the appellants in the commission of the crime. In fact, appellant Pacala candidly
admitted on the witness stand that he does not know whether or not Modesto Leyson and Roque
Bacsal had entertained any ill-will against him.

Appellants attempt to impugn the credibility of Roque Bacsal by citing certain alleged inconsistencies
in his testimony. Those inconsistencies refer to minor details, and the rule is that inconsistencies in
the testimony of prosecution witnesses with respect to minor details and collateral matters do not
affect either the substance of their declaration, their veracity or the weight of their testimony.

On the alleged contradictions between the affidavit of Roque Bacsal (Exh. "1") executed before the
Municipal Judge of Villareal, Samar, on December 5, 1964, and his testimony in court, it must be
noted that the alleged contradictions are more apparent than real. It is true that in the
aforementioned affidavit Roque Bacsal declared, among others, as follows: " ... I notice (sic) that
some of this(sic) five person (sic) run (sic) after my father and when my father was over taken they
stab (sic) my father. My father shouted for help calling me but because I was afraid of being killed I
did not show up. When I notice (sic) that this (sic) persons were gone I tried to look for my father and
I found him laying (sic) down wounded. I cried and a few minutes the barrio captain Victoriano
Portalisa (sic) arrived and my father was investigated. ..." The aforementioned statement is not in
any way inconsistent with his testimony that he and his father jumped from the hut, hid at a place 30
meters from the hut, and upon hearing the voice of his father shouting for help, he looked through
the tall grasses and saw Cipriano Saberon and Patricio Pacala holding his father from behind while
the other accused were stabbing him. It is a matter of judicial experience that an affidavit, being
taken ex-parte, is often incomplete. An affidavit, "being taken ex-parte is almost always incomplete
and often inaccurate, sometimes from partial suggestions, and sometimes from the want of
suggestions and inquiries, without the aid of which the witness may be unable to recall the
connected collateral circumstances necessary for the correction of the first suggestions of his
memory, and for his accurate recollection of all that belongs to the subject.2

As against their positive identification, appellants interpose the defense of alibi.

We have declared in an earlier case3 that whether or not the defense of alibi has been established is
a question of fact. By its very nature, alibi is established by the testimony of witnesses who confirm
the presence of the accused at some place so far removed from the scene of the crime as to cast
reasonable doubt on his actual participation in the offense charged. "As a consequence, the
credibility of an alibi depends so much on, and may very well be equated with, the credibility of the
witnesses who seek to establish it. On that account, therefore, and in that respect, the relative
weight which the trial magistrate assigns to the testimony of said witnesses must, unless patently
and clearly inconsistent with the evidence on record, be accepted." The trial court flatly rejected the
defense of alibi put up by the appellants and gave sound reasons in support of its action.

Appellant Aquilino Pacala's testimony to the effect that on the date in question, November 17, 1964,
he was in Bagakay, San Miguel, Leyte, sawing logs in the forest, and not in Guintarcan, Villareal,
Samar, stands uncorroborated. According to him, his mother-in-law and his wife were then living with
him in Bagakay. They had neighbors. He had a partner in the log-sawing undertaking. Every now
and then he delivered sawn lumber to his employer in Barugo, Leyte. Consequently, as aptly
observed by the court below, this appellant's testimony could easily have been corroborated by any
of these persons were it true; yet none of them was called in court although it would have been of
the greatest import to the appellant.

On his part, appellant Tranquilino Pacala declared that at the time of the incident he was at Patag
District, Catbalogan, Samar, in the house of Jaime and Didang Villanueva. He was driving a tricycle
belonging to one Clara de la Peña. He stated that Didang's cousin, Tony Nacionales, had informed
him that the Villanuevas left Catbalogan for Manila sometime ago, and he, the appellant, did not
know where to reach them. Assuming this to be true, appellant could have asked someone in
Catbalogan to attest to his presence therein on the day in question. There was the tricycle owner.
There could be neighbors and acquaintances who might remember. According to this appellant, the
Villanueva spouses were still in Catbalogan when he was arrested in connection with the case; yet,
knowing how vitally important to him were these spouses if it were true that he was staying in their
house on the night in question, he did not even exert any effort to contact them, much less did he
request that they be subpoenaed to testify in his behalf.

Added to the utter absence of corroboration of the appellants' testimony on alibi is, of course, the
more important consideration that, as already stated above, these appellants, together with the other
accused, were clearly and positively identified by two witnesses of the prosecution. Well-settled is
the rule that defense of alibi cannot prevail over the positive identification by witnesses.

The killing of Jose Bacsal is murder in view of the qualifying circumstance of aid of armed men.
Appellant Tranquilino Pacala, however, must be credited with one mitigating circumstance, i.e., that
he was less than eighteen years of age at the time of the commission of the offense.4

In passing, it must be said that motive is unessential to conviction in murder cases when, as in the
instant case, there is no doubt as the identity of the culprits.5 Despite the absence of proof of motive,
the accused may be found guilty of murder.6

3. The appellants' contention that the proceedings in the court below, as well as the
judgment rendered by it, are null and void by reason of the absence in the
information of a certification by the provincial fiscal that a preliminary investigation
was conducted by him, is untenable.

It appears from the record that the criminal complaint against the accused was filed with the Justice
of the Peace Court of Villareal, Samar, on December 5, 1964, and it was only after the aforesaid
court had conducted the requisite preliminary examination that it issued the corresponding warrant of
arrest. On January 14, 1965, after the herein appellants were arrested and delivered to the court,
they expressly waived their right to the second stage of the preliminary investigation.7

As We held in People v. Marquez,8 what is not allowed under Section 14 of Rule 112, Revised Rules
of Court, is the "filing of the information without a preliminary investigation having been previously
conducted, and the injunction that there should be a certification is only a consequence of the
requirement that a preliminary investigation should first be conducted. Logically, therefore, inasmuch
as the settled doctrine in this jurisdiction is that the right to the preliminary investigation itself must be
asserted or invoked before the plea, otherwise, it is deemed waived, it stands to reason that the
absence of the certification is nothing but evidence of a fact, and if the omission of the fact itself to
be certified is waived, if not properly raised before the accused enters his plea, why should the
omission merely of the certification be given more importance than the absence of the fact itself to
be certified to?"

In the case at bar, the accused not only expressly waived their right to preliminary investigation but
they also never raised the issue of lack of certification by the fiscal at any stage of the proceedings
before the trial court, except in this appeal. There is no question that the right to preliminary
investigation is a personal right conferred by law and may be waived. Where appellant had waived
the preliminary investigation in the trial court and failed to raise in issue the alleged absence of a
valid preliminary investigation at any stage of the proceedings before the said court, the said
question may not be raised on appeal for the first time.9

WHEREFORE, the two appellants are declared guilty of murder, and the judgment of the lower court
is accordingly modified. Aquilino Pacala is sentenced to suffer reclusion perpetua; and Tranquilino
Pacala, Jr. is sentenced to suffer the penalty of ten (10) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum. The appellants are
ordered to pay the heirs of the deceased, jointly and severally, the sum of P12,000.00 as civil
indemnity, and the costs.
G.R. No. L-59318 May 16, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO RAMOS y GAERLAN, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Antonio N. Salamera for defendant-appellant.

GUERRERO, J.:

This is an automatic review of the decision of the Court of First Instance of Manila finding the
accused Rogelio Ramos y Gaerlan in Criminal Case No. 61029 guilty beyond reasonable doubt of
violation of Section 4, Article II, in relation to Section 2(i), Article I of the Republic Act No. 6425, as
amended by P.D. No. 44 and further amended by P.D. No. 1675, and imposing upon him the penalty
of reclusion perpetua.

There is no dispute about the facts of this case. At about 10:00 o'clock in the evening of May 3. 1981,
while P/Lt. E. Mediavillo and P/Sgt. A. Linga were on routine patrol along Taft Avenue, they had
seen and observed one MALCON OLEVERE y NAPA, acting suspiciously near the corner of
Estrada Street. 1 The police officers, after Identifying themselves, stopped and frisked the suspect
and found in his possession dried marijuana leaves. 2 The police officers thereafter placed Malcon
Olevere under arrest. Upon investigation, suspect Olevere declared that he bought the recovered
marijuana leaves from one ROGELIO RAMOS y GAERLAN, alias "Balanchoy". 3

The following day, May 4, 1981, at about 12:00 o'clock noon, a police team with suspect Malcon
Olevere y Napa proceeded to the residence of appellant Rogelio Ramos y Gaerlan in 2366
Singalong, Malate, Manila and arrested him. The police operatives immediately brought appellant to
the Drugs Enforcement Section Western Police Department Headquarters for investigation.

During the custodial investigation, suspect Malcon Olevere executed a written sworn statement
implicating the accused-appellant Rogelio Ramos as the source of the marijuana leaves. 4 The
accused, after having been duly apprised of his constitutional rights, verbally admitted before Lt. E.
Mediavillo and Sgt. A. Linga the commission of the offense charged. He likewise admitted that he
sold to Malcon Olevere the marijuana leaves for P10.00. 5

On May 22, 1981, upon arraignment, the accused-appellant Ramos entered a plea of not guilty to
the information filed by assistant fiscal Antonio J. Ballena which states:

That on or about May 4, 1981, in the City of Manila, Philippines, the said accused,
not being authorized by law to sell, deliver, give away to another or distribute any
prohibited drug, did then and there willfully and unlawfully sell or offer for sale and
deliver dried marijuana leaves, which is a prohibited drug.

Contrary to law. 6

At the trial, the prosecution presented three witnesses to wit: Patrolman Jaime Cruz, a police
investigator, Patrolman Agapito Linga, a police agent, and Felisa Vequilla, an NBI forensic chemist.
Patrolman Cruz testified that on May 5, 1981, he investigated and took down the sworn statement of
one Malcon Olevere who disclosed that the accused-appellant Ramos was the source of the
marijuana leaves. Patrolman Cruz also testified that he prepared the Booking Sheet and Arrest
Report of the appellant Ramos and the corresponding Crime Report. 7 Patrolman Agapito Linga
declared on the witness stand that Lt. Mediavilla arrested appellant Ramos because Malcon Olevere
declared that the appellant sold to him the confiscated marijuana leaves. 8 The third witness, Felisa
Vequilla, a forensic chemist, affirmed that after conducting a dangerous drug test, the leaves
confiscated from Malcon Olevere are positive for marijuana. 9

The prosecution offered the following as documentary evidence: 10

Exhibit "A" The Booking Sheet and Arrest Report of accused Rogelio Ramos
prepared by witness Patrolman Cruz which was offered as part of his testimony;

Exhibit "B" Crime Report dated May 6, 1981 also prepared by the witness Patrolman
Cruz;

Exhibit "B-1" second page of Exhibit "B'

Exhibit "C" Sworn Statement of Malcon Olevere y Napa;

Exhibit "C-1" The bracketed portions of Exhibit "C" stating among others that it was
Rogelio Ramos herein accused who furnished Malcon Olevere the marijuana leaves;

Exhibit "D-1" marijuana leaves examined;

Exhibit "E" the envelope containing the marijuana leaves which was
confiscated from Malcon Olevere.

After the trial, the Court of First Instance of Manila (now the Regional Trial Court) found the accused-
appellant Ramos guilty beyond reasonable doubt of the crime charged in view of the verbal
admission given by the appellant himself and the evidence offered and admitted in court. The
dispositive portion of its judgment reads:

WHEREFORE, accused ROGELIO RAMOS y GAERLAN is hereby found guilty

beyond reasonable doubt of a violation of Section 4, Article II in relation to Section
2(i), Article I Republic Act No. 6425, as amended by PD 44 and further amended by
PD 1675 as charged in the present information, for selling subject prohibited drugs
(marijuana leaves) without any lawful authority and is hereby sentenced to suffer the
penalty of reclusion perpetua (life imprisonment); to pay a fine of Twenty Thousand
(P20,000.00) pesos, without any subsidiary imprisonment in case of insolvency; and
to pay the costs. Let the accused be given full credit of the entire period of his
preventive imprisonment.

Subject marijuana leaves (Exhibit E) are confiscated, to be destroyed by the

Dangerous Drugs Board pursuant to law.

SO ORDERED. 11

The case is now before Us for automatic review. Accused-appellant submits before this Honorable
Court the following errors: 12
 I

That the court erred in finding the accused guilty of violation of Section 4 Article II of
Republic Act No. 6425 otherwise known as the Dangerous Drugs Act of 1972, as
amended (Selling-Pushing).

II

That the court erred in its findings both in question of law and fact in convicting the
accused notwithstanding the failure of the prosecution to adduce the quantum of
evidence necessary to establish the guilt of the accused beyond reasonable doubt by
failing to present Malcon Olevere y Napa, the person who claimed that it was the
therein accused who allegedly sold the marijuana leaves.

III

That the constitutional rights of the accused, more particularly the right to meet the
witness against him face to face and to cross-examination e him has been violated.

IV

That the court has acted with grave abuse of discretion amounting to a denial of due
process of law.

The principal issue in this case is whether there is competent and/or admissible evidence in the
record to justify the conviction of the accused-appellant Ramos.

We find petitioner's case meritorious. The lower court erred in admitting as evidence the written
sworn affidavit of Malcon Olevere. It can be gleaned from the records that Malcon Olevere executed
the written sworn statement declaring that appellant Ramos sold to him the marijuana leaves for
P10.00. This piece of evidence is a mere scrap of paper because Malcon Olevere was not produced
in court for cross-examination. An affidavit being taken ex-parte is often incomplete and
inaccurate. 13 Such kind of evidence is considered hearsay. 14 The constitutional right to meet
witnesses face to face 15 in order not to deprive persons of their lives and properties without due
process of law is well-protected in our jurisprudence. Thus, in People vs. Toledo, 16 We elucidated:

Testimony in open court in actual trial cannot be equated with any out-of-court
declaration, even when the witness has in fact been confronted already by the
defendant. The direct relevance of the trial to the ultimate judgment as to the guilt or
innocence of the accused is not present in any other proceeding and is thus a factor
that can influence materially the conduct and demeanor of the witness as well as the
respective efforts of the counsels of the parties.

For the court to admit the sworn statement of Malcon Olevere without giving the adverse party the
right to cross-examine him would easily facilitate the fabrication of evidence and the perpetration of
fraud. The inadmissibility of this sort of evidence is based, not only on the lack of opportunity on the
part of the adverse party to cross-examine the affiant, 17 but also on the commonly known fact that,
generally, an affidavit is not prepared by the affiant himself but by another who uses his own
language in writing the affiant's statements which may either be omitted or misunderstood by the one
writing them.18
The Booking Sheet and the Dangerous Drug Report of chemist Felisa Vequilla which were
presented as evidence by the prosecution, established nothing to support the conviction of the
appellant herein. For the same reason, that Malcon Olevere was not presented as a witness and
insofar as they impute to appellant the commission of the crime charged, the adduced evidence are
nothing but hearsay evidence. They cannot be regarded as competent evidence as to the veracity of
the contents therein.

It is not disputed that the marijuana leaves recovered and tested by witness Vequilla came from
Malcon Olevere and not from appellant. It would be absurd and manifestly unjust to conclude that
appellant had been selling marijuana stuff just because what were recovered from Olevere were real
marijuana. Proof of one does not necessarily prove another. Nowhere can it be found on the record
that appellant was caught in possession or in the act of selling the prohibited marijuana leaves.

The oral testimonies given by the witnesses for the prosecution prove nothing material and culpable
against the accused. As correctly pointed out by the Solicitor General not anyone of the three
witnesses presented testified on the basis of their personal knowledge that the appellant sold the
marijuana leaves to Malcon Olevere. Under Rule 130, Sec. 30 of the Revised Rules of Court, "a
witness can testify only to those facts which he knows of his own knowledge, that is, which are
derived from his own perception. ...

A witness, therefore, may not testify as to what he merely learned from others, either because he
was told or having read or heard the same. Such testimony is considered hearsay and may not be
received as proof of the truth of what he has learned. Since Malcon Olevere was not presented as a
witness, the testimonies offered by the witnesses for the prosecution are regarded as hearsay,
insofar as they impute to the appellant the commission of the offense charged.

The lower court in convicting appellant of the crime charged, Partly relief on the verbal admission
made by appellant himself before Lt. Mediavillo and Sgt. Linga during the custodial investigation.
Although the records prove that the appellant has been duly apprised of his constitutional rights to
silence and to counsel, 19 We are not fully convinced that this apprisal was sufficiently manifested
and intelligently understood and accepted by the appellant. This is fatal to the admissibility of
appellant's verbal admission. We have repeatedly emphasized that care should be taken in
accepting extrajudicial admissions, especially when taken during custodial investigation. In People
vs. Caquioa, 20We ruled:

As for the procedural safeguards to be employed, unless other fully effective means
are devised to inform accused persons of their right to silence and assure a
continuous opportunity to exercise it, the following measures are required. Prior to
questioning, the person must be warned that he has a right to remain silent, that any
statement he does make be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed. The defendant may waive
effectuation of those rights provided the waiver is made voluntarily, knowingly and
intelligently. If however, he indicates in any manner and at any stage of the
prosecution that he wishes to consult with an attorney before speaking, there can be
no questioning. Likewise, if the individual is alone and indicates in any manner that
he does not wish to be interrogated, the police may not question him. The mere fact
that he may have answered some questions or volunteered some statements on his
own does not deprive him of the right to refrain from answering any further inquiries
until he has consulted with an attorney and thereafter consents to be questioned.

Again, the constitutional rights of the accused to silence and to counsel is fortified in the very recent
case of Morales and Moncupa vs. Enrile 21 where this Court said:
 At the time a person is arrested, it shall be the duty of the arresting officer to inform
him of the reason for the arrest and he must be shown the warrant of arrest, if any.
He shall be informed of his constitutional rights to remain silent and to counsel and
that any statement he might make could be used against him. The person arrested
shall have the right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means - by telephone if possible - or by letter or messenger. It
shall be the responsibility of the arresting officer to see to it that this is accomplished.
No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone on his behalf. The
right to counsel may be waived but the waiver shag not be valid unless made with
the assistance of counsel. Any statement obtained in violation of the procedure
herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.

In the case at bar, appellant has only finished Grade VI, 22 which means that he is not adequately
educated to understand fairly and fully the significance of his constitutional rights to silence and to
counsel. As mandated, it is not enough that the police investigator merely informs him of his
constitutional rights to silence and to counsel, and then taking his statements down, the interrogating
officer must have patience in explaining these rights to him. The records do not reveal that these
requirements have been fully complied with, nor was there any showing that appellant has been
represented by counsel during custodial investigation. In consonance with Section 20 of the Bill of
Rights which states that "any confession obtained in violation of this section shall be inadmissible in
evidence," We hold that the verbal admissions of appellant during custodial investigation may not be
taken in evidence against him.

We hold and rule that the guilt of the accused has not been established beyond reasonable doubt
and he is, therefore, entitled to acquittal.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Court of First Instance of Manila
is REVERSED, and appellant is hereby ACQUITTED of the crime charged in the information. No
costs.

SO ORDERED.
 G.R. No. L-2428 June 20, 1949

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROQUE MARIQUINA, ET

AL., defendants.
ROQUE MARIQUINA, Appellant.

Benjamin A. Defensor for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Antonio A. Torres for
appellee.

MORAN, C. J.: chanrobles virtual law library

Quirico Tobingan and Roque Mariquina were charged with murder in the Court of First
Instance of Iloilo, but the trial was held only as the latter the former not having as yet
been apprehended. Roque Mariquina was found guilty of the crime charged and
sentenced to reclusion perpetua with the accessories of the law, to indemnify the heirs
of Jose Española in the amount of P2,000, and to pay the costs. He appealed from this
judgment.chanroblesvirtualawlibrary chanrobles virtual law library

The fact proven beyond reasonable doubt are as follows:chanrobles virtual law library

At about 5 o'clock in the morning of May 18, 1944, while Jose Española was milling
palay under his house at barrio Sambalodan, municipality of Oton, Province of Iloilo,
Roque Mariquina and Quirico Tobingan suddenly arrived and the latter immediately
pointed his .45 caliber automatic pistol at Jose Española ordering him not to move.
Roque Mariquina then tied Jose Española's hands at his back and started to strike him
with a cane on the head and on differents parts of the body. Estefania Tubungbanua,
wife of Jose Española, who was upstairs with her children, saw the ill-treatment through
the slits in the bamboo floor, and came down with her one-year old baby in her arms to
intercede for her husband, but Roque Mariquina pushed her away violently causing her
to fall and threatened to kill her and her baby. Thereupon, Quirico Tobingan and Roque
Mariquina proceeded to drag Jose Española towards a creek some distance away, and
Estefania in turn proceeded to run to the house of Geronimo Basco, the barrio
lieutenant, to ask for help. The barrio lieutenant came immediately and tried to
intercede for Jose Española, but he himself was warned not to intervene if he wanted
no trouble. Quirico Tobingan and Roque Mariquina took their victim to the river bank
and there Quirico Tobingan shot him to death wounding him in different parts of his
body, and Roque Mariquina extracted with the pointed end of his cane the victim's left
eye from its sockets, and stuffed the victim's mouth with mud. Jose Española died then
and there of his wounds which according to Juan Ronquillo, assistant sanitary inspector
for the guerrilla government at the locality, are as follows:

(a) One puncture wound found located at the left side near his nipple the diameter of
one centimeter penetrating to the heart.chanroblesvirtualawlibrary chanrobles virtual
law library

(b) One puncture wound found located at the cheek one centimeter in diameter
penetrating to the brain.chanroblesvirtualawlibrary chanrobles virtual law library
(c) One lacerated wound found located at the forehead five centimeters long and the
opening of one centimeter from upward to
downward.chanroblesvirtualawlibrary chanrobles virtual law library

(d) One lacerated wound located at the left side above the
ear.chanroblesvirtualawlibrary chanrobles virtual law library

(e) The left eye was taken out.chanroblesvirtualawlibrary chanrobles virtual law library

(f) Contusions were found on both hands as a sign that both hand were tied.

But before Jose Española was killed, his father-in-law, Tomas Tubungbanua who was on
the other side of the creek grazing his carabao, was advised of the punishment being
inflicted upon his son-in-law, and he hurried to the creek and there he saw his son-in-
law held fast by Quirico Tobingan while Roque Mariquina was beating him with a cane.
Tomas Tubungbanua tried to intervene, but Roque Mariquina sternly warned him to
keep away if still wanted to live. Tomas Tubungbanua then withdrew and hid behind
bamboo clumps through which he saw Quirico Tobingan shoot at the victim, and Roque
Mariquina gouge out the dead man's left eye with his sharp-pointed stick and stuff mud
into the mouth of the dead man.chanroblesvirtualawlibrary chanrobles virtual law
library

The motive of the crime seems to be resentment. Way back in February 1944 Quirico
Tobingan and Roque Mariquina, who were members of the guerrilla, commandeered a
bicycle and they were about to sell it when Jose Española intervened and succeeded in
taking back the bicycle and restored it to its
owner.chanroblesvirtualawlibrary chanrobles virtual law library

The witnesses who testified to all these facts are Estefania Tubungbanua, wife of the
deceased; Geronimo Basco, barrio lieutenant; and Juan Ronquillo, assistant sanitary
inspector.chanroblesvirtualawlibrary chanrobles virtual law library

Counsel for appellants in a well written brief pointed out supposed defects and
deficiencies affecting the veracity of the prosecution's witnesses. All the points raised
have been carefully examined by the court, but nothing was found to show that said
witnesses have perjured. It is alleged for instance, that there are discrepancies between
the testimony of Tomas Tubungbanua and his previous affidavits as to certain details of
the occurrence. But said discrepancies are due to the imperfection of the affidavits as
explained by the witness himself. Generally, an affidavit is not prepared by the affiant
himself, but by another who uses his own language in writing the affiant's statements.
Omission and misunderstandigs by the writer are not infrequent particularly under
circumstances of hurry or impatience. For this reason, the infirmity of affidavits as a
species of evidence is much a matter of judicial
experience.chanroblesvirtualawlibrary chanrobles virtual law library

The defense tried to prove that Roque Mariquina had no participation in the commission
of the crime. On the date of the crime, he was on leave of absence from the guerrilla
unit of which he was a member, and he was then in the house of his mother near the
house of Jose Española in the barrio of Sambalodan. At about 5 o'clock in the morning
of that day he saw Quirico Tobingan arrive at the place where Jose Española was milling
palay. Quirico Tobingan pointed his .45 caliber at Jose Española ordering him not to
move and immediately tied Española's hands at the back. Once Jose Española was thus
tied, Quirico Tobingan started striking him with a cane. At this juncture, according to
Roque Mariquina, he approached Quirico Tobingan and tried to wrest the cane from him
entreating him at the same time not punish Jose Española, for they were related to
each other. Quirico Tobingan advised Mariquina to go away because there were orders
from headquarters to arrest and kill Jose Española who was a Japanese spy. There were
then many people who gathered around the place attracted by the incident. Quirico
Tobingan ordered those people to keep out if they wanted not to be shot, and after the
people had left Quirico Tobingan took Jose Española to the creek and shot him
there.chanroblesvirtualawlibrary chanrobles virtual law library

We cannot believe this story to be true. On the first hand, there is nothing in the
evidence to show that the witnesses for the prosecution, including the barrio lieutenant,
had any motive to manufacture facts against Roque Mariquina. On the other hand, it is
very unlikely that Quirico Tobingan would come alone to accomplish such a heavy and
risky task as the killing of supposed spy, at daytime, with cruelty, and regardless of the
people who may happen to be present. If Quirico Tobingan had to accomplish his
delicate purpose by all means even without the aid of any one, he would have done so
in a simple manner by simply firing shots at the intended victim without the necessity
of elaborating a number of unnecessary acts of cruelty and outrage which may induce
part of the people present to intervene and give protection for the victim. Jose Española
was a bigger man than Quirico Tobingan, and even if the latter was armed, it is hard to
believe that he alone and in the presence of many people could make Jose Española
obey him without absolutely offering any resistance, particularly, at the moment when
Tobingan tied his hands and had to put back his pistol at his waist to do the
tying.chanroblesvirtualawlibrary chanrobles virtual law library

Appellant introduced two witnesses to corroborate his theory, namely, Guillermo Tejida
and Marcelo Ferrer, but as rightly observed by the trial judge, the testimony of these
witnesses can not be accepted for a number of reasons. "In the first place, they were
not from barrio Sambaodan where the crime was committed, and their presence there
on that occasion seems to be altogether too conveniently coincidental. Guillermo Tejida
stated that he was from barrio Napnapan, municipality of Tigbauan, and that on May 18,
1944, he was in the house of his brother-in-law in Sambalodan, having gone there to
get some personal belongings which he had left at the place when he evacuated there.
The other witness, Marcelo Ferrer, was from Barrio Botong, municipality of Oton, and at
five o'clock in the morning of May 18, 1944, merely chanced to go to barrio
Sambalodan looking for hogs to buy, at the exact hour and place when the events
which he testified to were unfolding. The accused Roque Mariquina himself was also in
that locality by coincidence, having gone there the previous day to spend his leave of
absence at his mother's house. Also coincidental was his waking up and going out of
the house at five o'clock in the morning, the precise moment when, according to him,
Quirico Tobingan arrived at the house of Jose Española. It is strange that no body from
the same barrio, from the same immediate vicinity, among the twenty-five or so
persons who witnessed the very same events, were presented by the
defense."chanrobles virtual law library

We agree with the Solicitor General that the crime committed is murder qualified with
treachery. There is the aggravating circumstances of cruelty, and therefore the capital
punishment should be imposed. However, there being no sufficient votes for the
purpose, the penalty of reclusion perpetua imposed by the trial court may be
affirmed.chanroblesvirtualawlibrary chanrobles virtual law library
G.R. No. L-33127 July 15, 1981

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SATURNINO MENDOZA, JESUS LIRASAN, AGRIPINO "NONOY" MAMACANG, EUFROCINO
PEREZ, GENOVEVO POTESTAS and CONRADO SAYSON, defendants-appellants.

PER CURIAM:

Appeal from the decision of the Court of First Instance of Zamboanga del Norte, dated October 16,
1970, finding the accused Saturnino Mendoza, Jesus Lirasan, Agripino Mamacang, Conrado Sayson
and Eufrocino Perez guilty of the crime of murder for the killing of Alberto Alforque, the first as
principal by induction and the last four as principals by direct participation, and likewise finding the
accused Agripino Mamacang guilty of murder for the killing of Valeriana Reble de Alforque, both
killings having been committed in the evening of November 4, 1960, in barrio New Tangub,
municipality of Sergio Osmena, Zamboanga del Norte. The dispositive portion of said decision reads
as follows:

IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Court, declaring that

the prosecution has proved beyond reasonable doubt the guilt of accused Saturnino
Mendoza, Jesus Lirasan, Agripino Mamacang, Conrado Sayson and Eufrocino Perez
of the crime of murder of Alberto Alforque, the former as principal by induction and
the last four as principals by direct participation, and of the guilt of accused Agripino
Mamacang of the crime of murder of Valeriana Reble de Alforque and appreciating
against accused Saturnino Mendoza, Jesus Lirasan and Agripino Mamacang the
generic aggravating circumstance of public position, which is offset, however, by the
mitigating circumstance of their voluntary surrender to authorities, hereby sentences
each of accused Saturnino Mendoza, Jesus Lirasan, Agripino Mamacang, Conrado
Sayson and Eufrocino Perez to reclusion perpetua for the murder of Alberto Alforque,
with the accessories of the law, to indemnify, jointly and severally, the lawful heirs of
the deceased victim Alberto Alforque in the sum of Twelve Thousand Pesos
(P12,000.00), without subsidiary imprisonment in case of insolvency, and to pay
each one-sixth (1/6) of the costs, and sentences accused Agripino Mamacang to
reclusion perpetua for the murder of Valeriana Reble de Alforque, with the
accessories of the law, and to indemnify the lawful heirs of his said deceased victim
in the sum of Twelve Thousand Pesos (P12,000.00), without subsidiary
imprisonment in case of insolvency, the total of his penalty not to exceed forty years,
however, pursuant to the antepenultimate paragraph of Article 70 of the Revised
Penal Code.

Each of said accused shall be credited with his preventive imprisonment in full, if he
will agree in writing to abide by the rules and regulations imposed upon convicted
prisoners; otherwise, with only four-fifth (4/5) thereof. (Pp. 456-457, Decision.)

From the foregoing decision, all the convicted accused coursed an appeal to this Court. On March 9,
1976, however, a duly indorsed motion to withdraw appeal of appellant Conrado Sayson was
forwarded for the consideration of this Court. On June 29, 1976, this Court, en banc, granted
appellant Sayson's motion. On September 29, 1977, this Court also granted the motion of appellant
Eufrocino Perez to withdraw his appeal. (p. 794, Rollo)
Before going to the gruesome incident of November 4, 1960, a clearer picture of the event in
question would appear if We related first certain antecedent facts, duly established by the
prosecution, to wit:

On July 3, 1960, the Municipal Council of Mahayag, Zamboanga del Sur, headed by appellant
Saturnino Mendoza, held a "floating session" in Dampalan, Polanco, Zamboanga del Norte. (T.s.n.,
p. 31, Santillana) All barrio lieutenants, including Alberto Alforque and Bienvenido Andilab, barrio
captains of New Tangub and Princesa Lamaya, respectively, were summoned by Mendoza to attend
the session. (T.s.n., pp. 3334, Santillana) Appellant Jesus Lirasan, who was then a policeman of
Mahayag, was also present. (T.s.n., p. 32, Santillana) Obviously, the intention of Mendoza in
convening said session was to inform those present thereat that the barrios of New Tangub,
Princesa Lamaya and San Isidro are within the jurisdiction of the Municipality of Mahayag,
Zamboanga del Sur, (T.s.n., p. 35, Santillana) for he lost no time in so informing them. Alberto
Alforque and Bienvenido Andilab, who had already previously taken their oaths as barrio captains of
New Tangub and Princess Lamaya under the jurisdiction of Polanco, province of Zamboanga del
Norte, were taken by surprise and immediately conferred with each other. Confused, they did not
know what to say except to plead for time within which to study and think about the matter. (T.s.n., p.
36, Santillana) Irked by their response, Mendoza bluntly told them that whether or not they liked it,
they had to submit to the jurisdiction of Mahayag and if they did note like the situation they were free
to vacate their positions. (T.s.n., p. 36, Santillana) A heated discussion between Alberto Alforque
and Mendoza ensued. (T.s.n., p. 37, Santillana) the discussion lengthened without one or the other
giving way, so that Lirasan, also irked by the stand taken by Alforque, together with two other
policemen, cocked his gun, as did the two other policemen and said: "By hook or by crook they have
to join their jurisdiction". (T.s.n., pp. 37-38, Santillana)

The jurisdictional dispute, was far from over because the following day, July 4, 1960, at about 2:00
o'clock in the afternoon, Mendoza attended a meeting being held by Alforque in his house in barrio
New Tangub, 'i.e., a meeting of Alforque with his councilmen Pedro Sayson (vice-barrio captain),
Loreto Mirafuentes, Panfilo Dataligti, Ramon Balawit and Villamor Dagundol. (T.s.n., pp. 160-162,
Santillana) Appellant Mendoza was accompanied by the barrio captain of Dansalan, Eugenie Tantug,
Juanito Paler and some policemen of Mahayag. (T.s.n., pp. 162-163, Santillana) During the said
session, while Alforque was explaining that the people of New Tangub were under the jurisdiction of
the Municipality of Polanco, Zamboanga del Norte, Mendoza rudely interrupted him, asserting that
Alforque's barrio is under the territorial jurisdiction of Mahayag. He branded Alforque as a
philosopher. Not satisfied with merely berating Alforque verbally, Mendoza went on to threaten him
(Alforque) by saying that he could order him boxed, butt-stricken or tied or even imprisoned. (T.s.n.,
pp. 164-165, Santillana) Alforque then kept quiet. (T.s.n., p. 166, Santillana) Before leaving the
congregation, however, Mendoza instructed the barrio councilors to see him in Mahayag on the 9th
(of July) to receive their appointments as members of the barrio council. (T. s. n pp. 168-170,
Santillana)

Disregarding Mendoza's admonition, the barrio councilors of New Tangub did not go to Mahayag on
July 9. (T.s.n., p. 170, Santillana) Instead, on July 5, 1960, Alforque reported the incident of July 4,
1960 to Mayor Anacleto Olvis of Polanco, Zamboanga del Norte., (T.s.n., p. 171-379, Santillana)
Mayor Olvis, in turn, referred the matter to the Provincial Governor of Zamboanga del Norte (Exhs.
"AA" and "CC", pp. 18-20, Folder 1 of Exhibits) who indorsed it to the Provincial Fiscal of
Zamboanga del Norte (Exhibit "DD", p. 17, Folder 1 of Exhibits; pp. 380-384, Santillana) On August
12, 1960, acting on the Governor's indorsement, the provincial fiscal filed an information for grave
threats against Mendoza before the Court of First Instance of Zamboanga del Norte. (Exh. "X-1", p. 2,
Folder I of Exhibits)

On the other hand, seemingly as a countermove, a few days thereafter, or on August 27, 1960, a
criminal information was filed before the Municipal Court of Mahayag charging Alforque with the
crime of robbery (Exh, "HH-4", p. 4, Folder 1 of Exhibits), which was allegedly committed in Silubos,
Barrio Yabu, Mahayag, on June 6, 1960 involving the amount of P 3.00. Another complaint for
robbery was also filed with the same court against the same Alforque for the amount of P 2.50
allegedly committed on June 7, 1960 also in Silubos, Yabu, Mahayag. (Exh. "GG-4"; "GG-4-a", "GG-
4-c", p. 4, Folder 1 of Exhibits) Likewise, on August 29, 1960, another complaint for robbery was filed
against Alforque with the same court, this time involving the amount of P2.50 allegedly committed
likewise in Silubos, Yabu, Mahayag on June 7, 1960. (Exh. "II-4", "II-4-a", "II-4-b", "II-4-d", p. 4,
Folder 1 of Exhibits) Based on these complaints, Mendoza himself signed a warrant for the arrest of
Alforque, signing the same in his capacity as Ex-officio Justice of the Peace of Mahayag. (Exh. "II-7",
Folder 1 of Exhibits) Armed with this warrant of arrest, two policemen of Mahayag, including
appellant Jesus Lirasan, went to barrio New Tangub and arrested Alforque. (T.s.n., pp. 173-175;
317-318, Santillana) Thereafter, appellant Mendoza signed three orders, dated October 17, 1960
(also as ex-officio Justice of the Peace of Mahayag) for the commitment of Alforque during trial.
(Exhs. "II-8", "HH-8 "GG-9", pp. 8-9, Folder 1. of Exhibits)

In the meantime, Mayor Anacleto Olvis of Polanco, Zamboanga del Norte, was informed by Roberto
Ratificar, a public school teacher of New Tangub, that Alforque had been arrested and taken to
Mahayag. (T.s.n., p. 318, Santillana) So, Mayor Olvis went immediately to Mahayag intending to bail
Alforque out. (T.s.n., p. 386, Santillana) Upon arrival thereat, however, Mendoza informed him that
Alforque was not arrested but merely investigated although he (Mayor Olvis) actually saw Alforque
inside the jail of Mahayag. (T.s.n., pp. 386-387, Santillana) Alforque was released without any bail.
(T.s.n., pp. 388-399, Santillana) Eventually, all the robbery cases against Alforque were dismissed.
(Exhs. "II-B", "HH- 3 G G -3 ", Folder 1 of Exhibits)

Coming now to the incidents that happened on the fatal day of November 4, 1960, here is a resume
of the facts duly established by the prosecution:

In the early morning of November 4, 1960, witness Roberto Baterna went to the house of his cousin
in Goripan west of Mahayag to ask for a fighting cock. (T.s.n., pp. 275-276, Gako) However, he was
not able to obtain one as they found it difficult to catch one. He returned to his aunt's (Aquilina
Baterna) house, passing The house of appellant Conrado Sayson. (T.s.n., pp. 277-278, Gako) As he
was nearing Sayson's house, he was called by his friend, Genovevo Potestas, who was then at the
window of Sayson's house. T.s.n., pp. 279-281, Gako) Potestas told him to come up as there were
some drinks and to partake of the same. When he went up, he saw a group consisting of Mendoza,
Jesus Lirasan, Nonoy Mamacang, Conrado Sayson, Eufrocino Perez and Genovevo Potestas
drinking wine mixed with Pepsi-Cola. (T.s.n., pp. 262-284, Gako) Baterna was invited to sit at the
table occupied by Sayson and Potestas the other table being headed by appellant Mendoza. (T.s.n.,
pp. 286-292, Gako) While Baterna was drinking, Perez told him straight that appellant Mendoza
would pay to any one who would agree to kill his (Mendoza's) enemy in the mountains Taken by
surprise, Baterna was rendered speechless (T.s.n., pp. 294-295, Gako) Sensing his confusion,
surprise and reluctance, Perez persisted and urged him Baterna to accept the proposition and join
them telling the latter that he would surely make money out of it. Still, Baterna kept silent. (T.s.n., pp.
285-296, Gako) Sayson then brought Baterna to the kitchen where he personally and patiently
explained the stability of the proposition, i.e,, that he should not be afraid as the order came from the
Mayor himself (Mendoza), who is the one interest in the killing. Still, Baterna withheld his conformity,
by keeping silent. So, Sayson brought him back to the table where he drinking was still going on.
Mendoza then called him (Baterna) and repeated the offer, persuasive adding that he had nothing to
fear as he was the mayor there Although Baterna still did not commit himself and only said that he
would think about it, Mendoza asked the others present if they were willing to follow his request and
Lirazan Mamacang, Potestas, Perez and Sayson answered in unison that they would. (T.s.n., pp.
296-305, Gako) Before the group disposed, Mendoza admonished them not to use their firearms
because they are all under certificates of registration and might only cause panic in the
neighborhood and to use hunting knives instead. (T.s.n., p. 311, Gako) He also told them that he
was leaving the date of execution, whether that very may or the following, to Sayson and that he
would leave the reward money also with him (Sayson). (T.s.n., pp. 311-313, Gako)

That same day, Roberto Baterna took his lunch at the house of his aunt, after which he left for the
nearby market intending to witness some games and meet some friends. (T.s.n., pp. 316-317, Gako)
While walking within the vicinity of the market, Baterna saw Lirasan and Mamacang drinking tuba
inside a store. Lirasan asked him to join them. So, he did. While thus drinking, Lirasan asked him if
he had already considered the request of Mendoza. Baterna replied that he was not ready to give a
positive answer as yet, whereupon Lirasan retorted that he has no choice anymore as he was
present during their meeting. Appellant Mamacang butted in and said that since he was present
during the meeting, it was dangerous for him not to go with them and that it was better that he
Baterna should die first should something happen. (t.s.n., pp. 318-326 Gako) Then, Lirasan pulled
out a gun and poked it hard against Baterna's body and pushed him forward. (T.s.n., pp. 326-328,
Gako) Afraid that they might kill him, Baterna walked with them towards the municipal building where
Lirasan and Mamacang changed their uniforms into maong loafers. (T.s.n., pp, 328-332, Gako) At
about 2:00 o'clock, they proceeded to barrio New Tangub. (T.s.n., p. 333, Gako)

At twilight time (i.e., almost 6:00 o'clock in the evening) of that same day (November 4, 1960),
Lirasan and Mamacang, together with Baterna, arrived in New Tangub. Somewhere within the land
of Alforque, they stopped and waited for Sayson, Perez, Genovevo Potestas and Juanito Paler.
Sayson was wearing a black jacket, while Perez was in maong loafer. (T.s.n., pp. 333-335, Gako)
Baterna was carrying a small knife known as "mais-mais" which he used in sharpening the nails of
his roosters; Lirasan had a buttless Thompson sub-machine gun and a hunting knife tucked inside;
Sayson had a buttless folding carbine; and Perez and Potestas each had hunting knives on their
waists. (T.s.n., pp. 337-341, Gako) Juanito Paler pointed out the trail leading to the house of
Alforque. (T.s.n., p. 341, Gako) Upon suggestion of Sayson, the two policemen of Mahayag, Lirasan
and Mamacang led the group, this agreement being acceptable to the others because thereby the
owner of the house would have confidence and they would admit them to the house. (T.s.n., p. 343,
Gako) As soon as they started towards the house, Paler left the group and Baterna did not see him
thereafter. (T.s.n., p. 344, Gako)

Upon arrival at the house of Alforque, they immediately knocked at the door, Lirasan and Mamacang
Identifying themselves as policemen of Mahayag. (T.s.n., pp. 346-347, Gako) Alforque opened the
door and readily let them in. Lirasan and Mamacang immediately proceeded to the sala of the house,
while Perez and Potestas went inside the store, which was a part of the house. Sayson remained in
the yard. (T.s.n., pp. 352-356, Gako; Exh. L) As directed by Sayson, Baterna stood beside a window
overlooking the sala, to serve as watcher. (T.s.n., p. 359, Gako; Exh. L) At that time, the house was
lighted by a petromax lamp which hung in the ceiling of the house, (T.s.n., pp. 368, 370, Gako)
Alforque then inquired from Lirasan and Mamacang about their purpose and Lirasan replied that
they were sent by appellant Mendoza because he was wanted by the latter and that they are
bringing him with them back to Mahayag. (T.s.n., pp. 371-1056, Gako) Alforque then further asked
why Mayor Mendoza would still need him, since his cases were already settled and he had not
committed anything wrong, to which appellant Lirasan fell instant irritation prompting him to point his
Thompson submachine gun at Alforque's stomach and threaten to kill him if he did not go with them.
(T.s.n., pp. 372, 373, 1057, Gako) Notwithstanding his predicament and fear, Alforque still managed
to ask Lirasan what his fault was that they were threatening him with death, to which Lirasan again
rudely retorted that he would be killed if he refused to go with them. (T.s.n., pp. 373375; Gako) This
moved Alforque into action and he then seized the muzzle of the gun pointed by appellant Lirasan
against him and a struggle for the possession of said gun ensued. (T.s.n., pp. 376, 1968, Gako)
Although Alforque was smaller and weaker, he was able to have the upper hand in the struggle
because he was holding the muzzle of the gun while Lirasan was clinging only to its handle. This
made the latter strike Alforque with his hunting knife, which he was able to draw from his waist,
causing Alforque to fall on the floor. (T.s.n., pp. 377 379, Gako) Undaunted by the knife thrust,
Alforque stood up and again tried to take possession of the gun from appellant Lirasan, but the latter
struck him again, this time with the gun's butt, hitting him below the left ear and telling him again on
the floor. (T.s.n., pp. 379, 382-383, Gako) At this precise moment, Perez approached them and
since Alforque was still alive, Lirasan ordered Perez to finish him off, which Perez did by striking
Alforque several times with his knife until the latter fell to the floor again with his hands forward and
his body bathed in blood. (T.s.n., pp. 406-407, Gako)

In the meantime, while Alforque and appellant Lirasan were grappling for the possession of the gun,
Alforque's wife, Valeriana Reble de Alforque, came out of a small room and approached them. She
demanded to know why they were going to kill her husband. (T.s.n., pp. 376, 409, Gako) Appellant
Mamacang immediately met her and, ignoring her question, admonished her to go away. (T.s.n., p.
376, Gako) Instead of leaving, however, Valeriana struck Mamacang several times with the piece of
firewood she was carrying. (T.s.n., pp. 376377, Gako) Although surprised at the attack of Valeriana,
Mamacang, was able to parry off some of the blows and then got hold of her neck and stabbed her
with his hunting knife. (T.s.n., pp. 409-410, Gako) Valeriana was not instantly fell and she continued
fighting Mamacang, at the same time shouting for help. This forced Potestas to approach the two
and strike Valeriana several times with his hunting knife. The force of the latter thrusts made
Valeriana spin around staggering, after which she fell on the floor, face downward, (T.s.n., pp. 428-
429, Gako)

When Alberto Alforque and his wife were already lying prostrate on the floor, appellant Sayson went
inside and ordered The house searched to ascertain whether there were other people inside. So,
Lirasan and Mamacang went upstairs, while Perez and Potestas searched the kitchen. (T.s.n., pp,
438-441, Gako) Their search yielding nothing, the group left immediately. (T.s.n., p. 443, Gako)

At this juncture, important to be observed is the fact that while Alforque and Lirasan were still
arguing on the advisability of the latter being brought to Mahayag and why appellant Mendoza would
want to see him (Alforque), a young girl, Rustica Flores, who was about 16 years old and who was
staying at the house of the Alforques, heard the argument while she was in a bedroom in the second
story of the house. Curious, she went downstairs to find out what it was all about, bringing with her a
lighted kerosene lamp. (T.s.n., pp. 370-430, 1054, 1056, Gako) She proceeded to the place where
the two were arguing, placed the lamp on the table where Alforque was sitting or seemed to be
leaning on, and then returned and stood in a place near the door where she witnessed everything
that transpired up to the time when Alforque and Lirasan fought for the possession of the gun.
However, when the fight started, fright overcame her and so. she went back to her room upstairs.
(T.s.n., pp. 1057, 1059-1060, 1069, Gako) In her room, she could hear the noise or commotion
downstairs. After the commotion subsided and she heard somebody moaning, she jumped out of a
window and ran to the bushes where she hid. (T.s.n., pp. 1071, 1075, Gako) After a while, when the
house was already quiet, she came out of her including place and returned to the house where she
saw the Alforque couple already dead on the floor. (T.s.n., pp. 1075, 1076-1077, Gako) Although
numbed with fright, she ran towards the house of their neighbor, Cesar Opsiar. Reaching the same,
she (Flores) lost consciousness, but upon regaining her senses, she immediately informed Opsiar
about the horrible killing. Opsiar in turn went to the house of Alforque's brother-in-law, Loreto
Mirafuentes, and informed the latter about what happened to the Alforques. (T.s.n., pp. 1077-1078,
Gako) Mirafuentes immediately informed their other neighbors, then went to the house of the
Alforques and took charge of transferring the children of the slain couple, who at the time of the
incident were an asleep. (T.s.n., p. 1079)

The following day, November 5, two policemen from Mahayag conducted an investigation primarily
questioning Rustica Flores. (T.s.n., pp. 1083-1085, Gako) Later, the policemen from the municipality
of Polanco, led by the Chief of Police himself, made a separate investigation, also questioning
Rustica Flores and taking pictures of the scene of crime. (T.s.n., pp. 1086-1087, Gako) Dr.
Bartolome Regencia, Rural Health Physician of Polanco, examined the two dead bodies. He found
out that Alberto Alforque sustained several stab and incised wounds, four of which were fatal and
caused his death, to wit:

1. Contusion about l.5 cm. wide running from behind the left ear to the outer third of
the left lower mandible. Cause: Blunt instrument applied with force.

2. Stab wound 3 cm. long, 1 cm. inward from and at the level of the left nipple in the
direction from forwards backward and slightly downward, penetrating the thoracic
cavity injuring the heart and left lung. Cause: Single bladed sharp pointed instrument
thrushed with force,

3. Stab wound 2.5 cm. long between the right lateral side of the Typhoid and costo
chondral junction, penetrating the upper portion of the abdominal cavity injuring the
liver and pyloric end of the stomach. Cause: Single bladed sharp pointed instrument

4. Stab wound 2.5 cm. long at the level of the 4th intercostal space, 3 inches lateral
of the right nipple, penetrating the thoracic cavity in the direction of from forward,
backward and inward. Caused by a single bladed instrument, the sharp blade down.

5. Stab wound about 4 cm. long 1.5 cm. below the right axilla penetrating the upper
portion of the right lung. Caused by a sharp instrument thrushed in the direction from
lateralward inward.

6. Incised wound 3 cm. long about 1/2 cm. Causes: by sharp instrument.

7. Stab wound 1 cm. long and I cm. deep posterior middle of the right forearm.
Caused by a single bladed pointed instrument applied with force hitting the ulnar
bone.

Cause of death: External and internal hemorrhage causes by stab wounds Nos. 2, 3,
4 & 5, which were fatal. (Exh. C)

As to the deceased Valeriana Reble de Alforque, Dr. Regencia found out that she sustained also
several stab wounds, three of them being fatal, to wit:

1. Incised wound 3 cm. long from outward inward at the base of the right thumb.
Caused by a sharp instrument.

2. Stab wound 2.5 cm. long at the 1st interspace sharp blade downward about 3 cm.
from midsternal line to the right penetrating the right thoracic cavity in the direction
from forward backward, injuring the right lung.

3. Stab wound 2.5 cm. long 3 cm. from midsternal line to the right at the second
interspace penetrating the right thoracic cavity. Direction forward-backward. Sharp
blade down injuring the right lung.

4. Stab wound 3 cm. long left side about 2 inches below the left axilla at the level of
the 6th rib, penetrating the left thoracic cavity injuring the left lung.

5. Four stab wounds 1 cm. long each in nearly straight line outward about the level of
the 10th rib of the right thorax penetrating the cavity injuring possibly the liver.
 Cause of death: External and internal hemorrhage caused by stab wounds No. 2, 3 &
4 which were fatal. (Exh. E)

On May 11, 1966, an information was filed with the lower court charging Saturnino Mendoza, Jesus
Lirasan, Nonoy Mamacang, Eufrocino Perez, Genovevo Potestas and Conrado Sayson with the
crime of double murder. However, accused Genovevo Potestas was not arrested and so, trial
proceeded only against the other five accused.

After trial, the lower court rendered the judgment the dispositive portion of which We have already
quoted at the beginning of this opinion.

RESOLUTION OF ASSIGNMENT OF ERRORS

Appellants' first attack is jurisdictional. They contend that the trial court erred in assuming jurisdiction
over their case because the crime imputed to them was allegedly committed within the territorial
jurisdiction of Mahayag, Zamboanga del Sur, and there is no question that the Alforque spouses
were killed in their own home in barrio New Tangub- They claim that barrio New Tangub was
originally a part of the municipality of Molave; that when Zamboanga was divided by Republic Act No.
711 into two provinces Zamboanga dell Sur and Zamboanga del Norte-Molave became a part of the
former (del Sur); that subsequently the town of Mahayag was created and carved out of the territorial
jurisdiction of Zamboanga del Sur, one of its barrios being New Tangub; and that upon the other
hand, when the municipality of Sergio Osmena was created in the year 1963 by Republic Act No.
3697, it provided that said town and the barrios constituting said municipality would be within the
provinces of Zamboanga del Norte; and that the technical description provided in said Republic Act
No. 3697, regarding the northern and southern boundaries of the barrio of New Tangub is entirely
within the original territorial jurisdiction of Mahayag, Zamboanga del Sur.(Appellants' Brief, pp. 13-
16) In other words, the thrust of appellants' pose is that barrio New Tangub is within the territorial
jurisdiction of Mahayag, Zamboanga del Sur.

We find no merit in such claim, The only leg it is purported to stand on is the assertion that since
territorially New Tangub is very much nearer Mahayag than Sergio Osmena Congress could not
have intended to curve out any portion of Zamboanga del Sur in favor of Zamboanga del Norte. On
the other hand, the record attests that none of appellants disputes that barrio New Tangub was
formerly known as barrio Sibulan. Upon this premise, there can be no question that New Tangub
cannot be but part of Zamboanga del Norte, for Republic Act No. 3697, which took effect on June 22,
1963, provides categorically that the "barrios of Sibulan, Dampalan, Labag, Princess La maya and
Marapong are separated from the Municipality of Pinan in the Province of Zamboanga del Norte, and
constituted into a separate and independent municipality in the same province to be known as the
Municipality of Sergio Osmena with the seat of government at the present site of the barrio of
Sibulan " The technical description of the barrios to be incorporated into the new municipality of
Sergio Osmena is specifically set out therein. Such technical description includes the barrio of New
Tangub. This was undisputably proven by the declaration of Engineer Beeny C. Empaynado, of the
Office of Highway District Engineer of Zamboanga del Norte. Empaynado was the one who prepared
the sketch map of the municipality of Sergio Osmena Zamboanga del Norte (Exh. A) from official
maps of the U.S. Coast and Geodetic Survey in relation to the official maps of the Office of Highway
District Engineer and the Bureau of Lands. In said "Exh. A", he clearly indicated the technical
description not only of the municipality of Sergio Osmena but also that of the municipalities of
Polanco and Pinan Zamboanga del Norte. Through Exh. A, he traced the new municipality of Sergio
Osmena as indicated in Republic Act No. 3697. (T.s.n., pp. 347-348, 350-351, May 23, 1967)

Corroborating the testimony of Empaynado is that of prosecution witness Florencio Sevilla, a

surveyman, also of the Office of the Highway District Engineer of Zamboanga del Norte. Explaining
likewise Exh. A, Sevilla declared that he took part in the preparation of said sketch map (Exh. A);
that he was sent and actually went to the barrios newly constituting the municipality of Sergio
Osmena one of which is barrio New Tangub; that he actually conducted an ocular inspection and
investigation of the area, and made sightings and plottings to determine the relative location of barrio
New Tangub to the boundary line separating the provinces of Zamboanga del Norte and Zamboanga
del Sur; that he is certain that the said barrio New Tangub is very well within the territorial jurisdiction
of the province of Zamboanga del Norte as technically described in Republic Act No. 3697. (T.s.n.,
pp. 359-360, 363-364, May 23, 1967) The defense was not able to overthrow these concrete facts of
the prosecution, As already stated, they just alleged flimsy contentions, such as that since barrio
New Tangub is very much nearer the boundary of the municipality of Mahayag, Zamboanga del Sur,
it is a part of said municipality, etc. In other words, appellants question the veracity of the technical
description of the teritorial boundaries of the new Municipality of Sergio Osmena, as explained by
above-mentioned government officials. We have no alternative, under such circumstances, but to
overrule their first assignment of error.

In connection with the same point, appellants claim alternatively that Republic Act No. 3697 creating
the municipality of Sergio Osmena is unconstitutional because it embraces more than one subject.
This contention needs no extended disquisition. A cursory and brief perusal of said law instantly
reveals that it treats of only one subject matter, that is: the creation of the territory described therein
into a new, separate and independent corporate entity to be known as the municipality of Sergio
Osmena Republic Act No. 3697 contains three (3) sections, and none of said sections cover a
different and distinct subject matter. The Act provides thus:

SECTION 1. The barrios of Sibulan, Dampalan, Labag, Princess La Maya and

Marapong are separated from the Municipality of Pinan in the Province of
Zamboanga del Norte, and constituted into a separate and independent municipality
in the same province to be known as the Municipality of Sergio Osmena with the seat
of government at the present site of the barrio of Sibulan. The boundaries of the said
municipality shall be as follows:

From the intersection of longitude one hundred twenty-nine degrees

ten minutes (129 10') and latitude eight degrees twenty minutes (80
20') in a straight line due east until it intersects the provincial
boundary of Misamis Occidental and Zamboanga del Norte; thence
due south to latitude eight degrees thirteen minutes (80 13'); thence
due west until it intersects longitude one hundred twenty-nine
degrees ten minutes (129 101') thence due north to latitude eight
degrees twenty minutes (82 01') the point of beginning.'

SEC. 2. The first mayor, vice-mayor and councilors of the newly created municipality
shall be appointed by the President of the Philippines with the consent of the
Commission on Appointments and shall hold office until their successor s shall have
been elected in the next general election for local officials and shall have qualified.

SEC. 3. This Act shag take effect upon its approval. (Approved, June 22, 1963.)

In their second assignment of error, appellants assail the lower court for giving credit to the
testimony of state witness Roberto Baterna, who, as it appears above. was merely forced to join
Mendoza's group on the occasion in question (1) First, they claim that, it is highly improbable that Baterna could have
befriended them (all of the appellants) because of gambling, since none of them indulge in gambling. (Pp. 23-25, Appellants' Brief) But such
pretension is belied by the evidence. The record shows that Baterna came to know appellants Saturnino Mendoza and Jesus Lirasan in the.
year 1960 because precisely they are gamblers. Mendoza himself admitted that in 1957, he owned a cockpit in Molave which he gave up
when he became Mayor of the municipality of Mahayag and thereafter merely engaged in cockfighting. (T.s.n., pp. 1179-1180, Gako)
Baterna came to know Nonoy Mamacang, Eufrocino Perez and Conrado Sayson long before the year 1960 in various fiestas where
cockfighting and ferias always took place and became acquainted with them as fellow aficionados of games of chance. (T.s.n., pp. 766-767,
Gako) True, Baterna might not have been a "friend" of appellants in the real sense of the word. But the fact remains that he, Baterna, knew
them and was acquainted with them in some way, i.e., in the gambling world. In fact, particularly, between Baterna) and appellant Mendoza,
their relation may be considered more of that of master and boy because Baterna used to run errands for Mendoza.

Secondly, appellants point out as unbelievable that part of Baterna's testimony wherein he declared
that appellants, at first, kept from him the Identity of their would be victim and where said victim lives,
considering that Baterna was supposed to be an effective instrument in the execution of their
nefarious plot. In other words, since Baterna was supposed to be one of the conspirators, their
contention is that it is inconceivable that he was kept in the dark as to the Identity of their would be
victim. (Appellants' Brief, pp. 26-27) This argument is plainly untenable. There is nothing wrong or
incongruous or unusual about appellants not revealing the Identity of their would be victim to Baterna.
It was enough that they asked him to go with them to the mountains to kill somebody. Considering
Baterna's initial consistent hesitancy, if not refusal to join them, appellants could not be one hundred
percent sure that Baterna would not squeal on them somehow. Indeed, Baterna refused at first to do
appellant Mendoza's bidding and was also hesitant and uncertain when the proposal was put out to
him for the second time. As a matter of fact, Lirasan and Mamacang had to prod him to join them in
going to the mountains to the scene of the crime. Besides, it was a little difficult, if not pointless, for
the appellants to readily reveal all the details of their plan to Baterna since Mendoza left the date of
the execution of said plan only to Sayson. Sayson appears to have been the leader of the group to
whom details of the plan had been entrusted by Mendoza. Thus, Baterna testified that during the
meeting at the house of Sayson, in the morning of November 4, 1960, Mendoza left the execution of
their plan to kill to the discretion of said Sayson. (T.s.n., p. 312, Gako) Nowhere in Sayson's
testimony before the lower court is this declaration of Baterna rebutted. If the date of the execution of
the plan was withheld from the other appellants, except Sayson, nothing is then unbelievable about
the fact that the Identity of the would be victim was also withheld from Baterna.

Thirdly, appellants brand as incredible Baterna's testimony that appellant Mendoza gave his parting
advice to the group, to wit:

If you are on your way, don't use the firearms because they are under certificate of
registration they will cause panic in the neighborhood, use only hunting knives.
(T.s.n., p. 311, Gako)

Appellants claim that if these were true, then there was absolutely no necessity for Lirasan to have
brought with him his Thompson submachine gun and for appellant Mamacang to do the same with
his firearm, nor for Sayson to also do so with his carbine. Again, this claim is not meritorious.
Mendoza's advice evidently referred to the use of their firearms in killing the Alforques and not to
completely not taking any other weapons with them. Mendoza was just advising them to be cautious
in using their firearms. for obvious reasons, it would have been risky for them to embark in such a
dangerous task if they did not take with them firearms. At any rate, the fact is that pursuant to
Mendoza's advice, they did not use their firearms in killing the Alforques, except the butts thereof, in
order precisely to avoid creating the explosive sounds that might be heard by the neighbors.
Appellants used their hunting knives in inflicting numerous stab wounds upon their victims. (T.s.n.,
pp. 377, 406-409-411, Gako)

Fourthly, appellants also question the credibility of Baterna's testimony stating that the date of
execution of the nefarious plot was left to the discretion of Sayson. They contend that Sayson could
not have possibly disseminated his decision to his cohorts for the execution of their plan in the
evening of that same day because after their meeting at Sayson's house in the morning of
November 4, 1960, all of them went home to their respective houses, (Pp. 35-38, Appellants' Brief)
But then, it is of record that the co-conspirators met again that very same afternoon within the land of
their victims and successfully accomplished their plot to kill them that evening. This merely indicates
beyond doubt that the plan to kill Alforque was already thoroughly discussed beforehand by the
conspirators in the house of Sayson The fact that Baterna became aware only that very afternoon
that the plan to kill Alforque would be carried out that very same evening of November 4, 1960 when
appellants Lirasan and Mamacang forced him to join them does not detract from the truth that
indeed the details of the evil plan were already known to the appellants, This in fact shows that
Baterna was not exactly in the plot; that he was forced by Sayson and Mendoza to join them even as
a mere look-out; and that Lirasan and Mamacang had to force him to join them that afternoon
because, after all, they had already revealed to him more than they should. Besides, Baterna's
failure to provide himself with a deadly weapon to effectively aid the appellants in the execution of
the criminal act strengthens the conclusion that he Baterna was just an unwilling or reluctant
participant in the commission of the offense. He cannot at that stage get out or extricate himself
anymore from the situation because of fear of appellants Lirasan and Mamacang, they having
virtually dragged him to join them at the point of their guns. Baterna likewise feared Mendoza not
only because he was the incumbent Mayor of the Municipality of Mahayag (Zamboanga del Sur), but
also because at one time he had the occasion to taste the physical punishment inflicted upon him -
that is when he once disobeyed Mendoza's order to maltreat a friend of Baterna, who was caught
peeping to see a boxing bout sponsored by Mendoza, and he (Mendoza) ordered Lirasan to whip
him (Baterna) with the tail of a stingray fish. (T.s.n., p. 476, Gako)

Fifthly appellants would discredit Baterna because of alleged contradictions among his testimony in
chief, his four affidavits (Exhibits 75, 3 and 3-A also marks as Exhibits 76 and 76-A and marked by
the prosecution as Exhibits QQ and QQ-A pp. 6, 50-5 1, Folder of Exhibits; Exhibits 4, 4-S) and his
declarations during the preliminary investigation conducted by Assistant Provincial Fiscal
Hermogenes Balisado (Exhibits 11 to 58; pp. 1-58, Record of CFI). Like the lower court, We have
taken pains to carefully scrutinize all such alleged contradictions and We do not hesitate to hold that
they are more apparent than real. Appellants claim, for instance, that while Baterna stated in his
affidavit, Exhibit 76, that Mayor Mendoza mentioned to him the name of their intended victim, he
testified on the witness stand that Mayor Mendoza did not mention the name of Alberto Alforque. (Pp.
55-57, Appellants' Brief) Exhibit 76 was taken when the plot to kill was successfully executed already
and after Baterna had been apprehended for involvement in the killing of Alberto Alforque. For
Baterna to have mentioned Alberto Alforque as the victim appellant Mendoza had ordered him
previously to slay is quite understandable. Exhibit 76 (affidavit of Baterna) was taken by an
investigator who usually is not a lawyer and who pro-pounds types and interprets the questions and
answers all by himself and thereafter let the affiant read the same before attaching his signature
thereto. Most often the affiant in such a situation goes over the contents thereof only haphazardly. It
is possible that errors are committed therein. What is important in the present case, however, is that
Baterna stood pat on his declaration under oath on the witness stand that appellant Mendoza, and
later appellant Sayson, did not mention at first the name of Alberto Alforque. In People vs. Resayaga
y Bohol, G.R. No. L-23234, December 26, 1973 (54 SCRA 350), this Court reviewed and laid down
our rulings on the probative value attached to affidavits of this kind, thus:

Much importance cannot be attached to that discrepancy because, as has been

truthfully observed, the infirmity of affidavit evidence is a matter of judicial experience.
Since, generally, an affidavit is not prepared by the affiant himself but by another who
uses his own language in writing the affiant's statements, omissions and
misunderstandings by the writer are not infrequent particularly under the
circumstances of hurry and impatience. (People vs. Mariquina, 84 Phil. 39, 42).

An affidavit, "being taken ex parte, is almost always incomplete and often inaccurate,
sometimes from partial suggestion, and sometimes from want of suggestion and
inquiries, without the aid of which the witness may be unable to recall the connected
collateral circumstances necessary for the correction of the first suggestion of his
memory and for his accurate recollection of all that belongs to the subject. (People vs.
Alcantara, L-26867, June 30, 1970, 33 SCRA 812, 820)
 We have too much experience of the great infirmity of affidavit evidence. When the
witness is illiterate and ignorant, the language presented to the court is not his it is,
and must be, the language of the person who prepares the affidavit, and it may be,
and too often is, the experience of that person's erroneous inference as to the
meaning of the language used by the witness himself, and however, carefully the
affidavit may be read over to the witness, he may not understand what is said in
language so different from that which he is accustomed to use. Having expressed his
meaning in his own language, and finding it translated by a person on whom he
relies, into language not his own, and which he does not perfectly understand, he is
too apt to acquiesce; and testimony not intended by him is brought before the court
as his. (2 Moore on Facts, Sec. 952 p. 1105; People vs. Timbang, 74 Phil. 295, 299).

Appellants further point out that in Baterna's affidavit, Exhibit 76, he stated that he and his
companion waited for one Juanito Paler under the house of Alberto Alforque. This, they claim, runs
counter to the declaration of Baterna on the witness stand that after Juanito Paler pointed the way to
the house of the Alforques, the latter disappeared and he did not know where he went. (Pp. 57-59,
Appellants' Brief) We cannot consider such a flaw grave or significant enough to destroy the veracity
of the whole testimony of Baterna. At any rate, Baterna admitted in his testimony that he committed
a mistake and successfully explained it, thus:

A. That was the answer I gave but when I gave that answer I was mistaken. The truth
is that upon arriving at the place where we stopped, Conrado Sayson, Genovevo
Potestas, Eufrocino Perez and Juanito Paler after pointing to us the trail to be taken
by us towards the house of Alberto Alforque, this Juanito Paler disappeared and I did
not know where he went and that is the truth. (T.s.n., p. 832, Gako)

Further cross examination failed to make the witness change his testimony:

ATTY. VERA CRUZ:

(To the witness)

Were you asked this question by Atty. Cerilles: "During your travel some of you
fetched Juanito Paler and then Juanita Paler went with your group and pointed the
house of Alberto Alforque, is that the house near the house of Juanito Paler?" and
your answer was "Yes, sir ." Did you make that answer to the question?

A. That was my answer to the question propounded but that answer was given in a
hurry because actually what transpired was this, after Juanito Paler arrived he just
pointed to us the trail to be followed and after that Juanito Paler disappeared and I
cannot also determine whether the house of Alberto Alforque was very close already
to the house of Juanito Paler because that was the first time I have gone to the place.
(T.s.n., p. 834, Gako)

Still another alleged doubtful part in the declaration of Baterna in his affidavit is that part where he
said that he, was ordered to kill anybody who will go to the house of Alberto Alforque to find out what
happens. Appellants maintain that this is inconsistent with his testimony that he was posted by the
window to report to the group if there are persons passing by. (T.s.n., p. 359, Gako; p. 59,
Appellants' Brief). There is actually no substantial inconsistently there. At most, we can say that
these refer to two orders which, far from being inconsistent, complement each other. One is to kill
anybody who will attempt to go to the house inquiring about what is happening and the other is to
inform the others when somebody is passing by. It is altogether possible that both instructions were
issued to Baterna.

Insisting in their attempt to pull down the weight of Baterna's testimony, appellants make capital of
the testimony of Dr. Regencia, to wit:

Q. -Could it (Exhibit 'C-2') be caused by the butt of a gun? Exhibit "C-

2" refers to the injury on the curvature below the left ear of Alberto
Alforque)

A. -It could be possible to be caused by it. (T.s.n., p. 96, Gako)

Appellants maintain that tills testimony of Dr. Regencia only means that the injury which followed the
curvature below the left ear of the late Alberto Alforque (Exhibit C- 2) must have been inflicted or
caused by the butt of a gun because of its curvature. (P. 64, Appellants' Brief The claim that,
therefore, Baterna's testimony that Alforque was hit by a buttless submachine gun could not be true.
To prove their point, they can Our attention to Exhibit "90" which is a picture of a buttless
submachine gun without a butt, the rear end of which is not curved. Dr. Regencia did not
categorically state that the injury to the left mandible of Alberto Alforque was caused by the butt of a
submachine gun because of its curvature. Certainly, the above-quoted answer of Dr. Regencia did
not exclude any other possibility.

By and large, as already noted, the supposed contradictions and inconsistencies in the testimony of
Baterna cannot detract substantially from the evident veracity of the incriminatory facts related by
him, convincingly indicative of the guilt of the appellants. Otherwise stated, notwithstanding the
persistent arguments of appellants against its credibility, the intrinsic truthfulness of Baterna's
testimony was not materially impaired.

In their third assignment of error, the target of appellants attack is also about the credibility of the
other prosecution witness, Rustica Flores. Before weighing the alleged inconsistencies in her
testimony, it is best to correct first the impression erroneously being given by appellants that said
Rustica Flores is the "lone eyewitness" to the gruesome killing of the Alforque spouses. Flores was
not the lone eyewitness thereto. She and Roberto Baterna saw the incident. In fact, it can be safely
stated that Baterna was the only one who actually saw the actual killing from beginning to end
because as soon as the deceased Alberto Alforque and appellant Lirasan started grappling for the
possession of the gun, Rustica Flores fled and went up again to her room in the second floor. At
most, Flores corroborated, with obvious sincerity the declaration of prosecution witness Roberto
Baterna regarding the details of the commission of the crime.

Quoting lengthily from her testimony in Criminal Cases Nos. 3298 and 3308, both for murder against
Juanita Paler, appellants' claim that Flores never revealed the names of the two persons she saw
inside the house of the Alforques nor did she mention that the person facing Alberto Alforque and
the latter's wife was tall, big, robust and muscular. Instead, she allegedly described the person facing
Alforque as short and of black complexion. (Pp. 70-86, Appellants' Brief) Rustica Flores' declaration
in said two previous criminal cases does not impair materially her whole testimony in the instant
case where she declared that she was of the impression that the person facing Alforque (Alberto)
was short and black because the latter was sitting on the table so that the person in front of him
appeared taller. She did not mention their build because she was not asked that particular question.
She did not also reveal. the names of appellants Lirasan and Mamacang because she did not yet
then know their names. The important thing, however, is that in the instant case, she was emphatic
in stating that she could recognize them if she will see them again, which she actually did from the
witness stand. (T.s.n., pp. 1059-1060, Gako)
Rustica Flores testified among other things: At about 7:00 o'clock in the evening of November 4,
1960, while she was already in bed in her room upstairs, she heard some sort of discussion
emanating from the first floor, somebody asking, "Why are you not going with us when Mayor Orning
Mendoza sent for you?" Taking a kerosene lamp with her, she went downstairs and upon reaching
the dining room of the first floor, she saw a man pointing a gun at her uncle, Alberto Alforque, who
was sitting at the edge of the table. She placed the kerosene lamp on the table against which Alberto
Alforque was leaning. She said the man was smaller and shorter than Alberto Alforque, while the
other man facing Valeriana Reble de Alforque "was small fellow, short and slender." (T.s.n., pp. 1056,
1057, 1059, 1074 and 11 30, Gako) Appellants claim that said descriptions do not fit the size of
prosecution witness Roberto Baterna. (Pp. 91-92, Appellants' Brief)

There is an explanation to this by Rustica Flores which We believe is sufficient to overcome any
shadow of doubt upon the veracity of her whole testimony. She explained that since Alberto Alforque
was seated on top of the dining table, to her he (Alberto) looked bigger and taller than the person in
front of him. Besides, she found no difficulty in Identifying appellant Lirasan at the trial as the person
who pointed the Thompson submachine gun at the victim on the night in question by his almond
eyes and wide nose which she distinctly remembered. (T.s.n., p. 1059, Gako)

Appellants also brand as incredible that part of Rustica's testimony where she declared that she
jumped out of a window, hid behind some bush, then when silence reigned over the place, went
back to the house to verify whether or not the Alforque spouses were already dead because first,
she was then suffering from uncontrollable fear and second, there is no opening or window
overlooking the sala, (Pp. 95-96, Appellants' Brief) This contention is also untenable. There is
nothing unbelievable in the act of Rustica in going back to the house. She did that after she had
ascertained that all intruders had left and stillness already crept all over the place. In fact, it is but
natural for her to verify what happened to her relatives, despite her fear. Fear does not prevent one
from doing anything natural. It sometimes causes one to do the impossible, up to a certain point, as
what Rustica did. Or she might have regained courage, at least to verify what happened to her uncle
and aunt, and it was after she had informed their nearest neighbors, the Opsiars, about the incident
that she fell unconscious. Now, as to the presence of the window overlooking the place where the
killing occurred, the prosecution had established beyond reasonable doubt that there is indeed such
window. Prosecution witness Roberto Baterna was adamant in stating that he was posted beside
that window and he witnessed the struggles between appellant Lirasan and Alberto Alforque and
between Valeriana Reble de Alforque and appellant Mamacang. Rustica Flores said that it was
through that window that she jumped out of the house and through the same that she re-entered the
house to verify what happened to the Alforque spouses. What is more, Exhibits "00" and "63" show
that there is indeed an opening in the room where the stabbing took place.

Appellants recite other statements of Rustica which they contend to be inconsistent with each other.
We have gone through them with care, and We find said alleged inconsistencies to be very flimsy
and cannot overthrow the reliability as a whole of her testimony.

In their fourth assignment of error, appellants again have resorted to trying to discredit the testimony
of another prosecution witness, Bienvenido Andilab. Andilab, an incumbent mayor of Sergio Osmena
was then a barrio lieutenant of Princess Lamaya, Polanco, Zamboanga del Norte in the year 1960.
He testified that a certain municipal council meeting was held in the barrio of Dampalan, Polanco,
Zamboanga del Norte on July 3, 1960, which was convened by appellant Saturnino Mendoza who
was then accompanied by appellants Jesus Lirasan and Agripino Mamacang. This meeting was
attended by the leaders of, particularly the barrio lieutenants of Princesa Lamaya, Dampalan and
New Tangub and the prominent residents thereof. They discussed, among other things, the territorial
jurisdiction of Mahayag, Zamboanga del Sur and Polanco, Zamboanga del Norte over New Tangub.
No definite understanding was reached, though appellant Mendoza insisted that said barrio is under
the jurisdiction of his municipality, Mahayag. Another meeting was held on July 4, 1960 in the house
of the deceased Alberto Alforque, then a barrio lieutenant, located at barrio New Tangub, Polanco,
Zamboanga del Norte. Another heated discussion ensued between appellant Mendoza and the late
Alberto Alforque concerning the jurisdiction over barrio New Tangub. Appellant Mendoza threatened
the victim.

The above declarations, obviously presented to prove a motive on the part of the appellants, were
not overthrown successfully by the defense with proof to the contrary except their weak alibi.
Besides, prosecution witness Andilab was corroborated strongly by prosecution witnesses Loreto
Mirafuentes and Pedro Sayson. Lengthy cross-examinations conducted by the defense of these
witnesses only strengthened their credibility.

Appellants assert that their defense witness Elias Lacaya completely refuted the claim of Bienvenido
Andilab that on November 5, 1960, the latter reported the incident in question to Mayor Olvis and
contend that this cannot be so because of the following: In the morning of November 4, 1960,
Andilab went to see him (Lacaya) at the municipal building of Polanco to request him to help the
people declare their land for taxation purposes; that on that same morning of November 4, 1960 at
10:00 o'clock, together with Cpl. Damoag, Pat. Olario, 2 PC soldiers, and with Andilab as their guide,
they went to Princesa Lamaya passing by Dilawa where they passed the night; that in the morning of
November 5, 1960 they proceeded to Princesa Lamaya and passed the night in Andilab's house;
that after breakfast in the morning of November 6, 1960, they went to the market place to collect
taxes from the people and there they were informed of the killing of the Alforque couple; that Cpl.
Damoag immediately led the same group to New Tangub; and that Andilab never told them anything
about the Alforque incident in New Tangub. (Pp. 134-138, Appellants' Brief) But the trial court
correctly disregarded Lacaya's declaration, and We cannot add or detract from its observations, to
wit:

The weakness of Lacaya's declaration lies in the fact that Andilab went to Polanco
only on November 5, 1960, after PC soldiers Locop and Abanilla who were with him
in Ws house in Princesa Lamaya on the night of November 4, 1960, had left for the
house of the slain Alforque spouses, to report to Mayor Olvis what he had seen in the
dining room of the house of said couple in New Tangub at about 7:30 o'clock in the
evening of November 4, 1960, and that he Andilab rode on the jeep of Mayor Olvis
up to Pinian when the said Mayor, with some companions, among whom were his
Chief of Police Francisco Saso and Dr. Regencia, Rural Health Officer hereof, left for
New Tangub, via Ozamis City and Mahayag, early in the morning of November 6,
1960. Andilab's joining Mayor Olvis was corroborated by the latter. Lacaya's
testimony about his being with Andilab in the municipal building of Polanco until
10:00 o'clock in the morning of November 4, 1960 is also weak, because his daily
time record, Exhibit SS positively shows that on November 4, 1960 he was already in
barrio Dilawa Damoag's house at noon on February 15, 1968 when he testified "to
inquire from him about the times and dates which I could not exactly remember
anymore" -and use even as he said that although he has a diary in his house, he
cannot remember "If there is November 1960" therein, even as he said that his
having left Polanco on November 4, 1960 "appears in it". Lacaya did not say that he
lost his diary, but he did not ask for the time to go to his house, which is in Dipolog, to
get it and show it to the Court. (Decision of lower court, pp. 367-368).

In brief, the foregoing discussed assignments of error of appellants are all centered on the credibility
of the prosecution witnesses. We reiterate, We have carefully considered appellants' arguments in
the light of the evidence on record and We are morally convinced, despite their arguments, that they
are guilty of the offense charged. The trial judge who had every opportunity to observe the
demeanor of all the witnesses, analyzed the evidence in an unusually long decision of 457 pages
and found the prosecution witnesses more reliable. We hardly have to say again that findings or
assessments of credibility of witnesses by the trial court are as a rule entitled to great weight and
respect.

Clearly, the local issue presented here revolves around the credibility of witnesses,
i.e., whether or not, the trial court was correct in giving weight to the testimony of the
prosecution witnesses. And the well-established rule on this point is that the factual
conclusion reached by the trial court, which had the opportunity more than the
reviewing tribunal to observe and gauge the demeanor and conduct of the witnesses
while testifying and to properly appreciate the same, is not to be disturbed, unless
there is proof of misapprehension of evidence. (People vs. Baduso 60 SCRA 61;
People vs. De la Victoria 64 SCRA 400; People vs. Carino, 55 SCRA 516-517;
People vs. Dorado, 30 SCRA 53 People vs. Legones L-30245, January 30, 1976, 69
SCRA 210; See also People vs. Estero, L-32574, Jane 29, 1979, 91 SCRA 93)

... This then is a case where the well-settled principle as to the acceptance of the
findings of the lower court which had the opportunity to see, hear and observe the
witnesses testify and to weigh their testimonies, finds application. This Court had
gone so far as to hold in People v. Tilaon (2 SCRA 653): 'Finally, the rule is now
firmly established to the point of becoming elementary in this jurisdiction and
elsewhere that where there is an irreconcilable conflict in The testimony of witnesses,
the appellate court will not disturb the findings of the trial court when the evidence of
the successful part considered by itself, is adequate to sustain tile judgment
appealed from." (Citing People vs. Payao, L-29364. Nov. 21, 1975; People vs.
Gumahin, L-22357, Oct. 31, 1967; 21 SCRA 729; People vs. Pelago, L-24884, Aug.
31, 1968, 24 SCRA 1027; People vs. Manos, L-27791; Dec. 24, 1970, 36 SCRA 457;
People vs. Sabandal, L-31129; Sept. 30, 1971, 41 SCRA 179; People vs. Dramayo,
L-21325, Oct. 29, 1971, 42 SCRA 59, People vs. Angcap, L-28748, Feb. 29, 1972,
43 SCRA 437; People vs Carandang, L-31012, Aug. 15, 1973, 52 SCRA 259 People
vs. Macaraeg, L-32906, Oct 23, 1973, 53 SCRA 285 People vs. de la Victoria, L-
30037, June 27,1975, 64 SCRA 400) (People vs. Ordonio, L-33829, December 19,
1975)

In raising the issue of credibility, appellant unavoidably comes to grip with the well-
settled rule that the assessment of the trial court of the witnesses' credibility is
generally and almost invariably given full weight and respect by the reviewing court
which is not given. the opportunity to observe the witnesses' manner of, and
demeanor in, testifying on the stand. We find absolutely no cause in the present case
to depart from this rule. The alleged inconsistencies are, as contended by the
Solicitor General, on inconsequential details that do not discredit testimony,
especially when the supposed inconsistencies consist of variance between said
testimony and affidavits executed by the witnesses out of court (Exhibits H and, H-1).
For the incompleteness and lack of accuracy of affidavits are well known. (People vs.
Tiongson, 47 SCRA 279) (People vs. Cabeltes, Nos. L-38145-48, June 1979, 91
SCRA 208)

The last two defenses put up by appellants are: (1) lack of motive on their part to commit the crime
charged; and (2) failure of the prosecution to prove conspiracy.

It is almost absurd for appellants to pretend at all that they had no motive to commit the offense of
which they were found guilty by the trial court. They claim that Alforque's refusal to accede to
Mendoza's wish to recognize that barrio New Tangub is within the territorial jurisdiction of Mahayag,
Zamboanga del Sur, of which he (Mendoza) was then the appointed Mayor, was not sufficient or
compelling enough to move them to kill the Alforque couple, because by so doing, appellants did not
stand to gain anything. (Pp. 90-91, Appellants' Brief) The record is replete with evidence showing
beyond doubt that Alforque was subjected to continuous harassment by Mendoza ever since the
former openly spoke against the latter's proposal to claim New Tangub to be under his (Mendoza's)
jurisdiction. We only have to recall that during the meeting held by Mayor Mendoza and his
councilors in the house of Alforque in New Tangub, Polanco, Zamboanga del Norte in the afternoon
of July 4, 1960, an acrimonious discussion took place between Alforque and Mendoza that resulted
in the latter threatening the former with butt-striking, hand-cuffing and incarceration, if he would not
place himself and his barrio within the territorial jurisdiction of Mahayag. (Tsn, pp. 164-165, Jan. 18,
1967, p. 280, Jan. 20, 1968) This was admitted by no other than Mendoza himself, when he
conceded that there was indeed a little discussion between him and Alforque during the said
meeting. (Tsn, p. 114, August 6, 1969) Proof of said threats of bodily harm, is that Alforque filed a
criminal charge against Mendoza for grave threats in the Court of First Instance of Zamboanga del
Norte. As counter moves, after the filing of said complaint for grave threats against him, Mendoza
pettily filed three (3) criminal cases for robbery against Alforque in the Municipal Court of Mahayag
involving the measly amounts of P2.50, P7.50 and P3.00 (Exhibits CC-4, HH-8 and 11-4 pp. 4,
Folder of Exhibit 1), all of which were dismissed on motion of the Chief of Police of Mahayag.
Besides, Alforque was arrested by the policemen of Mahayag under Mayor Mendoza sometime in
October 1960 (P. 318, Tsn, May 22, 1967). When Mayor Olvis of Polanco saw appellant Mendoza in
Mahayag in order to bail out Alforque, Mendoza pretended that he (Alforque) was not actually
arrested but was only being investigated. The truth, however, was that Mayor Olvis saw Alforque
actually confined in jail. (Pp. 387, tsn, May 24, 1967) All these circumstances are plain indications of
the harassment suffered by Alforque in the hands of Mendoza as a result of the former's stubborn
stand already off mentioned above. It is plainly ludicrous that Alforque who was the owner of over 81
hectares of land, a lot and a well constructed house, a store worth P25,000.00 and animals such as
cows, carabaos, and horses (Tsn, pp. 1084-1086, June 14, 1967) would rob anybody the amounts of
P2.50, P7.50 and P3.00. Despite all these harassments, the deceased stood firm and did not relent
in his stand. Is it any wonder then that appellants had to resort to his liquidation?

Aside from lack of motive, appellants maintain that the prosecution failed to prove that conspiracy
existed among all of them. (Appellants' Brief, pp, 123-124) As all their other previous contentions,
this is devoid of merit. The record amply shows that appellants implemented their nefarious plan
through their collective endeavors or acts before and after its commission, hence their duly proven
acts before the commission of the offense, are mute but eloquent testimony of the existence of their
conspiracy. There is no reason to doubt that the commission of the instant offense was hatched in a
meeting of all the appellants at the house of Sayson on the morning of November 4, 1960, where a
prize of P300.00 to each of them was offered by Mendoza (Pp. 294-295, Gako); that all of them
agreed to the proposal and Sayson was designated as the leader of the group (Pp. 301-303 & 312,
Gako); that before proceeding to the house of the Alforques, all of them agreed that policemen
Lirasan and Mamacang would be the first ones to enter the house (P. 343, Gako); that as ordered by
Sayson, each one of them posted himself in a strategic position (according to plan) to ensure their
security, the secrecy of their mission and the accomplishment of the same unhindered by any
outside obstacles (Pp. 352-353: tsn, Gako); that after appellant Lirasan felled Alforque by striking
him almost below his left ear, with the butt of his gun, Perez approached Alberto and made several
thrusts with his knife causing the latter his total fall (Pp. 383, 405, 406 & 407, tsn, Gako); that while
appellant Mamacang was stabbing Valeriana Alforque, appellant Potestas also approached and
stabbed her with his 8-inch knife, causing her to stagger and fall face downward (Pp. 411-412, 428-
429, tsn, Gako); and that after assuring themselves that the Alforque spouses were dead, Sayson
ordered Lirasan and Mamacang to search the second floor of the house, while Potestas and Perez
searched the ground floor for other persons, after which they all left the house (Pp. 439, 441 & 443,
tsn, Gako). It is thus evident that the appellants acted in concert pursuant to the same objective, the
joint purpose and design, namely, to do away with the obstinate and adamant Alforque. After killing
Alberto, the latter's wife, Valeriana had also to be killed because she came in aid of her husband
whom she saw was being manhandled by them.

With conspiracy thus established, each appellant must be held responsible for the acts of each of
them in the furtherance of their common design. The lower court committed no error in convicting
them. (People vs. Alcantara, G.R. No. L-26867, June 30, 1970, 33 SCRA 812; People vs. Pajenado,
G.R. No. L-26458, January 30, 1976, 69 SCRA 172) And We cannot close this decision without
commending His Honor for his industry and meticulousness in painstakingly preparing an
extraordinarily extended opinion discussing in detail the bases of his conclusions. The other
assigned errors need no further discussion in view of the above disquisition which inevitably leads to
no other conclusion than that the same must be overruled.

JUDGMENT

Unquestionably, as regards the killing of Alberto Alforque, the offense committed by the accused in
conspiracy with each other, is murder, qualified by evident premeditation, with the generic
aggravating circumstances of (1) superior strength, Eufrocino Perez and Jesus Lirasan having
helped each other in taking the victim's life; (2) having committed the offense in the residence of the
offended party; (3) by a band; (4) in consideration of the price promised by the principal by
inducement, accused Saturnino Mendoza, and (5) taking advantage of their public position in
respect to Lirasan and Agripino "Nonoy" Mamacang, who were policemen and purposely used their
being such to gain ready entrance into the residence of the victims, and also as to Mendoza, being
then Mayor and as such gave the instructions to his policemen and henchmen to kill Alforque, offset
by the sole mitigating circumstance that they voluntarily surrendered as found by the trial court, for
all of which, all three of them, namely Saturnino Mendoza, Jesus Lirasan and Agripino "Nonoy"
Mamacang, being hereby found guilty beyond reasonable doubt, as discussed above, are each
sentenced to the extreme penalty of DEATH.

With respect to the killing of Valeriana Reble de Alforque, the accused Agripino "Nonoy" Mamacang,
who as discussed above is found guilty beyond reasonable doubt of the crime of only homicide,
inasmuch as he and Genovevo Potestas (who has not yet been arrested) stabbed her to death
because she struck Mamacang several times with the piece of firewood she was carrying when
Mamacang admonished her not to interfere in the affair between them and her husband, Alforque,
with the aggravating circumstances, however, of disregard of sex, superior strength and dwelling, for
which he is hereby sentenced to suffer the separate penalty of reclusion temporalin its maximum
period, which by applying the Indeterminate Sentence Law is a minimum of ten (10) years and one
(1) day of prision mayor to a maximum of twenty (20) years of reclusion temporal.

All the accused sentenced hereby shall suffer the corresponding accessory penalties, indemnify the
heirs of Alfonso Alforque and Valeriana Reble de Alforque in the sum of Twelve Thousand
(P12,000.00) Pesos, for each of them and pay one sixth (1/6) each of the costs.

SO ORDERED.
Spouses RENATO S. ONG and FRANCIA N. ONG, petitioners, vs. COURT
OF APPEALS, INLAND TRAILWAYS, INC. and PHILTRANCO
SERVICE ENTERPRISE, INC., respondents.

DECISION
PANGANIBAN, J.:

Evidence not formally offered during the trial cannot be used for or against a party
litigant. Neither may it be taken into account on appeal. Furthermore, actual and moral damages
must be proven before any award thereon can be granted.

The Case

Before us is a Petition for Review on Certiorari of the Decision dated May 20, 1993 and the
Resolution dated June 8, 1994, both promulgated by the Court of Appeals[1] in CA-GR CV No.
33755, modifying the Decision of the trial court in an action for damages filed by spouses
Renato and Francia Ong (petitioners herein) against Philtranco Service Enterprise, Inc. and
Inland Trailways, Inc. (respondents herein, hereafter referred to as Philtranco and Inland,
respectively).
The assailed Decision disposed as follows:[2]

WHEREFORE, the appealed decision is hereby MODIFIED by ordering INLAND

TRAILWAYS, INC. to pay [petitioners] P3,977.00 for actual damages, P30,000.00 as
moral damages and ten (10) percent as contingent attorneys fees and to pay the costs
of the suit.

Reconsideration was denied in the assailed Resolution:[3]

WHEREFORE, IN VIEW OF THE FOREGOING, both motions for reconsideration

filed by [petitioners] and xxx Inland Trailways, Inc. are hereby DENIED.

The Facts

On February 9, 1987, petitioners boarded as paying passengers Bus No. 101 with Plate No.
EVB-508 (Inland bus, for convenience), which was owned and operated by Inland Trailways
under a Lease Agreement with Philtranco. It was driven by Calvin Coronel.[4] Around 3:50 in the
morning of said date, when the Inland bus slowed down to avoid a stalled cargo truck in Tiaong,
Quezon, it was bumped from the rear by another bus, owned and operated by Philtranco and
driven by Apolinar Miralles. Francia sustained wounds and fractures in both of her legs and her
right arm, while Renato suffered injuries on his left chest, right knee, right arm and left
eye.[5] They were brought to the San Pablo City District Hospital for treatment and were confined
there from February 9 to 18, 1987.[6]

On December 22, 1988, petitioners filed an action for damages against Philtranco and
Inland. [7] In their Complaint, they alleged that they suffered injuries, preventing
Francia from operating a sari-sari store at Las Pias, Metro Manila, where she derived
a daily income of P200; and Renato from continuing his work as an overseas contract
worker (pipe welder) with a monthly salary of $690. Stating that they
incurred P10,000 as medical and miscellaneous expenses, they also claimed moral
damages of P500,000 each, exemplary and corrective damages of P500,000 each, and
compensatory damages of P500,000 each plus 35 percent thereof as attorneys fees. In
addition to their testimonies, petitioners also presented the following documentary
evidence:

Exhibit A- Philtranco Bus Ticket No. 333398

B - Philtranco Bus Ticket No. 333399

C - Certification dated February 12, 1987

D - Medical Certificate of Francis Ong dated February 18, 1987

E - Medical Certificate of Renato S. Ong dated February 18, 1987

F - Statement of Account of Francia N. Ong in the amount of P1,153.50

G - Statement of Account of Renato S. Ong in the amount of P1,973.50

H - Receipt dated February 9, 1987

I' - Receipt dated March 3, 1987

J - Receipt dated February 18, 1987

K - Receipt dated February 24, 1987

L & Picture of face of Renato S. Ong

'L'-1

M &- Picture of face of Renato S. Ong

M-1

N - Payroll Summary for [period ending] November 1986

O - Payroll Summary for [period ending] December, 1986

Philtranco answered that the Inland bus with Plate No. EVB-508 (which had transported
petitioners) was registered and owned by Inland; that its driver, Calvin Coronel, was an
employee of Inland; that Philtranco was merely leasing its support facilities, including the use of
its bus tickets, to Inland; and that under their Agreement, Inland would be solely liable for all
claims and liabilities arising from the operation of said bus. Philtranco further alleged that, with
respect to its own bus (which bumped the Inland bus), it exercised the diligence of a good father
of a family in the selection and supervision of its drivers, and that the proximate cause of the
accident was the negligence of either the cargo truck or the Inland bus which collided with said
cargo truck.
Inland answered that, according to the Police Report, it was Apolinar Miralles, the driver of
the Philtanco bus, who was at fault, as shown by his flight from the situs of the accident; that
said bus was registered and owned by Philtranco; and that the driver of the Inland bus exercised
extraordinary diligence as testified to by its passengers. Inland and Philtranco filed cross-claims
against each other.
Both respondents moved to submit the case for decision without presenting further
evidence. Consequently, the trial court, in its Order dated July 5, 1989, resolved:[8]

When this case was called for continuation of presentation of plaintiffs evidence, over
objections from counsels for defendants, plaintiffs counsel was allowed to recall his
first witness, Renato S. Ong, for some additional direct questions[;] and after cross-
examination by defendant Inland Trailways, Inc., adopted by defendant Philtranco
Service Enterprise, Inc., plaintiff presented his second witness, [Francia] Ong, whose
testimony on direct, cross and redirect was terminated[;] and as prayed for, counsel
for the plaintiffs shall have five (5) days from today within which to submit his formal
offer of evidence, furnishing copies thereof to defendants who shall have five (5) days
from their receipt within which to submit comments after which the same shall be
deemed submitted for resolution.

By agreement, considering the stipulations of parties made of record regarding factual

issues except as to whether or not the bus is included in the lease, counsels for the two
(2) defendants are given a period of ten (10) days from today within which to submit
simultaneous offer[s] of admission and denials not only on the above exception but on
any other relevant matter.

Considering that the documents are admitted, there is no necessity of any formal
written offer of evidence and, therefore, after all the foregoing, the case shall be
deemed submitted for decision upon simultaneous memoranda of the parties and upon
submission of complete transcripts.

Thereafter, the trial court rendered its May 7, 1991 Decision, which disposed as follows:[9]
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered in favor of the
[petitioners] absolving Inland Trailways, Inc., from any liability whatsoever, and
against xxx Philtranco Service Enterprise, Inc., ordering the latter to pay the
[petitioners]

1) P10,000.00 as actual damages for medical and miscellaneous expenses;

2) P50,000.00 as compensatory damages for the [diminution] of the use of the right arm of
[petitioner]-wife;
3) P48,000.00 as unrealized profit or income;
4) P50,000.00 as moral damages;
5) 25% of the foregoing as contingent attorneys fees; and
6) the costs.
According to the trial court, the proximate cause of the accident was the bumping from
behind by the Philtranco bus with Plate No. 259 driven by Apolinar Miralles based on the Police
Report and the affidavits of passengers, to which Philtranco did not object. As it failed to prove
that it exercised due diligence in the selection and supervision of its employees under Article
2176 of the Civil Code, Philtranco was held liable based on culpa aquiliana.

Ruling of the Court of Appeals

On appeal, the Court of Appeals (CA) resolved that Philtrancos liability for damages could
not be predicated upon the Police Report which had not been formally offered in evidence. The
report was merely annexed to the answer of Inland, and petitioner did not adopt or offer it as
evidence.Consequently, it had no probative value and, thus, Philtranco should be absolved from
liability.
Instead, the appellate court found that petitioners sufficiently established a claim against
Inland based on culpa contractual. As a common carrier, Inland was required to observe
extraordinary diligence under Articles 1735 and 1750 of the Code. Its liability arose from its
failure to transport its passengers and cargo safely, and a finding of fault or negligence was not
necessary to hold it liable for damages. Inland failed to overcome this presumption of negligence
by contrary evidence; thus, it was liable for breach of its contractual obligation to petitioners
under Article 2201 of theCivil Code.
The liability of Inland for medical and miscellaneous expenses was reduced, as the evidence
on record showed that petitioners spent only P3,977. Deemed self-serving was Francias
testimony that the use of her right arm was diminished and that she lost income. Thus, the award
for unearned income was disallowed and the amount of moral damages was reduced to P30,000.
Hence, this petition.[10]

The Issues
 In their Memorandum,[11] petitioners raise the following issues:[12]
[I] Whether or not public respondent committed grave abuse of discretion in completely
reversing the decision of the Regional Trial Court, ordering Philtranco to indemnify
petitioners and in lieu thereof, order[ing] Inland to pay petitioners for their damages.
[II] Whether or not public respondent committed grave abuse of discretion in disallowing
the P50,000.00 awarded to petitioner, Francia Ong for the diminution of the use of her
right arm and the P48,000.00 representing unrealized income.
[III] Whether or not public respondent committed grave abuse of discretion in reducing the
award for actual and miscellaneous expenses from P10,000.00 to P3,977.00; the award
of P50,000.00 moral damages to P30,000.00; and the 25% contingent attorneys fees to
10% thereof.
Simply stated, the main issues raised are: (1) whether the Police Report, which was not
formally offered in evidence, could be used to establish a claim against Philtranco based
on culpa aquiliana; and (2) whether the reduction in the amounts of damages awarded was
proper.

The Courts Ruling

The petition is devoid of merit.

First Issue: Requirement of Formal Offer of Evidence

Petitioners take exception to the rule requiring documents to be formally offered in evidence
before they can be given any probative value, arguing that the parties agreed to submit the case
for resolution based on the July 5, 1989 Order of the trial court. Because of the agreement,
petitioners assumed that all the pieces of documentary evidence, including the Complaint and its
Annexes, as well as those in the respective Answers of the private respondents, were deemed
admitted.
We disagree. Section 34, Rule 132 of the Rules of Court, provides that [t]he court shall
consider no evidence which has not been formally offered. A formal offer is necessary, since
judges are required to base their findings of fact and their judgment solely and strictly upon the
evidence offered by the parties at the trial. To allow parties to attach any document to their
pleadings and then expect the court to consider it as evidence, even without formal offer and
admission, may draw unwarranted consequences. Opposing parties will be deprived of their
chance to examine the document and to object to its admissibility. On the other hand, the
appellate court will have difficulty reviewing documents not previously scrutinized by the court
below.[13]
In adhering to this rule, the appellate court cannot be faulted with reversible error, as it
held:[14]
xxx [T]he burden of proof lies with the plaintiff in establishing fault or negligence on
the part of the defendant (Ong vs. Metropolitan Water). This, however, plaintiff-
appellees failed to establish. Albeit, there was a police investigation report finding the
driver of PHILTRANCO negligent which became the basis of the court a quo [for]
holding PHILTRANCO liable, this piece of evidence was merely attached as Annex 1
of INLANDs answer, nothing more. It was not presented and even offered as evidence
by INLAND nor utilized by plaintiffs-appellees. Thus, even assuming arguendo that
the same had been identified in court, it would have no evidentiary
value. Identification of documentary evidence must be distinguished from its formal
offer as an exhibit. The first is done in the course of the trial and is accompanied by
the marking of the evidence as an exhibit. The second is done only when the party
rests its case and not before. The mere fact that a particular document is identified and
marked as an exhibit does not mean it will be or has been offered as part of the
evidence of the party. The party may decide to offer it if it believes this will advance
the cause, and then again it may decide not to do so at all (People vs. Santito, Jr., 201
SCRA 87).

In the case at bar, the defendant INLAND and plaintiffs-appellees did not identify the
said Annex 1 or the Police Investigation Report as evidence. Thus, under Section 35
of Rule 132 of the Revised Rules on Evidence, the court shall consider no evidence
which has not been formally offered.Corollary, the Police Investigation Report of
Annex 1 cannot be given any evidentiary value.

Absen[t] Annex 1 which was the basis of the trial court in finding PHILTRANCO
liable, the latter is thus exonerated from liability.

Petitioners similarly erred in presuming that said Annex was admitted in evidence by virtue
of the Order of July 5, 1989. Their presumption has no basis. The Order required counsel for the
petitioners to submit his formal offer of evidence, furnishing copies thereof to defendants who
shall have five (5) days from their receipt within which to submit comments after which the same
shall be deemed submitted for resolution.[15] In compliance, petitioners filed a written offer of
evidence on July 12, 1989.[16] Such offer led the trial court, in its Order of August 2, 1989, to
formally admit in evidence Exhibits A-O.[17] Clearly, the Police Report was neither offered by the
petitioners nor admitted by the trial court.
Moreover, the petitioners allegations in their Complaint did not establish a cause of action
against Philtranco. They similarly failed to make any reference to said Police Report during the
presentation of their case. This is precisely why Respondent Philtranco opted not to present
further evidence. A document or an article is valueless unless it is formally offered in evidence,
and the opposing counsel is given an opportunity to object to it and to cross-examine any witness
called to present or identify it.[18] Evidence not formally offered before the trial court cannot be
considered on appeal, for to consider them at such stage will deny the other parties their right to
rebut them.[19]
 There is no agreement to submit the case based on the pleading, as contended by the
petitioners. The parties had no such intention, nor did said Order evince such an agreement.

Second Issue: Damages Require Evidence

Petitioners aver that there was grave abuse of discretion when the amount of actual damages
awarded was reduced from P10,000 to P3,977, even if the original amount did not even include
the medical expenses that Francia continued to incur; and when the award of P48,000 as
unrealized income was deleted despite her testimony which was given credence by the trial court.
The Court disagrees. Granting arguendo that there was an agreement to submit the case for
decision based on the pleadings, this does not necessarily imply that petitioners are entitled to the
award of damages. The fundamental principle of the law on damages is that one injured by a
breach of contract (in this case, the contract of transportation) or by a wrongful or negligent act
or omission shall have a fair and just compensation, commensurate with the loss sustained as a
consequence of the defendants acts. Hence, actual pecuniary compensation is the general rule,
except where the circumstances warrant the allowance of other kinds of damages.
Actual damages are such compensation or damages for an injury that will put the injured
party in the position in which he had been before he was injured. They pertain to such injuries or
losses that are actually sustained and susceptible of measurement. Except as provided by law or
by stipulation, a party is entitled to adequate compensation only for such pecuniary loss as he has
duly proven.
To be recoverable, actual damages must be pleaded and proven in Court. In no instance may
the trial judge award more than those so pleaded and proven. Damages cannot be presumed. The
award thereof must be based on the evidence presented, not on the personal knowledge of the
court; and certainly not on flimsy, remote, speculative and nonsubstantial proof. Article 2199 of
the Civil Code expressly mandates that [e]xcept as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly
proved.
The lack of basis for such award was patent in the trial court Decision:

The records will show that from the documentary evidence, [petitioners] have jointly
spent the sum of P3,977.00. [Respondent] Philtranco has not presented any evidence
that it has advanced any amount for medicine, hospitalization and doctors fees, but on
the contrary, [petitioners] have testified that they paid for their expenses except at the
initial stage wherein a representative of [respondent] Philtranco went to the hospital to
get the receipts of medicines only and paid (t.s.n.- June 29, 1989, p. 6). Considering
the claim of the [petitioners], as alleged in their complaint they spent P10,000.00
representing medical and miscellaneous expenses[;] considering that they have gone
for consultation to at least two (2) different doctors, this Court may take judicial
notice of the fact that miscellaneous expenses [are] bound to be incurred to cover
transportation and food, and therefore, finds the amount of P10,000.00 as actual
damages to be reasonable.

Damages, after all, are not intended to enrich the complainant at the expense of the
defendant.[20]

Moral Damages and Diminution of Use of Francias Arm

Petitioners protest the deletion of the amount of P50,000 earlier awarded by the trial court
because of the diminution of the use of Francias right arm, arguing that she stated during direct
examination that it could no longer perform its normal functions,[21] and that private respondents
impliedly admitted this matter when they failed to present controverting evidence.
A person is entitled to the physical integrity of his or her body, and if that integrity is
violated, damages are due and assessable. However, physical injury, like loss or diminution of
use of an arm or a limb, is not a pecuniary loss. Indeed, it is not susceptible of exact monetary
estimation.
Thus, the usual practice is to award moral damages for physical injuries sustained. In Mayo
v. People,[22] the Court held that the permanent scar on the forehead and the loss of the use of the
right eye entitled the victim to moral damages. The victim, in said case, was devastated by
mental anguish, wounded feelings and shock, which she experienced as a result of her false eye
and the scar on her forehead. Furthermore, the loss of vision in her right eye hampered her
professionally for the rest of her life.
In the case at bar, it was sufficiently shown during the trial that Francias right arm could not
function in a normal manner and that, as a result, she suffered mental anguish and anxiety. Thus,
an increase in the amount of moral damages awarded, from P30,000 to P50,000, appears to be
reasonable and justified. Renato also suffered mental anxiety and anguish from the
accident. Thus, he should be separately awarded P30,000 as moral damages.
In some instances, the Court awards the cost of medical procedures to restore the injured
person to his or her former condition. However, this award necessitates expert testimony on the
cost of possible restorative medical procedure. In Gatchalian v. Delim,[23] the Court, reasoning
that a scar resulting from the infliction of injury on the face of a woman gave rise to a legitimate
claim for restoration to her conditio ante, granted P15,000 as actual damages for plastic
surgery. It bears emphasis that the said amount was based on expert testimony.[24]
In another case, the Court granted actual or compensatory damages in the sum of P18,000
for the surgical intervention necessary to arrest the degeneration of the mandible of a young
boy. Again, there was an expert testimony that such medical procedure would cost P3,000 and
would have to be repeated several times to restore him to nearly normal condition.[25]
In the case at bar, petitioner failed to present evidence regarding
the feasibility or practicability and the cost of a restorative medical operation on her arm. Thus,
there is no basis to grant her P48,000 for such expense.
Unrealized Income

Protesting the deletion of the award for Francias unrealized income, petitioners contend that
Francias injuries and her oral testimony adequately support their claim. The Court
disagrees. Although actual damages include indemnification for profits which the injured party
failed to obtain (lucro cesante or lucrum cesans),[26] the rule requires that said person produce the
best evidence of which his case is susceptible.[27]
The bare and unsubstantiated assertion of Francia that she usually earned P200 a day from
her market stall is not the best evidence to prove her claim of unrealized income for the eight-
month period that her arm was in plaster cast. Her testimony that it was their lessor who filed
their income tax returns and obtained business licenses for them does not justify her failure to
present more credible evidence of her income. Furthermore, after her ten-day confinement at the
San Pablo Hospital,[28] she could have returned to her work at the public market despite the
plaster cast on her right arm, since she claimed to have two nieces as helpers.[29] Clearly, the
appellate court was correct in deleting the award for unrealized income, because of petitioners
utter failure to substantiate her claim.

Attorneys Fees

Counsel for petitioner deeply laments the reduction in the award of attorneys fees. He
alleges that he had to use his own money for transportation, stenographic transcriptions and other
court expenses, and for such reason, avers that the award of 25 percent attorneys fees made by
the trial court was proper.
Under the Civil Code, an award of attorneys fees is an indemnity for damages ordered by a
court to be paid by the losing party to the prevailing party, based on any of the cases authorized
by law.[30] It is payable not to the lawyer but to the client, unless the two have agreed that the
award shall pertain to the lawyer as additional compensation or as part thereof. The Court has
established a set of standards in fixing the amount of attorneys fees:[31]

(1) [T]he amount and character of the services rendered; (2) labor, time and trouble
involved; (3) the nature and importance of the litigation or business in which the
services were rendered; (4) the responsibility imposed; (5) the amount of money or
the value of the property affected by the controversy or involved in the employment;
(6) the skill and experience called for in the performance of the services; (7) the
professional character and social standing of the attorney; (8) the results secured, it
being a recognized rule that an attorney may properly charge a much larger fee when
it is contingent than when it is not. Counsels performance, however, does not justify
the award of 25 percent attorneys fees. It is well-settled that such award is addressed
to sound judicial discretion and subject to judicial control.[32] We do not see any abuse
thereof in the case at bar. In fact, the appellate court had been generous to petitioners
counsel, considering that the nature of the case was not exceptionally difficult, and he
was not required to exert Herculean efforts. All told, his handling of the case was
sorely inadequate, as shown by his failure to follow elementary norms of civil
procedure and evidence.

WHEREFORE, the assailed Decision is AFFIRMED with the MODIFICATION that

Renato and Francia Ong are separately awarded moral damages in the amount of P30,000
and P50,000, respectively. The ten percent (10%) attorneys fees shall be based on the total
modified award.
SO ORDERED.
G.R. No. L-68624

BARTOLOME ALONZO, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ. JR., J.:

Upon an information which reads:

That on or about this 30th day of October, 1974, in the City of Olongapo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, (petitioner herein)
being then the personnel officer of the Fire Department of Olongapo City and entrusted with
the preparation, follow up and payments of payrolls, vouchers, and other papers and
documents relative to the salary of the personnel and members of the Olongapo City Fire
Department, with intent to defraud, did then and there wilfully, unlawfully and feloniously
prepare or cause the preparation of an official voucher which is a public document pertaining
to the salary of Wilfredo Cadua for the period covering from October 1-31, 1974, for a total of
P166.67 and wrote, imitated, forged, falsified the signature and signed for Wilfredo Cadua
without the latter's knowledge, permission and consent, and thereafter presented the said
voucher for payment and received the amount of P166.67 thus making it appear and
attributing that the complaining witness Wilfredo Cadua had signed the said voucher and
received the amount stated therein when in fact and in truth, as said accused well knew that
he forged and falsified the signature of Wilfredo Cadua and once in possession of the said
amount (P166.67), did then and there wilfully, unlawfully and feloniously misappropriate.
misapply and convert to his own personal use and benefit the said amount, and despite
repeated demands, the accused refused and continue to refuse to remit the above-
mentioned amount, to the damage and prejudice of Wilfredo Cadua in the aforementioned
amount, Philippine Currency. However, the above-named accused subsequently remitted to
the complaining witness, Wilfredo Cadua the amount of P100.00, Philippine Currency. (p. 12,
Rollo).

the then Court of First Instance of Zambales, Third Judicial District, Branch XXX, Olongapo City
found the petitioner guilty of estafa through falsification of public document.

The dispositive portion of the decision reads as follows:

WHEREFORE, judgment is hereby rendered finding the accused guilty beyond reasonable
doubt of the crime charged in the Information and hereby sentences him to suffer an
indeterminate sentence ranging from Four (4) Years, Two (2) Months and One (1) Day
of prision correccional as minimum to Ten (10) Years and One (1) Day of prision mayor as
maximum, to pay a fine of One Thousand Pesos (P1,000.00) with subsidiary imprisonment in
case of insolvency and to suffer the accessory penalties provided for by law.

Costs against accused. (p. 7, Rollo).

From this judgment, the petitioner appealed to the Court of Appeals. The Court of Appeals affirmed
the judgment of conviction with a recommendation for executive clemency with respect to the
duration of the penalty, considering that the amount involved is only P166.67. The petitioner's motion
for reconsideration was denied. Hence, the present petition was filed on the submission that:

(a) The former Court of Appeals decided the case contrary to law, the evidence and the
applicable decisions of the Supreme Court (Rule 45, Sec. 4a, Rules of Court).

(b) Granting but without admitting that the accused Bartolome Alonzo, signed the name of
the complainant Wilfredo Cadua in the voucher, the crime committed is simple Estafa under
Art. 315 of the Revised Penal Code and not a complex crime under Art. 171 as ruled by the
trial court and the respondent Court.

(c) The respondent Court (Intermediate Appellate Court) gravely erred in affirming the
decision of the trial court convicting the accused, the herein petitioner of the crime charged in
the information when the prosecution failed to prove any crime against the accused, the
herein petitioner. (p. 11, Rollo)

The following constitute the facts of the case from the viewpoint of the accused:

The accused Bartolome G. Alonzo, was appointed as Clerk-typist in the Fire Department of
Olongapo City, designated as Personnel Officer in charge of Finance. Some of his duties
was (sic) to prepare payrolls, vouchers and others which are relevant to his position.
Sometime on October, 1974, the accused prepared the voucher for the salary of Wilfredo
Cadua for the month of October, 1974, who was employed as Firefighter in the Olongapo
City Fire Department. After preparing said voucher, the accused placed the same on his
table in the outgoing box as a usual practice in his office. It is the duty of the messenger-
clerk Rogelio Pangilinan to see to it that all the vouchers prepared by the accused Bartolome
G. Alonzo and placed in the outgoing box will be signed by those concerned and to follow it
up until the vouchers will be paid.

In the afternoon of October 30, 1974, Rogelio Pangilinan informed the accused that he has
already converted the voucher into cash and handed to the accused Bartolome G. Alonzo
the amount of P166.67 appearing in the voucher of Wilfredo Cadua informing him (Alonzo)
that he was in a hurry. Some of his (Alonzo) officemates including the Administrative Officer
was (sic) present when Rogelio Pangilinan handed to him the P166.67 and because Wilfredo
Cadua was not around at the time, he looked for him in the office and when he saw Cadua,
he handed to him the full amount appearing in the voucher in the amount of P166.67. The
accused informed Wilfredo Cadua that he is badly in need for money for his X-ray and asked
a loan of P66.00 from Cadua which the latter consented. No receipt was signed for the loan
since they worked in the office "through trust and confidence."

The following morning, Cadua and the accused had a confrontation in the presence of the
Fire Chief. The Fire Chief inquired from Alonzo why Cadua received less than what he
expected to receive and after the accused explained the circumstances about the loan, the
Fire Chief advised the accused to return the amount loaned (t.s.n., pp. 2-12, hearing of
December 7, 1977; Decision, Crim. Case No. 2526, p. 35 hereof).

A week after or on November 10, 1974, the accused Bartolome G. Alonzo returned the
amount of P66.00 which he loaned from Wilfredo Cadua in the presence of their Fire Chief
but the accused did not ask Cadua to issue receipt for the return of his loan since it was in
the presence of their Fire Chief. (t.s.n., p. 114, Id)
 Sometime on March 1975, or four months after payment of the loan of P66.00, Wilfredo
Cadua filed a criminal complaint against Bartolome G. Alonzo as a consequence of the loan
of P66.00 but which was already paid on November 10, 1974. And as a result, an
Information for Estafa through Falsification of Public Documents was filed against the
accused, and the lower court convicted the accused of the crime charged in the information.

In short, these were in synthesis, the basic facts of this unfortunate case of the herein
accused Bartolome G. Alonzo which were clearly and conclusively established during the
brief trial of this criminal case. And this Honorable Court shall have that opportunity now to
fathom the noble dignity of our proofs tested in this regard for we are confident that there is
no room to hold the memory of "Wrong Judgment" in the hall of this Honorable Court,
presided by jurists whose appointments were a real credit to the Philippine judiciary.
(Appellant's brief in the Court of Appeals, pp. 4-8; Rollo, pp. 31-33).

On the other hand, the prosecution's version is as follows:

Appellant was a clerk-typist in the Olongapo Fire Department. He was designated as its
finance officer. Among his duties was the preparation of vouchers and payrolls. Complainant
Wilfredo Cadua was employed as a fireman from March 1, 1973 to July 31, 1975 with a
monthly salary of P250.00.

Sometime in October 1974, appellant prepared a voucher (Exh. A) for the salary of
complainant for that month. He gave it to the office messenger, Rogelio Pangilinan, for the
signature of those whose approval of the voucher is required. When Pangilinan first received
the voucher from appellant, Certification No. 1 bore a signature (Exh. A-6), purportedly that
of complainant. Certification No. 2 also was already signed by the Fire Department Chief and
was correspondingly initialed by complainant. After taking the voucher to the city treasurer
and city auditor for their signatures, Pangilinan returned the voucher to appellant. A few
minutes later, appellant called for Pangilinan, gave him back the voucher and told him to get
the money at the treasurer's office. This time, a signature (Exh. A-8) purportedly that of
complainant appeared on the receipt of payment portion of the voucher.

On October 30, 1974, Pangilinan presented the voucher to the treasurer's office. The
paymaster, Aida Clark-Pineda, upon noting the signatures of the auditor and the complainant,
gave the proceeds of P166.67 to Pangilinan, whom she knew to be a messenger in the fire
department. Pangilinan signed the voucher as a witness. Pangilinan returned to the fire
department and gave the amount to appellant.

At about 4:45 p.m., that same day, appellant gave complainant only P100.00. Complainant
inquired about his voucher and appellant showed him a voucher which amounted only to
P100.00. Wondering how appellant was able to cash his voucher without his signing it,
complainant immediately went to the treasurer's office. He discovered that his signature had
been forged on the voucher and that the amount he was entitled to receive was P166.67, not
P100.00. He then realized that the voucher shown him by appellant was different.

Complainant then demanded the return of the balance. Since appellant refused, complainant
reported the matter to the fire department chief who formed a fact-finding committee to look
into the case. However, the committee failed to render any report. Appellant paid back the
amount he withheld from complainant three weeks later. He had used the money to pay for
his x-ray.
 On August 4, 1975, complainant submitted an Affidavit (Exh. D) as basis for his charge of
estafa through falfisication of a public document against appellant. After preliminary
investigation was conducted a prima facie case was established, and so an information was
filed on February 20, 1976 charging appellant of the aforementioned offense. (tsn., pp. 4-28,
October 11, 1976; pp. 2-12, November 9, 1977; p. 13, December 7, 1977; pp. 12-13, May 17,
1978). (Emphasis supplied; pp. 26-28, Rollo).

The question is whether or not the petitioner misappropriated P66.67 by forging another person's
signature on the salary voucher.

The information alleges that accused Bartolome G. Alonzo — (l) with intent to defraud, did then and
there wilfully, unlawfully and feloniously prepare or cause the preparation of an official voucher
pertaining to the salary of Wilfredo Cadua for a total of P166.67; (2) that he wrote, imitated, forged,
falsified the signature, and signed for Wilfredo Cadua without the latter's knowledge, permission and
consent; (3) that he presented the said voucher for payment and received the amount of P166.67;
(4) once in possession of the said amount (P166.67), that he then and there wilfully, unlawfully and
feloniously misappropriate, misapply and convert to his own personal use and benefit the said
amount; and (5) that, despite repeated demands, the accused refused and continued to refuse to
remit the above-mentioned amount.

On the other hand, the prosecution evidence tends to show that — (l) the accused was designated
as finance officer of the Olongapo City Fire Department and among his duties was the preparation of
vouchers and payrolls; (2) on a date not specified in the records, the accused gave their office
messenger, Rogelio Pangilinan, a voucher for the salary of Wilfredo Cadua for the month of October,
1974 so that the messenger could have it signed by all those having a hand in the approval of
vouchers; (3) after the voucher was approved, Pangilinan returned the voucher to the accused who
instructed him to encash the voucher; (4) Paymaster Aida Pineda of Olongapo City paid the
proceeds of the voucher to Pangilinan who presented the voucher for payment after she required
Pangilinan to sign as witness to the payment; (6) Aida Pineda gave Pangilinan the full amount of
P166.67; (7) after he received the proceeds of the voucher from the paymaster, Pangilinan gave the
entire amount of P166.67 to the accused in the presence of his co-employees in the afternoon of
October 30, 1974 (Decision of the trial court, pp. 30-32, appellant's brief).

From the above, it can be seen that the petitioner could not possibly be guilty of wilfully, unlawfully,
and feloniously preparing the complainant's voucher, considering that it was his official duty to do so.
He prepared the voucher of Wilfredo Cadua in the amount of P166.67 for the month of October.
There was no alteration made in the amount stated in the voucher because the stated amount is the
correct salary of the complainant for that period. It was not the petitioner who presented the voucher
for payment but their office messenger, Pangilinan. The appellant did not misappropriate the full
amount of P166.67 nor did he refuse or continue to refuse to remit the amount. In fact, he handed to
Wilfredo Cadua the amount of P100.00 on that same day while, at the same time informing Cadua
that he was borrowing the amount of P66.67 for his x-ray expense. On November 10, 1974, the
appellant paid the complaining witness the amount of P66.67 upon the advise of the chief of the
Olongapo City Fire Department.

The evidence adduced by the prosecution is, therefore, entirely different from what the information
alleges.

In the instant case, there is no direct evidence showing that Bartolome G. Alonzo himself forged
Cadua's signature on the original voucher. Nobody actually saw him affix the alleged signature (See
Ranon v. Court of Appeals, 135 SCRA 495; and Cesar v. Sandiganbayan, 134 SCRA 105). Even
Rogelio Pangilinan. who was responsible for routing the voucher to all those who had a hand in
approving the same could not categorically state that he saw the accused forge complainant's
signature. We quote Pangilinan's testimony:

Q When he gave this voucher, was Exhibit A-6 already present?

A Yes, sir.

Q How about Exhibit A-8 (Fiscal referring to the signature of Wilfredo Cadua)?

A None yet sir, because this voucher cannot be released if that is already signed. (t.s.n.,
page 4, hearing of Nov. 9, 1977).

Q When he gave it back to you, was the receipt portion already signed, referring to Exhibit A-
B, was this already signed?

A Yes, sir.

Q Do you know who signed this particular portion?

A No, sir. (t.s.n., page 5 Id).

Q How about A-8, when it was affixed, were you present?

A No, sir. (t.s.n. p. 8, Id). (p. 40, Rollo).

More important, from the facts of the case as stated in the People's brief below, the forgery is
supposed to be on a voucher showing the amount of P100. 00. I t was this voucher which was
allegedly shown to the complainant. This second voucher had nothing to do with the original voucher
used to collect the salary. If there was such a second voucher, it was a non-official voucher used to
lull the complainant into believing his salary was only P100.00. However, this story of a supposed
forged document does not explain how the complainant could have been hoodwinked because the
original voucher for P166.67 carried his correct salary.

The fact that the petitioner prepared the voucher, considering it was his official duty to prepare the
payroll, vouchers, and other documents assigned to him is not a sufficient reason for the respondent
court to conclude that "there is no doubt that the forgery or falsification was effected by the
appellant." Unfortunately, the respondent court mistakenly applied the rule that: "one found in
possession of and who used a forged document is the forger or the one who caused the forgery and,
therefore, is guilty of falsification (See Alarcon v. Court of Appeals, 19 SCRA 688). The accused is
entitled to the constitutional presumption of innocence especially where the evidence on the alleged
forged voucher is extremely doubtful. As held in the case of People v. Clores, (125 SCRA 67):

xxx xxx xxx

... Every circumstance against guilt and in favor of innocence must be considered. Suspicion
no matter how strong should not sway judgment, for well-established is the rule that the
prosecution must rely on the strength of its evidence and not on the weakness of the
defense; that appellants need not prove their innocence because that is presumed; that the
presumption of innocence is a conclusion of law in favor of the accused, whereby his
innocence is not only established but continues until sufficient evidence is introduced to
overcome the proof which the law has created that is, his innocence; that conscience must
 be satisfied that defendant has been proven guilty of the offense charged. Only by proof
beyond reasonable doubt which requires moral certainty, "a certainty that convinces and
satisfies the reason and conscience of those who are to act upon it" may the presumption of
innocence be overcome. (People v. Inguito, 117 SCRA 641, 649). (at p. 75).

Furthermore, Cadua's intention in filing a complaint against the petitioner was to get even against the
chief of their Fire Department.

The records disclose that at around 7 o'clock in the evening of October 30, 1974, Wilfredo Cadua
approached the Fire Chief and complained that he received less than what appeared in the voucher.
He actually never complained why his signature was falsified nor did he complain that the accused
falsified his signature. Much less was any mention made about another voucher with only P100.00
entered as the amount. The next morning, Cadua and the accused had a confrontation in the
presence of the Fire Chief. After explaining the circumstances of the loan, the Fire Chief advised the
accused to return the amount loaned. On November 10, 1974, the accused returned the amount to
Cadua in the presence of the Fire Chief. It was only four months after this incident that Wilfredo
Cadua filed a complaint against the accused. The reason why he filed the case is clearly manifested
in his cross-examination which we quote hereunder:

ATTY. DANTE:

Q When you filed this case in the Fiscal's Office was the P66.67 already paid?

A Yes, sir.

Q Why did you still file if you were already paid?

A Because I wanted to file a case against him.

Q Or you want to file a case because you were dismissed and the accused is related to Chief
Magbutay?

A Yes. (t.s.n., p. 39, testimony of Wilfredo Cadua, hearing of October 11, 1976). Emphasis
supplied. (Appellant's brief, p. 16).

With the above admission, it is clear that the filing of the complaint was merely
an afterthought arising from the non-renewal of the complainant's appointment by the Fire Chief who
is related to the accused. When the accused informed the complainant that he had nothing to do
with the non-renewal of the latter's appointment, the complainant executed an affidavit of desistance.
It is true that an affidavit of desistance by the complainant is not looked upon with favor. It may,
however, create serious doubts as to the liability of the accused (Gomez v. Intermediate Appellate
Court, 135 SCRA 620). In this particular case, it corroborates the appellant's explanation about the
filing of the criminal charges.

Considering all the foregoing, we are constrained to rule that the evidence on record cannot sustain
a verdict of guilt beyond reasonable doubt.

WHEREFORE, the petition is hereby GRANTED. The judgment of the respondent court is
REVERSED and SET ASIDE. The petitioner is ACQUITTED on grounds of reasonable doubt.

SO ORDERED.
 THIRD DIVISION

G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING CORPORATION, Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a direct recourse from the Regional Trial Court (RTC) via petition1 for review on the
question of whether Section 52 of the Judicial Affidavit Rule (JAR) applies to hostile or adverse
witnesses. The petition seeks to annul and set aside the May 28, 20143 and August 27, 20144 Orders of the
RTC, Branch 139, Makati City in Civil Case No. 08-1028.

This case stemmed from a collection suit filed by China Banking Corporation (China Bank) against Ever
Electrical Manufacturing Company Inc. (Ever), the heirs of Go Tong, Vicente Go, George Go and petitioner
Ng Meng Tam sometime in December 2008. China Bank alleged that it granted Ever a loan amounting to
P5,532,331.63. The loan was allegedly backed by two surety agreements executed by Vicente, George and
petitioner in its favor, each for P5,000,000.00, and dated December 9, 1993 and May 3, 1995,
respectively. When Ever defaulted in its payment, China Bank sent demand letters collectively addressed to
George, Vicente and petitioner. The demands were unanswered. China Bank filed the complaint for
collection docketed as Civil Case No. 08-1028, which was raffled off to RTC Branch 62, Makati City.

In his Answer, petitioner alleged that the surety agreements were null and void since these were executed
before the loan was granted in 2004. Petitioner posited that the surety agreements were contracts of
adhesion to be construed against the entity which drafted the same. Petitioner also alleged that he did not
receive any demand letter.

In the course of the proceedings, petitioner moved that his affirmative defenses be heard by the RTC on the
ground that the suit is barred by the statute of limitations and laches.5 The motion was denied by the
court.6 On appeal, the Court of Appeals (CA) in its December 22, 2010 Decision7 ruled that a preliminary
hearing was proper pursuant to Section 6,8 Rule 16 of the Rules of Court due to the grounds cited by
petitioner. There being no appeal, the decision became final and executory on August 28, 2011.9 redarc law

On March 15, 2011, petitioner served interrogatories to parties10 pursuant to Sections 111 and 6,12 Rule 25 of
the Rules of Court to China Bank and required Mr. George C. Yap, Account Officer of the Account
Management Group, to answer.

On June 22, 2011, George Yap executed his answers to interrogatories to parties.13 re darclaw

In the meantime, having failed mediation and judicial dispute resolution, Civil Case No. 08-1028 was re-
raffled off to RTC Branch 139, Makati City.

Petitioner again moved for the hearing of his affirmative defenses. Because he found Yap’s answers to the
interrogatories to parties evasive and not responsive, petitioner applied for the issuance of a
subpoena duces tecum and ad testificandum against George Yap pursuant to Section 6,14 Rule 25 of the
Revised Rules of Court.

On April 29, 2014, when the case was called for the presentation of George Yap as a witness, China Bank
objected citing Section 5 of the JAR. China Bank said that Yap cannot be compelled to testify in court
because petitioner did not obtain and present George Yap’s judicial affidavit. The RTC required the parties
to submit their motions on the issue of whether the preparation of a judicial affidavit by George Yap as an
adverse or hostile witness is an exception to the judicial affidavit rule.15
reda rclaw

Petitioner contended that Section 5 does not apply to Yap because it specifically excludes adverse party
witnesses and hostile witnesses from its application. Petitioner insists that Yap needed to be called to the
stand so that he may be qualified as a hostile witness pursuant to the Rules of Court.

China Bank, on the other hand, stated that petitioner’s characterization of Yap’s answers to the
interrogatories to parties as ambiguous and evasive is a declaration of what type of witness Yap is. It
theorizes that the interrogatories to parties answered by Yap serve as the judicial affidavit and there is no
need for Yap to be qualified as a hostile witness.

In its May 28, 2014 Order, the RTC denied for lack of merit petitioner’s motion to examine Yap without
executing a judicial affidavit. The RTC in interpreting Section 5 of the JAR stated: LawlibraryofCR Alaw

x x x The aforementioned provision, which allows the requesting party to avail himself of the provisions of
Rule 21 of the Rules of Court finds applicability to: (a) a government employee or official, or the requested
witness, who is neither the witness of the adverse party nor a hostile witness and (b) who unjustifiably
declines to execute a judicial affidavitor refuses without just cause to make the relevant books, documents,
or other things under his control available for copying, authentication, and eventual production in court.

In the case at bar, witness George Yap is being utilized as an adverse witness for the [petitioner]. Moreover,
there was no showing that he unjustifiably declines to execute a judicial affidavit. In fact, it was [China
Bank]’s counsel who insisted that said witness’ judicial affidavit be taken. Thus, Section 5 of the [JAR] which
[petitioner] invoked to exempt him from the Rule finds no application. Unless there is contrary ruling on the
matter by the Supreme Court, this court has no choice but to implement the rule as written.

On this note, this Court also finds no merit on the contention of [China Bank] that the answer to the written
interrogatories by witness George Yap already constitutes his judicial affidavit. Inasmuch as the Court
strictly implemented the [JAR] on the part of [petitioner], so shall it rule in the same manner on the part of
[China Bank]. As correctly pointed out by [petitioner], the said answer to interrogatories does not comply
with Section 3 of the [JAR] which provides for the contents of the judicial affidavit.16

In essence, the RTC ruled that Section 5 did not apply to Yap since he was an adverse witness and he did
not unjustifiably decline to execute a judicial affidavit. It stated:
Lawlibra ryofCRAlaw

In view of the foregoing, the motion of the [petitioner] that witness George Yap be examined without
executing a Judicial Affidavit is hereby DENIED FOR LACK OF MERIT.17

Petitioner moved for reconsideration but it was denied by the RTC in its August 27, 2014 Order.18 The RTC
reiterated its position and stated:
Lawlib raryofCR Alaw

It must be pointed out that the [petitioner] [was] the [one] who invoked the provisions of Section 5 of the
[JAR] to compel the attendance of witness George Yap and as such, it is their duty to show the applicability
of the said provisions to the case at bar. As stated in the challenged Order, Section 5 of the [JAR] finds
applicability to: (a) a government employee or official, or the requested witness, who is neither the witness
of the adverse party nor a hostile witness and (b) who unjustifiably declines to execute a judicial affidavit or
refuses without just cause to make the relevant books, documents, or other things under his control
available for copying, authentication, and eventual production in court. In the case at bar, [petitioner]
[does] not deny that witness George Yap is to be utilized as [his] adverse witness. On this score alone, it is
clear that the provisions invoked do not apply.19

The RTC stressed that Section 5 of the JAR required the requested witness’ refusal to be unjustifiable. It
stated:Lawlib raryofCRAlaw

x x x the [JAR] requires that the refusal must be unjustifiable and without just cause. It must be pointed
out that [China Bank]’s previous motions to quash the subpoena was grounded on the claim that having
already submitted to this court his sworn written interrogatories, his being compelled to testify would be
unreasonable, oppressive and pure harassment. Thus, witness’ refusal to testify cannot be considered
unjustifiable since he raised valid grounds.20

Hence, this petition.

Petitioner contends that the RTC committed a grave error when it interpreted Section 5 to include adverse
party and hostile witnesses. Based on the wording of Section 5, adverse party and hostile witnesses are
clearly excluded.

China Bank asserts that Yap neither refused unjustifiably nor without just cause refused to a judicial
affidavit. It cited the RTC’s August 27, 2014 Order where the court said that Yap had answered the
interrogatories and to compel him to testify in open court would be “unreasonable, oppressive and pure
harassment.” Moreover, it stated that based on the language used by Section 2 of the JAR the filing of
judicial affidavits is mandatory.

The petition is anchored on the following arguments: Lawl ibra ryofCRAlaw

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5 OF THE [JAR]
CONTRARY TO ITS WORDINGS.

II

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5 [OF THE JAR]
CONTRARY TO ITS PRACTICAL INTENTION AND COMMON SENSE.

III

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT EFFECTIVELY DISREGARDED THE RELEVANT
RULES ON MODE OF DISCOVERY WHICH GOVERN THE PRESENTATION OF ADVERSE WITNESSES.

IV

ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATI’S INTERPRETATION AND APPLICATION OF
SEC. 5 OF THE [JAR] IS CORRECT (I.E., THAT OPPOSING PARTY WHO INTENDS TO PRESENT ADVERSE OR
HOSTILE WITNESS MUST GET AND SUBMIT THAT WITNESS’ JUDICIAL AFFIDAVIT NO MATTER WHAT) IT IS
HUMBLY SUBMITTED, WITH THE UTMOST INDULGENCE OF THE HONORABLE SUPREME COURT, THAT THE
SAME RULE BE IMPROVED OR AMENDED BY PROVIDING SANCTIONS IN THE EVENT THE ADVERSE OR
HOSTILE WITNESS REFUSES TO ANSWER OR EXECUTE JUDICIAL AFFIDAVIT AS REQUIRED BY THE
OPPOSING PARTY.21

We grant the petition.

THE JUDICIAL AFFIDAVIT RULE

APPLIES TO PENDING CASES

On September 4, 2012, the JAR was promulgated to address case congestion and delays in courts. To this
end, it seeks to reduce the time needed to take witnesses’ testimonies.22 The JAR took effect on January 1,
2013 and would also apply to pending cases pursuant to Section 12 to wit: Lawlib raryofCRAlaw

Sec. 12. Effectivity. – This rule shall take effect on January 1, 2013 following its publication in two
newspapers of general circulation not later than September 15, 2012. It shall also apply to existing
cases. (Emphasis supplied)

The Court En Banc gave public prosecutors in first and second level courts one year of modified
compliance.23 The JAR thus took full effect on January 1, 2014.

Here, parties were presenting their evidence for the RTC’s consideration when the JAR took
effect. Therefore, pursuant to Section 12 the JAR applies to the present collection suit.

SECTION 5 OF THE JAR DOES NOT

APPLY TO ADVERSE PARTY WITNESSES

The JAR primarily affects the manner by which evidence is presented in court. Section 2(a) of the JAR
provides that judicial affidavits are mandatorily filed by parties to a case except in small claims
cases. These judicial affidavits take the place of direct testimony in court. It provides: Lawli bra ryofCRAlaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. – (a) The parties shall file
with the court and serve on the adverse party, personally or by licensed courier service, not later than five
days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and
incidents, the following:Lawli bra ryofCRAlaw
(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses’ direct testimonies;
and

(2) The parties’ documentary or object evidence, if any, which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the defendant.

xxxx

Section 324 of the JAR enumerates the content of a judicial affidavit.

Under Section 10,25 parties are to be penalized if they do not conform to the provisions of the JAR. Parties
are however allowed to resort to the application of a subpoena pursuant to Rule 21 of the Rules of Court in
Section 5 of the JAR in certain situations. Section 5 provides: Law lib raryofCRAlaw

Sec. 5. Subpoena. – If the government employee or official, or the requested witness, who is neither the
witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or
refuses without just cause to make the relevant books, documents, or other things under his control
available for copying, authentication, and eventual production in court, the requesting party may avail
himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court.
The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking
his deposition except that the taking of a judicial affidavit shal1 be understood to be ex parte.

While we agree with the RTC that Section 5 has no application to Yap as he was presented as a hostile
witness we cannot agree that there is need for a finding that witness unjustifiably refused to execute a
judicial affidavit.

Section 5 of the JAR contemplates a situation where there is a (a) government employee or official or (b)
requested witness who is not the (1) adverse party’s witness nor (2) a hostile witness. If this person either
(a) unjustifiably declines to execute a judicial affidavit or (b) refuses without just cause to make the relevant
documents available to the other party and its presentation to court, Section 5 allows the requesting party
to avail of issuance of subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. Thus,
adverse party witnesses and hostile witnesses being excluded they are not covered by Section 5. Expressio
unius est exclusion alterius: the express mention of one person, thing, or consequence implies the exclusion
of all others.26
reda rclaw

Here, Yap is a requested witness who is the adverse party’s witness. Regardless of whether he unjustifiably
declines to execute a judicial affidavit or refuses without just cause to present the documents, Section 5
cannot be made to apply to him for the reason that he is included in a group of individuals expressly exempt
from the provision’s application.

The situation created before us begs the question: if the requested witness is the adverse party’s witness or
a hostile witness, what procedure should be followed?

The JAR being silent on this point, we turn to the provisions governing the rules on evidence covering hostile
witnesses specially Section 12, Rule 132 of the Rules of Court which provides: Lawlib ra ryofCRAlaw

SEC. 12. Party may not impeach his own witness. – Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing
of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the
witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by
the party presenting him in all respects as if he had been called by the adverse party, except by evidence of
his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-
examination must only be on the subject matter of his examination-in-chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the party presenting the
adverse party witness must comply with Section 6, Rule 25 of the Rules of Court which provides: Law lib raryofCRAlaw
SEC. 6. Effect of failure to serve written interrogatories. – Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.

In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that “in civil cases, the procedure of
calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served
upon the latter.”28 There petitioners Spouses Afulugencia sought the issuance of a subpoena duces
tecum and ad testificandum to compel the officers of the bank to testify and bring documents pertaining to
the extrajudicial foreclosure and sale of a certain parcel of land. Metrobank moved to quash the issuance of
the subpoenas on the ground of non-compliance with Section 6, Rule 25 of the Rules of Court. In quashing
the issuance of the subpoena, the Court reminded litigants that the depositions are a mechanism by which
fishing expeditions and delays may be avoided. Further written interrogatories aid the court in limiting
harassment and to focus on what is essential to a case. The Court stated: Lawlibra ryofCRAlaw

One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is there to
maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve
written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its
case if it later opts to call the adverse party to the witness stand as its witness. Instead, the process could
be treated as a fishing expedition or an attempt at delaying the proceedings; it produces no significant result
that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony, compelling the adverse
party to take the witness stand may result in the calling party damaging its own case. Otherwise stated, if a
party cannot elicit facts or information useful to its case through the facility of written interrogatories or
other mode of discovery, then the calling of the adverse party to the witness stand could only serve to
weaken its own case as a result of the calling party’s being bound by the adverse party’s testimony, which
may only be worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may limit the inquiry
to what is relevant, and thus prevent the calling party from straying or harassing the adverse party when it
takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or harassment; it likewise
prevents the calling party from conducting a fishing expedition or bungling its own case. Using its own
judgment and discretion, the court can hold its own in resolving a dispute, and need not bear witness to the
parties perpetrating unfair court practices such as fishing for evidence, badgering, or altogether ruining their
own cases. Ultimately, such unnecessary processes can only constitute a waste of the court’s precious time,
if not pointless entertainment.29 (Citation omitted)

In this case, parties, with the approval of the Court, furnished and answered interrogatories to parties
pursuant to Rule 25 of the Rules of Court. They therefore complied with Section 6 of Rule 25 of the Rules of
Court. Before the present controversy arose, the RTC had already issued subpoenas for Yap to testify and
produce documents. He was called to the witness stand when China Bank interposed its objection for non-
compliance with Section 5 of the JAR. Having established that Yap, as an adverse party witness, is not
within Section 5 of the JAR’s scope, the rules in presentation of adverse party witnesses as provided for
under the Rules of Court shall apply. In keeping with this Court’s decision in Afulugencia,there is no reason
for the RTC not to proceed with the presentation of Yap as a witness.

In sum, Section 5 of the JAR expressly excludes from its application adverse party and hostile
witnesses. For the presentation of these types of witnesses, the provisions on the Rules of Court under the
Revised Rules of Evidence and all other correlative rules including the modes of deposition and discovery
rules shall apply.

WHEREFORE, the petition is GRANTED. The May 28, 2014 and August 27, 2014 Orders of the Regional
Trial Court, Branch 139, Makati City are hereby ANNULLED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED. cralawlawlibra ry